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R ^ COMMENTARIES ON THE Constitution of the United States HISTORICAL AXD JURIDICAL OBSERVATIONS UPON TIIK ORDIXARY PROVISIONS OF STATi: ( ONSTITITIONS AND A COMPARISON WITH TIIK CONSTITUTIONS OF OTIIKR COUNTRIES. ROGER FOSTER, OK THK NF.W Y*)HK llAK, AuTHoK OF A Thkatisk iiv FmiKitM. I'liAcTiri:, Ti:iai, iiy N'KWsrArBH, &c. AM> liKCTiitKii ON I'"i;iii:kat. .liuisri{ri>i:N< k at thk I-,A\v SiHooL oi' Vale I'nivkhsitv. Volume I. R O S T O N : THE BOSTON iU)()K COMPANY. Tor ON TO: THE CAKSWELL C. Ltd. im>. 3 4^-75 CdI'YIUIIHT, 1W)u, IIV llMill-.U FoSIKH. The right of IranMalwn mid nil otiwr rights rewned. i:iiter«l aceoidlDK to Act of tbe rarliameut of Canada, ia Ibo your or.o thousand eight humlred and ninoty-six by ItooRn Fokti ii, in th3 Offljeof tlij AliniRttr cf Acriculturo Prt-Hnwork «'iinu^sloii § ;17. ('ipiisliliilioiial History of tin' Hoiitlicni Coiifoilcracy § ;1H. ili'i'OMstrilrlioli § ;i!). Soat of SovniMKiitv in till' I'liili'il Stall's «! 10. Sovi'iriiiii rowers of tin' I'liiti''! Stall's In (ii'iii'ral J 41. State Sovorolguty anil Slate Itlnlits . KIM . lll> . lit; . lilt . Vi-y . 146 . 1.18 . 1C3 . IHO . 20.'; . aci!) . 270 . 273 Al'I'ENUIX TO C'HAl'Tlill II. An Aet ConciTiiiiiK Aliens 279 TheSeilitioii Law 2«1 Virginia Ui'soliil ions of 17'.m 2H2 KentiieUy llesoiutioMsof 17im 2H5 Kentucky Ui'Milut ions of 171111 21)1 First Onlinaiiee of Niillillnition 21)3 Suroad Urdiuunc'u of Nullllkatiou 296 CHAITKH III. THE TIIIlKi; llEl'AltTMENTS. § 42. Tlio tlireo Depart nients of the (toveriinient of the Unltod States j) 4!!. History of the (UassHieation of ('loM'rnmental Powers §44. Ileasons for thu Separation of the 'I'liiee Powers . § 45. Eiiuilibrium of tlio Throu Departments in the United States CIIAPTKU IV. <'ON(inKS.S IN OKNEHAL. §40. LI niitoil Powers of CocRiess 306 §47. Origin of ('on;,'ress 307 § 48. Proeeeilinns in Convention as to the C^imposition of Congress , . 312 103. §04. .f« § •'••'5 ~9 § 00 . 297 M <) '•< . 299 '1 § '''** . 302 1 § (i''' . 303 -J §49. S50. § 51. §r.2, §63. CHAPTEll V. TEHM OF MKMnr.RS op Tllf. IIOISE OF nEPIiF.SENTATmS. Term of Mi'mhers of the House of Itepresentativos . 316 CHAPTER VI. THE UKIHT OF SFFFRAOE. Provisions In the Feilenil Conslitiition eonccrning the Right of Suffrage 319 History of ronslitutional ProvlHlous as to the Right of Suffrage . 319 The Fifteenth .\menilnienL 326 Tho Power of Congress over tlio Right of Suffrage . . . .330 CONTKNT8. Yii Pni.'e . lOH . Ill) . mi . U'.t . va . 145 . l.W . 103 . IHti . '205 . 'iCi',) . 270 . 273 . 279 . 2H1 . 2H2 . 2H5 . 21)1 . 21)3 . 2U6 297 21)1) 302 303 306 307 312 316 Right of . 319 . 319 . 325 . 330 i^ 54. Lliiillntlons of the Fwleral ConBtltutloii on tho Powor of tlio Htates ovrr llio lllKlit of HuffrnRO 332 ^ nr,. r«iml Vrovislons of Slato CoiiHtltutloiis as ti> llio ItlKht of SuffriiKi) . 330 jj 5(1. ('oiiHlilulloimllly of UonlBlriitloii LiiwH 340 §57. Minoiil.v Kfprotionliitlou 3i'i I 5M. Tlif Iliillot !'•*■* § 5S). Ck-norul Obsenatlons upon the KIkIiI of Suffrugo .... 347 rHArxEii VII. NE(.'EHHARY QUALIFICATIONH I'OU KKNATOIW AND HETOEHESTATIVKS. § CO. CoiistiUitlomil rrovlHioiis ('(incoiiiinn Qiialllli'alioiis of McnilxTH of CoiiHri's:* •'•''• §01. Ilisloi-vof rrovlHloiiH fOiiecrnlnK Quallllcatlons of MoinberH of Cou- ^r,-,.SH 356 § 02. CoiiK'n-Hsional Di'flslons on Quullllfations of Hcnutors and Bopri'siMi- tatlvoa . 30a CHAl'TER VIII. Ari'OIll lONMKNT OF HEPllESKNTATIVKS AMI DIItECT TAXES. §03. t'onsUtulional ProvisiouK conoernlnn ApportioniiitMit of Represonta- tivi's and Diri'ct Taxf'S 369 § C4. Hinloiy of tlu' ("laiiso concpniinK llic AppoiUoninont of Representa- tives niul Diieet Ta.xes 370 §05. Manner of Apportioiinient 393 §00. Revisicm of Apportioiinienls liy llio Courts ...... 398 § 07. The CiMsus 410 § OH. History of tli(( Apportionment of Direct Ta.M's under the Constitution 413 § 09. Direet Taxes ■ll'"> Al'l'ENDIX TO C'H.\PTi:lt VIII. Jefferson's Opinion on tlio Appoilioniiieiit of 1792 . . . .424 Wclister's Report to tlio Senate on t lie Aii|K)rlionnu>nt of 1832 . . 430 CHAl'TER IX. VAOAXriEM IN THE nOfSE OF IlEI'llRSENTATIVIM AND KESKl.NATIONS FKOlf (■ON(iIii;s.S. § 70. Vaeaiicies in tho Houso of Representatives 417 § 71. Re.si(;nation8 from Congress 448 CHAl'TER X. Rl'EAKEU AND OTHEU OPFI('EIt.S OF 'niE HOl'SE OP REPRESENTATIVES. §72. The Speaker of the House 451 § 73. Other Ofllcers of tho Houso -ISa CHAPTER XI. THE HENATE. § 74. Constitutional Provisions concerning tho Senate 457 § 75. Origin of tho Senate • • • • -t"'-* COKTKNT8. Purb i! "<>. I'l, .^ppilliinH in till' Focloriil Cunvontlon conoernlnK tlio CoinpoBltioii or tlii-Si'Mittn 4011 S 77. KiMia'diial Kl.'ctloiiH 172 i( 7H. Cla.sHillcalloij of till' Si'iiiit IHII § 7!). FllliiiK Vai'aiK'loH In tlinSi'imti- 184 § HO. (k'urral OliHorvntloiiH on till- Hcnnio 491 CHAITKU XII. THE PiaSi'nin« tin) rri'wldcMirv ainl OfllciTH of .luiSiMuilK 49!) j S'2. Mlwloiy of tlio rrovlsions as to llii" I'ri'slilfMic.v and OHIcith of the Ki'iiato 490 § m:1. rowi-iH of till- Vlci'-i'ipsidcnl oviT till' Senate fiO() i! H4. The President pro ternjiore of the Senate fiOa § S5. Other Omcer.H of the Senate 504 CIlAriKU XIII. ISIfEACItMKNT. jS 80. rrovisioiiH of the Const Itiil ion roneerninu IiMpeachmont § K7. (29 noo 574 581 000 002 con 000 007 010 012 012 oi;t 014 010 Olfi 019 021 022 020 t;28 63U o;i;j ,/5«.i^7 COMMENTARIES UN THI CONSTITUTION OF THE UNITED STATES, HISTORICAL AND JURIDICiL. CHAPTER I. IXTRODUCTIOX. § 1. Paper CoiiHtitiitiotiN. Paper constitutions liave l)een the target for the ridicule of most writoin duriuf^ the i)resent century who have thought themni'Ives political philosophere. Unstable as water, they can- not excel, has been the judgment upon tlier. by historians.' " Have you a copy of the French Constitution?" was asked of a booksillcr (hiring the se(M)nd French Republic. " Wo do not deal in periodical literature," was the rei)ly.* In the United States, and only in the U'nited States, has a written constitution survived a hundred yeare, while during the same time the forms of the gov- ernments of all other nations have changed more often and more radically than have their respective boundaries. What are the § 1. 1 As lato as 1814, ovon Oouvor- neur Morris was sceptical. He wrote, In a letter to Timothy Pickering, Dec. 22, 1K14: — " But, after nil, what does It sig- nify that men should have a written consUtution, contaiDlng unequivocal provisions and limitations ? The leg- islative lion will not be entangled In the mealies of a logical net The leg- islatiiro win always maico the power which it wishes to exercise, unless It bo so organized as to contain within Itself the sufficient checli. Attempts to restrain it from outrage, by other means, will only render It more out- rageous. Tiio Idea of binding Ifgia- lators by oaths Is puerile. Having sworn to exercise tlia powers granted, according to their true intent and meaning, they will, when they feel a desire to go farther, ovoid the sliamn, if not the guilt, of perjury, by swear- ing the true intent and meaning to be, according to their comprehension, thot which suits their purpose." 2 In the preceding century a similar question was answered by the offer of the Almanach Royal. INTUODUCTIOX. [chap. I. I'oasons for this phenomenon ? How many of them are to be found ill jji-ucediuf^ history? How many in geographical ijosition? How lias the Constitution been affected by the origin of the colonists? How much by the subsequent immigration from all parts of tiie Old World ? To what extent has the Constitution been altered, besides the acknowledged changes contained in the fifteen amendments ? What are the advantages of this form of government? What beneiits has it secured? What abuses has it perpetuated? Wliat evils has it prevented? How far is it suitable to other countries? Why have its imitations failed in South and Central America? The answera to these questions should be of use to our own countrymen in order to show them what rules must be observed to preserve the stability of our institutions. In the constant re- making of the constitutions of Europe, South America, and even Asia, Africa, and the Pacific islands, they should teach statesmen the 2)itfalls to avoid and the paths to seek for the permanent security of botii liberty and property. These can be found oidy by an exhaustive study of the precedents which are landmarks of the progress in the development of the Constitution of the Ignited St;ites before as well as since its adoption. They lead from the forests of Germany in the time of Tacitus, over the island of Runnymede and the rock at Plymoulh, beyond the ajjple-tree at Appomatox into tiie old Senate Chamber at Wasiiington, where Cliief Justice Fuller sits with his associates. They were the result of conlliets with tiie sword, the pen, and the tongue, in the field, the jiress, the senate, and the court. Amongst their buildera are enrolled tiie names of Simon de Montfort, Cok(!, Eliot, Hamp- den, Lilburne, j\Iilt(m, Siiaftesbury, Locke, Wilkes, Jeffei-son, Hamilton, Marshall, Webster, and Lincoln. They ju'cscnt the spectacle of tiie struggles of a people to obtain civil and religious liberty for themselves, to extend them to those of another and despised race, and now to combine them with the rights to un- goveined labor and complete security for private property. I)r}- as the account nuist be in a summary which omits a description of the battles, and does not contain the jierioils of eloquence and I):ission used by the combatants on either side of the di.«putes thus decided, the facts cannot fail to be of interest to all wlio take the pleasure of the antiquary in tracing the origin of presiiut [chap. 1. be found 11 ? How iolonists? )f the Old d, besides iitbnents ? ,? What petuated ? to other d Central use to our i observed nstaiit re- and even statesmen lit security lily by an .rks of the ;he United from the ; island of )ple-treo at ton, where ' -were the gu(!, in the •ir builders iot, Hamp- Jeffei'son, U'esent the id religious iiother and prhta to un- )erty. Dr>- deseription queneo and itiputes thus 11 who tako of iireseiifc 8^-] HOSTILITY TO THE FEDERAL CONSTITUTION. S eiisioii's, or who desire from the study of the past t" shape the iuture lor the advance of man. ^ 2. Hostility to the Federal Constitution. It was well said by John Quiney Adams that the Constitution was "extorted from the grinding necessity of a reluctant nation.'' ^ It was accepted by a small majority as the only alternative to dis- ruption and anarchy. Its ratilication was the success of the men v.luj were interested in the security of property, the maintenance i)f order, and the enforcement of obligations against those who (lisired communism, lawlessness and repudiation. It was a con- ilirt ' tween the cities and the backwoods, between the iiioun- l liiis anil the plains.^ And the opposition was led by those cliques :;!i(l families who had learned to control for their private in- terests the state patronage of which the new government must necessarily deprive them.^ The battle was waged on the stump and by pamphleteering, ami g.ive birth to that great repository of political science. The Fedoralist.* Two States refused to agree until after it had gone into successful operation, and the rest threatened severe retaliation in order to compel their coalition. Five of the other nine ratified with expressions of disapproval of its terms and a demand for subsequent amendments.'' In but three*' was it adopted with- § 2. > .lubileo of tho Constitution, by John Qiiincy Adams, p. 55 '' For iiM aiinlysis ipf llio votoon tlio ralilli'atioii of tho Constitution, bco Till" (Icoi^iaphii'ai Di«lrii)iitiun of tho vnt, on tlio Fi'donil Constitution, tiy O. (., Lil)l]y ; Buili'tin of tin' I'nivtT- sit'- of ■iVJHconsln, vol. i. No. 1. ' Si'O Li'ttciH of a Lanillioldor, liy Olivi-r Ellswoilli, aftiuwards' Cliiof Justi'O of tlic Uidtod Stales, Lfttt>r il. Foid'8 Essays on the Coimtltutiou, pp. 144, 17(!. * Valuiililo collocllons aro Paniph- lOts on tlio Constitution, and Essays on tho Consiiiulion, editod Iiy I'anl Loii-ostor Ford. Olhors may lio found In MoJIastur and Slouo ou Touu- sylvanla and Tho Fedoral Constitu- tion. Tho latter contains ono which sooms to 1: .uid nioro induonco than any oxci j>t tho Federalist: Tlio Now Roof, l.y Francis Ilopkin.son ; an excellent imitation of Swift's Tale of a Tub. ^ Massachusetts, South CaroiUua, New Hampshire, Virginia, New York. " New Jersey, Delaware, and Geor- gia. Tho last niM'ded iirotootion fnuu an Indian war then threatened; tlio othcis, relief fmm tho State ini|io^.ts at New York and rhiladelphln. Dil.i- ware, moreover, which was even tli'ii a pocket borough, welccuiicd the ]io- litical advantage of the ]ieniiancnt security of two seats iu tlio Seuato. INTRODUCTION. [CIIAP. I. out a struggle. In several, success was only obtained by the application of force, threats, or stratagem. In Connecticut, they silenced with fcir and feathers an anti-federtilist delegate who tried to talk out the Convention.' A majority of the New Hampshire delegates were determined or instructed to vote against ratification, and at the firet session the federalists considered a vote for an adjournment of three months a victory. At the second, while some of its opponents were "detained" at dinner, the Constitution was ratified by a snap vote, taken at sharp one o'clock.* The legis- lature of Pennsylvania obtained a quorum to call the State Con- vention by the unwilling presence of two members, dragged to the meeting by a mob who prevented their leaving the house.® In the State of New York, a majority of the Convention was anti-federal ; and victory was won bj' the threat of Hamilton, that in case of defeat New York, Kings, and Westchester would ratify the Constitution as an independent state and leave the northern counties alone unprotected from foreign enemies, without any outlet for their commerce to the sea.^" The charge was believed, if not ' My authority for this Is that no- complishiHl student of Ani(>rlpan his- tory, Paul Lcii'ostoi- Fonl, Esq., from whom I havn al-o rot'elvod olhor vahialilo Information as to tho history of this poriod. ' A contemporary undated Indorso- roont on a letter of Ajiril 2.'t, 17S8, by Palno Wlni;ati"toJohn Sulllvau, Presi- dont of Now Harapshiro, says : " You soo that all tho mombors did not vote, only 104. Tho others, TimoHiy Walitor detained a\, his homo In this city, after ho had given tliom a dinner, lo prevent them from voting — or u number of tliem." New Hamp- BhlroHUite Papers, vol. xxi, j). 851. Tlio means of detention aro unlinown. Ae- cordlui^ to tradition. Judge Walker n'fuKid lo admit tl\o meHseuger sent Vy tho ConvcMition to Hunimon the ali- senl niemliers, and wlu^n tho latter persisted, threatened to set tho do(?8 on him. For this Information tho writer Is Indebted to tho historian of tho Convention, Hon. Joseph B. AVallcor. Daniel Webstor's father, Capt. Pelatlaii Webstor, was a mem- ber of tho Convention, and in his old ago repeated to his family a speeeh wldch ho claimed that ha delivered when ho voted for tlio Constitution (Curtis, Lite of Web.stcr, vol. 1, p. 10, note). Tho records show, however, that his constituents Instructed him to oi)poso ratification, and that ho did not vote tipon tho question. (Walker, New Hampshire and tho Federal Convention.) » A re])ort of tlio procotxllngs and deliato is to bo found In Proceed- ings and Debates of tho General Assembly of Pennsylvania, takon in shorthand by TImmas Lloyd, Ptdla- delphia, 1787, vol. 1, p. 115; roi)rlnted and corrected in Pennsylvania and tho Federal Constitution, by Johti Rach MeMnster and Frederick D. Stono, ch. 11, pp. 27-73. w Letter of Georgo Clinton to John §2.] HOSTILITY TO THE FEDERAL CONSTITUTION. jjroved, that the Federalists prevented the circulaticn of the news- papers of the opposition with the mails.'* And in Pennsylvania and Maryland they suppressed, by purchase and boycott, the reports of the debates in the State Conventions.*^ The Federal Convention itself held its debates in secret for fear lest the public should become so excited that there would be no hope of any successful result of the deliberations. Twice at least was it on tlie point of breaking up in despair. So little hope did there seem of any practical result, that at last the sceptic Franklin advised his colleagues to take refuge in pr.iyer.** Even at the end, it was the belief of the strongest supporters of the CoiLstitution, that it could not held the country together for more than a few years." Elements of discord abounded in that small assembly. The States which were prominent in wealth and population protested against the injustice of vesting tlie control elsewhere than in a majority of jiopulation or of property. The smsxller States, wliifh in the Continentiil Congress and under the Confederation had an eciual vote, insisted that they would never surrender the right wliich they had thus obttiined. The communities Laral), Clinton MS8., Now York State Libra rj. " r(!nn8ylvanla and The Fede- rn.l Constitution by McMaster and Stoiio. 1- Il)ld 5Iy Information as to Maryland Is also dorlvod from Mr. Forcl. " JladlHon rnpoi'B, Elliot's Debates, 2(1 <>(!., vol. V, 1). '253. " (Toiivornour Jlorris wrote Walsh, Fob. 5, 1811 : "Fond, howovor, as Ihdfoiindcrsof our national Conatltu- tlon were of ri'puliUcan government they \v(uo not ko much blinded by their attachment as not to dlscom the (lUTloully, porhaps Impracticabil- ity, of raising a durable oiiifloo from criimblinK niiiti-rlals. History, the paroiit of polllioul science, had told them that it was almost as vain to expect permanency from democracy as to conBtruct a palace on the sur- face of the sea." In the same letter, Morris said of Hamilton: "General Hamilton had little share In forming the Constitution. lie rllsliked it, be- lieving all republican governments to be radically ilofe(;tive. Ho ad- mired, nevertheless, the Britlali Con- stitution, which I conKidor an aris- tocracy in fact, thougli a -half; Virginia threc-flflhs; FoDDsylvanla nimrly thu wholo; and New York, which dorivod a largo roveniio from an impoRt, nioro than thoir rospooti'O quota. (Ham- ilton, in the Now York li'Klslnturo, in favor of a national impost, 1 Amorlcau Museum, 446-448.) §3.] AXAHCHY IMIKCKDINO THE KEDEUAL CONVENTION'. risked their lives and wasted their estates in tlio struggle with (Jreat Britiiin. The need of a federal judiciary had been jjiiin- fully apparent throughout the war, from the technical inconven- icnees caused by the condenuiation of prizes in State courts of admiralty, some of whom would not respect acts of Congress un- less first adopted by the individual State legislatures. After tlie war, the observance of those articles of the Treaty of Peace which jirotected the jiroperty of the Tories and debta due British sub- jicts, was prevented by acts passed by the Stiite legislatures in opposition to them, whicli in many instances the Sfcite courts respected. This gave Great IJritiiin an excuse for keejjing garri- soiiB in different posts of the United States and in refusing to confoiTn to other articles by whicii she was bound. At the same time tlie debtor class, which had been such an important factor in the revolution,^ manifested a similar market-place of Spartii.^ Conventions were lield where it was claimed that all property ought to be held in common, because all ' Soo Sumnor's Llfo of Hamil- ton, pp. 47-52. John Adams rooorda tlirit. on liirt return from Congress In 1774, an old oliont warmly congratu- lated lilni u];on the glorious work of Cou;;reKB In onoo more suspending the ootirts. Works, vol. 11, p. 4i!0. "When AiKlrew Jackson moved to West Tenni'Hseo In 17K8, ho found but ono other lawyer there. The latter had hocn retained by the members of the debtor class, who were very powerful In that frontier community, so that the croditora could not use legal process to collect what was due them. Attempts were made to drive Jackson from the State for taking collection cases ; but he was not to be Intimidated, and so obtained an as- sured practice at his start. Kendall's Life of Jackson, pp. 83-90. * The name was then. In common use. 8eo Letters of a Federal Farmer, by B. H. Lob, p. 37 ; Ford's Pamph- lets on the Constitution, p. 32. ' Plutarch's Llfo of Agis. 8 INTRODUCTION. [chap. I. had aided in saving it from confiscatiftn by the power of England.* Tcxes were voted to Iw needless burdens, courts of justice to be intolerable grievances, and lawyers a common nuisance.^ These doctrines were embraced by at least twelve thousand men in the New England States, with correspondents in the South, prepared to enforce tliem by the ballot if that were practicable, otherwise by an appeal to arms.' Such an appeal was made in Massachu- setts in tlie fall of 178(5, by the outbreak known as Shay's llebel- lion. Fifteen hundred men under the leadership of Captain Daniel Shay met in the counties of Worcester and Hampshire. The coui-ts of justice Avere the firet objects of their attack, and their sessions were forcil)ly closed. When tiie first body of militia met them on the field, many of the militiamen changed sides and joined tho insurgents. Congress liad no power under the Articles of Con- federation to afford nlief." Wlieu the rebellion was threatened it refused even tlie loan of arms.'" Wlien tlie civil war broke out • Seo Miulisoii's romiiiks in tho Federal Convention. Miulison Papers, Elliot's Deljutes, 2il od., vol. v, p. -103. ' Curtis' Constitutioniil History of tho United Slates, vol. i, p. IKl. * This was tho estimate of (Jennnil Knox. Suo II letter from Washington to Madison, Wabhingtuu's Worlis, 1st ud., p. 207, cited by Curtis, ibid., vol. 1, p. 184. At about llie samn time nttempts similar to tliat of Sliay were mndo in New Hampshire, Vrrmont, Conueelieul, and Jlarylaiul. ' "A |>o\ver to interfere in tlio in- teniid eo'.ieerns of a Siato eoulil oidy hive been e-Kereised liy a bro.id eon- struetioM of tiio tliird of the Ar;iilos o? Confeiieration, wliieli was i:i tlieso words: 'Tliesaid Slates luT-iiy sev- eraliy enter Into n firm leajjiie of friendsliip with oaeh otlier, for their eoniinon defence, tiie somirlty of tlieir lilnTtles, and tlieir lautual and gcu- er.il welfare; bindhin tliemselves to assist oaeh other against all foree of- fered to or attacks made npon tlieni, or any of them, on account of relig- i. :, sovereignty, trade, or any other jiroteneo whatever.' Wlien this is compared wllh tlio clear and oxi)lic.lt provision in tho Constitution, by which It is declared that ' tlie Uiutod suites sh;ill guarantee to every St.ite in this Union a republican furiii of government,' there can be no wonder that a uoulit was felt in tlio Coii;^ros8 of 17KIi-87 as to th<'ir powers iiih)-i this subject. It Is true that tlie JIi.s3.i- chusetts di'legation, wlien they laid before Congress the m<-asures wliich had bei-n taken liy the State g>)vern- ment to suppress the insurrection, exiiressi-d tlie cuiilldenci! of the l.'^ia- latiire tlial tlie (irmest support and mo.it elTeetual iild would have lieen afforded by the United Stales had it been nocessiirj-, and asserl'd that such support and aid were o.spressly and .solemnly stipulated by llio Ar- ticles of Confederation (.lournals, xU, 20, March !.", 1787). But this was clearly not tho ease ; and it was not generally supposed in Congress that tho power oxi.-rs oonio into the city, if tlio olllcers who had gone out to meet them could not stop them. Tho next day tho foldlois ai.'ived In tho city, lod by thi-lr sergeapis, and professing to have no other , inject than to obtaiu a settlement of ao- 10 INTIIODUCTION. [chap, Un:il)le to cuinmand either the purae or the sword, CongreBs was iilKUidfined by tlie ablest statesmen and politicians in tl>e coniitiy. The State legislatures ■ alone could raise by taxation the money which they appropriated, and in them and the oihces which they created ambitious men preferred to seek employment. Congress was so much despised that it became almost impossible to collect a quorum, and more than twenty-five delegates were rarely found there." At no time before the Federal Constitution were all the States represented at once.'^ The ill effects resulting from the inability of the United States to regulate commerce were, however, those which were most se- counte, which thoy supposed they had a Ipottcr chance for at FhUudolphla than at Lnncastor. On the 2l8t they ■wore drawn up In the street before the State IIouso, where Congress wore asscinliled. The Executive Council of the State, sitting under the same rocif, was called on for the proper In- tor|iosition. The president of the State (Dickinson) came In and ex- plained the dlfllculty of bringing out the militia of the place for the sup- pression of tlio mutiny. Ho thought that, without Eonio outrages on per- sons or i)roperty, the militia could not bo rolitnl on. General St. Clair, then In rhiladelphia, was sent for, and (iosiriKl to u.=o Ills Interposition, In order to prevail on the troops to icturn to tlic barraclcs. But his re- port gave no encouragement. In this posture of things it was proposed by Mr. Izard that Congress should ad- journ. Colonel Hamlllon proposed that General St. Clair, In concert \rlth tho Executive Council of the State, should taijo order for terminat- ing tlio nmtlny. Mr. Keed moved tliat tho general should endeavor to withdraw tho mutineers, by assuring them of the disposition of Cotigross to do them justice. Nothing, how- ever, was done. The soidlers re- ointned in their position, occasionally filtering offensive words and pointing their muskets at tho windows of Iho hall of Congress. At the usual hour of adjournment the members went out, without obstruction, and the soldiers retired to their barracks. In tho evening Congress reassembled, and appointed a comrnltteo to confer anew with the executive of the State. This conference produced nothing but a repetition of tho doubts concerning tho disposition of tho militia to act, unless some actual outrage wore of- fered to persons or property, tho Insult to Congrofis not being deemed a sulDcient provocation. On tho 24th, tho efforts of the State authority being despaired of. Congress were summoned by tho president to meet at Trenton." Tho mutiny was after- wards suppressed by marching troops Into Pennsylvania under Major-flen- oral Howe. Journals, vlU, 281. (Cur- tis' Constitutional History of the United States, vol. 1, p. 149, note 1.) Soo also Madison Papers, Elliot's De- bates, 2d ed., vol. v, pp. 92-94. M Curtis' History of the Constitu- tion, vol. I, pp. 153, 228. " Boport of a committee appointed to devise means for procuring a full representation in Congress, made Nov. 1, 1783. Journals, vol. vill, pp. 480-4S2, cited by Curtis, ibid., vol. 1, p. 154, note. •i; 8.] ANAHCHY I'UIIC'KDINU TIIK KKDIiUAL CONVKNTIOX. 11 veivly felt. New York iiml KIioilo IsLuid, wliich eontiiiiuHl thd piiuLipiil hiirljora, luid refused, llie latter absolutely, the foruicr except on inipnieticahle ct)uditi()ii8, to consent to the amendment of the Articles of Confederation so as to permit Congress to tax imports.^" Attempts to negotiate advantageous treaties of com- merce were met hy the ministei's of foreign countries with the objection that the United States had no power to compel com- pliance with those promises which they made as a consideration for the stipulations binding upon the other parties. i' 'I'he power to threaten as well as to promise was also out of their possession. CJrc it Hritain had extduded from her dejjendencies in the West Indies tlie lisli and other principal exports of the United States; but Cf)ugress had no power to retaliate by discriminating duties upon the cargois of Hritish ships or an embargo. While Great Uritain discriminated against the products of our commerce. Spain blocked the road by preventing the free navigation of the .Anssis- sippi. Congress, powerless to i)rotect this, which was indispensa- ble to the prosi)erity of the Stiites west of the AUeghan}- Mountains, seemed on the point of conceding it in return for conuuercial ad- vantages of minor importance.^* Even the power to regulate trade upon waters wholly within the United States was vested nowhere, unless in a bay or river entirely within a single State. The States which had no ports for foreign commerce were oppressed by tolls levied upon them at the jdaces where their goods were shipped. "New Jei-sey, placed between Piiiladelphia and New York, was likened to a cask tapped at both ends ; and North Carolina, ])etweeu Virginia and South Carolina, to a patient bleeding at both arms." ''' 10 Curtis' ConstituUonnl History, vol. i, \i\). IIG, UH, 107, 2;n, 243. " Soe tho letter written by the Duk« of Dorset, English anibiissn- dor at Paris, to tho commissioners Bflnt to Kiiropo to negotiuto commer- cial treaties, March 26, 1785 ; Diplo- matic Corrosponilence, vol. 11, p. 297, quoted in Curtis' Constitutional His- tory of tho United States, vol. 1, p. 194, note 8. w Infra, § 9, note 4. i" Madison's Introduction to tho Debates In tlio Federal Convention. Elilot'8 Debates, 2d od., vol. v, p. 112. " Tho Stale systems aro the ac- cursed tiling which will prevent our being n nation. Tlie democracy might be managed, nay, it would remedy Itself after being Hufileieutly fermented; but the vU. .itate govern- ments are sources of pollution which win contaminate the American name for ages, machines that must pro- 12 INTKODUCTION. [chap. I. To tlie disgrace and suffering of those five years we owe our suliHcqufnt proHperity. Nothing Imt the burden of the evils wliiih then oppressed them would have induced the people to place those brakes upon the exercise of their own wills and that nia(;lunery in the hands of the central government which have maintained our public and private financial credit and put down rebellion as well as repelled invasion. Had the men of that time not experienced the mischief of unbridled popular license, and State statutes passed in the free exercise of local jealousies, they would have rejected the Constitution as an instrument savoring of tjranny. Congress would have been denied the power of tiixiition. The States would have been engaged in constant quarrels over retaliatory 1-. gislation. Travellers and goods would have been stopped by custom-houses at the border of each State. Pe.ace in the South after the close of our Civil War could have never been restored without a decimation of tlio leaders of the revolt. The naticuial and State legislatures would have the power of taking property without due process of law ; and credit would have been ruined by the enactment of laws which impaired the obligation of contracts. 8 4. Previous Attempts nt Union. The thirteen colonies had in law no coniiectiou with each other except through the ties binding eacli to tlie motiier country. Great Britain assumed the duty of protecting tlieni against foreign foes, and in return hampered their conunercu so that it might be confined to the exclusive ailv;nit!go of Engli.sli merchants. The need of some arrangement through wliich tiny could plan together feu- their couunou defence \\an e.-,ily feU. ]?ut mutual jealousy as well as royal discouragemeiit made the attempts abort. It was not until tiiey felt the oppression of the central power that they all combined. The lefusal of the others to allow the largest, j\Iassachusctts, more tliun an equal voice in their deliberations kept the New England colonies from a treaty of alliance against their surrounding enemies, until the duco ill, Imt cannot produce good ; King, July Ifi, 17S7. llufua King's sniito them in the nnmo of Goil nntl Lifu iiuU Corrcspondenco, vol. 1, p. tlie pooplo." Geu. Knox to llufus 228. §4.] I'KEVIOUS ATTKMI'TS AT UNION. 18 civil war inado Englany may have coinmlHslou or opertuultlp, do ondoavouro to frnnio nud eslabllsh agreements and orders in genorull cases of a eivlll nature wliereln ail tho plantaeons nro interested for pro- Borving iioaco amonK themseliios, and preventing as n.uih us may boe all oeeatlous of warr or differiMioo wltli others, as about tho free and speedy passage of Justice In every ,Juris- diocon, to all the Confederals equally ns thoir owne, reeelving those tliat romoue from one plantaeou to an- other without duo eortofyeats; how nil the Jurisdiccons may eorry it towards tho Indians, tliat they neither f^row insolent nor bo injured without duo siitisfai'i'ion, lest warr brealc In vpou tlio Confederates through sueh mlscarrynge. It is also agreed that if any servant runn away from his master into any other of these eoufed- erated Jurisdiceous, That in sueh Case, vpon tho Certyflcate of one Majistrato in tho .lurisdieeon out of which the said servant lied, or upon other due proofo, the said servant shalbe doliured cither to his Master or any other that pursues and brings such Certilh'ato or proofe. And that vpon tho oscai)e of any prisoner wluit- goover or fuj^itiuo for any criminal cause, whellier bre:iUlng prison or getting from tlie ofiii'i-r or otlierwiso oscapiiig, upon the certKicnte of two Majistrates of Ihe Jurlsdiccon out of wliich tlie escape is mndo tliiit he was a prisoner or sui'ii an offender at tbe tyme of tho e.sciipe. Tlio M.ijestrates or some of tlicm of that Jur'.sdiecon where fcr tho present the anid pris- oner or fu^'ilivo abideth slmll forth- with grauiK such a warrant as the case will beare for tlie nppreliending of any such jierson, n:id the d. 'livery of him into the hands of the olllcer or other person that pursues him. And If there bo help rerjuired for the safe retumeing of any such offender, tlien it shall be graunted to him that craves the same, he paying the charges thereof." Preston's Documents Illus- trative of American History, pp. 92-03. ^ See tho remarks of Madisnn in tho Virginia Convention of IJatiflca- tion, Elliot's Debates, 2d ed., vol. ill, p. 133. ' "Mr. Locke, with other philoso- phers, Bolomnly advised that prince — William III — to appoint a cap- 14 INTIidlMCTlON. [chap. r. il ii:i(l William Puiin, tlio siiinnions of a ('otiprcss with two deli'giites i'loiii filch t'oloiiy, to sit ill New ^'ork, iiiMlcr tlu; i)ri'siik'iK'y of tho (ioviTiior lis tlie Kiii;f"s llifrji ( 'ouimi.ssioiiLT, " after tiie manner of Seotlaiid."^ In 1721, tho exigencies of tho conflict with France for the eontrol of North America Iiroiifrht forth a sclieme, said to liave heen drafted hy Lord Stairs, wliieh eonihined the KU;:;j^e8- tions of Pcnn anil Locke. All of these jilans, however, remained in the pij^eon-holes of the Board of Trade. A few conferences of colonial povernoi's or commissionprs, in at least one instance called a conj^rcss,'' were licld at the suggestion of the crown, to regulate treaties with the Indian trihes and to fix the men and money which eacli slioulil eontriliute to the common defense." Under (icorge II, in 1704, tlie same cause led to a congress at Albany of representatives from seven colonies," who made a treaty with tiie six nations and drafted a jilan of union, to he set in operation liy an act of Parliament. This, which was largely drawn hy Franklin, vested the oontrol of war, Indian affaiw, the acquisition of new territory, and the government of new settle- ments, in a president-general apjiointed hy the crown and a grand council chosen hy the colonial legislatures ; each colony to hive tain K''i"''"i'l nvci' tlio colonies, witli diolnloiliil power to levy mid eorniimiid an aniiy without their own ooiisenl, or oven the iipproliiUion of I'lirliii- menl." ChalmerK'Iiitioiliiellon IoTIk! Bovolt In tho Colonies, Boolt VII, eli. xxvli. ■• Ponn's Pliin ot Union, presented to the Itoiird of Tr ule : — " That t heir br.rtlness shall be to honr and adjust all inatteis of Complaint or dilT(!ren!'e between Province and Prov- ineo. As, Irit, where ])ersons qidt their own Provliioo and (joo to an- other, tl-.at they may avoid their just debts, (ho they be alile to pay tlieni, 2nd, whei,, olTenders lly Jusliee, or Justice, eannot well be had upon sueh off.'Tiders In the Provinces tliat enter- taitin tlieiM, IMlv, to prev<>nt or euro injuries in point ot Coninieree, 4tli, (o consider ot ways and means to support tho union and safety of theso Provincea apainst tho publlek enemies. In wldeli CoMgresse tin) Quotas el men and charjics will bo much easier, and more eciually sett, then it Is possible for any establishment nuide here to do; for the Provinces, knowiiiK their own condition and ono another's can debate that matter with morefrei domo and satisfaction and bettor adjust and ballauce their affairs in all respects for tlieir eonimon safety." Preston's Doiuiiienls Illustrutivo of American History, p. 147. «Tliat called In 1711. FrothlnR- ham's Else of tho Republic, 3d ed., p. 110, note. « A complete list of those hold up to 1748 may be found in Frothini^ham's Rise of tho Ri>publlo, 3d ed., note to pp. lis, 11!). See also ibid., p. l.'iO. ' New Hanipshlr(>, Slassaehusetts, Rhode Island, Connecticut, New York, P(.'nnsylvania, and JIaryland. §■!•] I'liEVIOCS ATTEMPTS AT IMON. IS two ivpiesenttitives, iiiul none more tliiin seven ; tlie represenbi- lioii lietweeii those limits to be njipoitioiied in iiecordiince witli the tiixiw paid by tiie constituencies. Tiiey might raise troops ••vitii ortieers nominated by the representatives of the crown, and foiitirmed by tiie grand council ; but could not impress men in any colony without the consent of the legislature. They had the further power to make laws and levy "duties, imposts, or taxes"; tiic laws to 1k' not repugnant to the laws of Enghmd, and to be subject to the veto of tiie King in council. The scheme was rejec:ted by all the colonial assemblies to which it was proiMWeil, as strengtlK-ning too highly the prerogative. The Board of 'I'riide refused ajiproval because it was too demoemtic.' The Stami) Act was the cause of the iirst actual step toward union. vVt tlie summons of Massachusetts," an "American Con- gress," consisting of delegates from llie pi)pular assendilies of nine colonics, met at New York, in (Jctober, ITtiiJ.'" Six of the colo- nies represented adopted a declaration of rights, and drew up jjctitions to King and I'arliament wluch compelled the repeal of the obnoxious statute. Seven years later, in imitation of a practice of Cromwell's army," conunittees of correspondence were formed to secure co-operation between the diti'erent parts of the thirteen coloniea, to resist the aggressions of CJreat Britain. '^ * Fr(iUiiii,!,-luuii'H Rlsoof the Ut'piil)- Uc, ;)(! (■(!., i.|i. lit!, 117. Curtis' VAm- stitiilioiml History of tho llnitoil StlUl'H, vol. I, p. 4, IlOtO 1. Slll)80- (incMitly, lu 17SS, Fniiiklin Biiid : "Tlio (lilTi'ri'iit ami coiitnidictory roasons of (iislilio to my plan iiialin nio suKpcct lliat It wan ri'iiliy tho Iriio niedluni; ami I am still of opinion it would havo licen happy for lioth sidi's, if it had boon adopt .'d. Tlie I'olonii'S so united would havo hccu Kidllciently strong to havo di'frndcd tliomsolvos; thoro would havo hopn no need of troopa from England ; of courso tho buIjso- ipiont pri'toxl for taxing Amcrioa, and till) liloody eontost it occasioned, v.inild have Iiimmi avoidod. But such mistakes are not mw; history Is full of tho errors of fltatee and princes." Life of Friinklin by Sparks, vol. 1, p. 17s. Tho plan is republished In Preston's fioeumeiits Illustrative of Aiuerican History, pp. 17U-1S7. " Tlio resolution was moved by .Tames Otis In tho Houso of Bepre- sontatlves. J" Jlassaehusotts, Ehodo Island, Oiiuiectieiit, Now York, New Jersey, Pennsylvania, Deliiware, JIaryland, and South Carolina. The deletjates ot Now York, South Carolina, ami Con- noetleut were not authorized to join In tho deelaratlon and petitions. n See LiHiurno's advleo to tho army, infra, Appendix to this thapter, [ia;,'t> ril, i'' Tho first suggestion reported 1» 16 rSTRODUCTIOK. [chap. I. The first Continental Congress met Sept. 5, 1774. It had been recommended by Franklin the year before. In April, 1774, members of the Virginia House of Burgesses, after tlieir formal dis- solution by the Governor, had organized as a committee, and advised the committees of correspondence to confer as to the exjiediency of another Congress. Some of its delegates were elected by populfir conventions ; others by the j)opuliir houses of the legislatures ; otlicrs by county committees ; a few by immediate popular vote.'' The instructions given to tlie delegates by their constituents were various. The delegates from New York and New Jersey were simply instructed " to represent " those colonies. Tiie instructions of the others were in general conlined to the adoi)tion of such measures as miglit extricate the colonies from their present difficulties and obtain tiio repeal of the obnoxious acts of Parlia- ment. Tlie delegates of South Carolina were by tiieir instructions expressly confined to agreeing to "legal measures."'* This Con- thc resolution of Samuel Adnnis at a Boston town niocling, in November, 1772, for the appointment of such a town committee. I' "Tlie delcnatos in the Congress of 1774 from New Hampslilre wero appointed by a Convention of D(>pulios chosen by llie towns, and reeeived their credentials from that conven- tion. In Itliodi! Island they -vvern a|)poiiited liy (lie General Assembly and ccmndssioned l)y the governor. In Connecticut tliey wero appointed and instructed by tlio Oinnnittee of ion was ap- |)oiuted in the same manner f(U- tiio county of Suffolk. Tho New York delegates received no other iustruc- tions than those implied in tho corti- tlcates, ' to attend tlie Congress and to rejircscnt' tin! county designated. In New Jersey the delegates were appointed by the ccunmittees of coun- ties, and were simpiy instructed 'to represent 'the colony. In Pennsylvania they wore appointed and instructed by tlie House of Assembly. In the counties of New Castle, Kent, and Sussex-on-I)(>iaware delegates were elected l).v a convention of tho free- men asseml)led in pursuance of cir- cuiar letters from the Speaker of tho House of Assembly. In Maryland the appointmi'nt was by committees of tlie counties. In Virginia it was by a popular convention of tho whole colony. In .Soutli Carolina it was by the House of Commons, (tciu'gin was not represented in this Congress." In Massachusetts t'ley wero appointed liy the House of llepresentatives. Curtis' Constitutional History of the Uldted States, vol. i, p. H, nolo 2. " Journals, i, 2-9. H-] PKEVIOUS ATTEJII'TS AT UNION. 17 {jn.'ss iuloptcd a declaration of rights and the Xon-importation Association, subscribed by each member on Ijehalt ol' iiimself and the colony which he represented; and then dissolved, after reconiniending that anotlier congress be called to meet at Phila- delphia in the following year.'^ 'J'he second Continental Con- gress assembled at rhiladeli)hia. May 10, 177r). The delegates were mostly chosen l)y popular conventions ; Ijut in some cases by tlie lower houses of the colonial legislatures, with sul)se(iuent ratilications by conventions.'" Some credentials granted authority to consent and agree to all such measures as tlic Congress should deem necessary and effectual to obtain a redress of Anierii'an grievances. Othei-s were more moderate in tlu'ir language. After their election the battle of Lexington was fought. There- upon the Congress, with the consent of tlie people, assumed revolutionary powei's, which were limited merely by their ability to cai-ry them into effect. The lirst resolution of the lirst Conti- nental Congress was : — "'riiiit in determining (luostions in Congress, cjioh colony or province sliidl have one vote ; the Congress not being possessed of, or at present ttl)l(' to i)roeiu'o, proper materials for ascertaining the ini[)ortauce of each colony." " Tlie larger States were never able to procure an alteration of this rule. The second Continental Congress organized an army ; issued a continental currency; established a treasury dcparlment and post- ollice ; raised a navy ; licensed privateers ; and in answer to applicitions from the people of four colonies,'*' advised them what forms of government to institute. Tliey also gave recommenda- tions to the jieople of the respective colonies as to the manner in wiiii'li they sliould treat adherents to the King; and adopted the Declaration of Indeiiendence.'® " Tills liiis liccii consiiloi'i'il till' ))!>- plniiin;; of tlio V'nioii. Hili'.rctli's His- torj' of llin UnitiMl Stall's, vol 1, p. -lH ; LiiK^dln'H Inaugural. Both jiaiicrs aro r<>iirlnlc'il In Troslou's DoeumoutH, pp. l'J2 '2()5. w Curtis' Coustitutloniil Illetory of tho Unltod Stales, vol. I. p. IS. " Si'plcmbcr ti, 1771. Jownials, vol, I, I), in. Towlc's History and .\nalysis ot till' ("oiistiliitiiin, .'id cd., ji. 4S. 1" Massachnsctls, Ni'W Hampshire, Vlriiiina and Hoiitli Carolina. " Si'o Pcnliallow v. Doauo's Admrs. .'} Dallas, Gt, 111. Money was raised liy loans and tho ibsuo of tho Cou- lluoutal currency. 1;s INTRODUCTIOX. [ciIAr. I. The luloption of ii fonnal instrument of iinion wi.s dcliiyod bu- cause of the refusal of some of the eohjnies to surrender their ehiiins to the western territory. Finally that dillieulty was sur- mounted. The jVrtieles of Confederation, which were drawn hy the Continental Congress, were ratified by Maryland, the last State necessary for their adoption, on March 1st, 1781. In drafting these, the Conuuittee unwisely rejected the sugges- tion of oiganizing an annual parliament of two houses;-" and "misled i>artly hy the rooted distrust for which the motive had ceased, and jiaitly hy erudition which studied Hellenic councils and leagues as well as later confederacies, took tor its pattern the constitution of tlie l'nitcn> llic i>liiii of Writhij,'s, Isl .'d., vol. ix, riD'.l. the iMi'i'liiiK of (■oiiiiiiisHiy liisniarek at dcmanil foitli(> liook in till! rnitcil Slates; l)nt, th.To is no ri'fcii'nco to it in tin' re- ports of till! (Icliates, oven in t!ie ills- etissioM of taxes on exports. Tiiere is a ti'aililioii tliat Il.-imillon read and made a commentary on it, in 17S3. (See Ilistoiy of tlie liepidillc of tin- Unit ed Sli\lesa:i1ra<'ed in t lie Wrilin^s of Alexander Hamilton and his Con- lemporaiies, vol. ii, p. 514.) Trof. W. O. Snnnior, than whom no oni! sooms lietter (lualifli'd to jinss jndfjniont on sneh a point, was satislled from tlie internal evidence of llanulton's uiitiiiijs, that hn never read Adam Siailh (Sumner's Life of llandilon, pp. IDS, 1K|»|. Acconling to Siimm'r, Law and Hume are tlic! only wiiti'rs on political economy whom Handlton (piolrs to ;iny extent (Hainillon'H Works, Lodni''s ed., vol. i, i>p. 70, 78, Vi,">Ci ; vol. vll, pp. S(!, xm ; v. 2 !.'>'. Henry C. Adams, on the other hand, in hi- History of Taxation in the United States, p. 20, <'xpressos the opinion that Hamilton's lli'port on Al.innfac- tnres v.as inspire (hat Ha mi II on consult I'd Tin' Wealth of N.a- tloii:'. when ]iri'parint; this report. - Tramillon, in tin' Co. !)li ; .TelTerson to Williiim Short, Jan. H, 1K2.">, ihid., vol. vii, ji. :18;»). He also quoted with approval tho jiaradox tliat a national fandliar. See Franklin's Works, vol. viii, p. 245; Dnnliar on The DiriM^t Tax of IHOl, II (Juartorly Journal of Ecouomics, 11. 4:1(1 ; and tho dlBCUSsion of Direct Taxes, infra. * "It is eloar that Hamilton and Madison Icmnvlianlly anylhing nioro of (Irecian history than whatthi'y hart pi<'keil up from tho ohsorvations of the .Milie Maiily " (Freennin's History of Fed(>ral (tovernment from tho Foundalion of the Achiran League to the Disrnpdon of the United Slates, ].. IllIM. Fii'oman refers to Mahly'8 Ohsorvations s\ir I'Histoiro ile (Jr''ee, which, as ho shows, displays ignorance 24 INTKODUCTION. [CIIAIV siu'li knowledge as is contained between the covers of lltniio and (nth nine Macauhi}', togetlier with the tnulitious of the conflict he- twci'ii the Crown and Parliament in the previons century, and a full a ([iiaintaiicc witli contemporary events on tlio continent of Europe m well as Great Britain. A few had read with care the Parliaments ary Ilistoiy, besides Locke and .some writers on political science in tlie cifrlitecnlh century, and Wyse and Paine, if not Kousseau, had made all familiar with the theory of the social contract. But no references to these works are to be found in the reports of the debates, which abound in illustrations from colonial history. One only of them had any claim to the title of civilian, and his read- ing in that direction seems to have gone little beyond the works of Kiuncs. idtliough perhajis tlie most important [ilirase in the Con- stitution is said to have been taken by him from tlie civil law." The common law liail l)cen the sidijcct of their deei)est study," (if till" struct lire of that fiuniiiis IciiK'n'. A mimbi'r ot the ini'inlicrs nf t'lc Vin\- vpiilion \V('ri> t;nu! nates of AmiTU'nn colh't^cs; )nil lit that. lim« tlio ciii'- riculiirii (if such a cdlh'^i' w(Mit little bcyoiKt what is now rofniiriMl for adiiilssidii to the fr(^sliniaii class. Two had stmlicd in the Scotch universities', and one for a short (iiM(Mit Oxford ; but the parades of finsslcal loarniii},' in tlu^ debates show littlo knowledjio wliich was not derived from lIoniesi|ijieii. He(>X[aine, Popular ('.ov(rnnient, |i.2(ll. ' .Tnd;,'e Wilson, v,ho is said to have siiijsjested (he words, " Inipair tli(> oli- linatiou of colli rads." Holmes' Arj,'ii- menl in S; iir;;es r. Crdwnin.-hicld, ■! Wheat, m, 122, 1.",!, '• "In no ('(Miiitry, perhaps, in liie "(irld, is tli(! law so i;en( ral a study. The profession itself i.-; imiiKirons and Ijowerfiil, mid in most iirovinct^s It l.ikes the had. The (,'reali'r number of this (!c|nilies sent to the Ciiii^tress were lawyers, liut all who read, and most do read, endeavor to obt.'iiii some smatterinji in that science. 1 have been told by all eminent bool;- toUcr, that in uo brunch of his busi- ness, after tracts of popnliir devotion, wire so many books as Ihoso on llio law exported to l!ie plantations. Tho colonists have now fallen into tlio way of printing! them for their own use. I hear that they have sold nearly us many of Blacksloni>'sromiucn;.-uies ill America as in Kiit;iand. (1 iKnil Gufje niark.s out this disposition very ixirticularly in n letter now on your 1,ilili\ He slates thill all the pioplo in his government are lawyi is or sniatterers in law — and that in Bos- ton they have been (>ii;ible(l, by .suo- cessful chicane, wholly to evade many parts of one of your capital ((i:i.4i- tiilioiiM." "Tills study renders men ariile, in- (piisitive, dexterous, promjit innttack, ready in defence, full of recourses. In other countries the i);'o;,le, more simple and of a less inereiirial east, judj;(! of ail ill piincipl,! in noverii- uient only by an iietual ),'rlevauei'; Ikm-o they iinlicipali" the evil, and jud^.i of the pressure of the K''.ev- aiice by tlie badness of the iirinciple. Tliey aut;iir mispivernment at a dis- tance, and buuff the approach of •] ORIOINAUTY OF COXSTITrTION. l)iiL even in that tiieir books were few. Ai'(;onliiig to Jolui Adams, at tliu outbreak of the revolution there was but one copy of the Stati' Trials and Schlen's Tract of the Judicature of Par- liament in the United States." With two great writer of their own time they were thoroughly familiar. The lectures of Sir William Blackstono t\-ert^ then recognized as an authority in America as well as England ; ^ and tiie writings of ^lontescjuieu were not only cited constantly with respect, but studied before the Convention as a i)reparation for its great work.* From the former, they had learned those compacts between the Crown anil Commons which liad proved indispensable to British freedom. ]5y the latter, they had been taught the cau.scs of the decay of other nations ; and especially the theory that each gov- ernment which is pca-manent must be divided into three distinct i;nd independent dej»artments, the legislative, the judiciary and die executive.'" The truth of this had been deeply impressed tymiiny in evory taintiMl lirnpzn." (i!iirki'',s Spocch on Conciliation with Aiin'rica, Mai'cli 22, 177"), Unrke's Vv'orks, Am. cd., vol. il, ii|i. 121, 125.) ■ Thoso vi'in in Boston. Jolui .V.lnius' Woik'i, vol. x, pp. 238-2,'!!). I'l 17!K) tlicro vas a copy of an Entjlihli iiiipcai'lnucnt. ll'lai at Won cstci', ilas- SHcluisotls, bnt none in Kcw llanip- shiro. Fcr .Tcioniiah Smltli was obliHod lo (liivn thcn> from tins latter Slate in (ndcr to linil ii form from v.liicli to (Iniw tlio impciichrncnt of .Tiii'i^jd WooillMiry Lant;(lon. (Ijife of .Icrcmiali Smith, p. IIH.) John DicUin- wiujiticast was well ivail in the Par- liiinientary History. * Acconlinj! to HurUiv there were almost ns many Knijlish copies of constantly in tlie debates nt Philadel- phia and till! Stall) Conventions, as well as in The Fedenilist. Washiii";- ton, when preparing for the Conven- tion, studied and copied with his ov.-n hand an abstract madi" fiir him ly Madison. (Bancroft's Formaiion of the Constitution, p. 211.1 w " In every form of government (Kn'nrcia) there ari> three depart mcnt't (liiijnn), and in every form tie" wi:-i> law-giver must consider, v.iial, in resjieet to each of tin ae, is for i;-; interest. If all is well with IheM', v.W must lU'eds lie well with ii, a::'l the differeni'cs between I'ornLs nf pivei:;- ment are differences in respeei lo these. Of these three, one is the part \\hiiis, <'t la imi.-is.incn pxi'culrico do -ccllpa j;i) ciOli's cpii sunt failcs. Par III ni'coiidc, il fail la paix cm la nmnn-, <>nvoio ou rc'/iiit den anilHiHsadi's, tlalilio la Biiroti', iircvicut li's inva- sions. Par la tr(>isii"'iiii>, il ininit li's orimps, on jufjn li's dilTi rciiccs dcs particiiliors. On nii|)i>ll<'i-a pi'tto di'i- nii'TO la imissaiiro du jiiK dos lois tvran- iiiqiK'rt pour los i'xi''<'iilor tyranni(nic- llllMlt. " II n'y a point cncoro do lihcrto si la puissance di'jugorii'ost pas siparco foro the pulilica- itoiiof the • Esprit dos Lois.' AVeliave already olisorved that the • Foderaiist ' regards the opinions of Moiitos<|iiioii as of ))aramount authority, and no opinion liad more weight wltli its writers tliaii lliat wliii'li afllrniod the ossontial sejiaration of the Exci-ulivc, Legislative, and Judicial iiowers. Tlie distinction is so familiar to us, that wo find it hard to believe! tlial even the different nature of the Exe- cutive and Legislative powers was not rooognizod till tho fourteenth century; it occurs in the DefiT.sor Pacis of tho groat Gliibolllno jurist, Marsiiio da Padova (1327), with many oIliiM' curious anticipations of modern political ideas, but it was not till the oightooiitli that the 'Esprit des Lois' made tho analysis of the various powers of the State part of the ae- coptod i)olitical doctrine of tlio civi- lized world." — Maine, Pojuiiar Gov- ornmont, p. 21S, cited from Thayor's Constitutional Cases, pp. 1, 2. § v.] I'lidToTVI'KS OK CONSTITITION. 27 tlicsi^ legisliitiiros ajj^aiii, ninny liiul seen tlie strength and wcakneas (if tlieir organization, and the necessity of some bn-akwatera' against siuhhni floods of jiojmhir jiassion. In Congress, they liad fi-lt the need of iniity in tlie exeeiitive, and tlie iiowein of taxation and tlie regnhitioii of eoiiinierce in tlie national legislature. Many had assisted in framing the consti- tutions of their resiiectivc States, and hail tested the strength and weakness of the work they had thus accomiilisheil. All these things wei'(! ever liefor,' them in their eonelave. And if they Imilded better than they ixOew, they worked with intelligent I'ore- siglit. ^ 7. I>r(>ti>t,v|»<-s of tlie I'Vtloral Coiistitiitioii. The Constitution of the I'nited States is not the lirst written constitution of a nation, although it is the iii-st that has had a jiroloiiged and sueeessful duration. Articles of confederation in peace and war between different states were the natural out- growth of treaties of alliance between small jiowers niukr constant (langei's from an enemy too strong for any one of them alone. Such was the Achaian League, mIucIi lasted in (ireece one hundred and thirty-four j-eara, from the reign of I'j-rrhus to the proconsulate of ;\Iuiiiniius.' At the outbreak of the Uevolntion, such con- fcdi'rations draggeil out an impotent existence in Switzerland and the Netherlands. I''roin the latter fuian of league were copied many of tlu! defects in the instrument which (he ( onstitutioii di.s- placcd.- Such confederacies, however, were, with the exception of ij 7. 1 K.'(>Fr('(Mii;urs Histdi-yiif 1''<"(1- niiini;il i):irliinii<'iit:< <>t two limisos; <'riil (liivcriiioiil, j)(i.>t.sini, I'sipcciiilly pp. the (■Diimiilti'i' fur fiiiiiiinn the cou- '215, iMl, fill' a liLstory of the rise imd tciU'i'iahm, niisli' I'vils wi'ie nearly fatal to the t'nileill'rovinees1hi'inselvi's.;il!hout;li every one of them could be reached by a mcaseiifier within a day's jour- ney ; and hero was a continent of setts had, in November, 177.'>, advised Slates which could not bo consulted '2H ISTKODUCTION. [niAl*. t. till' Iliiiiseatic Lciipfuc, wliitli wiis iniiintiiined for commercial pur- jiiiscs, iniiiiily if not solely for Uiu puqwHe of defense, or in sonio cisi's of offensive war. None sought, except in .,:> far as tiit.'ir mutnal relations were coneerneil, to restrain the powei-s of the sovereigns of wiiieh they were composed. Still less was there any restmint upon the jjowers of the whole. The idea of a limi- tation upon the powei's of a legislative body is of purely Angh)- Saxon origin. Limitations on the powera of the Kings of England were recognized hy the connnon law and in certain castas were re- peated and enlarged in the charters which thej- granted volun- tarily or under coinpulsiou. Chartci-s were granted diu'ing the middle ages on liie continent of I'hiropo as well ; and in Eng- land at least were enfuned l)y the courts wheuev(!r sporadic attcmjits were niaile to overstep liicni. In Ihigland limitations of the prerogative were inehidcd in tlie coronation oatli; and four kings lost their ciown, and at least one his life, after proeeedinj^s judicial in their nature to punish its violation.'' 'I'lie King of I'olaud wUlioiit tlio loss (if iMiuiy months, mid would cvi'f t<'iiil to iiMunliy from llu> ■vviiiit of iiH''''"'""'"'' i" tli''i'' si'|iiiniti> di'libcnitioMS." — Hinicrofl's I'"oiiiiatioii of till' Coiisliluliou, pii. 10, 11. ■' Thi^ nnicli'S voted liy r.'irliiimciiL for till' (li'posllioM of Klwiird II iind Kii'liiird II, liolli of whom wcrn nftiM- \viirds kiUc'd in pricn, found cacli guilty of th(! viohitio I if Ids coronii- tion o.'itli (Howclls iSl.'io Trials, vol. i, t.|). 47, 117). Thu ■ Cimr^o of Illf^li TroiiKoii and ollici' I{i>;li Ciiiiirs cx- hiliili d to tin; Hii^h Coiirl of Justin' liy .Toh'i Cook, Ksi|., Solicitor (ipiioriil, iilp|ioi!it('d liy tlio siiid C'nrlhimrnl lUjnrd on, ami tin', hnvH and ciiMlumn of llir, sumo ? Tho King and (Jueen shall say, I aoleimibj lininiise no lo rfo. Archbishop or bisliop : ^\'ill yuu to your poicer caiine V-] IMIOTOTYI'KS OK CONSTITITION. 20 lis t'li'ctiou Hworo obedinneo to t]w pacta convcnta undci' tl ii|i(iii /r(ir ituil jiiMlirr in mercy to bf, ejcecuird in nil ijdiir jiuliimrnlH ? Kliin imd Quci'ii : I wilt. ArcliliiHliop "!■ 1iIh1i(i|i : tVi7/ yi'ii III Ihr ixlinl of i/oitr jionrr mainliiin the tiiirn iif lliiil, llic trite prn- feMsiiin of tlie ijoxpel inid tlie prnteMmit reformed ritiijion extiililinlieil tiij liiw? Ami iritl ijoii proeiire iiiiln tlie hi>ihopn mill rterijii of tliin reiilm, iitnl ti> the ehiirelieH rouiniilleil to their rhiirgr, all fiich riijhln mill prii'ileijen iih tii/ litw do or fhiitl iippertiiin unto them, or an;/ of tl.ein? Kiuii mill Qin'cii : All thin I promiHK to do. Aflcr tlilf, the Kill;; 1111(1 QiiiM'ii laying IiIh mid liiT liiiiicl upon the lioly t;i)Hprls, hIiiiU Hiiy : Kiii^' iiiiil QiiiM'ii ; The tliiiiii.i lehirli I hare here lief ore proiiiineil, I irill per- form iindhep, Hii help me Hod. Tlicii tin' Kiiij; and CJiicMi mIihU kiss tin' IkioU." At. tlll> Hllllll' tillll" till" pi'l'SOIlH I'OIl- (loriicil imist. iiIkii iiiaki', sulisorilji' and ri'pral. till" fi)ll(nvlii); di'claratioM : — " I A. U. do Boii'iiinly mid r.lnccn'ly 111 till' lH'csi'Mcr of frod profoHH, ti"~tify and drchiro, That I do bcliovi) that in tho Ma<'rani< lit of tlic Lord'ii mippcr there is not any IninsulislantialioTi of tho I'ii'iiicnts of lii-i'ad and wine into thn liody and lilood of Clirist at or iiflor till" coiisi-cration lliri-i'of by any privioii v.hatsoi'vi'r; i'i) And llial tlio invocation or adoration of llic virgin >Iary or any otliiu' H.'iiiit, und tlio Hauriilri' of tlii> inasw, nt\ (licy an; now used i!i till' cliiui'li of Home, aro hu- p.THiitio'.is and idolatroim. (3) And I do soli'iiinly in tlin proscnco of Ood pmft'ss, testify und dcchirc, Tliat I do inaki' this dnlaration, and ovrry part tliorcof, in tlio plain and ordinary simso of the words read unto nii-, as tlicyaroroinnioniy nndrrstood I ly Eng- lish jirotcslanls, without any I'vasion, ciiuivocation or mental rrsiM-viition whatsocviM', and wlthonl any dispi'ii- Hatioii already granted me for tli!-i purpose liy the pope, or any other authority or person whatsoever, or without any hope of any siirh di -|ien- Kation from any person or aulliorily wlLitKoe\er, or without thinking llint lam or can lie aeijuitted before (iod or man, or nbmdved of tlii.i d"i'lara- tion or any Jiart thereof, altliou;.'h the po]ie, or any other iiersoii or personi-, or power whatsoevor, should dispense with or annul the name, or dei lare that it was null or void fiom the be- giniiiTij;." (IJ and V.\ Win. Ill, , !,. W; 1 W. and jr., Ses.s. II., ih. ii; ao C.ir. II., y thn glo- rious king S;. Khv.ird, your jirede- eessor, aecoriling and eoarorinablii to the law.s of God and true jirofe.-.sion of the gospel eslubil.-i'.ieil in this king- dom and agreeing to tlie prerogalivi's of the kingrt tiiereof and to the Jineient customs of this realm '! King. I grant and promi.se to keej) them. A. Will you kepj> peace n!id agree- ment entirely ac( ordiiig to your power, both to God, thn holy church, tho clergy mid the people ? K. I will keep it. A. AVill you to your power eauso • liy n Anno. cli. .S, two cl.insi's wero aildcil which iiromiso that tho King will iii- viiiliihly maintain ami iiroscrvo tho sottlomciit of the true Trotcstant rolifjion v.Mtli tlio govornmont, worship, ilisciiilino, ri;;lits and privilegps of tho t'liurch of Seotlaml a.s provioiisly ostahUslii.l; anil tho sotlloinont of tlio (Miurch of England and tho doo- triiio, iTorship, discii)!iiio, anil govornuiont thereof as by law established. 80 INTKODUCTIOX. [CHAI'. r. penalty of dethronement for tlieir infringrenient.* In Scotland, (luring the wars with that Mary who will always he reniemhered as the Queen of Scots, theologians justified rehellion by assigning breaches of the promises tlnis made at the coronation, and to pnjve that the royal authority was not too lofty to be limited by contract, (pioted from the texts in the Book of Books, where Jcliovah repeatedly bound himself by a covenant Avith Israel/' law, ju8tii!0 ami diserotion in inorcy of the oath tho archbiHhdp tiiniod to mid trill h to bo exccutod in rvll your juU^nionts ? K. I will. A. Sir, will you Rrnnt to hold iind keep . 'O laws and ritthtfnl customs wh'fh the c'oiiiinonnlly ot your kiiit;- . 378.) Charles I justiUed his refusal to sign till' act aljolishing lii.-liops, and George III his refusal to agree to catliolic emancipation, upon tho ground that such assents would be violations of their respecllve corona- tion oaths. (See Eikon Basilike; Eikonoklastes, Milton's Works, Pick- ering's eil., vol. ili, p. 403; Di'feuco of the People' of England, in Answer to .Salniasius, ibid., V(d. viii, jip. 21G, 2J.7. (Cam|.<>eirs Eives of the Chan- cellors, 1st I'd., vol. iv, p. 101 ; vul. \ ii, p. CiTli. ) ■* See Adams, Di'fcnce of American Constitutions, 3d ed., vid. 1, ]). 7!). ' The Iliseof Modern Democracy in New England, by Charles Borgeaud ot the University of Geneva, Switzerland, p. 78. This Is a book of great value and originality. • In snm« enrlicr oiitli.s"OHiM yiitr/ns fleffcrit ," wliicli it translalMilby Milton, " tli.it the ceiniiion iMMiplK, tlii.t is, tlic Ilousu ot ('(iiiiiiions, slniuld rlioosc,'' ( I >,'fi':icc) of tlio I'lKiplo lit Knulaiiil in An.swer to Siiimu.siu.s for tlio li.iiii{. Milteu's Works, Pickering'* ej., vol. viii. |i. '^4". §'•] PROTOTYPES OF CONSTITUTION. 81 riiu power of the courts to enforce the limitations upon the jirurofifiitive of the crown was therefore a conception familiar to tlie minds of American lawyers long before the J{evolution. The power of the courts to enforce limitations upon tlie power of a national legislature was not yet recognized. Blackstone had familiarized tliem with the doctrine of the omnipotence fif Par- liament. The maxim that it could do everything except make a man a woman, and a woman a man, was as trite a quotation tlu'u lis now. Yet successive steps in luiman progress liad not only sliov i tlie necessity hut suggested tlie practicahility of such a j)ractiee. Under tlie 'I'uihirs and Stuarts tlie doctrine of the divine right of kings was not oidy preached from the pulpits but argiie(l at tlic bar. Thi' crown hiwyei's contended that Parliament could not, even witii the consent of tlie king, shear the crown of its essential prerogatives.'' The king had no power to thus de- prive his successors of their birthrights, lie had not even the right to himself abandon a trust repcjscd in him by (Jod. These claims of the prerogative of the crown were among the sources of the idea of a prerogative of the [leople.' Although no court was so bold as to set aside an act of Parlia- ment, we liiid a few judicial sayings that an act of Parliament against conuiiou right would be void;** and ecclesiastical courts where ihe supremacy of the pope was recognized had held statutes void which infrinjieil the liberties of the church.''* In the eonllict '• ThiH was cxiircusly (lo('i(I in Goil- iliMi r. Hull's, '2 SliowcM', iliy; S. C. as (liiihviii I', lliilcs, Oiiiil)i'i'ljiH'li, p. •Jl; Hnwi'U's Stiit(< Triiils, vol. xl, p. Ulil'i, wlicrii llii> iirniiiiii'iits aro sol fdilh 111 Icnutli; H I!:ici)m's AhriilKi,'- iiii'ul, pp. 70-71). IJiil llio derision, which HiislaiiuMl lh(! powi-r , 8 Ki'p. lis, and cilalions there set fortli. Lord Iloll, in JIayor and Commonalty of London v. Wood, 12 llodi.rn Keports, ^.(ill, (!K7. '■' III Kits tiie Court of tii<> Uota llo- maiia refused to reeotjnize a statute of the Repiiblie of Genoa whicli forbade a Genoese Bubjoet from niakinR an ecclesiastic his exocntcw; '•Innqititm contra tihertatem fcclrninnticnm fM nullum ijiHo fiuio rl Jure rx th'fictn po- li;sfiitin liiirornm HUilulctilium" (Coxe, Judicial Power and UnconstituUonal Legii^laliou, pp. I'iD-l'iS), Tlio famous 32 INTRODUCTION. [chap. I. with George III, the colonists turned the old weapons of royalty against its wishes. The government of the colonies had always been treated as a jiart of the oi-own's prerogative with which Parliament did not interfere, excei)t in so far as the regulation of comm 'Pce was concerned. Tlie colonial lawyers claimed fcliat the Sta;H[) Act was not binding, as an iiifriugcmcnt of tlie prerogative; while they stirred up the people with the cry tluit taxation vnth- oiit representation was tyranny."^ Tin; colonists were accustomed to having the statutes ju' ■ ■:'<\ ihcir legislatures set aside as in conflii't witli a fundament, i L \, . Their legislative powers were limited by their charters, which, like those of nuiiiicii)al or private corporations, ]icnuitted no legislation in conflict with tlie principles of the couuuon law. Bills which they passed affecting private riglits as well as tie crown's pre- rogative were always subject to the disap[):.)val of the Privy Council, wliich usually acted in accordance M-itli opinions grounded upon legal precedents written bj' the law-oflicers of the crown.'* <'oiitrovi>r>sy Imtwccii Henry II nnd TlK)ni!i8 a UcfUol aroMO from the ic- fuKiil liy Uio Archliisluip to obey Uio Constitutkiiis of Cliircndon, wliicli, ninoM.^stotliorttiini;;-, took iiwny licuo- tlt of tlio clin'j^y in ci-iiuiiml ciir.ow, anil wliicU woro soliMniily auiiullcil liy him ill hiri ca]iac-ity a'l an ocelosiaiUical jiiil^;.! ii[iou cci-laiii cxcommuiiica- tioii!4. Atlor Bockct's dciitli, tin- King wiv.; iit\a)]le to nialco jii'aco witli tlio Vopo until lio liail n'nounccd tlio ob- noxious Ktatii("H (iliid., PI). 1M7 i:i!t). '" A lar^!(! nuniljci- of illustrations of those arftiiiucnts, whou first used ag"hi.«L till) validity of tho writs of aspi-.lanco to aid lii the search for I3nui;^(;led K'^'xls may 1)0 found in Mr. Jusi ice Gray's notes to Quiiicy's Rc- )ioris, pnn/tim. According lo a leUer of Cliii'f Juslice nulcliinson of Mas.^a- <;huH0tt8, Feb. 2(1, r/Cifi, "tlie chii f justice of Uliod(> Islaiid suiposes no Jict of rarllamenl. can coiitroni a law of that colony " (ibid., ii. 44:i). In the sumo year John Adams wrote to Ciisli- inp, Ills nssoilale on tlio bench of Jlassachusetl.j : "You have my hearty concurrenco in tellinj; tho jury the nullity of acts of riuiiament" (Ibid.). Ill ICi'.!, Govcrmu' L '\-erott of Massa- chusetts claimed that tlio King and rarlianicMit could enlarge, l)Ut could not reslrlct their charier rights (Brooks Adams, Eniaie'lpalion of Mas- Hachusells, ]i. 21)0, ciliiig Randolph's Narrative, Hufc'li. Coll., Prince Soc. ed., vol. i, ]. 'l:l|. In 1708 or 1709 (Tovenior CraiiJ-lon of Rhode Island formally superseded the execution of the ail of Parliament, G Ann, ch. .30, alTectiiig tlie curreni'y (Chalmeis, In- troduction to the History of t lie Revolt 1)1 the American Cohuiies, liook VII, ch. i). " Acollectlonofth(>se may be found in Chalmers' Opinions of Lawyers. In the celebraled lase of Winlhrop r. Lechmere. A.l). 1727 (Public Recon,',- of Connect lent, vol. vli, pp. C71-G70); Thayer, Constitutional Crises, vol. 1, pp. 1)1 35); Coxe, .fudiciii' Power and ■^ '.,,* §7.] rilOTOTVl>E8 OF CONSTITUTION. 88 From the agrrements of the Englisli gxiilds were copied the agreements under which were formed tlie independent Con- gregational thuruhes.'^ These again suggested the covenant made on the Mayflower when a deviation of the voyage brought the vessel toward a point without the boundaries covered by the Virginia charter and made a few restless spirits claim that each would have the right to be a law unto himself.'" This was the first written constitution framed by and for themselves by the people of a communitj'. Ten j-ears later the Constitution of the colony of Connecticut was a- i: 'X'raey In Old and New England, pp. '■y;, 13H. "The JUyfloweu Compact. — ' In the name of G<>d, Amen ; We, .c.::ie names aro underwritten, the . ,, . ii sulijects of our dread Bov(>ralgno Kin;! .lames, by tho grace of God, of (treat Uritalne, Prance, and Ireland King, <1. fcMdiM-, of tho faith, etc., Imveing 1.,, i.ilaken, for the gh)rie of (iod, unci advnnceinente of tlie Clirls- tiiin faith and honor of our king and countrie, a \(iyage to plant the llrsl ciiloide In tlie Northerne |iarls of Vir- ginia, do(>, by these presents, soleinidy and nnilnally, in tin! ))resenee of God, and one of another, covenant and c iirbino ourselves toRothor Into a eiviU body iMjlitlck, for our belter ordering and proservaliou and further- ance of tho ends aforesaid; and, by vertue hear ', to enacte, constitute, and frame, sucli just and equall laws, ordenances, acts, constitutions and offlces, from time to time, as shall be thought most meeto and convenient for t'le gen,'rall good of the Colonic. Unto tvliu'h wo promise all due sub- mission and obedience. In witues whereof we liavi- hereunder subscribed our namco, at Cap Codd, tho 11th. of November, In the year of the raigno of our Hovorelgno h)rd. King James, of England, France, and Ireland tho eighteenth, and of Scotland tho fifty- fourth, AnnoDondnl, l(i'20." Preston's Documents Illustrative of American History, pp. 30, 31. A similar agroo- ment was made by settlers of Rhode Island about 1037. (Arnold, History of Rhodfl Island, vol. I, pp. lO.l, lOH.) An agreement In Imitation of tlie May- Mower Contract, executed by the early settl<-rs of Ohio, In 1802 Is doscrlbi>d In The Green Bag, vol. vll, [). 112. Much 'nvaluable learning on the con- stitutional and Institutional history of tho different, iStates may bo foinid In tho hlstorli'H of the different State courts publlsheil In that periodical. ' " January 14, 1038. The preamble Is: — " Forasmuch as it hath pleased the 84 IN'TllODLX'TIOX. [CIIAr. I. The genius of Joliii Lilburne took these proceedings for ex- amples when, in 1G48, to free England from the oppression of tlio Long Parliament lie helped frame, and persuaded the army to supnort the Agreement of the People. le first scheme of a written constitution for a nation was the V : of an English clothier and soap-hoiler. The same man was the first who argued successfully in a court of justice, that a statute passed hy a supreme legislature was void, because inconsistent with the fundamental laws.^'' It is strange that the name of Allmlglity (iod liy tin- wixo disposition of his (liiiyiu; [iniidoncn so to Order and dispose of tliiuj^s tliat, wo tlio Iidmlfitnnts and Ki'sicicnts of Windsor, Hartpford and Wotlicrslicid arn now oohaljiting and dwcilinK in and vppon tlio River of Coneetoeolto and the lands thereiiiilo adioynolng; And well knowiiiR when a pcopli' are gathered logatlii.'r llie wordofCrod r an orUerly and di'cent (roui'mieiit (>stal)- lished aeeiuding to Ood, to order and disi)0»e of the affiiyres of tlio pooplo at all seasons as ocealion shall require; doe tlierefort- assollate and eonloyne our s(>lu<'S to lie as ono rubiike state or ('onion wealth; and doe, for our seines and our successors and sucli as sliail be a gospell of our Ijord .Tcsus wcli we now prfesse, as also llie disciplyne of tlie Cliurelies, well accordinK to llic' triilii of tlie said gospeil is now piactised amongst vs; As also in or Ciiieil A. 'aires to b(! guided and goueiiied according to such Lawes, Kulcs, Orders anre had been specu- lative plans for Utopian re|i\ib!ies, framed by iihilosophers; but never had a company of men deliberately met to frame ii social compact, con- stituting a new and lndepend<'nt comnionwcallh, with dellnit(MilTicers, executive and legislative, and pre- scribed rules and modes of govern- ment, uidii the first jilanlers of Con- ueelicnt canu' togedier for their great work on January Itlh, lI'iSH 0." Howell's Slate Trials, vol. v, pp. ■tl.'l-444. See infra, Appcndi.x, p. .">',). "■ Tlie claim that tlii'rc wi'ie cer- tain "fundamental laws" of Eng- land, which had jiecnliar s.mclity and could not be abrogated w.is ll as during the Coiiimonweallh. The llrst article of Strafford's Iniprwhineiit cliai'gcd "That ho the said Tlionms Earl of (j 7.] PROTOTYl>E8 OF CONSTITUTION. 35 I,ill)uriic is not pliiced by that of Ilainpileii in the pages iwil Soiit'ly, SinilTord Imlli traitorouBly eniloav- oiiicil to •subvert tho fuudamnntal laws luitl i^'ovfrninout of thu realms of Kiiglauil and Ireland, and iustoad tlicicof to inti'oduco an arliilrary and lynmuical fjovcrunifiit afjiiiusl law; wliicli III' liatli doclarod by tiuiloroiis wdi'dii, ciiuncils, and actions; and by 1,'ivlnt; his majesty advici', by forco of arms to compel his loyal snbjects to snbniit thereto." (Howell's State Trials, vol. iii, p. 1185.) Similar laii- f,Miaf;e was used in the recitals of his bill of attainder. (Ibid., i>. ISIS.) In the debate on the bill, the poet Waller aslved what wero the fnndaiuental liiAVK. He was silenix-d by tho reply of Serjeant Mayuaril, that, if he did not know that, he had no busini'ss to *^it in the House. Ga'diner's Fall of the Jloiiarchy of Charles I, vol. ii, p. 1 LI), citinf,' D'Ewess Diary, Harl. MSS. Lilburne continually claimed the protection of the " fundamental laws" uKainst the arbitrary acta of the llunip Parliament. (See appendix to this eliapler, infra, ji. TA.) After its dissolution and the establishment of the Instrument of Gov(?rnmenl, Crom- well said: " lu every Government there must be somewhat Fundanu'ntal, somewhat like a Mav;naCharta, which should be standing, be umilterable." . . "That Parliaments should not make! themselves perin'tual is a Fnn(lai\ieii- tal. Of what assurance is a Law to prevent so ^''eat an evil, if it lie in the same Le|,'islature to unhiw it apiin? Is such a law llki^ly to be last in)'? It will lie a rope of sand; it will give MO sei'urily; for the same men may unbuild what they have built." (Carlyle, Letters and Speeches of Oliver Cromwell, Part VIII, Speech III (12 .Sept., 1I15I . Carlyl.''s WcuUs, vol. xvil, p. 70.) In l', like themselves, made a great S(uind and noise, like> the shcmt of a king in a ndghty host."' He said the time had come for a new arrangement, and recommended that "a restraint be laid upon tho supreme ])owiM' before it be erected in the form of u fundamental constitution." He considers how this "fundamental con- stitution " shall be (>stablished : "The most natural way for which would seem to be by a general council or convention of faithful, honest, and discerning men, chosen for that pur- po- '■ by the free consent of the wholo' body, by order from the present ruling power, consid(>red as general of tho army. Which convention is not prop- erly to exerdsi' the legislative power, but oidy to debate freely and agree upon the particulars that, by way of fundameutal constitutions, shall bo laid 'id inviolably observed, as tho conditi ns upon which the whole body so ri'presented doth consent to cast itself into a civil and iiolitlc in- corpiu'ation. Wliich conditions so agreed will be witliout danger of being broken or departed from, considering of what it Is tliey are conditions, and the nature of the convention wherein they are made, which is of the iieople represented in tlieir highest state of sovereignty, as they have the sword in their hands uusubjected unto tho 86 INTRODUCTIOX. [CIIAI-. I. lionoring the pioneers of the patlis toward constitutional liberty.'" Although Cromwell hroke his pledge to support the Agreemer.u of the I'eople, four years later, on the dissolution of the IJiuv- bones Parliament, he set in force the Instrument of Governmont, the fnsi written constitution of a nation which was established.'" This fai'ed, however, from its want of jjopuliir origin. The first Parliarent chosen under it refused to acknowledge its superiority. Cromwell feared to submit the disjnite to the courts, a:id ordered a dissfilution. The representatives yielded, although claiming that he had transgressed the Instrument.'* The second Parliament modified the scheme with his consent, and within four j'cars from its promulgation all 2>i'etence of obedience to the Instrument was abandoned.'* At tlie outbreiik of the Revolution the colonists governed them- Belves through provincial governments, the executives of which rules of civil govornnipnt, but wlint O'.Miisclvos, ordci'ly (isscnililcd fur that purpose, do Uiink (it to niiiko. Ami tlio sword upou tlicso coiidiUons subjofting itself to tlio Biiprcnir' judi- cature thus to 1)0 set up, how suddenly might Imrinony, righteousness, love, pence, nnd safety unto tlie whole body follow hereupon, as the happy fi'i'it of such a settlement, if the Lord have any delijjht to b<' amongst us I" WThe llrst, it not the only, writer who shows any arlequate appreciation of the S(yvices of Lilburne is Professor Charles Borgeaud of the University of ruMiova, Switzerland, in Tlio Kise of Mod("ni DiMuocraey in Old and New England. Even ho does not mention Lilburne's second trial, which contains tho llrst sueeessful arg\imi'nt against Iho validity of a statute ever made in a court of justice. The writer of this vork has added a sketch of Lilburne's life in an appendix to this chapter, infra, p. •10. " It is reprinted in Gardiner's Con- Htitutional Documents of tiie ruritan Kevolution, p. 311. This was " voted bj- a eoimcil of olTle(>rs, Deceml)er IG, ICi.'J.I. It is siiid l)y Hume to have licen drawn by Lambert in four tlays (Hume's History of England, cti. Ixi). Like the agri'cmcnts of tho peoplo it provided for the periodical election of liurliaments and set limits to the legislative aulhority In favor of Prot- estant religious liberty and for the security of llic pulilic debt. It did not, howev(>r, like the former, guarantee persor.al li!)erty. 1* Gardiner's Documents of tho Puritan Emoluiion, pp. Ix Ixiii. By the Instrument of Government (xxii, ibid., p. 320), parliaments could not 1)0 "adjourned, prorogued, or di.s- solved without tiieir own consent dur- ing the first three montlis of (heir sitting." Cromwi'il construed this as meaning lunar months of twenty-eight days, which was tho mode of comi)ut- iug tiio pay of tho army nnd navy ; nnd dissolved tho parliament before tho end of three calendar months (Hume, History of England, eh. Ixi). i» Gardiner's Douumeuts, pp. Ixiil- Ixlv. into tunc sides IldllS clict wen \'ir< scril)^ cli. 1.x diii'ii New Vii'gi aril. v--] PKOTOTVrES OF CON'STITI'TION. n7 were known ns committees of Stifety, a name borrowed from Iho junto of officers who ruled England after the dissolution of tlio lium[) Parliament.^ Even before the Declaration of Independ- ence, the Continental Congress recommended the colonies, in re- sponse to the recjuest of some of them, " to call a full and free representation of the people, to establish such a form of govern- ment as in their judgment will best promote the happiness of the jiuople and most effectually secure good order in the province (luring the contiiuiance of the present dispute between Great Britain and the colonies." ^^ The first State constitutions were naturally formed in imitation of the frames of government which had been created by and under their charters. Two of the colonies, Connecticut and Rhode Island, continued to use their charters without any change of name, — lihode Island till 1842, Connecticut till 1818. The powers of the executive, legislative and judiciary were still kept distinct. The office and name of governor — except in Pennsyl- vania and New Hanip.shire, wliere the chief executive was called a president, • — were retained with a provision for his election by the people or the legislature and with a depiivation of those powers which had been most obnoxicuis in coloni.l times. The previous existence of a council and assembly made tiie step to a creation of two legislative houses natural. The council was usually changed into a senate ; '^ and the lower house rcjtained its old luime and functions. Two States, however, Pennsylvania and (ieorgia, be- sides Vermont, which was not yet recognized, had but a single house. But Pennsylvania had an anomalous and unsatisfactory cheek on its lower house by a body of censors ; executive councils were retained for a while in I'eiuisylvania, N'erniont, (Jeorgia, and N'irginia ; aiul Massachusetts has kept till the jiresent day a governor's council as a cheek on tJie powere of the executive, besides the senate as a check upon the house of representatives. ■"> This EiiRliKli commltton Is do- Kcrilicd in IIuiui-'s History of EriRlnnd, rli. Ixii. Th(^ siimc uanid was adopted duriri;^ the French Ri'volution. '' Tills was thi' rcconimfmdatlon to N'i'w Hiiiii|i8luro, Houtli Carolina and Viif,'inia in 1775. Journals I, 231, 235, 271). -■■' In Maryland, Massaehusotts, Now }Iani|is!iiio, Now Yurie, Nor'h Carolina. Soutli Carolina, ami Virginia, tho upper house was eallod "The Sen- ate," in Pelawaro, "Tho C<)uneil," in Now Jersey, "Tho Legislative Coun- cil." 88 INTRODUCTION. [ciiAr. I. The courts were usually continued with their old powei-s unchr names from which all rL't'eroiKH* to the kinp was exchKh.'d ; but tliey had extended tlwiv jurisdictions to an extent previously un- known. Tliey had claimed^'' and in at least two eases ^ liad exer- cised the power to refuse to enforce an act of a State legislature iia unconstitutional.^' !:; 8. Models of tlic Federal Constitution. The Federal Convention was composed of men wlio had l)een accustomed to rule and lej^dslate in (lie camj) and the senate. Tlicy had learned hy exiierience the imi)ossihility of foreseeiuff the results of untried forms of ^rovei'iinient. foundt'd on n jirinri rea- soning, riiey had suffered, not only from tlie arliilrary power of the crown and Parliament, hut also from tiie iml)ecility of Con- gress. 'I'liey iiad realized, too, the evils rcsultiuir iVom hasty action hy State legislatures unrestricted irinn making lu'eaches of the i)ul)lic faith and setting aside jnivate contracts. They had acquired by tradition, as well as from tiie study of '• The Spirit of the Laws," that respect for the British Constitution with Aviiieh ]\Iontes(piii'U had inspired Europe. Tiie sni)eriority of the State constitutions whicdi hove to lliat a resendilanee, over the Articles of Confederation, was of easy recognition. As soon as s'ConiiMoiiwi'nllli r. CiiUm, i Call. (Vii.) S, A.n. 17^-2; Sviiishury Civsi-, Kirby (.Cuuii. , Hi, 117, A. I>. ITHo. Sro till' iir^ii'.iiicnt of Goorjjc JIiisini in lloliin r. Hiirilinvay, .Icffci'Sdii'.-t Ri'- porta (Vti.) m, lis, 12:t, \. JX 1772. -■• Tnn ctt. r. Wcivlcn, lUiodc^ Isliiiul, A. r>. 17S(1 ; {'lijiuiUi'r's C'riiMinal Tiiiilw, vnl. ii. |i. Ci'.t; Tli'iyi'i-'s Constitu'.ioiiiil Cas<>.«, vol. i, 73; Ilolmos v. Walliiii, Now Jersey, 1780, oiteil in Slate r. Paikhui'st, 4 Halslcad (N. J.;, Ill; Am. Uli^t. Assoc, rajii'i's, vol. ii. 1."). Ill Itul^ei-H r. Waddiiij'lon, Tlinyer's Couslilutlonal Cases, vol. 1, i). (ill, an ael, of llie New York leiiisliiture was held void liy the llayor's Court ot New York, .\ufjiiHl'27, 1784, lieciuise in vicda- tionot the treaty of jieace. llefereneo is made tou Massachusetts case In the letter by .T. U. CiiltinK to Thomas .Jef- ferson, of July 11, 17SS, jiriiitid in Hancroffs Constitution, vol. ii, jip. 472, 47.1. The North Carolina i-ase, nayardr. Sin^detou, I Martin (\.C.)42, was dceidi'd in Novenilier, 17s7, afli'r tlie .■idjoiirnnieiit of the Federal Con- vention. -•'> This snliject will lie discussed at IcnKlli in the siiliseiiuent ehai)ters on the Judicial Power. It is tn>atod in The Itlation of tlie Judiciary to 111." Consiiliilloii, by Win. JI. Melps, American Law Ifeview, March, ISH.") ; Judiciid I'ower and I'nciaisiitutional IjCKislntion, by Hrlnton Co.\e, pa*iim; and Thayer's Const itutional Cases, vol. i, jip. 48-94; and llr. Justice Gray's notes to Qiiiuc^j's Ee[iorts. (•n\r. I. i-s uihUt l(!(l ; but niisly un- liiid exci- jgislaturo luul been 10 seiuite. eiiig tliii priori ivii- power of y lit' Cdii- roiii Imsty g liroiiches its. They y of "Tlie ;ution with ority of the ;, over the As soon us !;'••] MODELS OF THE ('ONSTITUTIOX. 89 it was determined tiiat the new {rovernmcnt shnuhl he national in form, they turned for instruction to tlie description of tlie Consti- tution of (ireat Britain hy Sir William lUackstone.' From his account of tlie jjowers of tlie crown they ilrew those of tlie executive, — not from the powei's actually I'xcrcised by (icortje I J I, when the weakness of his two predecessors had lirouglit the veto power into disiise and laid tlie foundations of that system of csabinet (Jovernment which has since restricted the crown to a men; ceremony ;2 hut from those; whicli the hiiijf still jiivscrved in theory and wliicli w<'ie actually exercised within a ccutury by William of Oraiiifc. Some, of whom Hamilton was one,'' wen; so disgusted by the § 8. 1 Hiuuilloii lijiil llio iiKlisci-t'tioii tdiidinil, tills 111 the time : "I dciiy thi> fiiniilai'ily lictwixl, llic iircsoiit cdiistl- tulioii mid that (if tlio I'liitcd Nether- lands." " III my iiKirtt humlilc oiiiiiion, it has a I'.nich unalcr alTlnily v,i;h tlie j»i>vci'niiient wlileli, in all huiiian lnohr'.Mlity, will reiiiaiii when the liislory of tlie Sevi'ii ri'oviiices KJiall be foi-eotteii." (Letters of ('acinar, liy All xaiider llamiltiiii, in The Daily AdverllHm-, Oet. 1, 17s7 ; Fiinl'ri Eri- wiys on the t'oiislitution, p. '2S7.) -James Iredell, after\vard« a jus- tice of the Supreme Court, himmiis to have liad some appreeialioii of I he functions (.t the Erititdi cabinet. See liirt Answer!' to Jlr. MaBon's Objee- lior.s to till" New Coii.'ititution, Ford's 1 ..iiiplilels on the Constitution, p. ;;is. ■' ilaiiiilloii made no secret, of this ill ;irivate conversation. See the let- ter iif (roiivi'meur Morris to C)f;den. of Dec. 'is, 1S04: "Our jioor friend llaiulllon liestrode his hobliy to the Krcat annoyance of his friends, and not without injury to liiiiiself. More a theorotle than a practical man, lie was not eullii'lently convinced that a system may b(> ^ood in itself and bad ill relation toparticularcircuinstances. He well knew that Ills favor; ■■> form was inadmissilile unless as the result of AiiuT- ica (any iiion> tlinii tlie nuiHs of other couiiUics) niniiiil juilj^cs with any dc- i^Too of precision (•oiiccniiiiK t ho fitnoss of this new Constitution to tlw peculiar Kiliiation of America; they liavc, liow- cver, (lone coiTcclly in dili-KatiiiK tlio jiowor of framing a tiovcrumcnt to tliosn every way wortliy ami well (lualilled." 'LeiteM of C'ai'sar, liy Ah^xander Itamilton, The Paily A.l- vertiscr, (.)c!. 17, 17M7 ; Ford's Kssays on th(! Constilulion, \<. 'JS'.).) t'ndei- tlio iullucuco of Madison and .lay, he iii'cd nioro tact when lie wi-ote tlm ininiortJil numhers of Tlie Federalist. * Curtis, in his Constitulional His- tory, V(d. i, p. G24, note, (puites u curious letter from Colonel Iluniph- ri'vs to Hamilton, writteu from Now Haven, Conn., Sept. Ifi, 1787, which says : " It seems, hy a, couversalion I liavo had here, that the ullinialn praclicability of introdueing the Bish- op of Osnaburt! is not a novel idea among those who were foinierly termed Loyalists. Ever since tho peace it has lieen occasionally ijilUed of and wished for. Yesterday, where I dine(l, half in jest, Iwilf in earnest, he was given as the llrst to.-Lsl. ' See other (piolations by Curtis to tho same efl'ei t. !• See A lleport of the Evideni'e and Proceedings ujion the Charges pre. ferreil against the Puke of York, Al- bion IVer.s Edition, 1809. » Pennsylvania .Tounial, Aug. 27, 1787, (J noted by Curtis, Constitutional History, vol. i, p. C2G. ('<)Mi'i:()Misi;s UK Tin; constititkin. -!( stiUiii)C'(l witli tlic iipjjroval of tiiiio iis well us of iiliihisoiilioi-s, tlii! iinit;itioii was not servile. They knew l)y experience as well iis liistory the iiiiseliief in the colonies iind the mother countiy t!i!it hiul been caused hy the lack of sullicient checks ujion the powei-s of Parliament as well us the prerofrative. They not only a(lo|)te(l the main checks which were a part of the Hritish Constitution, but they tnok othei-s which had heen incorporated in the new Stu'i- consti- tutions as well as some invented liy themselves. 'J'lie llrsi f'onsti- tution of Massachusetts has a closer reseiublauco than any other to that of the United States." go. CoiiiproiiiiscH of tlio Constitution. Compromises are the foundation of the I'ederal Constitution. The niend)ers of the Convention were too experieiiccKl in pid)lio life to sacrifice the public welfare for a syllogism. They eared nothing for ii name when tiie thing wished could be gained in substance under another term. They were too wise to reject a (lart when they could not obtain the whole. Their sagacity was excelled only by their patriotism. Provisions which to tho ' This, which with somo ainend- iiioiits is still in forcp, was tho most ciiroriilly I'onstrucU'd Stiito Const it\i- lion thiMi in oxistonrc. Tlio ri'jootion li.v tlio town ni<'oliiif?8 of tho pmposod Cmstitiition of 1778, ilniftcd lij- tho Stuto l(,'j;ialiit\in> or (ionoraK'ourt, li(>- (■iiuso, (inio!if,'stolh('r1hinf;s, ililid not provldo sullli'iontl.v for n scpiirutioii of tho thrco dr'piirtnicnts, h.nd causod a thorough ronsidonilion of tho wliolo subject bv tho jiioplo of tho Stnto bi'fiuo tho mooting of tho Constitu- tional Convontinn in 1779, which was I'liosen for that solo purposo. From this Boom to havo boon takon tho clausos in tho Fodcral Conslilution conciM'iiing tho vcio jiowor; impoaoh- nionls; haboaa corpus ; and tho tcuiiro of ollico of judges. In that also, tho upper house vt tho Lcglslattiro was called the Sonato and liad tho power (o amend but not to orlginale nu)uey l)ills: and tho lower was tho House of Ropresentiitivi's. Tho same namo with different powers over money bills and tho power to try impeach- ments was t;iven lo the upper houses in six oilier SI ales. Supra, §7, note 22. Tlie name House of llepresenlaiives was ul-o then applied to the lower liouso in tlio Slnto C inslitulir)ii.i of Now Hampshire, South Carolina, r(!n;i- syivaiuti and Vermont. Tho Journtil of tho Convi'nticin wideh fram<'d tlu^ (-onstitulion of 1780, was publi.hed by tho order of the Stato Legislaturo in 1832. A pamphlet containing a report of tho reasons for tlio rejoetion of tho Constitution of 1778 by a con- vention of delegates of tho towns of Lynn, Saloni, Danvers, Wenham, jranehester, (tlouee-ter, Ipswich, N(>w- buryporl, iSaiisbury, ILixTord, Mo- thuen and Topslleld, held by adjourii- nu>n!, Ipswich, Ajiril 21), 1778, was pul dished by .John Jliehaol, at Now- buryport, in 1778. 42 INTItODrCTION. [ciiAr. I. iiiMJorit y seemed l)eiic(iei;tl were rejected becaUHC it wiis (li()U;,'lit tli;it tlieir express iiielusioii niijrlit eiuliUiger the ratiliciUioii dl' tlie iiltiii. wliile tlipy could under the general language he subse- quently established by Congress.' jM'ter the Htrugght between those who wished a new national fonstitntion and those who were willing only to accept an amend- ment of tlie Articles of Confederation had ended in the defeat of the liitter, tlie word "national" was strieken from tlie pajier. Provided that tiie I'orni was national, they were satisfied that it might be termeil federal, even though tluit name was sus<'ei)tible of two incfnisistent iiiterinctations.^ 'I"he names of I'resident and Congress w(!ro continued, because used under the Confederation, although the House of Hepresentatives, at least, had no resembl 'uee to a congress of and)assay the people of Anier- lea; that to t;ive it its best cliauee, however, they sliould " make lias pal- atahlo as jjossible, and yni. nolhini^ Into it not very essi'iilial, wliieli lid,i{hl raise up enemies" (.Teffi'rson's Ana, Works, Isl eil., vol. ix, p. 1!)1). So (louverneur Morris op]iosi!(l the Inclusion of an express grant of jiower to establish n univorsity, saying: "It Is not uueessury. The exclusive jHiwor at the seal of governmont will reaeli the ol)jeet " (lladlson Tapers, Elliot's Debates, 2il ed., vol. v, p. nil). His own proposition of tlio erealion of six ealiiiict oiTlees was not adopted, uiidoiil)todly forthesaino reason (ibid., |). tirr. Morris lulmitted in Ms letter to ri.'kering, Dec. 22, 1811, th.it when he drafted the article on llie judicial power, " conlllctingopiMions liad been iM.'iintaineil with so much professional astuleness, that it be<'ainu necessary to select iihrases which, expressing my own notions, would not shanin olhers, nor shock their self love; and to the best of my recolli'ctioii, this was the only part which passed with- out cavil " (il)id., vol. 1, ]). 507). '^ Seo th(! discussion of tlie moaning of tho terra quoted, infra, § 17. •:^ '•'•! (■(>.MI'l!()MISi:S (II" TIIK CONSTrn Tln.V. 48 mill til (li'iiiiiiid tliiit viitrs ill tliat IhkIv .sluiiild he ccnuitt'd in iUHMinlain'e with Uii' iiuiiilicr (if f(iiistitiii'iit.s ivjirL'si-nted." ' 'nly tlu! uioilcratioii nl' \'iif,'iiiiii iiivvnitcd such ii com-Ho, whiili •,-,■, iul«l hiivc! Ijidkcii up ilu' iinict'i'iUiigs at thf stiirt. 'J"ho suiivllcst SLiLoh wt'i'u ffjiially detcniiiucd t(i niiiki) iki Hacrificu (if thiiir jiivsent ri^dits, and |i(iiiit('(l to tlic (ii>|ircsHiiins of ^Vtlions and SjiarLi upon tlitir wi'akti' ((infcdcniti •- a.^ a wainiiiL,' a!.fainst the danj'iT (if an lic!,r'.'iii(iiiy. I lie scttKiiiriil cif liiiw (pu'sli'iii liy tlio addjitidn of the sutifjjfcstiiiii (if lli'u'i !■ SiuTinaii \H'\ only saved the liiion, lint est dilislii'd the only npjier elianilHr in the world which at t!iu end of the nineteenth ceiituiy enjoys either power or resiiect. The dil'ferencc hctwecn the occupations and donusiic institu- tioiis of the North and South presented the same (juisiaiim which divided the I'nion after it was formed, and they nearly prevented at the liivt that cimsolidation which seventy yeai-s later they almost tore apart. Coninierce and shippinj' w n-e tlic industries hir which the climate and hurliors of New ICnLjland had fitted its inliahitants. I'or these olijcets its dide;;atcs deinandcd (hat a iiiajerity ill ( 'uuifii'ss should have the jiower to jnss a navii^atiou law and ne^^nitiatc coiiiiiiercial treaties. S.itislied ;url enriched liy at;iiiulture, the plantiis of the .South were williii',,^ to have their rice, indigo and tohacco shijiped on foreii^^n as v.i il as donustie liiitt•oen tho largo viMillon hail lici n made a siilijrct of and siuall SUites, and tliat it ^vould ooiivi'iKMtion anion)? the incniljcrs lie (-asior to prov.iil ou tho latter, in imseMt. It wa'< passed liy fioavorncur tlio eoiirso of tlio dellbernlions, to Morris, and favored by Uobert Morris give up their eiinality for tho Bake of and o.Iicrs fioiii Pennsylvania, Ui.il an effoelivo ginc nment, llian, on the lai;{o slatis shmild unite in liriiily takiut? the Held of ilticussioa, to dis- I'cfusin^' to the small states an ei|iial arm theniBclvea of (ho rifj'.it, and vote, as inireisonable, and as enabling thereby throw tliemselvos oa the ll\e small states to iiet;ative every mercy of tli" lari^cr stat'S, disioiintp- j,'eod system of ^;overnnient, which naneedjuul stilled tlie project." lladi- iir.isl, in the nature of thiiiL;s, be .son r.'ijiers, Elliot's Debates, 'Jd ed., founded ou a violation of that eiiuallty. vol. v, p. 123. 44 INTKODUCTION. [chap. t. tree navigation of the Mississippi in return for commercial privi- lc';^vs in tliat country and its colonies.* They were unwilling to give up the right of importing slaves from Africa; and wished when slaves escajjed to have them returned hy the Northern States. Representation hy population, they insisted, should be proportioned to slave population as well as free, if for no other reason, to prevent the destruction of slavery by a capitation tax. The conscientious scruples of the; descendants of the Puritans of the North made their delegates refuse to recognize any right of property by man in man. Tills matter, too, was adjusted by the adoption of tlie rule, tiiat rein-esentatives and s.s for permission to poiii'oilo to Spain llu) ('xt'lu'=iv(i viBlit to nuvii/atii tlio MisslRsip|)i for a liniltod period of tine. CoMKi'i's-t by a vote of seven to Ih 3 had aulliorizeil lilni ho to do, and ho )nid involiated u treaty 'or tliat pui'pose, which had not been riitllled. Washinj-Uou also win in favor of this <-ourse, In return for favorable enni- luereiul advuntageB. Sou Curtis' C!on- stltntional Histoi-y, vol. i. pp. 210-214, citiiiy WashinKlon's Wrilliit;H, l.st ed., vol. ix, pp. 172, 17:1, IHl), 20.';, 20r., 2G1. Secret .lo'.irnal.s, vol. iv, |ip. 50, .'Jl, 100, 110, 111. '' ("onslitutioii, .\'-tirle I, §;; 2 and 'J, infra. "Till 1808, Couslilution, Article I, §"• ' Argument in the Amit-tad Case, p. ;ia. § 10.] RESULT OF FEDERAL CONVENTION. 45 § 10. Result of the Federal Convention. As the result of their labors they establislied a federal republic with a presidential form of goveriiineT't. They created a strong and stable nation with local self-government secured to the differ- ent States, who were restrained from creating domestic discord liy unjust discrimination in favor nf tlieir own citizens. The instrument that they framed has withstood the sliock of the invasion of a foreign army, which captured and burned the capi- tal, and of a civil war whicli divided the whole country for five years into two liostile camjjs, and left the conquered section so disordered tliat for ten years more its local government.s were upheld by the national sword. During all this time private i)rop- <'rty has remained secure, and civil lilicrty undisturbed cxcejjt foi- a brief interval amidst t!ie einlx/rs of relndlion.' Despite the strain caused by the inniugralion of a vsist foreign j)opulation of servile races, debased by genenitions of tyranny, by custom as well as in- lieritanee unfitted to exercise the rights of citizensjiip, the sov- ereignty of the ])eoplo has remained undisc'iedited and niiimi)aired, as a beacon light for the friends of popular government tiirougli- out tlie world. In the struggle ])etweeu t!ie suppoiteis of eiviH- zation against tiie ]iord(;s of l)arbarians within th>'ir runl' Ibid., p. 49. " Sco Cliireiiddii's Hintory of The l!i licllion, (piiited in Howell's State TiiiilH, vol. iv, p. 1410. 'J Horfjcnud, Rise of Modern Democ- '• Uorgeaud, The Hise of Modern racy In Old and New Kngland, p. 48. Ai'iMONnrx.] JOHN LILnURNE. 49 reparation for his iinprisonmcnt by the Star Chamber.*" The Lords pasHotl an ordinanoo fjivinif him two thousand poiindH, to be collected out of the estates of two members of the Star Chamber and the deputy warden of the Fleet.''' ISIeanwhile he was imprisoned by a snap vote of the House of Commons, obtained, in the absence of his own friends, by Manchester and Bastwick, with whom he had now quarreled in a tract against lii-.n and his clerical associates,"' While in Newgate, Lilburue wrote several pamphlets, in which he maintained the sovereignty of the people over the House of Commons. " Now, for any man to imagine tli:it tlie shadow or representative is more worthy than the substance, or that the House of Commons is more valuable and considerable than tiui ISody for whom they serve, is all one as if they should alllrme that an A;j;ont or Ambassador from a Prince hath the same or more authority liian the I'rinee himselfe." ^ He was the principal author of the Agreement of the People, the first written Constitution with limits to the power of a national legislature cvor i)roposed in any country. It was submitti'd by the agents of five ivgimcnts of horse to the Commons in lo47, with the general approval of the army. This provided for the dissolution of the Long Parliament in the following year, a new apportionment of members, and biennial elections. The legislative power was granted and limited as fol- lows : — "Tliat the power of this, and all future Representatives of this Nation, is inferior only to theirs who ehuse them, and doth extend, without the consent or concurrenc ; of any other person or persons, to the enacting, altering, and repealing of Lawes ; to the ere('ting and abolishing of OIBces and Courts ; to the ajipointing, removing, and calling to account Jlagis- tnites, and Ollicors of all degrees ; to the making AVar and Peace, to llic> treating with forraigne States: And generally, to whatsoever is not •" His petitions are printed In Howell's Stiiio Trials, vol. Ill, pp. 134.'i-i;)46. 2' Ibid., vol. ill, p. 1:I59. -'" Kn^land's Ml.serle and Rcmedie, )ip. 1-4 (British Mu.scuin, E, .102), quoted liy linrceaud, pp. 4!), 50. -I Eimliuul's Miserle and Remcdie, 101'), pp. 1-4 (BrIlUh Museum, E, .lO'i), iliuitcd by Borgeaud, pp. 40, 60. See al.so A PiLTOotistraiice of Many Thou- siiridf, CItlzt v." and other l'"rec-born l'ec)i)li) of England to their owne House of (Iiiinmons, occvsioned through the Ille- gall and Barbarous Impriaonnient of that famous and Worthy Sufferer for Ills Countries Frecdome Lieutenant Col. .lolui Lllburne, — Wherein their just Demands in behalfe of themselves and the whole Klngdomo concerning their I'ubllck Safety, Peace, and Ereedonie is expressed ; calling those their Conunl.s- sioncrs in Parliament to an Account, to how they (since the beginning of their Session to this present) have dis- charged their Duties to the Universality of the People, their Sovereign Lord, from whom their Power and Strength is derived, aiui by whom {ad hene pkiritum) it is continued." British Museum, U04, a 7, cited by Borgeaud, p. 51. 60 JOHN LILUUHNE. [CUAI'. r. I'xpressly, or implj'edly reserved by the represented themselves. AVliU-h are lis followcth, "1. That matters of lieligion, and the wayes of God's worship, are not at all intrusted by us to any humane power, because therein wee cannot remit or exceed a tittle of what our Consciences dictate to be the mind of (Jod, without wilful! sinne: neverthelesse the publike way of inslructinj,' the Nation (so it be not compulsive) is referred to llicir discretion. " 2. That the matter of impressing and constraining any of us to serve in the warres, is aj;ainst our frecdome; and tiierefore we do not allow it in our Hepresentatives; the rather, because money (the sinews of war) l)einf; alwayes at their disi)osjill, thcj' can never want numbers of men, apt euouf^li to onjiaKO in any Just cause. " ,'!. That after the dissolution of this present I'arliament, no person be at any time (luestioned for anytliin^' said or done, in reference to llie hite publike differences, otherwise tlian in execution of IJie Judgments of the present Representatives or House of Commons. " 4. That in all Laws made, or to be made, every person m.iy be bound alike, and that no Teiuirc, Estate, Charter, l)e;;ree, IJirlli or place do con- fer any exemption from the ordinary Course of Legal! proceedings, where- unto others are subjected. " 5. That as tlic Laws ought to lie equal!, so they must be good, and not ; vidently destructive to tlie safety and well-being of the people. ' Tliese tilings we declare to be our native Kights, and therefore are agrc'd and resolved to maintain tluMU with our utmost iiossibilities, against ill! opp.>sition wliatsoever, being compelled thereunto, not only by the exam- ples of c ir Ancestors, whose blood was often spent in vain for the recovery of their .'"reedonies, suffering themselves, through fraudulent acconnnod.v tions, t( l)e still dehided of tlie fruit of their \'i('toriis, l)ut also l>y our own wofull .xperience, who having long expected, and dearlv earned the estab- lishment of these certain rules of Covernment are ye( made to depend for the settlement of our Peace and Freedome, upon him that intended our bondage, and brought a eruell AVarro upon us.'"* After tlie success of the army in their conflict with Parliament, he W.18 released from prison iu 1G47 or 1G18, on the presentment of a petition signed by over seven tlioiisand of his friends, who also prayed tiiat the ordinance for his indemnity be passed." The establishment of a pre- cedent in relieving him from tiie estates of those who had sentenced him was opposed by the Speaker and otiiers as likely to react subse- quently upon tlieinselves.'" Wliile tlie ordinance lay on the table, '< The docunieiit is set forth at length by Horgeaud, pp. 07-";). Tiie first draft was prepared at a confcreiico between representatives of llio l/ovellers, of whom I.ilbiiriie was one, tlio officers, the iiido- pendents, and tlio rarlianient. (The Legal Fundamental Liberties of Kii)-- land, by Lilburne, reprinted in tlio Clarke I'apers, vol. ii, p. 257.) " Ilowell's State Trials, vol. ill, p. 1350. M Ibid., p. 130X Arl'KNltlX.] .Tonx TJLnunNE. 51 l':irli:uiu'iit IkkI disposetl of tiio estates of two of the delinquents whom it iiunieil.-' Finally an ordinance passed the lirst reading which gave him three tlioiisand pounds out of the estate of the Lord Keeper, who tdok pint ill hi.s .sentence."' This was opposed by tactics not unknown to le^ishitiiros of the present day. 'I'he ordinance was stolen before its second reading. During Lilburne's absence in search of a copy, after bis frii'iuls liiid left the house, his enemies procured its rejection; and the p:is.s;igi' of orders giving biin three hundred pounds in cash and three tiiousMiid pounds more to be settled out of the estates of new delinquents ill tlic insurrections, not yet sequestered.™ Finally he procured the piissiigc of an ordinance allowiuir him the same sum out of the specified sequestered estates, but hampered with such conditions that he obtained little money from them.'"' Meanwhile, he took part as agent for the rank and file in the con- ferences with the (ieueral Council of ollieers concerning the Agree- ment of the People, where he distiiigui.slied liimself for the bitterness of liis language, and ciialleiiged some of the ollicera to a duel." The con- ference failed, and the troops mutinied. Although the first mutiny was sup])ressed, and one of the ringleaders shot, Cromwell was forced to yield, and a new Agreement of the People, first drafted by Lilburnc, waa presented to Parliament, .lanuary 20, KilH-KMD, in the name of the army, liy the (ieneral-in-Chief and his council of ollieers. °''' This pro- vided concerning the legislative |)ower : — " Eighthly : That the Representatives have, and shiU be understood to have, the supreme trust in order to the preservation and government of the wliole ; and tliat tlieir power extend, without the consent or concur- rence of any other person or persons, to the erecting and abolishing of Courts of Justice and public ollicos, and to tlie enacting, altering, repeal- ing and declaring of laws, and the highest and final judgment, concerning all natural or civil things, but not concerninu; things spiritual or evangeli- cal. J'rovided tliat, even in things natural and civil, these six particulars next following are, and shall be, understood to be exi'ejjted and reserved from our Kepreseiitntives, viz. 1. AVo do not empower them to impress or constrain any person to serve in foreign war, either by sea or land, nor for any military service within the kingdom ; save* that they may take order for the forming, training, and exercising of the people in a military wa\ , to be in readiness for resisting of foreign invasions, suppressing of sudilcu " Howell's Slate Trials, vol. 13fiO. 2" Ibid, pp. 13(M-1.5fi('>. '"'Ibid., pp. 13ii5-i;!(17. »> Ibid., pp. ia67-1368. Hi, p. a' Ibid., vol. iv, p. 1.^08. "2 Horgcaud, pp. 74-70. I'or the de- bates concerning tliis, in wbicli I.ilburno took part, see tho Clarke Papers. 62 JOHN LILHTJRNE. [CIIAP. r. insurrections, or for assisting; in execution of the laws; and may take order for tlie eniployinjc and conducting of them for tliose ends; provided, tliat, even in such cases, none l)e compellable to go out of the county he lives hi, if he procure another to serve in his room. " 2. That, after the time herein limited for the commencement of the first Ucprescntativo, none of the ])eople may be at any time questioned for anything said or done in relation to the late wars or public differences, otherwise than in execution or pursuance of the determinations of the present House of Commons, against such as have adhered to the King, or his interest, against the people ; and saving that accom|)lants for public moneys received, shall remain accountable for the same. 3. That no securities given, or to be given, by the jjublic faith of the nation, nor any engagements of the public faith for satisfaction of debts and damages, shall be made void or Invalid by the next or any future Kepresentativcs; except to such creditors as have, or shall have, justly forfeited the same: and saving, that the next Representative may confirm or make null, in part or in whole, all gifts of lands, moneys, ollices, or otherwise, made by the present Parliament to any member or attendant of either House. 4. That, in any laws hereafter to be made, no person, by virtue of any tenure, grant, charter, patent, degree or birth, shall be privileged from subjection thereto, or from being bound thereby, as well as others. C. That the Representative may not give judgment upon any man's person or estate, where no law hath before provided; save only in calling to account and punishing public oflicers for abusing or failing in their trust. 6. That no Kepresei; .l!"e may in anywise render up, or give, or take away, any of the foundations of common right, liberty, and safety contained in tills Agreement, nor level men's estates, destroy property, or make all things common; and that, in all matters of such fundamental concernment, there shall be a liberty to particular members of the said Ueprcsentativcs to enter their dissents from the major vote. " Xinthly. Concerning religion, we agree as followeth: — 1. It is intended lliat the Christian Religion be held forth and recommended as the pulilic profession in tliis nation, which we desire may, bj* the grace of Ciod, be reformed to the greatest purity in doctrine, worship and discipline, according to the AV'ord of God; the instructing the people thereunto in a public way, so it be not compulsive; as also the maintaining of aL'e teachers for that end, and for the confutation or discovering of heresy, error, and whatsoever is contrary to sound doctrine, is allowed to be provided for by our Representatives; the maintenance of which teachers may be out of a public treasury, and, we desire, not by tithes: provided, that Popery or Prelacy be not held forth as the public way or profession in this nation. '2. That, to the jjublic profession so held forth, none be compelled by penalties or otherwise; but only m.ay be endeavoured to be won by sound doctrine, and the example of a good conversation. 3. That such as profess faith in God by Jesus Christ, however differing iu judgment Al'I'KN'DIX.] JOHN LILBURKE. o;} from tlie doctrine, worship or discipline publicly held forth, as aforesaid, sliiill not be restrained from, but shall be protected in, the profession of tlii'ir faith and exercise of religion, according to their consciences, in any place exceiit such as shall be set apart for the public worship; where we ])n)vide not for thcni, unless they have leave, so as they aljuse not this lilicrly to the civil injury of others, or to actual disturbance of the public peace on their parts. Nevertheless, it is not intcuded to be hereby pro- vided, that this liberty shall necessarily extend to Popery or Prelacy. •1. That all laws, ordinances, statutes, and clauses in any law, statute, or ordinance to the contrary of the liberty herein |)rovided for, in the two particulars next preceding concerning religion, be, and are herel)y, repealed and made void. "Tenthly. It is agreed, that wliosoever shall, by force of arms, resist the orders of the next or any future Kepresentativc (except in case where such Kepresentativc shall evidently render up, or give, or take away the foundations of connnon riglit, liberty, and safc^ty, contained in this Agree- ment), he shall forthwith, after his or their such resistance, lose the benefit and protection of the laws, and shall be punishable with death, as an enemy and traitor to the nation." '' The trial of the King, which began the day when the Agreement was ])rosontod, alTorded an excuse for the postponement of the consideration of tlie latter which was never resumed."* Cromwell soon acquired .sullicient strength to abandon it. And Lilburue with some of his fellow agitators was, on Marcii :i!Sth, KMll, again imprisoned in the Tower, wliencc he sent forth a hurricane of ])ainpli!ets attacking the arbitrary liioceedings of the Hump Parliament.''^ A third Agreement of tlie People sent by him to the soldiers contained the following article wliich was subsequently included in the charges of treason made against iiim : — " .Vnd all laws made, or that shall be made, contrary to any part of this Agreement are hereby made null and void."'" Another mutiny arose, but was promptly quelled, and discipline in tile army finally restored. To silence Lilburue and the rest a new law of treason was enacted by the Rump Parliament: — " That if any person shall maliciously or advisedly publish, b)' writing, liriiiting or openly declaring that the said government is tyrannical, usurped, or unlawful ; or that the Commons in Parliament assembled are iiiit the supreme authority of this nation, or shall plot, contrive or cn- " Oardhier's Documents of the Puri- " An Agreement of the Free I'coplo tun Itevolutlon, pp. 270-281. of Knglaml, tendered as a IVace offurbig •1* liorgcauii, pp. 91, 02. to the distressed Nation. London, May '"' Tlie names of a number of thorn 1, 1019. ^Hritish Museum, u52 |-3j.) arc given by Borgeaud. Howell's State Trials, vol. Iv, p. 1303. 64 .TOIiy MLnURNE. [chat, , KM!), in an Kpistle to the private Soldiers of the Army, especially all those that signed the solemn Engagement lit Newmarket Heath the .Oth of .lune, 101", but more especially the private Soldiers of the Generars regiment of horse, that helped to plunder and destroy the honest and true-licarted Englishmen, traitorously defeated at Burford, the l.')th of May, Hi4i)"; "A Preparative to an Hue and Cryafter Sir Arthur Haslerig" ; and " The legal and fundamental Liberties of tlie People of England, revived, asserted and vindicated." The first of these books he had given to the lieutenant of the Tower as a i)rotost against a warrant to bring him before the Attorney-CJeueral. "The Outcry of the Apprentices" he had given to some sohliers. In these books he had deliberately violated tiie statute by speaking of "the pi, 'sent tyrannical and arbitrary, new erected, robbing govern- ment";'* saying on the first page of one : — "I have fully, both by law and reason, undeniably and unan.swcrably proved that the present .luncto sitting at AVestminster are no Parliament at all in any sense, either upon the principles of law or reason, but are a company of usurping tyrants and destroyers of your laws, liberties, freedoms and proprieties, .sitting by virtue of the power and conquest of the sword."' ^' lie had also said : — " (iranting that the Parliament hath power to erect a couii of justice to administer the law, provided that the judges consist of persons that are 87 Acts of May 14, 104!), and July 7, 1B40; Howell's State Trials, vol. iv, pp. 1347-13ol. " Impeachment of High Trcasou against Oliver Cromwell. »9 Ibid., p. 1. JOHN LILIUJUNE. •');> Al'IMCNIirX.] not iiicnibcrs of I'lirliament, iind pi-()viilo I.llburne,TI]0 legal and fundamen- tal Liberties of the People of Knglaiid re- vived, asserted and viudicatcd. See also Ills I'icUwe of the Council of State. •» Iluwell's Stute Trials, vol. iv, p. 1126. 5fi ■lUIlN LIUUJUNK. [•'IIAI'. 1. llicin siiy they have to oUlt by wiiy of roaHoii and argumcnl, to pernuado iiic to what at present my uon.scieueo is not convinced of. And I sliould likewise be desirous, if your house should judj,'e convenient, that some competent number of {gentlemen of your house niij^ht be permitted to del)ate witli me those particulars, wherein 1 have appeared most to differ with other men's judj^'ments ; whereby possibly rational arguments may be 80 strongly urgi'd, as poradventure may give such satisfaction as may tend to the reconciling many differences and distractions ; upon the knowledge of the acceptance of which, during all that time of suspension of trial, I do hereby faithfully promise not in the least to disturb those that shall grant me this favour, being not so apt to make disturbance as is conceived." " At his trial, in October, 1G40, though Imrely thirty years of age and without legal training, he conducted his defense single-handed iiguinst bench and liar in a most masterly nuinner. The court-room was packed with his friends, who inlltienced the jury by expressions of their sympathy, so loud that several companies of soldiers were brought to the neighborhood lo keep order. He so continually com- plained of the unfairness of the prosecution, that he put both the prosecutors and the judges, throughout the case, upon the defensive. Ilis arguments in favor of his demand that counsel should be allowed him in tlie defense of a crindniil prosecution, as they wouhl have been in a civil action, were a just arraignment of tlio barbarous system of criminal jurisprudence that then prevailed. He refused to admit tlie publication of the books, although fre(iuently asked about the facts, justifying himself against llie criticisms of his prosecutors for this action by the example of Christ before Pilate. His concluding argu- ment consisted of technical objections to the proof of his publication of the books, combined with complaints about the injustice of his treatment, and reference to liis services in the cause of religious freedom. The peroration was as follows : — "I have aim t done, Sir; only once again 1 claim (hat as my right which you Iiave iironiisod. That I should have counsel to maltcr of law; and if you give me Imt your own promise, which is my undoubted right by your own law, I fear not for my life; ]]ut if you again shall Howell's State Trials, vol. iv, p. ie9'>. « Ibid., p. 1400. *' Gardiner's Turitan Commonwealth and rroifctorate, vol. I, p. 108. ""The project of the wild levelling rcpri-spiitntlve is at an end since John Lilburne turned off the trade of statc- niending to take up that of snap-boiliiit; " Merc. I'oliticus, Juno 12, 1050, quoted ill Gardiner's Coiiimnnwoallli and Pro- toctorate, vol. i, p. lUU, notu 1. oS JOHN I.ILHURNE. [OHAI'. I. ■which wnM to be paid to Ilaslerig, and providing that Lilburno should lie liii'iished, and depart the kingdom within thirty days, and that in on- .' of liis return, he should be proceeded against as a felon, and suffer the pains of death accordingly. When summoned to the bar of the House to receive his sentence he refused to kneel and ■was accordingly ordered to withdraw. The House on January 30th, lorjl, passed an act to carry out its judgment, ■which, after allow- ing Lilburne twenty days to leave the country, provided that in case after the expiration of that time he should be found there, " the said ,Iohn Lilliurne shall be, and is hereby adjudged a felon, and shall be executed as a felon without benefit of clergy."" He accordingly went to Holland, but two years later returned to England to contest the validity of the law, when he was committed to Newgate and brought to trial. He tiled several exceptions to the indictment upon the grounds that the description of the Parliament in the indictment was informal, that the act did not coniorm to the judgment uiiou him, and that the indictment did not set forth with sufllcient specification that he was the .John Lilburne described in the act. The most interest- ing exception was, however, that the act was void as contrary to the fundamental principles of law. This was as follows : — " Exception 2. The said Tndictincnt is grouiuled upon the foie-rocitefl act. inlitled, ' An Act for tlu> Kxofution of a Judgment given in Piirlia- ment iiuainst Lieut, col. John Lillnirno ' ; and so relates only to some judg- ment supposed to be given in i)arliampnt against the said It. col. John Lilburne ; and if no such judgment were Riven, the act were void, and the judgnienl also. Now it doth not appear that any judgment, for ri>y crime whatscirver, was given in parliament against tlic said Lieut, col. John Lilbu,...'. " 1. JJefore any judgment can be given in law against any Englishman, fo"" any crime, there must be either an Indictment, presentment, or some infoniintion or accusation, against him, •) that court tliat judgeth him, for Monii' (lime supposed to be comniittod by liini. 2. Tlie jiartj' accused must citlier appear lieforo lliat court, or b(- out-lawed for not appearing. 3. If tlie iiarty appears, he must either confess the crimes or misdemean- or.s whereof h ; is accused, or else jilead to the indictment, presentment, or iuldi'matidii, or accusation airaiiist him, and cmne to trial thereupi ■'. And lis some of these oujilit in linv to precede a judgment against any Eng- lisliiiiaii, so also some of tliese at'orc-nicnlioned proceedings, in order to a lawful judgment, ouglil to be entered upon such record, wherein any such judgment is entered ; and unless it doth appear upon the record, wherein any judgment is entered against any Knglishman for any crime, that some 47 Howell's State Trials, vol. v, pp. 407-400. ai'im;n!)IX.] JOHN LILBUIINE. .09 such proceeding as abovesaul, hath been made before the judgment passed :i:_Miiist him, tlic judgment is to be liolden for error eous and void, aivl iiii^'lit so to 1)0 reputed. Xow it doth not appear cither by tlie s:iid pie- lomi;^! act, as it is recited in tlie indictment, nor by an/ record of the sup- piiscd judgment produced, nor any otiierwise, that tliero was any indict- iiicnl, presentment, or information to the parliament of tlie Comnionweallh of England against the said Lieut, col. John Lilburne ; or even if there were, it doth not apjiear, that he ever appeared to the same, nor that he was ever outlawed for not appearing ; neither doth any i)leading by the siiiil licut. col. .lolin Lilburne to any such indictment or information appear, Miir any trial of him for the same. And therefore if any such pretended judgment be entered, as the said supposed act, and the Indictment of John l.illiurnn, ])risouer at the bar, thereupon, doth relate unto, the same is rinimnus and void in law, and by consequence the said indictment is v(ii(l."« In his clo.sing speech to the jury, he took the position that tlie act was void because unconstitutional ; and up, n that "round iio was aetpiitted, as appears from the subsecpient examination of the jurors before the Council <»f State, where several substantially admitted this, by saying that they voted for accpiittal because they were judges of the law aa well as the facts, altiioiigh two or three claimed tiiat their verdict was on the ground of insullicieut proof that Le was the Ulbunie described in the statute." "Concerning the act whereupon he was iiidicled, this he said: It was a lye and a fidsehood: an act that hath no reason in it, no law for it ; it was done as Pharoah dirt; Resolved upon the question, that all the male eliildren should be murdered. That if he died ui)oii this Act, he died upiiu (he same score that Abel did, being murdered by Cain That the act was a voi(> V.Milinllow I'. Doaiic'-i AdinlMiHtnitdi-H, U Oallurt, HI, HI, !)1, SKI, !l I, HI. '•^ At till' ()|)i'riiMK "f til'' t'lintiniMital ('i)MKi'i>sH ill 1771, l'alri''lc Henry wiiil tliiil the iMiloiiial (^dviTiitnciits were lit un end, Aiiiericii wiih thrown into one inaHH ami in a ntalo of nature, and thai eon ■eijuently the people ought to lie eousideri'd us entitled to li'presentatlon in aeeordiinee with tlieir iiimilier.-f. Hin inolion. Iiiw- evcr, tailed, (.folin AdaiM'<, Wi.rUs, vol. ii, pp. It(iri-{|77; Curtis' Cnnsiini- lioiial History, vol. i, p|i. ',), ID.) Snprii. §4. •' The Conl inenlal Couf^i .ss "i/inY'/cif New York to arm aud train her mili- lia." l)aiii''rt Abridgomeut, vol. Ix, Appendix, p. 31). 64 NATURE OF CONSTITUTION. [chap. II. of Confederation were ratified, the sovereignty of the several States was distinctly recognized. They provide expressly that " 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." ■* Tlius we find in the first formal instrnnient which hound the States together, an express recognition of their sovereignty and independence. So, tlio bill of rights in the fii-st Constitution of Massachu- setts : — "Tlio people of this Commonwealth have the sole and exclusive right of governing tliemselves as a free, sovereign and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and riglil which is not, or may not hereafter be, by them expressly delegated to the United States of America in Con- gress assembled." ' The treaties made by the United States with other nations, prior to the adoption of the Federal Constitution, also recognize either expressly c)r ])y implication, the independence and sover- cii^nty of the several States. The Treaty of Amity and Commerce with France in 1778, recites in its preamble that it was made between - — * Articles of Confodcratlon, II. "Th(? woril Hovrrcii/n, tin anplii-d to :i, KIrtte, w.'iH llrsl ailoptcil in tin" t'oii- I'c'di'ralioii, in tlic 2fl nrtido, iiiiil di.s- «'Oiitinu('d witli it, ox(M>|it in Ni'w Uainpsliiro. The Constiliil ion of New Haiiipsliiiv, ndoptcd rdiniary, 1792, is till' wnuc HH till' wild 1st urticlc, llli Ki'ction, of the Massachusetts Bill ot lli^?ht^-." ( Dane s Alji'idgcincnt, vol. ix, .\iipendlx p. 20.) '■MiiFsachiisotts Constitution of 17K0, r.irt I. Aiticloiv. Tlied('!(>i,'at<'s to the State conventions of latilication received coininissioiiH or credentials from their respective (jovernors; which, in the caKO of GeorRla, con- taincil tlin recital, "Tin' Slate of nth." InNventh year of our inde- pendence, A.D. 17K7." In Massachu- setts, "In the eleventh year of the independence of the United Stales of America." In South Carolina, "In the year of our Lord 1787, and of the sovcrei;inty and inde[)endence of the Unitcil States of America the elev- (Mitli." 'Stephens, Constitutional View of tlie War het\v(!en the States, vol. i, pp. 'Jt)-115.) v-^-] OnifilXAL SOVEIIKICXTV f)F THE STATES. 65 " Tlic Jlost Christian Kiiif^ and the thirteen United States of North America, to wit, Xew Hampshire, JIassachiisetts I5ay, Ithode Ishiud, Connecticut, New York, New Jersey, rcunsylvania, Delaware, Mary- hmd, Virginia, North Carolina, South Carolina, and Georgia."" It speaks synonymously of "The United States of America," and of " the said States ; "' " and of " the thirteen United States." * It refers to the ports, havens, roads, countries, islands, cities, towns, suhjects, people and inhabitants; and the benefit, conveniency and safety " of the said United States and each of them," and " of the said United States or any of them." " The plenipotentiaries on the part of the United States who signed the same are set forth in the preamble as : • " The United States, on their part, having fully impowered Benjamin Franklin, Deputy from the State of Pennsylvania to the General Con- gress, and President of the Convention of said State, Silas Deaue, late Deputy from the State of Connecticut, to the said Congress, and Arthur Leo, Councellor at Law." '" The Treaty of Alliance with France, signed and ratified on the same date, similarly names the separate States as parties to the same : — " The Most Christian King and the United States of North America, to wit : New Hampshire, Massachusetts Hay, Rhode Island, Connec- ticut, New York, New Jersey, Pennsylvania, Delaware, ^Maryland, \'irginia, Nortli Carolina, South Carolina, and Georgia; " " and the plenipotentiaries are similarly described.'^ Similar lan- guage is found in the contract between the United States and the King of France in 1782, in regard to the payment of the French '■ t;. S. K. S. relating to District of (lohiniliia and Post Iloads, and Public Treaties, p. 203. ■ Iliid., Article I, p. 204. » Il)iil., Article XXX, p. 212. '' Iliid., Article III, IV, VI, VIII, XI, ri'. liOt, 205, 206, 207. In two articles, liii\vi!ver, arc references to the United Sliitcs us an cntKy. Article XX, " For tlie ijctter promoting of commerce on liotli sides, it is agreed that if a war Klmll breal: out hotwoen tlio snid two nulious," etc. Artlulo XXII : " It shall not bo lawful for any foreiijn priva- teers, not belon^ins to subjects of the Most Christian King nor citizens of the said United States, who have com- missions from any oilier Prince or State in enmity with either nation, to fiC their slups in tlie ports of eitlier the one or the other of tlio aforesaid par- ties," etc. Uiid. p. 209. 'd Ibid., Preamble, p. 201. " Ibid., p. 201. n Ibid., p. 203. 66 NATVItK OK COXSTrTUTION. [cnAi'. II. loan." The contract between the King and the United Stales, upon tiic same subject, in 1783, recognizes the independence of the thirteen United States of North America, and refers througii- out to tiiose tliirtcen States.'* " U. S. R. S. ri'latiiiK' to District of Columbia ami Tost Ilouds, aud Public TraitioH, pp. 214 217. I* " A coiiti-act bctwncu His Most Cliristian Majesty and tlio llilrtnnn United Stales of North America, on- lerod into at Versailles, on the 25th of February, 17«;i. " The re-estubllshed peace between the belligerent Powers, the a?lvanta- ges of u free conimeree to all jiurls of tlio globe, and the ludependenco of the thirteen United States of North Ame- rica, aclinowledged and founded on a solid and houoralde basis, rendered it probalile that the said States would bo In a condition to i)rovido hereafter for their necessities by means of the ro- Hourees within themselves without 1)0- ing compelled to Implore the contiuu- ution of the succours which tlie King has so llborally granted during the war; but the Slinlsler Plenipotentiary of tho said United States to His Maj- esty, having represented to him the e.xhausted state to which they had boon reduced by a long and disastrous war, His Majesty has condescended to take into consideration tho rc<|uest made by tho aforesaid Minister, in tho Dunic of tho Congress of tho said States, for a uew advance of money to answer numerous purposes of urgent and in- dispensablo expenses in tho course of tho present year; His Majesty has In couse(pience determined, notwith- standing the no less pressing necessi- ties of his own service, to grant to Con- gress a new pecuniary ae.si8tance, which ho has fl.xed at the sum of si.x millions livres tournois, under tho title of loan, and under the guaranty of tho wholi' tldrteen United States, whieii the Minister of Congress has declared his aeeeptaneo of, with the llvelii'st acknowledgments, in the name of the said States." (Ibid., p. 217.) In Article II: "His Majesty lure confirms, in case of need, tho gratui- tous gift to the Clongress of thos.dd thirteen United States." (Ibid., p. 21H.) Similar language is used in Artido IV, (Ibid., !>. 21!)] : "and itissigned by tlie MiniKters Plenipolentiari's of Ium Majesty and the Congress of the thir- teen United States of North America." (Ibid., p. 3iy. ) In the llrst Article of the Treaty of France, in 1782. with Great HriLain, " His lirltannlc Majesty acknowleiigea tho said United States, viz.. New Hampshire, Massachusetts Bay, Ilhodo Island and Providence Plaut.illons, Connecticut, New York, New Jcr.'-ey, Pennsylvania, Delaware, MnrylMnl, Virginia, North Carolina, South C.iro- llna, and (ieorgia, to bo free, sove- reign and irulepcndont Slates; that he treats with them as such, and for liirn- Hidf, his heirs and successors, rclin- (pilslies all claim to tho Oouvcrnmcnl, propriety and teriitoriiil riglitsof the same, and every i)art thereof ; and th:it all dlsi)utes whicli ndght arise in fu- ture on tho subject of the lioundarieB of the said. United States maj- be pre- vented, it Is hereliy agrecnl and de- clared that tho following are an I .shall bo their boundaries, viz. : " (Ibid., p. 2G1.) In the first article of the Treaty of Franco in 178.'J with Great Uritaiu, " His Britannic Majesty acknowle.lges the said United States, \iz., New Hampsiure, Massachusetts Hay Uhodo Island and Providence Plant itions, (tonnecticut. Now York, New .leisey. CHAV. II. V^-] OllIfUXAf, SOVKUKKINTY OK THK STATES. 67 III tlio provisions coiiccriiiiij,' the restitution of (■onliscated prop- erty, it is merely agreed that (Congress shall reeonimend this to the liCgislaturiis of tlie respective States, without any defniite promise on the part of the United States, lluit the several States shall carry out said rocommondations, as in fact many of them failed to do.^"" Similar hinguage may be found in the provisional articles for this Treaty signed in 1782.'" Tlie independence and sovereignty of the separate States was (Hjcasionally disputed even at that time. Thus, in the debates of (lie Federal Convention, Rufus King " wished, as everything depended on this {^'oposition, that uo ol)jt'etion niijllit be improperly indulged against the phraseology of it. He cou- ci'ived that the import of the term 'states,' 'sovereignty,' ^ ntitiaiKil,' ' federal,' had been often used and applied in tlie discussions iiiaccu- riitely and delusively. The States were not 'sovereigns' in tlie sense (■(inti'iidetl for by some. They did not possess the peculiar features of sovereignty — they could not make war, nor peace, nor alliances, nor treaties. Considering them as political beings, they were dumb, for they could not speak to any foreign sovereigu whatever. They were deaf, for they could not hear any proposition from such sovereign. They had not even the organs or faculties of defence or offence, for they could not of theriselves raise troops, or ecpiip vessels, for war. On the other side, if the union of the States comprises the idea of a con- federation, it comprises that also of consolidation. A union of the States is a union of the men composing them, from whence a nntinmil character results to the whole. Congress can act alone without the States, they can act (and their acts will be binding) against the instnie- tions of the States. If they declare war, war is de jure declared ; cap- tures made in pursuance of it are lawful; no acts of the States can vary the situation, or prevent the judicial coiise([uencc8. If the States, therefore, retained some portion of their sovereignty, they had certainly divested themselves of essential portions of it. If they formed a con- fi'deracy in some respects, they formed a nation in others. The Con- vention could clearly deliberate on and propose any alterations that ronnsylvnnia, Delaware, Maryland, Virpiiiiii, North Carolina, South Caro- liiiii, and (li-orKia, to bo fioc, fovor- cigii mill indi'pciidcnt. Htatos ; that ho troatswith tlioin aH tsueli, and for him- K'lt, his heirs nnd successors, roliu- qulshes all claims to the Government, propriety ami territorial rlfihts of the Baiiie, and every part thereof." (Il)iU., p. 2Gr,.) !■"■ Ibid., p. 2('.8. '» Ibid., pp. 2G1-264. 08 NATUKK OF rOXSTITlTION. [iHAP. II. C'oiifiress roulil have doiio under tlic I'ctlei'iil Articles. And toiild not t'ongresH propoHC, I'V virtne of llii' last article, n ohaniic in any article whatever, — and as well that relating to the eiiiialit}' of snl'traye as fliij' other? lie niiule these remarks to obviate some scruples which had been expressed. He doubted nuich the practicability of annihilating the {States; but tlionght that much of their power ought to be taken from them."" Mr. Madison said : " Some gentlemen are afraid that tlic plan is not sufKoiently national, while others appreli • that it is toonuich so. If this point of representation was once well I. .,i|, we should come nearer to one another ilk sentiment. The necessity would then be discovered of circuuiscrib- ing more effectually the State governments, and enlarging more effectu- ally the bounds of the general government. Some coiilciiil that lh<' JStdti'K (ire Korcreiiiii, irlicn in fiicl llie;/ (ire oiil/i political snrieticn. The States never possessed the essential rights of sovereignty. They vere ahca>in rested in Conrfress. Their voting iis States in Congress is no ovideiice of their sovereignty. The State of Maryland voted by coun- ties. Did this make the counties sovereign? The States, at present, are only great corjiorntiona, having tlie power of making by-laws, and these are effectual only if they are not contradictory to the general con- federation."" In the legislature of South faroliiia, which vccoinniciidcd the State Convention of ratification, (iciicial Cliarles Cotesworth I'inuk- ney, after (juoting the Declaration of Indepuntieiicc, used these prophetic words : — " The separate independence and individual sovereignty of the sev- eral States were never thought of by the enlightened band of patriots " Madison Papers, Elliot's Debates, 2(1 o(' , vol. V, pp. 212, 213. '» Yat(is's Notes of Sooret Debates, Elliot's Deliates, id ed., vol 1, p. H'd. Mudif oil's own report of this speech, which was piililisheil after his siilisc- qiient report on the Virginia Resolu- tions, omits most of tliis lanf.;iiaKe. (MudiHon Pajjcrs, iliid., vol. v, p. 2,j0.) Euf us KinR thus reports the speech : — "Wo are vague in our laugungn. We speak of the toverelguty of the States. The Stales are not sovereign iu the full extent of the term. Tliero Is a gradation from a simple corpor.a tion for liuiitod and spocllled objects, such as an incorporation of a number of mci'hanics, ui) to a full sovcroiguty as preserved l)y indepi'iulent nations whose powers are not limited. Tlio l:\slonly ;iro truly sovereign." (Rufus King's Rt'port of Peliates in Federal CoMVcnliiMi, Juno 21), 1787; Life and Curn^sponilence, vol. i, p. CIO. Sec also Dr. Benjamin Rush, iu his Ad- dress to the People of the Uuiteet us, then, eonwiih-r all attempts to weaken this Union, l)y inaintainini; liait eneh Stale is separately and individually independent, as a species of political heresy, which can never beuetit us, but may bring on us the most serious distress."" Aliout tiio piiiir soveveiRiity of three at least of tlie I'liited States, there eiin lie no (juestion. The States of North Ciiro- lina and IJhode Ishuul at first refused to ratify llie Federal Coii- stitutioii. 'Die lu-w goveninieut was nigaiiized by eleven St;itcs on March 4, 1780. North Carolina did not ratify the Coiisli- tntioii until November 21 of the same year, and Rhode Island not till .May 2!', 170U. In the meantime, these States were eon- sideivil hy themselves, as well as hy the eleven I'liiteil Slates, and were in fact, indepeiidciil and foreiirn State-;.-" Texas declared Iki' iiideiicndcncc in IS;!") and maiiitainccl it until 1H4">, when slu; was incorporated into tlu> Fiiion hy an Act of Congress. Cpon the other hand, it is hard to see how the new States, carved out of tiie national territory which was acquired by eoiupiest, treaty, or cession from the other States, were ever sovereign or iiide- IH'iidcnt.-' "Elliot's Debates. 2d ed., vol. Iv, \i\<. 'Ml, ;)()'2. See also Wilsdii's rv- niarlvs on the nature of the Coufeder- alicm. Coiisideriitioiis on the Bank of North Aniorica, Wilsoa's Work.'^, vol. ill, ii|i. ■}()(•,, 407. -' Tlio Slassaeliusetts Magazine for March, 17s'.i, .^aya, bi its siiiiiniury of ATiH'iiciiii News and Politics : ■' Itnom; Island. This foreign St.'ile has again refused to aeoedo to a miionwitli hi'rlate sisters. Anxiousof '■njciying tli(( protection of tli(3 TTnion, llie inhabitants of Newport, Provi- ib'iiceand other [ibices are detorndneil to f-im for its prot-'otiou and to bo an- nexed to Massaeliiisetts or Coimnetl- lul, tlicreby to evlueo to their pre.seut; lof^i^latare, that unless they Uiko measures for a speedy mloptlon of the Constitution, their lioasted sov(!reign- ty U3 an independent State will ero long be at an end." " NoiithC.vuolina. Thisollicr for- eign State lias lately oviuceil a dispo- sition to lieeome u menilier of Iho United States." Tlierevi'tine laws [Hit them upon the same fooling as bireigu Stall's, and there was no |irovision for them in tlie tlrsl Judiciary Act. 1 Story's Laws of the l'. S., pp. lin. r>0, r,:t ■ Baldwin's Views, p. DO. ■-' In his Videdietory to the Senate, Judali P. Bi'iijamiii, of Louisiana, ar- gued ingeniously that the United States hehl the sovereiicnty of this territory In trust until the adnussbm of each new State. (Blaine's Twenty 70 NATUIsr: OF CONSTITUTION. [chap. II. It seems clear, however, that Marshall was riglit when he said :— "As preliiniii.iry to the vory alilo diHcuHHious of the C'onstitiitioii whicli we liiive licnrd from tlie bn.', and iin liaviii;; some inlliienee on its eoiiHtructioii, reforenee \\i\n been made to the political Hituation of tlu'Hc States anterior to its formation. It has been said tliat tlu'v were bov- ereii;n, were completely independent, and were eonueeted with each other only by a league. This is true. But when these allied soverci{?ns converted their leaj^ue into a <;overnment. when they converted their con- gress of ambasssidors, deputed to deliberate y the Thirteen States. Jt must also be conceded tiiat the (Constitution was formed hj the thirteen States and not by the people of the United States at larjje. The delegates were in some cases elected by the people of tlic different States, and in others a[)pointed by their respective legislatures. They voted in llie (\invention hy States and not as individuals. The object of the ratification by the people of tlie several States was because it was deemed tliat the legislatures liad no power under their respective constitutions to delegate or grant away any power vested in them by the ratification of the Constitution.' These facts are plain to every student of the history of tiie appointment of the delegates to the Federal Convention, the proceedings of that Convention, and the ratifiea- of the Constitution by the thirteen States. ii; 14. Form of Katifleations of the Constitution. The Constitution was ratified l)y tlie people of tlie thirteen States acting througli conventions elected for tiiat purpose. Tliere is nothing in the form of the ratifications which suj)ports Yenvs in Congress, vol. i, pp. 249-2.'51. ) § I^- ' He(i the Speech of Madison, Senator Yulee, of Floridii, niiide u quoted I'n/ra, § 19. For tlie ereiliMi- Bimiliir claim. (Iliid.) tials of the delepfates to the State "'- Chief Justice Marshall iu Gibbons Couvoutiou, see supra, § 12, uoto 5. r. Ogden, 9 Wheaton 1, 187. [CIIAI'. II. V^-1 FOIIM OK KATIKICATIONS. 71 le said : — onstitiitioii I'lice on itH )ll (if tlU'HC were BDV- with ea(!li sovereigns I their con- II coiiceruB, lire empow- le elmraeter I of wiiicii lit by wliieb «-ii Htatcs. formed by I States iit e people of respective and not as t)ple of tlie legislatures to delegate ;ifi(;ation of dent of tlie lie Federal the ratifica- ion. lie thirteen it purpose;. sh sui)ports I of Madison. r tho ("rcdcMi- lo the State 12, nolo 5. till! position that the Constitution was a league, or an amendment of tlio Artieles of Confederation, or that the right to witiidraw from it was reserved. Seven of thein ran in the lumie of "We, the delegates of the jieojile of tlio State."' Tliat of Delaware was in the name of " We, tlu! deputies of the people of the State of Deliiware." Tiuit of New Jersey, " \\'e, tlie delegates of the Sl;it(; of N(>w .ler.sey."' The ratilieatioiis of Massaciiusetts, South Caroliiiii, New I ^vInpsllil■e, and Xortii Carolina were in the third jiereon, and in tie name of "the ('onvention," or "this Conven- tion." All of vhem used the phra.sc "ratify." Eight of them, the piirase, " assent to and ratify." ^ Tliat of I )eliiware stated that its deputies did "freely and entirely ajjprove of, assent to, ratify and eonfirni the said Constitution." Tliat of New Jersey, tliat the}' di()rgl«, Miiiylaiiil, Vir- rjiaml, Soiilli Carolina, New Hamp- ;,'iiiiii, Now Yorli and Itliodo Isl:ind. slilre, Virginia, New York and lihode Tlie forms of the credent ial-; of I lie Island, delegates arefiuotedHiy>ra, § 12, iiotoS. 7-2 NATURE OF CONSTITL'TION. [CUAI-. II. TIio words "with eiiuli otlier ' would have bueii lephiced by .suiiu- |ihriisc, such us " between the people of eaeh State," liad that been the intent. Mueh stress is laid, by the advocates of secession, upon the dc.'huations in the ratifications of Virginia and New York. The ratification of New York is preceded by a declaration of twenty- four articles concerning political rights and the construction of the Constitution. These are followed by the declaration, — "Under tlicsc impressions, and dcelarinf; tliat the rigfits aforesaid can- not be aliridffcd or violated, and that tlie explanalions aforesaid are con- sistent with tlie said Constitution, and in confidence tliat tiie amend- ments wliicli shall liave been proposeil to the said Constitution will receive an early and mature consideration, we, the said delegates, in the name ' .itl on behalf of the peoiile of the State of New York, do by these presents assent to and ratify the said Constitution." Manifestly, tiiis declaration of the understanding in New York, to which the other States did not accede, could have no bind- ing effect upon ilic construction of the inslruincnt. It was not intended to be cither a reservation or a condition. Rut there is notiiing in those dccdarations which tends to support the right of secession. The only one upon which sticss is laid is the third, which states — " That the powers of the government may be reassunicd by the [leopie, whensoever it shall become necessary to their happiness." This merely refers to the right of revolution, which is rcciigni/.cd in the Declaration of Inil(']icndcucc, and docs not claim to ]\' a reservation of any legal right of receding from the instruni^'Mt liius ratified. Similar observations ap[)ly to the ratification of \'iiginia, which is jjreccded by the declaration — " That the powers granted undertint Coiwtitution, being derivecl from the people of the I'niled Stales, may l>e resuiiied by tliiiji whensoever the same shall Ik^ perverted to their iiijiiry or oppres^^ioii, Miil that every power not granted liiereliy reii.ains with them, aad at their will ; " and coii'ludcs : — " With these iiupressioiis, with a soleinii appeal to the Searcher of all lu'arts fur the purity of mir iiitenlions, anil under llie conviction that whatsoever imperfections may exist in the Constitulloii, ought rather to 't S 1.-.. v-'-] M-,(iAMTY (IK AN IN'mrtHOLUItLIO INloN. 73 liL' ('x:ur.iiit'd ill the mode proscribed therein, tiiiiii to l)rin<; the union iiilo (hiiiirer by a delay with a ho\u'. of obtaiiiiiu; ainendiiients pre- vious to the ralilicatioiis, \m , the said delegates, iii llie niune and in lieiiair of Virginia, do by ihese presents assent to and ratify the Con- stitution rceoinineiided on tlie ITtii day of Septei ber, 17'<7, by the l'\'(leral Convention, for the (iovernment of the United States, lierel)y aiinoiMieing to all those wlioin it may concern, that the said Constitution is liindiiig upon the said people according to an authentic copy hereto annexed in the words following." In tiic New York Convention, Lansini,' moved a resolution wliiili reserved tiio right to witlidniw from the liiion. Ihuuiltoii wrote for uilviee to Miidison, wlio was in Congress at New York. Tiie answer of Madison was read to the Convention hy Iliiniilton as foUows : — " ]My opinion is, that a reservation of a right to withdraw, if aniend- uients be not decided on under the form of tiio Constitution within a certain time, is a conilitional ratification; that it does not niai:o New York a lueinber of the new I'nion, and, consequently, that she could not be received on that plan. The Constitution requires an adoption in lull) and foi-i'rcf. It has been so adopted by the other States. An adoption for a limited time woidd be asilefectivc as an ado])tion of sonic of the articles only. In short, any condition whatever nuist vitiate the ratilication. The idea of reserving a right to withdraw was starti'd at lii( luiiond, and considered as a conditional ratification, which was itself aliauilou"d as worse than a rejection."' S 15. LefjfivHty of an In!e UmIo.i between S<»ver KnRlish Act, .^ Aim., c H, I70li: Hupra, § 7, note a. The Scotch Aet wa.s a your later. < Ulai I, p, Allh:iii' r.ii iii);i' : exirlioi niisi' a ' lllilKls it is lii teiiqil lui'aiis " To flirt luT, or iilii'i llU.ll. S.-ol|;,l„ aiilliori Mmliiiy an ai't, iTolilMl. iiiii-'lii -ii-.|. if Mill nil ;;i(;.] NOT A LKUAL COMTACT. 75 part of its laws, is tlie height of political tihsiirdity. The truth spems to bi', that ill such an incorporate uuiuu (wliich is well (li!itinjiiii!sli(>cl l)y a very leaiiieil prelate from a fiederate alliance, where such an infrin;j,e- iiient would certainly rescind the compact) the two contractini; states are totally annihilated, without any power of a revival ; and a third arises from their conjunction, in which all the rifjlits of sovereignty, and particularly that of legislation, must of necessity reside."'' Tlieso iuuiiorities wniikl soeni to 1x3 conclusive. Ami this posi- tidii WHS concedecl by JelTersoii Davis, wlio said: — '• No doubt the States — the ])eople of the States — if they had been so disposed, might have merged themselves into one great consolidated .Siale. retaining their geographical boundaries merely as matters of con- venience." ' ^ 10. The Constitution i.s nut u I^ct;al Compact. Tlie Constitution is in no Icj^al sense ii compact between the States. That it is, has been the contention of the advocates of imllilication and secession. > They base tiieir jjosition on the fact that it lias been called a compact by statesmen at tiie time of its * lilackstono's Commentaries, vol. i, ]>. '.)7, note citing Warhurton's Allil:MfC, I'.tr.. Ill icU'-tono continues in llio eamo iioir ; " lint tlio waiitiiii or inipnidiMil oxirilon of this ri^lit would [irobalily raise a very alarming ferment in the niiails of indiviiliials; unci therefore ii is hinted above tliut siieli nn nt- toaipt miKht endanger (Ihough by no iiii'Miis (li'stroy 1 llio union. "To illustrate tliis nuiltiT a little f;irlher, au net ( f I'Mrliameiil, to rejiiMil or alter tlio act of uiiiforniity in Kn^- iand, or to estalilisli opiwopacy in Si'oil.iuil, would (loublloH.s in point, of aaihority be fiuHleiontly valid aial t'iialiMH; and nolwithstandiiit; such Mil ait, Iho uaioM would continue un- iMiilien. Nay, eaeli of tlieso measures iiiinht bo safely and honoralily pur- sui'd, if rospectivi-ly afireeiilde to the scnlimeiits of the KiiKlish churiii, or the kirlv in .SioMaiid. Hut it .should seem neither prmleiit, nor l>erliaps .'onsisteni Willi koocI faitli, to venture upon either of tlioso steps, liy a spon- taneous exertion of the inherent pow- ers of Parlianienl, or at the iiistanco of mere individuals. So .s,aered indeed are the laws above mentioned (for protoctinR each church and the Eng- lish liturjiy) r;.steemed, that in the Keiieney nets both of 1751 and ITfir) the re^;en1s are expre>^sly disal)led from assentiiiK to the repeal or alter- alioii of either these or the act of selllemeiit." Ibid., p. !)(!. f' Davis, liise and Fall of the Con- federate (iovernmeut, vol. i, !>. 155. *) 10. ' See Calhoun's speech in tho Senate, Fell, ati, 1H;1:), in n>ply lo Web- ster's attack on his resolutions in re- gard to the Force UlU. Niles' Ucfjis- ter, vol. .\liil. Hup. p. 25!) ; Sage's Tho Eeiiuhlic of BeimbiicH, pnKnim. NATURE OF CONSTITUTION. [chap adoption ^ and since, even by some such as Webster,^ wlio denied tlic corolliiry tluit a breach by some of the parties h?gally absolved fioiii olictlicnce the rest. 'i'iie diihuulty liero lies in the fact th.at the term is used by neaily all wiioni the}- ([uote in a colloquial and not a legal sense. Most laws as well as constitutions are the result of compromises of whicli men spoak as compacts. At the birth of the Constitution, more than now, this term was common, since there were then more disciples of the theory that all law was based on the social con- tract.^ A gross breach of such a conii)romise, whether contained in a statute or a constitution, would, it was conceded, release the injured ])arty from all further oliligitions. Iiut the hitter's action, allliougli justilicd morally, N\as none the less illegal, and, where a people was a party, could only l)e accomplished by a revolution. When .fames II was deposed, it was resolved by the two Houses of Parliament ihat — " King .lames the .Si coiid. having endeavored to .subvert the Consti- tution of the kingdom hy breaking the original contract between the King and the people, and having, liy the advice of .lesnits and other wiel;ed persons, viohitcd the finidanientMl law, and witlulrawn liiinself out of the king(U>in, lialli jibdieated tlie govenmicnt, andlliut the llu'oni' is thi'rel)y become vacant." Yet tlie proceeding is luit justilicd as legal, but is always 2 2r,7. •Ill "' See tlie Meiiioii;il to ConurreBs on itself is n eoiiiraet. theSulijeetof Ke-tlililiilip;the Iiiei'easn H .Mass., HH, some sense even };nver:iiMent. lirowii I'. Hank. of Slavery in Xew Slates to lie ml mil ted The l.o^l Principle, by liarbarosoii Into the I'ldon, prepared by a com- llielunond, ISOO. mi', leu appointed at a rnblie Heeling t 4 §1(1.] NOT A LEGAL COMPACT. 77 Ami lii.s arguments in support of the latter are as cngont :;■( those iidvaiicfd on behalf of the former theory. Yet no hiwvci- would seriously argue to a court that either of these sections (.au ho a person wliich can hind and unbind itself any more tliaii it could sue or be sued. Otiiers, as Hayne, speak of the new government created by the Coiistitnlion as a party to the compact: — "Ili-ro, tlieii, is a case of a compact between Hovei'oi<;:ns ; and tiie (HK'stion iirisL's, wiiut is the remedy for a clear violation of its cxi)ross t(;rins liy one of the parties.". ..." The creatinjr power is three-foiu'ths of the States. I5y their decisior. tlie parties to the conipaet have agreed lo be bound, even to the extent of chaniiin^i the entire form of the liovernment itself; ind it follows of necessity, that, incase of a dc- lilierate and settljd differeuc of opinion between the parties to the cDinpact, as to t'.e extent of the ])owers of either, resort must be had to their counuon superior (that power which may {jive any character to the Constitutioi! they may think proper), viz., three-fourths of the States." » The exposure of tliis falhn:y l)y Webster needs no words of <'()nnncnt : — " His argument consists of two propositions, and an inference. His propositions are — " 1. That the Constitution is a compact between the states. " 2. That a compact between two, with authority n-seivcd to one to inti'r|iret its terms, would lie a surrender to that one, of all power wliati'vcr. " ;!. 'I'iiei'efore (such is his inference) the ;j;eneral {iovornnient does not possess the authoriiy to construe its t>wu powers. iSow, sir, will) (Iocs not see, withoul the aiil ot expositi(Mi or de- ti'clioi:, the utter confusion of ideas involved in tliis so elaborate and systeiii:iti(! ai'i;uincnt? he Constitution, it is said, is a compact between States: the Siui's, lluu, anil the States only, are parties to the eouijiact. How conios the fj;eneral government itself a party? Ipon the houoralile j!i'ntlenian's hypothesis, the general government is the result of the Mr. llayTic'rt Ueply to Mr. Wclj- luont in MiUinnn's ease said; "Tliat KUT, nliridgiKl liy him-^clf, rli-Uvprcd was the compact made with the gcn- in thp S'ualo, .Inniiary 27, 1H:)i). Elli- cral government at the llnio it was i(l« Ddjalos, 2d cd., vol. iv, pp. !i{)'J. created." .")l;i. So J^ld^'c J. S. Hliu k in Ids arj^u- NATL'KK (IF CDN.sTlTrTION. [CIIAI'. 1! sM<; m compact, the oreatiire of the coiDpui't, not one of tlii^ parties to il. Yet tiie !xrj!;uini'nt, us tlio ^rc'iitleinan has now stated it. niakos (lie (iovciniiicnt itself one of its own d'eators. It makes it a parly to thai eoiiipaet to wliicii it owes its own existence. " For llie puipose of erecting the Constitution on tiio liasis of a compact, llie gentleman consiilers the States as parties to that compact ; but as soon as his com])act is made, then lie chooses to consider the jicncral froverument, vhieh is the otTspring of that compact, not its otTs|)ring, but one of its parties; and so, being a party, has not thr power of judging on the terms of compact. " If tiio whole of the gentlemen'ti main jjroposition were conceded to iiim — that is to say. if 1 admit, for the sake of the argument, that the Constitution is a compact between States — the inferences wliicli lie draws from that jiroposition are warranted by no just reason ; bi cause, if the Constitution be a compact between States, still that Con- stitution, or that compact, has established a goverinnent with certain powers; and whether it be one of those powers, that it, shall construe and interpret for itself the terms of t'le conqiact, in doubtful cases, can only be decided by looking to the compact, anil iii(iuiri?ig what pro- visions it contains on this point. Without any inconsistency witli natural reason, llie government, oven thus created, might be trusteii with this i)()wer of construction. The extent of its powers, therefore, must still be sought for in the instrument itself." ' 'riui wliolc pliniseology of tiu; Constitution is in cdnllict with the one tlicory as nmch us witli tlie otlier. In contrailistinctinn with tiic preceding instrument of union, it docs not call itself a ' Wobster's Reply to Hayrie, Elli- ofs Debates 2(1 ed., vol. Iv, ])(). .'JKi- B17. This point is yield(>(l liy tlie ueute autl learned uiitlior of The Ke- ()iil)li(; of Ki'piililies, -Ith ed., jip. 2,>'J ■il\(): "The Fointeontli I'arly to the <'()iiipii(t wijp, iiei-orilbii.' to U<)l)erl Y. il/iyiie (iiiij iIiiilRe .1. S. Jiliii'li, the ^'i)V- eniiuiMit, wlijeh I'ould not, have hnil any oxistenee I ill lotiK nfler tlin eleven Mti/li'S liad ralilli'il, e.-liilili^lied, iind llnlHlieii hiiid ii>iiipiu:t." Aftenpiolliih' tllDUl : " Other eminent men niaUe Uie same ndslako, bo Itiiit the eonfiislr/n of ide.is on this fiiihject is jfeneral. It is Only neeebsary to say thai, the 'ompact ox- isti'd and waseonii)lelo, t!.i(iii;!li thos'' ratificatioMS, deelared In itself to In' Mullleienl for the osl,alil:sliinent of it. many n'onlh.s before the nener.il (;o\ eniment existed. After the eolleetivr Stales, in the ('ont;n!SS i:f Iheniselvi :- had ri'i'iiunizeil tlii> llnislie 1 I'onipH'l. and ad\ ised tlie Stales to act under il. liy electlni,' their siilijects r.s lb; fani- tionaries; after the soviMal Stales had oloi . "d their cpiotas, ai'c'diduiK to tlie exju'ess terms; and aflerlhi'sei'lectees had convened and ori,'anized undirtho said pact; then and nut lill then did or eould the |.' ""il goveninient ex- ist. Il is then ,1... .1(1 to call the gov- ernment a party." 'f .<1li.] NOT A I.F.(!AL COMI'ACT. 19- li'iijTiii',' nor a compact, nor articles of confcdovation ;" but a Cttii- siitution,'" which is onlaiiied ami cstal)lislic(l," wliicli vests powers ii! II t^ovcniiiieut; '^ and whicii shall he the supreme law of tin? laiitl. hv which tlie judges in every State shall he hound, am iliinn' in lu; Constitntion or laws of any State to the contrary ni)t\\illistiindin,i(.''' Tlu; Constitution is founded upon compact, liiit is not itself a coMi[)act.'* ■• Articles of CmffdiM-ation, III. •' I'rcniiililn im 1 (■(iiicliidiiij^ <•llul^^c (if Artii'li'sof Coiifoili'ralidii. " Si'o Wclistcr's Spocfli in tlio Si'li- atn, roll. 10, 183;), ngiilnst Callioun'rt Ui'-nhitious; Nilos's lU'^lslor, xliii, Apiii'iiilix, p. 170. n Proftiiitilp. '- Artiolo I, § S, ccincliKliii;; clause. "Tuil., Ailido VI. " " Wlii'llici- Uui Coiistltutidii Im a cmiip.'ict licUvccn iStiitos in tlicir .sovc- ri'i^rn ciipacilicB, is a (lucstioii wliich iiHist lio mainly aigiicd fmni wliat ih conl.'iincd in tlio inslnmicnl itself. Wc all .■ii;i'co lliatil, isan instriiiiicnl, wliiili liiis in .''oMio way licon clothed with jiowor. Wo all admit that it sjiealis with authority. Tlio liiHtiinos- tiiMi then Ih, whatdoes it sayof itself? What ildOfi it purport to ho? Does it style Itself a Leagiio, Coufpileracy, or i'oiii])acl Ijclwecn sovorcign Slat(M? It is to Im' renienili(>r(-d, sir, that the Ciinslitniion began to speak only after its adoption. Until it w.'is rat illeil hy Mine Stales, it was liut a jiroposai, the aiere ilniugiit of an instrnnjent. It was like a deed lirawn, lint not o.\e- culed. Tlieronventiun had framed it ; sent, it to Congress, Ilieii silting nn- di^r the CiMil'ederation; Congress liad transmit leil it to tlin State legisla- tnru.s; and l.y these last it was lahl before conventiona of the people iu tlie Hcveral Slates. All this while it wa.'^ inoperativo paper. It had re ceived no stamp ft anlhorily, uo Fanetioii ; it spoke no language. But when ratidod l>y tho pivplc iu their respective convenlions, then it had u voice, and spoke aiilhenticany. Every word in it had tln-n received the sanc- tion of the popular will, ant ii State. Those iiiim.arv rules- wliicli concern the body itself, and tho very being of the politii'al society, tho form of gov criuiient, and the manner in which poweristo beexerclseintilulkin is? Is it uotnn idea perfectly familiar, (lelluilo, and well settled? We are at no loss to undi'i'stand what is meant by tho Conslilntion of one of tho States; and the Constitution of the United States 80 NATUKE OF CONSTITUTION. [CHAl'. II. 8 17. I'rocoodiiiKS in Federal Convention as to tlin Deter- mination of tlie Form of tlie New Government. The proceedings in the Federal Convention show that it was intended to create a national government. 'Die resolution of Hp«(!iks(>r itself iislii'lnn nii Instrnniont of (til' s;iiiio niiliiro. It hiijk, this Ci>nt:tiliilii>'i siliall liii tlni liiw of tlui l.'iiiil, iiiiy l,liiiif{ in liny Hlnii' CiiiinlltH- lion, to (lie contrar.v, iiolwitlistaniliii^'. Anil it spoalis of itself, too, iu plain <50nlraclistinrtlon fiom ft confednia- llon ; for it snya tliat all (lel)ts con- trncU'd, ami all engancinonts ontcrcd inti), liv tin; TTnitcd States, hIuiII Ih! as valid under tliis Con>t!iliitUm as under the Confi'ilnralion. It does not .say, as valid under tliis CnmpacI, or tld.s Loaf^ue, or this Confederation, as un- der tlio fornior Confederation, hut as valid under tids dmslitiilion. " Tins, then, sir, is declared to bo a Constilutiim. A Constitution i.^ llio fundamental law of tlio Stale; and this is expressly dindared to ho tho 6Ui)remn law. It is as it tho people had said, ' AVo prescriho this funda- nientnl law ', or ' the supreme law,' for tliey do say that they ostalilish this Const iltili^jii, r.iid that it shall ho tlu! siipreme law. Tliey say tluit they ordain imd rHtnldish it. Now, sir, what is tlic! eomnioii applieatinn of these words? We do not speak of or laiiuiiK le;igiiea and eom|ia.'ts. If tliis was intended to lie ii coinpaet or league, and tlie Stales to ho parties 'o it, wliy was it not so said? Why is tliero found no one expression, in tho whole inslriinient, indieatiiig such intent? Tho old Confederation was expres.-ly (•ailed ji league ; and into tliis league it was deelared that tlio States, as suites, severally entered. Why was not similar language used in the ("on- fititutiou, if a similar intention had «iifit«,'d? Why was it not said, ' the States enter into tliis new leaKue,' 'the States form this new confedera- tion,' or ' the States agree to this new eimipaet'? Or why was it not said. 11 the languat;e of the geiitlenian's resolution, thai tho people of the several States aeeeded to this eoiii- pael in their soveri'ign eapacillos? What reason is tliero for supposing that the tramers of th<^ Constitution rejeitted expre.ssioiis appropriate to Iheirown meaning, and adopted others wholly at war with thai meaning? "Again, sir, tlieCoiistitution speaks of that political system wliich is os- tahlishod as ' the fiovernmont of the United States'. Is it not doing a strange violeni n to laugungo to call a league or a ii mpaet between sov(>- reign powers a (/((icrnmcHf ? The gov- ernriienl of a State is tliat organiza- tion in which tho political power re.-.ides. It is the political being cre- ated by the Constitution orfundamon- tal law. The bro.id and clear differonce between a government and .a league or compact is, that ii governmi^nt is a liiidy jiolilic ; it has a will of its own. and it possesses jiowers and taoultics to exoeiite its own purposes. Every compact looks to soino power to en- force its stiiiulations. Even in a. com- pact between sovereign eoinmunities. tliero always e.vists 111 is ultimate rcf- ereuco to a power to insure its execu- tion ; although, in such case, this power is hut tlie forci" of one party against tho force of another; that is to say, tho power of war. Hut a gn- trunient executes its decisions by its own supreme authority. Its uso of force iu compelling obedience to its CHAP. U. '•] PROCEEDINGS IX CONVENTIOX. 81 ('oiifjrcss which recommended the Convention recited as the rwison lor tiie same : — " Siicli Convention appearing to be tlic most suitable means of estab- lishing in tbese States a lirm national government." ' own cnacttiionts Is not war. It con- liMMi'lali'S no opposing jiaity liaviiig a right of resistance. It rests on Its power to onforco its own will; ami wlit'ii it conses to possess this i)owor, it is no longer a governniont." Daniel Wel.rtter's S|ieech of Feb. Ifi, 1833, In tlio Senate, iu opposition to Calhoun's Kesolntions )t .Ian. 22, 1833. Niles's Ucgistcr, vol. xllll, Appoiidi.x, p. 170 ; Welisler's Speeches, 8th ed., vol. 11, pp. ]"4-17(i. See Calhoun's Reply of Feb. 2G, 1833, Niles's Register, vol. xliii, p. a.V.I; Ciillioim's Speeches pp. 98-122, qnotoil In Stephens' Constitutional View of the Late War between the Stales, vol. 1, pp. 313-387. "I do not agree that the Constitu- tion is a compact between Slates In llioir Bovoroign capacities. I do not agree that, in strictness of language, it is a coMipact at all. But I do agree thai it is founded on consent or agree- ment, or on compact. If tlie gentle- man prefers that word, and uiouus no more liy it than voluntary consent or nurcH-nicut. The Constitution, sir. Is not a contract, but tho residt of a con- Iracl; moaning by contract no more than as.scnl. Founded on consent, it is a goverumout proper. Adopted by tlin agreement of tho people of the lliiiled States, when adopted, it has heiume a Constitution. Tho people liav(! agreed to make a Ojustitution ; l)ul, wlien made, that Constitution bo- coiiic-s wliat its name imports. It Is no longer a mere agreement. Our laws, .sir, liavo their foundation in tho agreement or consent of the two lioiisi's of f 'ingress. Wo say, habitu- ally, lliat one. house proposes a bill, and tho otlior agrees to it; but tho result of this agreement is not a com- pact, but a law. Th(! law, the statute, is not tlio agreement, but .something created Ijy tho agroonient; and some- thing which, when created, has a new character, and a'ts by Its own au- thority. So the Constitution of the Unit(!d States, founded in or on the consent of the people, may bo said to rest on compactor consent; but it is not itself tho compact, but Its result. When tlio poojile agree to erect a gov- ernment, and actually erect It, the thing is done, and the agreement is at an end. Tho compact Is executed, and the end designated by it attained. Henceforth, the fruit of tho agreement exists, but tho agreement itself is merged on its own accomplishment, since there can be no longer a subsist- ing agreement or compact to form a constitution or government, after that constitution or government has been actually formed and established." Daniel Webster's Speech of Feb. IG, 1833, in the Senate, in opixjsition to Calhoun's Resolutions of .Ian. 22, 1833, Niles's Register, vol. xliii. Appendix, p. 170 ; AVebster's Speeches, 8th ed., vol. 11, pp. 17G-177. See Calhoun's Reply of Feb. 26, 1833, Niles's Register, vol. xliii, 259 ; Calhoun's Speeches, pp. 5)8-122, quoted in Stephens' Constitutional View of tho Late War lietweon tho States, vol. 1, pp. 3'43-387. So, marriage is founded upon contract, l)ut when solenmized is a HlalUH, which is something moro than a contract. § 17. 1 Elliot's Debates, 2d ed., vol. i, p. 120. 82 NA'I'tIM-; 111' CoNS'l'ITt TION. [CIIAI', At tlu! (p[H'iiiiit( 111' tin- l'\'ilciiil ( 'iiuvi'iilidii, (iovei'iKii' Kiuulolpli, on l)elialf of tlu^ (Ick'^Mtes I'roin N'irgiiiiii, iiresuiitcil ii sciics nf rusoliitioiis lis the foundiUidii iif tlit'ir pniceedings. 'J'liu lir.st Wiis : — " lieHolveil, tluit the ArticU'H nf Confederation ouj^lit to lie so cui- rected and enlarged as to accomplish the objects proposed by their institution; namely, ' eoininon defence, security of liberty, and general welfare.' " • 'I'JK' nsoliiiidiis tiinmjjfliout referred to a "national leffislatiire,"* "a natioiiiil executive," and "a national judiciary."''' Cliarles I'inckni^', of Vir^'inia, also laid licforc tiie llonsi! ''tlu! draft of a Federal (Jovernment, -whicli lu^ had prcpareil, to he af^recd upon hetwecu the free and iinlcpcndent States (if America." It was entitled: " I'lan of a Federal ('(institution." The copy of this latter document, which is now preserved, ])resent.s a singular like- ness to the Constitution as finally adojited. It is iMdieved, how- ever, to he a c(n'reet(!(l copy, which contains many alterations from the original, consisting of propositions which were suhse- quently adopted l)y the Convention.'* '- Madison rapers, KlUot's Dolmtos, ail 0(1., vol. V, II. 1'27; iliUl.. ii. 1'2U. ■1 Ihld., pp. 127 -128. ■• " Note (if Mr. Miuliwin to tlio rian of Chiirli'S I'iniloioy, Jlay 2!), 17S7 : — " • Till) loiiKtli (if llio (Idciuiient laid before tlie (!i|;ini!hiK tho cviih'iit piiipoKn of tho uiitlior l<> pioviile an intirr pUiu of a fi'ch'ral KovoriiiiK'iit. Anaiii, U\ w;v- iTal instaiiors where the paper corres- pondM Willi tlie Coiisliliitidn, it is at vaiianco witli tlie ideas of Mr. I'im^lJ- iicv, as decidedly e.xpressed in his priiposilioiis, and in Ids ar(;iinienlB, llie fMiiiier in tho Journal of tho Con- vciiticin, tho latter in tho report of its debntos. Thus, in Article VIII (if llie piipor, provision is made for removing tho President hy inipeach- meiit, when it appears that, in tlie Convention, on the 2()tli of July, ho was opposc>d to any iiupeaehaliility of thi' executive magistrate. In Article III il is reciuired that all money liiils shall originate in the llrst branch of the legislature; whicli ho strenuously (ippiised on tho Kth of August, and aKalii on tho 11th of August. In Aitii'h) V, members of oaeli Houso arc made inoligitilo to, as well us in- capable of hohling, any ollloo under the Union, etc., as was tho case at ono stage of tho Constitution, -a (Usijual- ilh'ation highly disapproved and op- jioscd by liim on tiie !'i.. r,! \ugust. .V still more cunclusice ev.dciice of crnir in tho paper is seen in Article III, which provides, a^ Hie Coiistitu- tiiiii docs, that the llrst I'noH'h of tho legislature shall be chosen by tho people of the several States; whilst it appears that on the (ith of Juno, ac- coidiiig to previous notice, too, a few (lays uuly after the draught was hiid before the Coiivontion, Us author op- posed that niodo of choice, urging and proposing, in place of It, an elec- tion by tho legislatures of tho several States,." "Tlie romarlis hero made, thuugli not material In themselves, were duo to tho aiit bent ieilyiind accuracy aimed at in this record of the proceeilings of a publii^ lioily so much an oliject, sometimes, of curious research, as at all times of profound interest." •'Stiildng liiscrepancies will bo found on a comparison of his )>lan as furiiished to Mr. Adams, niid the view given of that which was laid before the (,'onviMitioii, in a |ianiplilet pub- lished by Francis fluids at Nimv York, shorlly lifter the dose of the Conven- tion. The title (jf the j)iimplilet Is ' Observations on the jilan of govern- ment, sulimilted to the Federal Con- vention on the twenty-eight of May, 17Hi), liy Charles Pinckney,' etc. A copy is preserved among the ' Select Tracts,' in the library of the Historical Society of New Vorli. Hut what con- clusively proves that the choice of tho House of Representatives by the people could not have been the ehoieo in the lost paper, is a letter from Mr. Pinckney to James Madison, of tlio •2Hth of March, 17H',), now on his lilos, in which ho emphatically adheres to ft choice by the State legislatuio.s. The following is nn extract : ' -Vro you not, to use a full rxpressioii, abun- dantly convinced that the theoretical nonsense of an election of the members of Congress by the people, in the llr..-t Instance, is clearly and pr.-ictically wrong — that it will in the end bo the means of bringing our councils into ^ ,%.^.«'>^ P^ IMAGE EVALUATION TEST TARGET (MT-3) V .^^.,V*^ :a f/. LO I I.I 11.25 |28 |25 1^ 12.2 2.0 11^ _U III 1.6 I V] /] v: .^^v ^ ^v V /A "a « • PhotDgraptiic Sciences Corporation ^3 WEST MAIN STREIT WEBSTER, N.Y. 14580 (716)872-4503 ^V' ^47 %0 \ Ibid., p. 190. » Ibid., p. 189. " Ibid., p. 190. CHAP. IT. 17.] PROCEEDINCiS CONVENTION. 8T as the wisli (if several deputations, particularly that of New Jersey, that further time might be allowed them to contemplate the plan reported from the Committee of the Whole, and to digest (me purely federal, and contra- distinguished from the reported plan. He said, they hoped to have siicii 11 one ready by to-morrow to be laid before the Convention : and tlic Convention adjourned, that the leisure might be given for the pur- pose." " 'I'iiis j)liui wiis prcpiired by tho deputiitioiis from ('onnecticut, New York, New .leraey and Delaware, with the aid of Luther Martin of Maryland. The motive which inspired the smaller States was the fear that their intiTCHts would Iw injured hy the loss of tlieir ecjual right of suffrage. Dickinson of New Jereey .said to Madisftn: — " You see the consequences of pushing things too far. Some of the members from the small States wish for two branches in the general li'jiiHiature, and are friends to a good national government ; but we would sooner submit to foreign power than submit to be deprived, ill both branches of the legislature, of an equality of suffrage, and llicreby be thrown under the domination of the larger States." " Tliis plan, which is known as "The I'ropositions from New .Ici-sey," contains, as its firat resolution, — " That the Articles of Conft-'deration ought to be so revised, cor- rected, and enlarged, as to render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union." It gave Congress the power to raise revenues by a tiiriff on im- ports and postage, "and to pass acts for the regulation of trade and conimerce. as well with foreign nations as with each other." It ]ii(ivi(led, for the collection of other revenues by the reciuisition iinidiig till' States, — " Tlmt, if such requisition be not complied with in the time specified tlicri'ln, to direct the collection thereof in the non-com|)lying States, and for that purpose to devise and pass acts directing and authorizing the s;ian'." Neither of these ])owei-s was to bo exercised \vithout the con- .sciit of more States than a majority. A debate then ensued upon 1^ MniliHon rnpers. Elliot's Debutes, " Ibid., p. 191. vol. V, p. 1!)1. 88 NATUJtE OK CONSTITUTION. [("HAr. II. tlic iidvantiipfes of tlio different systeniB, in which that recom- iiu'uded by tiio C'onunittee of the Whole was eilled "uatiomil," and the propoNitions of New Jersey, " federal." The distinction iK'tween a federal and national government, whieh most of the nieml)ei>i of the Convention seemed to entertain, was thus stated hy (lovernor liandolph: — "The tnie (jucstion is, whether we shall adhere to the federal plan or introduce tiie national plan. The insutlicieney of the former has been fnily displayed Ity tiie trial already made. There are but two modes by which tiie end of a fjencral government can be attained : the first, by coercion, as proposed by Mr. Patterson's plan ; the second, by real li'jrally prevailed. A national government alone, properly constituted, will answer the purpose ; and he begged it to be considered that the present is the last moment for c jtablisliing one. After this select experiment, the people will yield to despair." " Miidison "..lid, however: — "Much stress has been laid by some gentlemen on the want of " Madisou Papers. Elliot's Debutes, 2U ed., vol. v, p. 1U8. s^"-] PROCEEDINGS IN CONVENTION. 89- power ill the Convention to piopose any other than n. federal plan. To wliiit had been answered by others, he would only add, that ncitlier of ilii' characteristics attached to a feileral phm would support this ol)jec- tioii. One characteristic was, that, in afiideriil ffovcrnnient, tlie power was exercised not on the people individiiall;/, but on the jwople col- Iciiircl;/, on the ntutes. Yet in some instances, as in piracies, captures, etc., the existing Confederacy and in many instances the amendments to it proposed by Mr. Patterson, must ojierate immediately on in- dividuals. The other characteristic was, that a federal •lovornineut (li'rivi'd its appointments not immediately from the people, but from the States whicli ihey respectively composed. Here, too, were facts on the other side. 'i two of the states, Connecticut and Rhode Island, tiie delegates to Coi 'iress were chosen, not by the legislatures, but by the people at large ; :ind the plan of Mr. Patterson intended no change ill this particular."" Dickinson from New Jersey mnve Beo liow necessary for the Union is a eoercivc principle. No mail i)retcii(l8 tlie contrary; we nil sec and feel this necessity. The only (luestion is, SImll it be a coercion of law, or a coercion of arms? There is no other ))ossil)le alternative. '\Viiere will those who oppose cdcreion of law come out? AVhere will tiiey end? A necessary eonse- (liii'iico of their principles is a war of the States, one against the other. I iiiii for coercion by law — that coercion which acts only upon de- liiiijiu'nt individuals. Tliis Constitution does not nttein|)t to coerce ((((vereign bodies, States, in their political capacity." '•" So Madison said in the Virginia Convention, when defendinrj till' clause wjiich gives to Congress power concurrent with the States to call forth the militia to suppress in.surreetions and repel invasions : — ^ " A concurrence in the former ease is necessary, because a %vbo1o State may be in insurrection against the Union.'"" Luther Martin wrote to the Maryland Convention : — " The time may come when it shall be the duty of a State, in order to preserve itself from the oppression of the general government, to iiiive recourse to the sword ; in wliieh case, the proposed form of gov- ornment declares tiiat the State, and every one of its citizens who acts under its authority are guilty of a direct act of treason." " It seems plain, therefore, that tlio Convention determined, after full discussion, to adopt a plan national in form ; but. to conciliate prejudice, avoided the use of the name. Since then until late years, writers judicial, political, and academical have usually csclicwed tlie word, national, and substituted for it " federal." Altliough since the Civil War the term. National Government, lias come into common use, we still ordinarily speak of Federal '^' Elliot's Debates, 2d ed., vol. II, « Coustitution. Articln I, SocUou 8. p. l'.)7. SCO Iho remarks of R<)(,'(-r *i Elliot's Debates, 2d od., vol. ill, Shc'iinan in tlio Fodernl Convention. p. 424. Ibid., vol. v, !>. 450. •» Ibid., vol. 1, p. 382. 92 THE IMtEAMIlLE. [chap, II. liiiu'ticn in the Fedonil t'oflrts. IJut as appears by tlie Coiifjics- sidiiiil I'L'Holution quoted at the beginning of this section, as well as in the debates in the Convention, the phrase, fedeml, is not inconsistent with, national. tt IH. History of the Pronmble. The change in the nature of the government of the United States from the league end)raced in tlie Articles of Confederation to a Constitution indissoluljle by law upj)eaiM not only in the manner in which the Constitution operates, but also in its pre- amble. "We tuk PEori.r, of tlie I'liited States, in onli-r to form a more pert'i'Ct Union, estnlili.sli .luntioi', insure douiestie 'rnuilish tlie Constitution between themselves, the Conunitteo of Style, without any apparent discussion of tlie subject in tlie Con- vention, changed the preamble to its present form. The substitu- tiiiii of the phrase, "people of the I'nited States,"' for "the jjcople ol' tlie States of New Hampshire" and the other twelve States, li;il evidentl}- no signification except to make it clear that the I'liitcd States might consist of a less nundxir than the original tliirteen. '' Man Piipors, Elliot's Dolintes, 2i\ I'll., vol. V, ]). 129. In tlio r pinion <'f Mr. Sliidison, this copy eoiilHlns iiKiny altoriitiona nuido liy tlio other in llio oriniunl piipor during tlio prog- iisrt of tlio Oinvontion. (Appendix, Xu. 2, to Madison Papers, Elliot's De- bates, 2d od., vol. v, p. 578, quoted before, §17, nolo 4.) The in-eamble seoniH nioro likoly to be correct than any other ]iart "f the paper. « Ibid., p. :r, . * Ibid., pp. .170, 377. ' Articles of Confederation, XIII. 94 THi: I'KKAMULK. [CIIAP. II. ti 10. HiKiiiflfii'.ft* of tli4> IMiriiMO, "Wi'. tlio ]><>o|tl«> of tlio I'liitcd NtiitCH." From the use of tho pliniHe, " Wo tlio peojilo of tlie United Stiiti'H." soiiii! wiitoin (if R'Hiu'i'talilo autliority luive arfjucd thitt till- Constitution was adoptcil liy tlie in'oplc of tliii lTriitt'(l States at iarj^i'. and not liy the people of tliu dillViviit Stiites whieli ratitied the Constitutidn. The In-Ht Htateniunt of this view is that of Welwtei': — " It," the Con. (ion, " (h-cliires tiiiil It is ordiiinod uiul eHtnbllHlicd liy tiie I'ocjili! of the I'liited Str.tes. So far from Baying that it is establi>iiied liy tli.? governments of the several States, it does not even say tiiat it is estalilislied by the people of tlic several States. Hut it lironoances that it is established by the people of the United States in tlie .i(;<;rejj;ate. iJoubtless tlic jieople of the several States taken col- '.■ctively eonstittite the jieople of the rnitc Wobstor's lloply to Hnyno. It Is thurt jiiit l).y tlio lilstoriim Molloy: "Tho roiiHlittition wiis not ilrtiwn up l>y tlin Smtc.-i, U was not proiiiulKatoil In thniiiinioof IhoStiitOH, it WHS not nitlllcd l>y tlic Ktiitcs. Tho Stiitos nover acocdi'd to it, and iiosspbs pxprt'Hsly clioson fnr tlio purjiosi" wllliia ciich Slato, indcpcndoTitly (if till) Statu jjoviTiinionlA, iifdr tlio iiio- jootliiid liccn riainc'd." (tTolin Ltitlimp Motley's li'Kcr to tho Limilon Tlnn-s. RelicUioM K.'conl, vol. i, p. 211). ) Tlio most eliilioriitoarHUiiien tin Us support no jK)wer 1o Bocodo from it. It was is in tho Appendix to vulunio ix of 'ordaiupd and establisliod' ovi-r tlio Dano's Aliridt,'ment, wMcli was jiuli- Slutos by a power snporior to tho lisln"!! iMiiiiodliiloly after tho dobat" Slates — by the p(H)plo of tho whole between Ilayno and Welisler on linil in their a:,'KreKato capacity, aet- Footc's Ilesoiiitions. S^e ali-o Story iut; through couvuntiuuB of delegates oa tliu CoUBtltutioL, §§415-418, 4C3. §1!).] "\VK TIIK I'KOl'MC. 9& ( (iiivciitiori iu;tiMl iiiiil (■litiinL-y then* rts|iritivc petiplfs; Itnt also the intention to deprive those lepis- liiliii'i's of all chiini to the ri),dit of secession, and to ^five to th • ( 'onstitntion the sanction of a fnndaniental law ordained h^ all till' ]i('(ipl(! upon whom it operated. 'I'lu'su views "-ire thus expressed hy .Madison: — " iMr. Madison thought it elear that tiio lc<;ishitiircH were iiiponipeteiil to till' roposed ciiiiiiiies. These elianges would iimke essential iniunds on tliu State Constitutions; and it would lie a novel and dangcrouii (loctriiie, tiuil a ley;islatui'i! could ehuM};e the Constitution under wliieit it licld its existence. 'I'lu're niijj;iit indeed lie some Const itutious with- in tlif I'nion, which had niveii n power to the h-<;islature to concur in alterations of the federal eouipaet. Hut there were certainly some wlilch iiad not ; and, in the ease of these, a ratillcati ees- sity lie olitained fioiu the people, lie couKidered the dilTcrenee he- twcen a system founded on the lebliijuti<>ii, might he as in- violalile as the latter. In point of politiail ojwrdtion, there were two inipoi'taiil distinctions in favor of the latter. First, a law violating a treaty ratilied by a pre-existing law might be respected by the judges* as a law, though an unwise or perlidious one. A law violating n con- stitution established by the people themselves would be eimsidered by ilie judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article !iy any of the partici' frees the other parties from their engagements. In the case of a union of people under one constitution, the natin'e of the fact has always been nnderst Article III, infra. m Tin-: iMti-.AMiti.i;. [CHAI'. ir. Stiitt's; tlie (liu'ctiou tliiit -tliis Coiistitntiou, and Cio Laws of the L'liited Stutes. wliii'h slmll l)e nuule in I'uisuiince tlieri'of ; and all 'i'reaties made, or wliifh shall be made, under the Authority of the United States, shall he the Suim-me Law of the Land; and the Judjfos in every State shall he hound therehy, anything in the Constitution or Laws of any State to the Contrary notwithstand- ing ; " * and the inhibitions against the enactment by the States of tender laws, bills of attainder, and laws imiiairing the obligations of eontraets.^ The prohibitions to the United States, as well iis the States, of the enactment of bills of attainder and ex j)08t faeto laws,'' and the recognition of debts contracted by the United States before the adoption of the Constitution, were also designed for this end. The beneficial effects of these ])i'ohibitions cannot be overestimated.* $i 22. SiKitifleniico of tlio Plirnse "t<» Insure cloinestic Ti-aiuiuillitj." The Articles of Confederation jirovided no means tor the insurance of domestic tranciuillity. Congress could not, without the consent of the States, raise the money to arm and to i)ay an army with which to j)rotect itself from domestic insult. It was at one time driven from the seat of government by a mutiny of ' Article VI, mfrii. * Article I, (} 1(1, infra. » Article I, S§ i) mid 10, infra. • " Tlic fouiidens of our dcinocr.itic, or rather republican Institutioii.s were ncitlier vlKionuries iior sociitlists. It is among tlic eternal lessons of liistory, wlilcli tliey well knew, that the nia,sse,s of the people were subject to the in- fluence of supposed temporary interests, and of ' violent and c.isual forces ' which might be in conflict with their own vital and perinaiuMit welfare, Uealizins this truth, and the necessity of safe-guarding these vital and permanent interests, the founfii'rs of our political and legal in- stltntions devised - and the device has been supposed to be the crowning proof of their wisdom — the American polity of constitutional restraints upon all the departments of the guvernmouts which the people established. All the original States undertook to secure the inviola- bility of private propeity. This tlicy did, either by e.ttracting and adopting, in tonus, the famous thirty-ninth arllcle of Magna Charta, securing the people from arbitrary imprisonnu-nt and arbi- trary spoliation, or by claiming for themselveB, compendiously, all of the liberties and riglits set forth in the Great Charter." Argument of Hon .lohn !•', Dillon, in Ueagan v. Farmers' Jjoan .t Trust Co., 154 U. S, mV2, ,"57!). " These have been, indeed, the great triumplis of our popular system of government, for these were supposed to bo its vulnerable spots. Dislieliever,-* lu republican institutions had predicted early shipwreck on these rorks, and when it came not they simply posi| oiicd tlie period of fulfilnient," IMd., p, 381. SS ^^. 24.] " COMMON DKi'KNHE. 99 ciirlity .soldiers.' Tlie power of taxation wliicli is irranted in tlio ( 'oiistiUUion was designed for that as well as other ends, ("on- jj;r('ss lUKier the Confederation was similarly nnahle to assist in siiiipressing reitellions within the individual States. Even its rii.;lit to ilo so, did it have the means, rested on a forced con- stiiiction.- i-'or this reason, there was inserted the express [iiovision that "The United States shall guarantee to every State in this Union a ivpuljlican form of governiiieut, and shall protect each of them against invasion ; and on application of the legislature, or of the executive (when the legislature cannot he convened) , against domestic violence."" t^ 2.'J. Si(;niflcniicc of the Phrase, "to provide for the coiiiiiioii Defense." Provision for the "connnon defense" was one of the express olijects of the Confederation of tlie United States,* and was more ellieiently secured by the Constituticn. 'Die New Enjrland Confederation was formed " for offence and defence, nmtuall advise and succour." ^ The Constitution fur- nisiies new means for that purpose in its provisions for raising armies ^ and taxation.* {$ 24. Signifleaiice of the Phrase, " to promote the (general Welfare." The United Colonies of New Eufrland confederated, amongst other things, " for their own mutuall safety and welfare." ' 'J'lie Ar- ticles of Confederation of the United States expressed the object of the league as for " their mutual and general welfare." ^ Tlie word " general welfare " was used in the Constitution as broader tiiaii and inclusive of the word " mutual." The clause granting Congress the power of taxation limits its exercise "to pay tiie debts and provide for the common defense and general welfare of the III. S 22. 1 Supra, § 3, note 12. '' Supra, § ;). » Articio IV, § t ; infra. § 21). 1 Articles of Confoderatlon, ■' Supra, § 4. " Infra. * Infra. § 21. ' I'rfiston'.s Docmiicnts Illus- tratlvo of Anicricnu History, p. 88, quoti'il nupr,t, § 4, noti' 1. •■i Artlok's of Confeaoration, III. 100 THK I'ltKA.MIJLE. [CHAI'. II. United States."" Tlic plirase in the Intter clause has been the ex- cuse for the exercise of all douhtful powers hy C'onfjfress, and will he considered more appropriately in connection with the power of taxation.^ Neither this nor any other part of the preamble is a grant of iiower.^ g 25. Slffiiiftcniiee of tlio Pliraso, " to secure tlie Blcssiiifj'.H of Liberty." The New England Confederation of 1(543 assigned as an object of the league, " for i)reserveing and propagateing the truth and liberties of the Gospel." ' Tlie experience of a century had biuglit the people that political liberty was more in danger, if not of more importance; and the Articles of Confederation of the United States included in the enumeration of their objects, "the security of their liberties."^ It required almost another hundred yeara for them to learn to extend the blessings of liberty to the people of every race within their borders. g 20. Sl^iiflcance of the Phrase, " Ordain and establish." The words "ordain and establish" are inconsistent with the theory that the new government was a league or treat}-. 'I'hey are words usually applied to legislation, especially legislation of an extraordinary character. Ordinances l)y the connnon law were originally regulations made by the King without the consent of Parliament. In ItUl, when the Conunons were discussing the manner in which Parliament could legislate without the consent of Charles, the antiquary D'Kwes, referring to an ancient prece- dent which di ESTABLISH. 101 inviiriiibly during the CJreat Rebellion until the uholitiou of the oili'ju of King, Pai'liiunent legishittitl by ordinanee. Tiie Con- tinental Congress and Congress under the Confederation usually jii'oceeded by ordinanees or resolutions. The fn-st Constitutions of I'cnnsyls'ania, \\'nnont and Massachusetts contain the jjlirase "ordain and establish." Those of New York and (Jeorgia, '• ordain anil declare." ^ - Tlie Constitution of Pennsylvania, fraiui'd liy a popular convonlion which Kal from July 15th to ScpltMiibor 28th, 177fi, reeiti's in its preiiniLilo : — "Wo, tliH roprcsciitativos of the froomcn of I'oiuiHylvnnla, iu general ciinventiou met, for the express pur- pose of fraiiiinji such a ({ovornnient, eonfessli'g tlie gooiln(*s of the Great (ioveruor of the universe (wlio alouo Icnows to what (lej;ree of earthly hap- jiine'S mankind nuiy altiiln, liy per- feeting tiuj arts of Koveriinient) in permitting the ]ieoi)li^ of this State, liy eouimouconsiMit, and without violence, deliherately to form for themselves sueh just rules I's they shall think best, for governing their future so- ciety ; and lieing fully eonvin<'od that it is our indispensable duty to estal)- lish sueh original prini'iples of gov- ernment as will best promote the general happiness of tlu' people of lids State, ami their posterity, and jirovido for future Improvements, without partiality for, or prejudice against any parliindar class, sect, or ilonoMunation of men whatovi'r, m>ral happiness of tho people of this State, and their pos- terity, and provide for f\iture im- provements, williont partiality for, or lirejudice against any parlieulur class, sect or deiu)minath)n of men, what- ever, — do. by virtue of authority vesle.l iu \is, by our constituents, ori/d.'i.', ih'clare ami cutablixh, tho fol- 102 TIIK PItKAMULK. [chap. It. 'I'lio i)lan of Piuckncy, as now preserved, eontaiiis the simie pi'(':iiul)le as tlie report of tlie Coininittee of I)et;iil : — " We, the people of the States of New Ilaiiipsliire, Massachusetts, Rhode Island, Providence Plantations, Connecticut, New York, New lowinndoc'lurntion of ritjlita, nnd frame of Hovonimont to tio the Constii htion of t his C'oMMONWT^ALTH, iiuil to romaiu ill force thorolii, forever, unaltered, exeept in siKrh articles, ns sluill, here- after, on experieneo, be found to ro- qiiiie improvement, iind wliieh sliiill, hy the Kiiiiie authority of V.w people, fairly dolevtatedns tills fninie of (,'overn- mcMl directs, lie amended or improved, for tlie moio effoetiial obtaining and Heciuing tho groat end and dcsinn of all f?overnment, iierelnbi>foro mon- tion(>d." Pooro'sCluirtersnnd Consti- tutions, Part II, pp. 18.5.S, 1H59. Tlie Constitution of llassachusttts, framed by a popular convention which sat from September 1st, 1779, to March 2d, 17K0, and adopted by a vote of , more than two-thirds of the people, has the foilowin;; ]ireamble : — "The(>nd of the institution, maln- tenauic, and administration of gov- ernment is to secure the e.xistence of the bo ly-piilitic, to protect it, nnd to furnisli tlie inilividuais wlio compose it Willi the power of enjoying, in safety and Iraucinillity, their natural rights and the blessings of life; and whenever these great objects are not obtained, the peojilo have a right to alter the government, and to take measures necessary for their safety, prosperity, and happiness. "The body-politic is formed liy a voluntary association of individuals ; it is a social compact liv which the whole people covenants with e;ich citizen and each citizen with the wlioli! jieople that all shall bo governed by certain laws for the common good. It is tlie duty of the people, therefore. In framing a constitution of govcrn- ninnt, to provide for an eriuitablo iiiodo of mailing laws, as well as for an impartial interpretati(m and a faithful execution of them ; that every man may, at all times, find his security in tlieni. ' "We, tlierefore, the peojilo of Mas- sachusetts, aciiiiowledging, with grate- ful hearts, tlio goodness of the great Iiegislator of the universe, in afford- ing us. In tli(> course of Hisiirovidence, an opportunity, delilierately and peaceably, without fraud, violence, or surprise, of entering into an origi- nal, explicit, nnd solemn oompact with each other, nnd of forming a new con- stitution of civil government for our- selves and posterity; and devoutly Imploring His direction in so Interest- ing a design, do agree, vpnn, ordain, and estnbliMh the following declaration of riglits nnd frame of government as tlio constltutiun of theeommonwenlth of llassnchusetts." Poore's Charters and Constitutions, Part I, pp. OBfi, !)57. ■ The Constitution of fi(>orgin, framed and unanimously agreed to by a pop- ular convention, February ."ith, 1777, concludes its preamlile : — " We, therefore, the representatives of tin, people, from wliom all jiowor (U'iginales, nnd for wiioso benefit all governiiient is Intendeil, by virtue of the power delegated to us, do ordain and declare, and il in herebi/ ordained and declared, tliat the following rules and regulations be adopted for the future government of this Stativ" Poore's Charters and Constitutions, Part I, )). 37H. Tlie Constitution of New Yoris, framed by ii popular convention which y^'-] " THIS CONSTITUTION." 108 .li'isoy, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, Sdiitli Carolina and Oeorj^ia, do ordain, declare and establish the following Constitution for the government of ourselves and our pos- terity."* ill Mainilton's plan, wliicli he furnished to Madison at ahout tlic closi- of the Federal Coiiveiition, tlie jireainhle reads — "The people of the United States of America, do ordain and estiihlish this Constitution for the government of themselves and their posterity."* The form was Tuanifestly adopted for the jmrpose of reanirniing the statement that the Constitution was a hiw rather than a treaty. It was suggested by the form used in previous State Ciiiistitntions, and shows an intention to place the Federal Coii- stilutiou upon the same footing. S37. SIffniflcancc of the AVorrt " Constituaon." But above all the preamble concludes witli the words, " this Constitution of the United States of America." In the Articles of Confederation, that instrument was styled "a lirm league of friendship." ^ If no change had been designed, the word " league" Avould have been re])eate, in tho iiaiiie ami liy the authority of tho good |it'ople of this State, (loth oril lin, . 1332. " JIailison Papers, Elliot 'h Debates, 2d ed., vol. V, j). .'■.H4. * Madison Papers, Jlllioi'.s Dobato.'), 2(1. ed., vol. V, p. 384. § 27. ' Articles of Conredonition, III. •i W('liat(>r, § Ifi, iioto 14, supra. « Constitution, Arllclo VI. 104 THK PKEASIIiLK. [chap. ir. tlii.! term l)y reference to tlie liinp;nage of statesmen and public, (lociiniunts wliR'li sjieak of tlie Articles of Confederation as a constitution,^ especially the resolutions of Congress recommend- ing the Federal Convention, in order to "render the Federal Con- stitution adequate to the exigencies of government and the preservation of the rnion."'' Hut the language there used was colloquial rather than technical, and in the same sense that Blaekstonc and others cnqiloy when describing the stsitutes and common law of (ircat liritain in relation to the powei-s and com- position of the Crown and Parliament as the liritish Constitution. The term is not used in the Articles of Confederation themselves; and, moreover, many claimed that they could not be legally dissolved." S 28. TestiiiKuiy of Coiitcmpornrj- Statesmen on the Nature of the Constitution. When Me examine (he views of contemporary statesmen, the same conclusion is strengthened. Nowhere in tlu? debates in the Federal or State Conventions, nor in the panqjldets on either side of the question of ratilication, do we llnd a liint of the riglit of secession. Its o[)ponents attacked the Constitution as a destruc- tion of the States and the creation of a consolidated natif)n.' The * Soo thn coniiiiissioiiH of Uio (l(\li'- gntos (i) tlio Fodcral Convontiun, Elliot'H Deliiili's, 2il fd., vol. i, i)|). l'2lM;t;i; lt('piil>lii- of l{i>i)\iUic8, by Bonianl .T. Sa},"-, Itli cil., p. 19H. " Qiiot'-il SK/im, § '). " Soo tlio lariHUiigo of Patterson, ijuotLHl mijira, S 2lt. §2H. 1 Si'O os|i(>cinlly tlio arguments of Paliick Henry, (icoi'ms JIason, and ollieis, in the Virgiida Coiivi'iitioii. (ieorge Ma.'ioii propli"sied \vi(h woii- ilerful pn"s('i(nu'e the j^rievaiicrK which suliseijiiently arose. Ho foretold tlio Sedition Law: "Now, mipposo op- ])ressioiis should arise iiniler (Ids goveriiiiieiit, and any wrlti'r should dare to stiiid I'orth and expoi-o to the ('oniiuiinily at lai'tie the aliuses of tlio>e iioweis; lOuM not t'ongress, under tlio idea of providiuH for (lio general welfare, and under llieir own eonstructlon, .'i.iy tliat this was de- stroying I lie general peace, eneourag- ing .sedition, and jioisouing the minds of the i)eoplo':' .Vnd coulil they not. In order (o provide igalnst tliis, lay a dangerous restriction on tlio press?" Elliot's Deliales, 2d ed., vol. iii, p. 4(2. Ho warned tho South that shivery would he endangered : — "There is a ( l.iusi\ to pioliibit the Importation of slaves after twenty years, but tlieic is no provision for seeuringto the Soulhein States thoso they now jiossess. It is far from be- ing a desirable property; init it will involve us in great dillleulties and In- felirily to bo ever deprived of lliom. There ought to bo a clause in th» §28.] TESTIMONV Ol' CONTKMrOUAUlKS. lOi" l'((lo:;>lists lulmittod that the new govcrnmejit was partly national, Iml claimed that the coniiJOHition of the Senate and the eleetii>n (it' the i'vesident made it also partly Federal. "Oil cxaiiiiiriiif;! the first reliition, it appears, on one liaiid, tliat the Coiislitiition is to lie fouiiiii'd on tlio assent and ratilieation of tlie people (if Aiiicriea, fjiveii by deputies eleeted for the special purpose; but, on the otiier, tliat this assent and ratilieation is to be j^iven by tlie jieople, not as individuals composing one entire nation, but as composing the (lisiiiiet and independent States to wiiicli tliey respectively belong. It is ti) lie tiie assent and ratification of tlie several States, derived from tlie supreme authority in each State, — tiie authority of the pe()])le Iheniselves. Tlie act, tlierefore, establishing the Constitution, will not be a iKiliiiiiiil, but sifcdentl act."" " The next relation is to the sources from which the ordinary powers i)f govenitiient are to be derived. The House of Representatives will ilerive its powers from the people of America; and tlie people will be icpieseiited in the same proiwrtion, and on the same principle, as tl 'y are in the legislature of a particular State. So far the government is iiiitintiiil, not Jhleriil. The Senate, on the other hand, will derive its powers from the States, as ])olitieal and coc(pial societies; and these will lie represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government i-i Jhlerul, not iittlliiiKil. The executive power will be derived from a very com- poMiid source. The immediate election of the President is to be made liy the States in their political characters. The votes allotted to them ;iro ill a compound ratio, which considers them partly as distinct and coeciual societies, partly as uneipial members of the same society. The eventual election, again, is to be made by that branch of tlie legislature which ennsists of the national rej>resentalives ; but in this particiihir act they are to be thrown into the fovm of individual delegations, fioiii so many distinct and coecpial bodies politic. From this aspect of the ('oiif-titutioiil()Hoeureusthiiti)ropi;ity, v.liicli we liHvo iicquireil under our former Uiws, iind tlio loss oC wliieh woulil lirinfj; ruin on a great miiiiy people." Ibid., p. 270. See also MiiHoti's remarks to the sanio cffoet, ililil., pp. 4.53, 45R. Madison argued lii.it there was adequate pmteellou \>y the provision for the return oT fiinitive Hlavi's and the grant ot no Jiower lo ubollsli slavery. Iliid., p. 45:1. Patrlek Henry replied, ibid., pii. it,-i, 45(i. The address of the minority of lln" Pennsylvaniii Oinvenlion ineluded among the objeetious eniiiiiei:it<'d that there is "no declaration that the St'ites ri>servo their soviu'eignty, free- dom and independ(>nce," American lluseiim, November, 17S7. - MailirtoM in Tlie Federalist, No. xxxi.\. Lodge's ed., p. '230. ion NATl'ltK OF TlIK (•ONSTITUTION. [CIIAI", pjviTiiiiieiit, it opponrs to lie of n mixed character, prcseiitiufj at least lis mimy ./''<''''■"' '"* mttiomd features. "'I'lii' ilifferi'iiee lietwecn a federal and national {jovernnicnt, aw it reliiles to the ojii'nilioii of tin' tjovvnnHi'nt, is Htippo»ed to consist in this, thnt in tlie former the powers operate on the political bodies composing; the confederaej', in their political capacities; in the latter, on the indi- vidual citlzeim composing the nation, in their individual capacities. On tryiiifj the t'oustitution by this criterion, it falls nnder the vdtioiiiil, not the federal eliaraeter ; though perhaps not so completely as has been iiiidersfood. In several cases, and particularly in the trial of con- troversies to which States may be parties, they must be viewed and jjroeeeded against in their collective and political capacities only. So far the natiomd countenance of the government on this side seems to be disfigured by u few federal features. ]5ut this blemish is perhajis un- avoidable in any plan ; and the operation of the government on the jieople, in their individual c.ipacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a natitmtd government."' "If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly 7ia<(V((/((/ nor w holly ./'('f'cnf/. Were it wholly national, the supreme and ultimate autliority would reside in the viajon'ti/ of the people of the Union ; and tills autliority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. AVere it wholly federal, on the other hand, tho concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In re(iuiring more than a majority, and particularly in computing the proportion by Stittex, not by cttizeiiH, it departs from the vationul and advances towards the federal eliaraeter; in rendering the concurrence of less than the whole number of States sutlieieut, it loses again the federal and partakes of the natianul character. "The proposed Constitution, therefore, is, in strictness, neither a national nor a. federal Constitution, but a composition of both. In its foundation it is federal, not national ; in the sources from which tiie ordinary powers of the government are drawn, it is partly federal .ind partly national ; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and. » Madlsou in Tim FiMloralist, No. xxxix, pp. 237, 238. TESTIMONY OK CONTKMI'OIIAUIKS. 107 linally, in the authoritative mode of introducinj? nmendmeiits, it is iioithti- wlioliy federal nor wholly national."* Wilson siiid in the PennHylviinia Convention : •• AVe now see the greot end which they proposed to necomplish. It was to frame for the consideration of their constituents one Federal and National Constitution — a constitution that would procure the advau- tajri's of flood, and prevent the inconveniences of bad {jovernmcnt — a ciiiiJititution whose beneticeiico and enerjiy would i)ervade the whole 1 iiiDii and hind and embrace the interests of every psirt — a constitution that wotdd insure ])eace, freedom, and happiness to the States and |H(i|)lc of America. "' ••If when he says it is a consolidation, he means so far as relates to the iicncral objects of the Union, — so far it was intended to be a con- ^(■lidalion, and on such a consolidation perhaps our very existence as a naliuii depends." ' •• The very manner of introducing this Constitution, by the recogni- tioii of the authority of the people, is said to change the p'^inciple of tlic present Confederation, and to introduce a consolidatimj and absorb- in;,' i;()vernment. •• In this confederoted republic, the sovereignty of the states, it is said, is not preserved. We are told that there cannot be two sovereign powers, and that a subordinate sovereignty is no sovereignty. "It will be worth while, Mr. President, to consider this objection at larjic When I had the honor of speaking formerly on this subject, I stated, in as concise a manner as possible, the leading ideas that occurred to me, to ascertain whether the supreme and sovereign power resides. It has not been, nor, 1 presume, will it be denied, that some- wJH'ii' there is, and of necessity must be, a supreme, absolute, and un- coiitrolhible authority. This, I believe, may justly be termed the .«,/■( (•i/(/)i power; for, from that gentleman's (Mr. Findley) account of till' matter, it cannot be sovereign unless it is supremo ; for, says 111', a subordinate sovereignty is no sovereignty at all. I had the honor of olisorving, that, if the question was asked, where the supreme power resided, dilTerent answers would be given by different writers. 1 men- tioned that Hlackstone would tell you that, in Hritaiu, it is lodged in the Iiiitish l^rlianient; and I believe there is no writer on this subject, on the other side of the Atlantic, but supposed it to be vested in that * Madison in The Fedornllst, No. xxxix, Lodge's ed., p. 239. 5 Elliot's Debates, 2d ed., vol. ii, p. 431. « Ibid., p. 401. 108 MATURE OK THE CONHTITUTHlN. [chap. II. lioily. I stated, further, that, if the quentioii was asked of boiiu- lioliticiuii, who Imd not considered the subject with sulllcient aceuriiey, wiiero the supreme power resided in our governments, he would answer, that it wnH vested in tiie State constitutions. This opinion approaches near tiie truth, liut does not reacli it; for tlie truth is, that the supreme, nitsolutc, and uncontrollable authority remuina with the people. I mentioned, also, that the practical recofjnition of this truth was reserved for the honor of this country. I recollect no constitution founded on this principle ; but we have witnessed the improvement, and enjoy the happiness of seeio"^ it carried into practice. The f!;reat and penetrating mind of I^oeke seenis to be the only one that pointed towards even the theory of this {jreat truth. " When I made tlie observation that some politicians woiiUl say tin- supreme power ydies, on sueli terms, and under suej limitations, as they think proper. 1 agree with the members in opi m- sition, that tlicre cannot bo two sovereign powers on the same subject. " I consider tiie peojile of the rniteeople into distinct communities, it will be found necessary that different proportioi s of legislative |)Owers should be given to the gov- ernments, according to the nature, number and magnitude of their objects." ' g 29. (Tiidlciiil DcoisionH as to the Xntiire of the Constitution. Tlie con- tnu^tioii put upon the Coiistltntion by the Federal .Ttidiciary lias lieon uniform in favor of this position^ Six yenre lifter the adoption of the Constitution, a majority of the Supreme ' Elliot's Dolmti's on the Fodornl the (luolatlon from Madison, Hi(;)ni, Constitution, vol. ii, pp. l.-.u, 4.''>(!. Soc § 11. also Wilson's Vt'orks, vol. i, p. ;M7 nnil JUDHUAI, l>K(;iHIONH. lO'.t Coiirl lirlil tliiit tlicy Imd juriHilU'tioii of ii Huit af»iiiii,st ii Stulc liy ii ritizcii of iiiiotluT Stiitt!.' Tlio (lissiuitiiig judj^n coiK'tMlciI tliivt "llir I'liitcil States iiro Hovcrcij^ii uh to all tlit? jiowcrs of thi; irovcriiiiii'iit ai'tualiy HUiTniidcriMl ; " and as ri'i^anls "the sfiecial (pjijei'ts of iiutliorily of tlio ffi-neral (iovernineiit, wherein the s(|i;ii'iitc sovei'eif^iities of tli(! States are blended in one eoinnion iiiiiNS of siipreniaey.""- Of tiie majority, two lield that the St.ites li;id ri'lincinisheil so much of their sovereiLfnty as exi'nijited them t'ldin suit." Chief Justice Jay said that the Fedeiiil Constitution liiid the same effect upon the people of the I'liited Stati'S as a Stale Constitution upon the pi-ople of a State.* Wilson iiehl that the (jiiestion for decision w.is this: "Do the peojile of the I'nited Slates form a nation?"'' which lie residved in the alllrmative : — " Wlioiiver considers, iu a combined and eoinprcheiisivc view, tlie general texture of the Constitntion, will be satislled tiiat the people of the I uiti'd States intended to form tiieinselvcs into a tuition for wttionnl jiiiriiiiKcu. They instituted for such purposes a national government, i'oinplcte in all its jjurts, with j)0wcr8 legislative, executive, and judi- eiiMT, and in uU those powers extending over the whole nation."' Later came the o))inion of Chief Justice Marshall, who said: — " To the formation of a league, such as was the Confederation, the State sovereignties were certainly competent. Hut when, ' in order to form a more perfect union,' it was deemed necessary to eliango this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the neecsiity of referring it to tlie people, and of deriving its powers directly from them, was felt and !iek MOW {edged. " ' "Tliat tlie liiited States form, for many and for most imi)ortant purposes, a single nation, has not yet been denied. In war, we are S 'i'.l ' C'liiHliiilm r. Georgia, 2 Dallas, •tl'.l, A.U. ll'.rx -JiJiiticn Irodoll, ibid., 435. See aUo Ills (>;iinion In rentiallt)w r. Doano's Administrators, 3 Dallas, 51, 91. ' .lustico Blair, Ibid., p. i'>2. Justice CiishliiK, il)icl., p. 4CH. *" Every State Constitution 1« a coinpaet mndo by and between the vitizeos of a State to govern them- selves In a rertaln manner, and the Constitution of tins United States Is likewise a eouipuel nwulo l>y tlie peojile of the ITnKe I Hlntos to govern tlieiii- Bolvof! as to general <>l)jeet» iu a cer- tain manner." Ibid., p. 471. 6 Il)id., p. 45;). « Ibid., !>. 4G,''i. ' MeCulloeli v. Maryland, 4 Whea- ton, 316, 404, A.D. 1819. 110 NATrilK or CONSTlTrTlON. [CIIAI". !I. one pcoplo. In milking i)Piice, we arc one people. In nil coninierc'wl ivgnlfitions, we are one and tlic same people. In many otlier respeets, tlie American people are one; anil the government which is aloiip capable of controlling ami managing their interests iu all these respects, is the government of the Union. It is their government, ami in that character they have no other." * " Heference has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only liy a league. This is true. Hut when these allied sovereigns convertnl tiieir league into a government, when they converted their Congress of ambassadors deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected."' Even so stroiiLf an iidvocato of Suites' rights as Chief Justice 'I'aney said, in tin; Dreil Scott case: — " The new government was not u mere change iu a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the pre- ceding one. Hut when the jjreseiit I'nited States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its place in the family of nations." '" Finally, after the conclusion of tiie Civil War, the Su{;reme Court said, speaking through Chief-Justice Chase: — "The Constitution, in all its provisions, looks to an indestructible I'nion, composed of indestructible States."" ^ no. Justification for Itcliet' in Legality of Secession. Vet cogent as seem tliese arguments ami jjrccedents to incndicrs of a generation cihicated un(h'r tlic inthienec of tlie tU'cisions of " a)honr. VirKiniii.Ci Wlionton,2r,4, >i Texas r. Wliilc, 7 W.illuio, '< ,,, ■li;i, 414, A.D. IS'il. 72."), iiiiole(l^(»;)ra, S '2(1 ; Wliiti-r. Ciiii- " Gililiotm V. ()K;;e to the United States. It was observed that it was competent for a State to make a Compact with its citizens, that the recip- rocal obligations of protection and alle- giance luijjht cease on certain events; y :!ii •] AUTHOUITIKS KOIJ SKCKXSION. n:{ ii Slates, vol. i, p, 510, wh( ;'e till' uutlior says, "Whether this roso- ution was in fai't passed by the Massa- ehimetts Li'gislatureor not, I liavenol been able to ascertain with aVjsolulc certainly." ♦ The nceomplislied librarian, Jlr. Francis Vaugliaii of tho Social Law Library of Coslon, has very kindly searched the indices of the journals of both Houses of th when they cease to answer the ends of March, 1804, and has found there no their existence they may be changed." trace of such a resolution. V'^-] AUTHOniTIKS Foil SKCKSHION. 117 1111(1 tilt! fm'inatioii of a Northern Confederacy/' In 1811, during ihr debate on tlio 1)111 for the admission of Louisiana as a State, .Idsiali Quiney, a member from Massaehusetts, said in the House (if l!(>])resentatives : — • " It in my deliberate opinion that if this bill passes the bonds of this Inion !uo virtually dissolved; that the Slates which compose it arc free from their moral oblijration and that, as it will be the ri(;hl of all, so it will b(! the duty of some, detiuilely to prepare for separation, aniieably if tiiey can, violently if they must." The Speaker, Joseph 15. Varnum of the same State, held that till' languay-c was disorderly, hut the House by a vote of fifty-six lo lifty-tlin (■ reversed the rulinjr." Tile war (d' 1812 bore with especial severity upon New Kuffland. riic action of the Feileral ^roverninciit in calliiij;- the mililia thenee to aid ill the invasion of Canada from New York, the pro]iosition (if a compulsory draft, and other measures, created great indig- nation, '{"ills resulted in the famous Hartford Convention, called by Ma.ssachusettvS, where delegates chosen by the legislatures of tiiat State, Connecticut and lihode Island, besides a few chosen by pojiular meetings in New Hampshire and A'ermoiit, met in secret sessif'ii during December, 1814 ; it was charged, to plot secession. The ollieial 2>i' Henry .\danis. History of tlie Unit- ed Slates, vol. v, p. ;12."). ■"If tlio IJiion 111! ilestinod to dissolution liy rnuson of the iindliplioil "iiuses of biul admiuistnition, it should, if possible, be llie work of peaeeablo times and deliberal(> eoii- sont. Some new form of eonfederaey should lie siibslituled unions thoso Slates wliieli .sliail intend to iiuilnlain a Feileral relation to e.ieli other. Kvents miiy prove that llie cause of our ealandlies are deep and perma- nent. Tliey may be found to proeeeil, not merely from thi^ blindness of prej- udice, pride of opinion, violence of party spirit, or tin* lonfusion of the .imes; but they may ln' traced to im|ilaeubt(!('omlilnutionsuf indivlilu.als or of Sillies to monopolize power and olTlee, to tramplo without I'emorse 118 KATUUK OF THE CONSTITUTION. [CHA1>. II. Ill 1844, tlic! k'Efi.slature of ]\Iii8aiicliusotts passed a series ol rcsiiliiLioiis upon tlie iiiiiiexation of Texas, containing the threat, — " 'riiiit the projoct of the annexation of Texas, unless arrested on the threshold, iiiny drive these States into a dissolution of the Union."* On tiie same sul)jeet, February 22d, 1845, the same body adopted aiiotlier series of resolutions, wbicli included the state- ment that, — " As the powers of legislation granted in the Constitution of the I'nited States to Congress, do not embrace the ease of the admission of a foreign state, or foreign territory, by Legislation, into the Union, such an act of admission would have no binding force whatever on the people of JIassachusetts."" l''niin tlie enactment of the tariff of abominations of 1828 to the outbreak of tht- Civil War, threats of secession and assertions of tlie right to secede were constantly made by Southern statesmen.'" eracrgonolea occur which are either be- yond tlio reiich of the judicial tribunals, or too pressing to admit of the delay incident to their forms, States wliich liavo no common umpire must be their own judges, and execute their own decisions. It will thus be proper for the several States to await the ultimate disposal of the obnoxious measures n-conimended by the Secretary of War, or pending before Congress, and so to use their ])ower according to the char- acter tliese measures shall fina'ly as- sume, as effectually to protect their own sovereignty, and the rights and liber- ties of their ci'izens." (Ueport of the Hartford Omvenlion. Dwiglit's His- tory of the Hartford Convention, i)p. .1'il, ^(V>.) The language was evidently eoiiled from llio Kentucky Hcsolution.s {iiifm, § :','!). "Slephi'iiH, CoiiMtitutional View of tlu^ Late War between the States, vol. 1, p. .511. » Ibid. '0 See Wilson, Rise of the Slave Power in the United Slates, and Van Hoist, Constitutional History of tho United States, passim. upon lli(^ rights and interests of tho eoinnieri'ial seetiuns of the Union. Wherever it shall appear that tho enusi's are radical and permanent, n separation by oquitablo arrange- ment will be jireferahle to an alliance by constraint among nominal friends, but real enoinies." (Keport of tho Karl ford Convention. I) wight. His- tory of tho Hartford Convention.) While tho bill f(M- a draft was pending the Coiinoctieut legislalurn authorized the (Jovernor in caseof its passage, to I'all an exlraordlnnry session to con- sider nicasiires "to secure and iirc- servn tho rights and liberties of the peophi of this State, and the freedom, Hovereignly and independeneo of the same." (Henry Adams, History of the United Stales, vol. 1.x, p. 278; citing Niles' Ki'gister, vii, Supplement, p. 107.1 " In ca.scs of deliberate, dangerous and palpable infr.ictions of tho Consti- tuiion, affecting the sovereignty of a State and liberties of the people ; it is not only the right but the duly of such a Stale to interpose its authority for their protection, In tho manner best calculaled to secure that end. When §!]2.] VIUOINIA AND KENTUCKV UKSOLUTIONS. 119 1^ 32. Virginia ninl Kentucky Rosol lit ions. The onactinent of the Alien and Sedition Liiw.s ' l)y tlie Federal- ists was the (%uise of the Kentucky and Virginia resolutions, which contained tlie fiiMt germ of the doctrine of nullification. 'I'lic draft of the Kentucky resolutions was made secretly by .Icficrsoii. then A'ice-President, in 1798, at the request of .Madison, .Iiilin Hrcckcnridge, and Wilson C. Nicholas of Kentucky ;2 iu (inlcr to unite the legislatures of the; Anti-Federalist States in |in>tcsts against the I'onstitutionality of those laws. It was his original intention to have them first introduced iu the legislature of Nortli Carolina ; but a change in the politieal eoni- |)U'xi()U of that State caused him to abandon this idea;''' in which he acted wisely. For it is said that when the Virginia resolutions' v.-ere first lU'esented to the North Carolina legislature they were ]irom])tly voted under the table.'* The original draft of the reso- hitions. after protesting against tiie Alien and Sedition Laws, and also other acts punishing crimes for causes not specifically eiiunicratetl in the Constitution, declared them "altogether void anil of no force." as infringements of the Constitution for reasons therein assigned, and appointed a Connuittee of Conference and Correspondence to connnunicate the rescdutions to the legislatures of the several States, with a statement of the opinion of the resolving States upon the nature of the Federal compact which contained the following langiuige : — " Tliat therefore, this eommonwealth is determined, as it doubts not its co-States are, to submit to undole> I'lestoMs UoemiuMits Illustrative iiiipeiulix to this clmiiter. s :•.' :!J.] VIUOINIA AND KENTUCKY KHlSOLrTIONS. llil 1 A ,'i T1k\ coiitiiiufd a protest iijTiiiiist tho obnoxious laws, iiiid \v- (|iustc(l tlie other Stiitew to — )iiciir with tills coinmouwcaltli in doclnriiif; iiH it docs lu'reby declare that tlie acts aforesaid are uucoustltutloiial, and that the iH'cessary and proper measiires will be taken by each, for eo-opcrating with this State in niuintaining tlie unimpaired authorities, rlj,dits and lilii'ities reserved to the States respectively, or to the people." 'i'lu'V further dechired — " That tills Assembly doth explicitly and ])ereniptorily declare that it views the powers of the Federal (loverument as resultln<^ from the (■(impact, to which the States are parties, as limited by the plain sense and intentions of the iustruincnt constitutiii}; that compact ; as no fiitlier valid than they are authorized liy the grants enumerated in that compact ; and that in case of a deliberate, palpable and dangerous exercise of licr powers not granted by the said compact, the States, who are the parties thereto, have the right, and are in duty bound, to iiiler- pose for arresting the progress of the evil, and for maintaining within llieir respective limits, the authorities, rights and liberties appertaining lo them." As tirst introduced by the celebrated Joiin Taylor (d' ( aroliuo CoMuty, tlic d(^claration of the unconstitutionality of the ails (■(intaincil, after the word " n:icoiistitutional," "and not laic, hut iiffrrlif null, void, and of no furri' or fffcrt." The declaration (■(inecrninsf tlio nature of the constitutionality of the cf)nipact aLso slated at first concerning the same : " to wliieh the States idouf are jiartics." The words in italics were stricken out in Ihc legislature hy unanimous consent." 'J'he resolutions were adopted after coiisideralih' discussion hy a vote in the Ifousc of Deleq;ates of (IMC liundred to sixt^-three, Decemlier 21, 17US, and in the Senate (if foiuieeii to tliive, tliree days later. Throughout the debate, the iilea that force! would he used in ojiposition to the Federal govern- iiieiit was ex]iressly rei)udiated hy the suppoi'tcrs of the resolutions." • I'lic' Virginia Keport of 17'.)!)-18n0, tmicliing till' Allen iinil Sedition Laws, liwllii'r Willi lli(^ Virginia Kosolutionh ■ if Dim'. 21, 171W, tlio debate and pro- ii'i'ilings tlici'iMin in the Honse of Delo- ^' Ill's in Virgiiilii, and S(!Vi'nil other ilniiinienlH illustrative of tin? lleport and Itcsolulious. llielinioiid : J. W. Knndolpli, 1:21 llain Street. Also for sale liy FraiicU Taylor, Wasliiii^'ton ; Ciisliingit lii'otlior, Baltimore; and T. A- .T. W. .Tohnson, I'liiladeliiliia, Pa. 1800 ; [1. US. "John Mereer said, " Korco is not, tlionnlil of liy any one " (ibid., p. •I'ii. Juiiios Barbour: "He was lor using U-2 NATritK or Tin; constiti'tiox. [CIIAI' Sfvcu State U'irislatiircs replied to tlu'se resnlutioiiH, coiKlciiiiiin^ till' siiiiii' in jjeiicnil liuiKiuige, and in Home eases anirniinjf tia* (ioc- triiif th;it tia' Siiprenu! ('onit of tla' I'nited States liad tia; ultimate anllun'ity of deeiding on the constitutionality of an act of ('(in- gress." Kentueky rejoined, Novendier 14th, 179i>, l>y a preamliir ami resolution wliich concluded in languagt! largely taken from tlu^ omitted jiart of JefTei-son's original draft: — " Tliat tlie Hovcrul Stntea who formed tiiat instrument" (the Consti- tution), "being sovereign and independent, have the unqueatioia'd right to judge of the infraction; and that a nuUifleation by those sovereignties, of all unauthorized acts done under color of that iiislni- ment, is the rightful remedy. That this Commonwealth does, iukUt the most deliberate reconsideration, declare that the said Alien ntiil Sedition Laws are, in their opinion, palpable violations of the said Constitution ; and, however cheerfully it may be disposed to surrender its opinion to a majority of its sister States, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, wliieli 80 vitally wound the best rights of the citizen, it would consider a silent aeqiiieseence as highly criminal ; that, altliough this Conunonwealth, as a party to the federal comiiact, will bow to tlie laws of the Tnion, yet it does, at the same time, declare, that it will not now, or ever heie- after, cease to oppose, in a constitutional manner, every attempt, at what quarter soever offered, to violate that compact: and finally, in order that no pretexts or arguments may be drawn froTu a supjiosed ae(iuiescence, on the part of this Commonwealth, in the constitutionality of those laws, end be thereby used as precedents for sinular future violations of tie federal compact; this Commonwealth now enters against them its solemn i)rote8t." '" 11(1 vidli'iK o. It IS the iioculiiir liless- iii^i (if I lie AiiM'iiciin I'l'dplc to have redress «itliiii tlieir reach liy eonstl- tatiiiii.'il mid |ieiieefiil iiieiiiis. He was f(ir fjiviiiH ('impress an sti upon beiiiH addressed to have those laws reiieahvl, shoiihl iiersist, tliey niiglit, by u concurrence of tliree- fourths of the Slates, be conipelleil to call a Convention." Ibid, p. 14S. " Delaware, IJIiode Island, Massa- chusetts, New York, Connecticut, New llani|isliire, Vermont. Ibid., pp. ICiH 177. Elliot's Debutes, 2(1 ed., vol. iv. p|i. 5,12-53!). >i See the whole Kosolulion In Ap- l)endi.\ to this chapter. r.v2.] VIIUUXIA AM) Kl'.NlirivV l:KS(iL( TK (NS, 128 'I'lic Mrjjinia lIoiiHeof Delc'fifiiti'H ivIVircd tlic icsoliitidii:; of tlu; (itlicf Stiitc'M to a (•oinmitlct' of wliicli Madison was tlic cliaii'iii.iii. M;i(lis(iii's famous I'cpoit (Icfciidcd tin; resolutions and conliint'd an I'lidiorate arjjuineiit atfainst tiic I'onstitutionality of the Alioii ;iiii[ Sedition Laws, lie reassertc^d tin; riffjit of tlie States to in- tei[i(ise in "the ease of a didil)erate, palpalile and danj^erous" liieacli of tlie Constitution liy tlie ( xeirise hy liie l''edeial f^ovelil- iiient of powiiix not jfranted to it, witiiout. iiowever. stating speeilieally, tiut manner in wliieli tliat interposition siiould i)e Mi;iiie. lie said tliat sueii ai'tion, "wlietlii'i' made hefore or after jndi- (), |i. 2:);t. 1'^ HailiMoii's IcItiT (d Eihviml F,v- prett, AuKMst, IHHO, iliid., 2t!l •irw!. Soo iilso otlu'f Hlati'iiK'tils liy Madi- Hou, c[ui)t''(l ill Bi'iitiin'w Thirty Y(>ar«' Viow, vol. i, pp. Sni-SRO. 1' By l\w trial, coiivii'tioii niul scii- tiMicc of t'alli'tuli"!', tlio I'oiidiiL't of wliicli was 0111' of till' Ki'i'ii'i'lf' fni' lli» iiMIicai'hiui'iil of .Tiidni" Cliasi'. (!iv- oriior Moni'oi' said, in liiri iiii'SHaKi' to tlio Vii-fjiniaii (tciicral Assi'iiilily, in I)iM'ciul)<>r, ISUO : •■ In roiiiicction willi this milijcct it Ih proper to add, that, Hiiico your last scsHioii, the sedition la-.v. Olio of the acts coinplaiiu'd of, has lii'cii carrii'd Into I'ffi'cL in this i'oiiimoinv( altli liy I Ik- doiisioii of a fiuleriil court. I notice this event, not with a viow of censuring or erltlclMlni^ it. Tlie tiaiisaelion lia.s fjoiie to the world, and tlio impartial will jud^i: of it as it deservi's. I notice it for tim ])nrpone<)r remarking; tJial tlieiliM'ision was executed with tlie .same onler ami traiii|iiil siihniissioii on the I'art of the people as could have lieeii shown liy them on a similar occasion to any the most neee.s.sary, constitutional and jHipular acts of tlio f^overnmont. The (ieneral Assembly and the jjood |)cople of Mils Csscd of these iicis of the general governnient ; but they havi> looked for a cliaiiKo in that respect, lo ii ehaiiije in the public opinion, which oiiulit to lie free ; not to measuri'S of violence, (list onl and disunion, which they abhor." licnlou's Thirty Years' View, vol. i. p. 351. §:!:].] NULLIFICATIOU. i-2r> ITilO, were stronger, but the riglit therein maintained seems charly to liiive been rather the " natural right " of revoluti(ui, than the assertion of a legal right recognized by the Constitution. Tlie design of Jefferson was. however, aecomiilished. as he un- doubtedly expected, by the means contemplated by the Constitution, witliout the use of any extraordinary proceedings. I'ctitions for the repeal of the obnoxious statutes poured into Congress from all parts of the Union." The powers granted ])y tliy Alien Law seem never to have been exercised. The prosecu- tions and cimvictions under the Sedition Law had no effect except to iiirrease the unpopuliirity of the party tliat had passed it. .Ii'ifcrson was chosen to tlie presidency a year after tiie ad()])tion of tlie last Kentuck}- Resolution. Before his inauguration the two nets had expired by their terms after a futili' attempt to continue tlui only one of them which had been ap[)lie(l.'"' Me pardoned all convicts under the Sedition Law,'" and the fines imposed upon tlieni were repaid afterwards under votes of Democratic Con- gresses. '^ Neither Joifei-son nor Madison id'terwards had occasion to reassert the doctrines pronnilgated in tlie faiiKius report and rcsohitions. But those papere remained the texts to wliicli the expounders of State rights appealed till the rights of .secession and nulUfication had both been tried and both had failed. I ^tVt. The Doftrine of Nullification. Struck by tiie exi'iinle and taking up the cue of .Jefferson, wiieu the South was injnivd by an unjust ami oppressive tariff, Calhoun ex])an(led and set forth the doctrine of nullilicatioji for IhT relief. Tiie reputat'on of its author and the solemnity of the cvculs which it necasioned seem to demand that it be fully and fairly stated in his own language : — "Tiie great and leading principle is, tliat the General (ioveriiiiient oiiianatcd from tlie jicoplo of the several states, forming distinct political communities, and acting in their separate and sovereign capacity, and not from all of the people forming one aggregate political » MoMiister'R History, vol. li, p. 4'2n. " Act of .lul.v 4, 1840, C, St. nl L., " Ibid., p. r.32. p. mi ; Ai'tof June 17, 1844,.(i St. nl L., '" Tuclcer's Life of Jefferson, vol. 11, p. 924. p. 120. 126 XATriiK OI' TllK CONSTITUTION. [CIIAP. U. commnuily; thtit the Constitution of the United States is, in fact, ii oonipact, to which cacii state is a partj-, in tlio ciiuraefor already do- (^crilied ; and that the several states, or parties, have a right to judge of its infractions; and in case of a deliberate, palpable, and dangeroiis exercise of power not delegated, they have the right, in the last resort, to use the language of tlie Virginia Ucsolutions, ^ to interpose for arrexl- ing the proijress of the evil, and for meclire limits, the authnritien, rights, and liberties appertaining to then.' This right of intoi-j)osition, thus solemnly asserted by the Stai ■ of '-lia, be it called what it may — State-right, veto, nullificatoi ;,- other name — I conceive it to be the fundamental prim ipio of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political or moral trutli whatever ; and I firmly believe that on its recognition depend the stabilty and safety of our political institutions."' " To realize its perfection, we must view •'.o General Government and those of the states as a whole, each in its proper sphere independ- ent ; each perfectly adapted to its respective objects ; the states acting separately, representing and protecting tiie local and peculiar Interests; acting jointly through one General Government, with the weight re- spcctivclj' assigned to each by the Constitution, representing and protecting the interest of the whole, and thus perfecting, by an admirable, but simple arrangement, the great principle of rei)resentatiou and responsibilitj', without which no government can be free or just. To pre:^erve this sacred distribution as originally settled, by coercing each to move in its prescribed orb, is the great and diUlcidt problem, on the solution of which the duration of our Constitution, of our rnion, and, in all probality, our liberty depends. I low is this to be effected? "The questi<.n is new when applied to our (leculiar political organi- zation, where the separate and conllicting lerests of sociel}- are represented by distinct but connected governments ; but it is, in reality, an old q\iestion under a new form, long since ])erfectly solved. When- ever separate and dissimilar interests have been se])arately represented in any government; whenever the sovereign power has been divided in its exercise, the experience and wisdom of ages have devised but one mode by which such political organization can be i)reserved — the mode adopted in England, and by all governments, ancient and modern, blessed with coi'stitutions deserving to be called free — to give to cr... ,, § ;i;1. 1 Mr. Calhouirs ndilrcss, stiil- iii;^ lii« opinion of llie rclalioii niilch tlic Suites iinil tlie goiierul (^overnmout Ijear to encli other. Fort Hill, .liii, 21;, 18;il. (Calhoun's Speoclies, 1st ed., 18i;t, i>. 28. ^;j;;.] NTLUFICATION. 127 *J. (■i)-oslat(! the right to judge of its powers, with a negative or veto on the iipts of the otliers, in order to protect against encroachments tlie iiitcrtsts It particularly represents : a principle which all of our Con- stitutions recognize in the distribution of power among their respective (k'pavtnients, as essential to maintain the independence of each, but wiiich, to all who will duly reflect on the subject, must appear far more essential, for the same object, in that great and fundamental distribu- tion of powers between the General and State Governments. So I'SKontial is the principle, that to withhold the right from either, where liie sovereign i)ower is divided, is, in fact, to annul the difision ilnelf, and lo mnsiilidate in the one left in the exclusive possession of the right !(// powers of government; for it is not possible to distinguish, jjracli- cally, between a government having all power, and one having the right to take what poworb it pleases. Nor does it in the least vary the principle, whether the distribution of power between co-estates, as in Enghnd, or between distinctly organized bi; connected governments, as with us. The reason is the same in both cases, while the necessity is greater in our ease, as the danger of conflict is greater where the interests of a society are divided geographically than in any othei-, as lias already been shown." " " So far from extreme danger, 1 hold that there never was a free state in which this great conservative principle, indispensable to all, was ever so safely lodged. In others, wlien the co-estates representing the ilissiinilar and conflicting interests of the comnuinity came into contact, this only alternative was compromise, submission, or force. Not so in ours. Sliould the General Government and a state come into conflict, we have a higher remedy : the power which called the General Govern- ment into existence, which gave it all its authority, and can enlarge, contract, or abolish its powers at its pleasure, may be invoked. The fttati'H themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees arc the Constitution itself, and whose voice can silence all discontent. The utmost extent, then, of the power is, 1 I ;i state acting in its sovereign capacity, as one of the parties to the constitutional compact, may conipel the government, created by tliat coni|)act, to sulmiit a question touching its infraction to the parties who created it; to avoid the supjiosed .langers of whicii, it is proposed to resort to the novel, the hazardous, and, I must add, fatal project, of giving to tiie General Government tlie sole and flnal right of intcr- ^ Mr. Callioun's (iddroHS, BtntliiK hiH .'acli (itlier. Fort Hill, July 20, 1831. Dpiiiion of (111' relation whU'li till' States Calhoun's Bpeoolios, 1st I'll., Ibl3, pp. auiJ llio fjfouoral government boar to 30-31. 128 NATURE OF THE CONSTITUTION. [chap. II. prctin*; the Constitution, thereby reversing the whole system, inakinsr that instnimcMit the creature of lis will insteau of a rule of action impressed on it at its creation, and annihilating, in fact, the authority whicli imposed it, and from which the government itself derives its existence. That such would be the result, were the right in question ^•ostcd in the legislative or executive branch of the government, is inceded by all. No one has been so hardy as to assert that Congress 1' the President ought to have the right, or deny that, if vested finally iind exclusively in either, the eonseciuonces which I have stated would iiocessarily follow; but its advocates have been reconciled to the doctriiii', on tlie supposition that there is one department of the General (ioveriimmt wiiioh, from its peculiar organization, affords an indepen- dent tribunal through which the government may exercise the high authority which is the subject of consideration, with perfect safety to all. " 1 yield, I trust, to few in my attachment to the judiciary depart- ment. I am fully sensible of its importance, and would maintain it to the fullest extent in its constitutional powers and independence ; but it is impossible for me to believe that it was ever intended by the Consti- tution that it should exercise the power in question, or that it is competent to do so; and, if it werg, that it would be a safe depositary of the power. " Its powers are judicial, and not political, and are expressly confined by tlie Constitution ' to all cuaas in law and equity arising under tiiis Constitution, the laws of the United States, and the treaties made, or which shall be mar. Fori Hill, July J('>, ls:U. opiiiioiioiiliiTclaUoii which Ihi'Stntes Callioiiu's Spooehos, Isl eil., 1H13, pp. and Ww general noverunieut benr to 31-31. 182 NATURK OK THK CONSTITl TION. [CHAV justmont, through nn appeal to the states themselves, is an evidence of its Iiijrli wisilom ; un elcnieiit not, as ia supposed bj' some, of weakness, but of str('iint Juil(;;i! Story ri'r:.iiiki'(l : "Now, in tlii' first jiiuui', the coiislitutioniilily of the Alioii and Sidition laws ncvor came before tlio Supremo Court for dcoisiou, and eon- seiiuentiy never was decided by that lourt. Ill the next pla(^e, what is imant by j)!(b?i(! opinion de<'idinK coi:- slilulional (iiiestioiis ? Wliat pul)lic ()|iiiilon ? Wlien! and at wliiil time delivered ? It is notorious tlmt tome o( llic nblest stati'smen and jurists of Ameriea, a; tlie time of tlie passage (if tliese aets, and ever sinee, have laainlainod the constitutionality of tlii'se laws. They were upheld, as i-on^ititutional, by some of the most iiitellig(>nt and able Slate legislatures in the Union in deliberate resolutions allirming their eonstitutiouaiil}'. Nay, ni(ii-e ; it may be alTlrmed that, at the lime when the controversy engaged llie public mind most earnestly upon tlie subject, there was (to say the li':ist of it) as gre.it a W(!ight of judi- lial and professional talent, learning, and iiatriotisni (Milisted in the. ..■ favor, us there ever has been against them. If liy l)eing settled by jiublie oiiinion is meant that all the people of America were united in one opinion on the sub- ject, the correctness of the statement cannot bo admitted, though its sin- cerity will not be y are introiluced to add odium to tln^ party by which they were adopted. But the most serious doubts may bo enter- tained wliethei-, even in the jires- ent day, a majority of constitutional lawyers, or of judicial opinions, do- liljerateiy hold theui to be unconstitu- tional." Story on the Constitution, .Ith ed., § 1271, pp. 180-181, note. Uiuler the hito decisions of the Su- premo Court tiie Aii(Mi law would cer- tainly and the Sedition law lu-oli.ibly bo held constitutional. Sec Foug Yuo Ting V. V. S., lia U. B. 698. 184 NATl'UE OF TIIK COXSTITUTION. [CIIAP. II. spctional. It is impossible tliat tlie goveniineut can Inst iine(iri.'- itl.hj, its declaration of nullification. Sustained by its court and juries, it would calmly and quietly, but successfully, meet every elTort of the (ii'iu'r:d Ciovernment to enforce its claim of power. The result would 111- inevitable. Hefore the judicial tribunal of the country, the state must prevail, unless, indeed, jury trial could be eluded by the reflne- iiient of the court, or by some other device; which, how 'er, guarded iis il is by liie ramparts of the Constitution, would, I hold, be impossible. 'I'lic attempt to elude, should it be made, would itself be unconstitu- tional ; and, in turn, would be annulled by the sovercifin voice of the s-tiite. Nor would the right of appeal to the Supreme Court, under the jiiilieiary act, avail the (ieneral (lovernment. Tf taken, it would but end in a new trial, and that in another verdict against the government; luit whether it may be taken, would be optional with the state. The court itself has decided that a copy of the record is re(iuisite to review a judgment of a state court, and, if necessary, the state would take the l)n'eaution to prevent, by proper enactments, any means of obtaining a copy. 15ut if obtained, what would it avail against the execution of the penal enactments of the state, intended to enforce the declaration of itullilication? The judgment of the state court would be pronounced !ind executed before the possibility of a reversal, and executed, too, without rcs])onsibility incurred by anyone. Beaten before the courts, tiie (ieneral (Joverument would be compelled to abandon its unconsti- tutional pretensions, or resort to force; a resort, the dilllculty (I was aliout to say, the impossibility) of which would very soon fully manifest itself, slioidd folly or madness ever make the attempt. " In considering this aspect of the controversy, I pass over the fact tliat the General Ciovernment has no right to resort to force against a state — to coerce a sovereign member of tlie Union — which I trust, 1 have established beyond all possible doubt. Let it, however, be de- termined to use force, and the difliculty would be insurmountable, un- less, inileed, it be .also determined to set aside the Constitution, and to sulivrrt the system of its foundations. Against whom wouhl it be ap- plied? Congress has, it is true, the right to call forth the militia 'to execute the laws and suppress insurrection ' ; but there would be no law resisted, unless, indeed, it be called resistance for tiie juries to refuse to (ind, and the courts to render judgment, in conformity to the wishes of tlie (Ieneral Government; no insurrection to suppress; no armed force to reduce ; not a sword unsheathed ; not a bayonet raised ; none, iilisoiutely none, on wliom force could be used, except it be on the un- armed citizens engaged peaceably and quietly in their daily occupa- tions. l:!»i NATUBK <)1' TIIK CONSTITtTION. [CHAI'. II. " Xo one would lie (iuilly of ticnson (' lovyinj; wiir ngiiiiiat the United Stiitos, mlluTiii}; to tlicii' eiieiiiios, ;iiviiijr tlieni iiid auci comfort'), or any other crime made peiml liy tlie C'oustitutioii or tlie laws of the United States. To Bupposc that force could be called in, implies, indeed, a jireat miKtake, both as to the nature of our government and that of the controversy. It would be a legal and constitutional conti'st — a conllict of moral, and not jihysical force — a trial of constitutioiml, not military power, to be decided before the judicial tribunals of the country, and not on the field of battle. In such a contest, there would be no object for force, but those peaceful tribunals — nothing on which it could be employed, but in putting down courts and juries, and preventing the execution of judicial jjroecss. heave these untouched, and all the militia that couKl be called forth, backed by a regular force of ten times the number of our siiiali, but gallant and jiatric 'iriny, could have not the slightest effect on the result of the contri • but subvert these by an armed body, and you subvert the very tiou of this our free, constitutional, and legal system of government, and rear in its place a military despotism. " Feeling the force of these dilliculties, it is proposed, with the view. I suppose, of disendjarrassing tlie operation, as unich as possible, of the troublesome interference of coiu'ts and juries, to change the scene of coercion from land to water; as if the government could have one particle more right t(j coerce a state by water than by land ; imt, unless I am greatly deceived, the didlcultv on that element will not be much less than on the other. I'lic jiiiy ii...., east the local jury trial (the trial by the vicin";^"} '~''>yi indeed, be evaded there, but in its place other, and not much less formidable, obstacles must be cucounti'ied. There can be but two modes of coercion resorted to by water-blockade and abolition of the ports of entry of the state, accompanied by penal enactments, authorizing seizures for entering the waters of tlie state. If the former be attempted, there will be other parties besides the General (iovernment and the State. IJhjckade is a belligerent right; it presupposes a state of war, and unless there be war (war in due form, as prescribed by the Constitution) the order for blockade would not be respected by other nations or their subjects. Their vessels would proceed directly for the blockaded port, with certain prospects of gain; if seized under the order of blockade, through tlie claim of indemnity against the (leneral Government; and, if not, by profitable market, without the exaction of duties. "The other mode, the abolition of the ports of entry of the state, would also have its difllculties. The Constitution provides that ' no §=>•'•] NtlLUFICATION. i:n |pivfi'ri':n'e Hhnll bo given by nny rcgulnt'uin of roiniiicrct' or rcvi'iiuc Id tlir jioris of one utate ovt-r lliosc of luiotlii'r; nor hIiuII vi'Shi'Is bound 1<> or from one Btiit*> lie obli;?('il to t'litor, cli'ar, or piiy (bitirs in aiiotlicr: ' jnovisionrt too i-lcnr to bu eliideil vwn liy tlio force of tlio coiistniction. 'i'liiii' will Ijc iiiiollii'r (lilllciilty. If seizures be made in i)orl, or witliiii till' distance aHsigncd by tbc laws uf natioim aa the liuutM of a state, tlio trial must bo in tho state, with all the cnibarrassmentH of its courts iiiid juries ; while bi'yoml the ports and the distance to whieh I have iifcrred, it would be dilUcult to point out any principle by whieh a foreign vessel, at least, could be Koi^cd, except as an incident to the liilht of l)lockado, and, of course with all llie dilllculties belonging to tluit mode of coercion, " Uut there yet remains another, and, 1 doubt not, insuperable hiirrier, to be found in tho judicial tribunals of the Union, against all tlie scUemes of introducing force, whether by hind or water. Though 1 cannot concur in the opinion of those who regard tiie Supreme Court as the mediator appointed by the Constitution between the states and the (icneral Government; and though I cannot doubt there is a uatnnd bias on its part towards the ])ower8 of the latter, yet I must greatly lower my opinion of that high and important triljunal for intelligeni'o, justice, and attachment to the Constitution, and particularly of tliat pure and ujjright magistrate who has so long, and with such distin- guislu'd honors to himself and the Union, presided over its deliberations, with all the weight that belongs to an intellect of the first order, united with the most spotless integrity, to believe, for a moment, that an attempt so plaiidy and manifestly inicoustitutionid as a resort to force would bo in such a contest, could bo sustained by the sanction of its authority. In whatever form force may be used, it must pres<'iit ((uestions for legal adjudication. If in tlie sliape of blockade, the vessels seized under it must be condemned, and thus would be pre- sented tlie question of prize or no prize, and, with it, the legality of the tiloekade ; if in that of a repeal of the acts esl blisliing ports of entries in the state, the legality of the seizure must be determincil, and that would bring up the question of the unconstitutionalitj' of giving a preference to the ports of one state over th(we of another ; and so, if we jiass from water to land, we will find evciy attempt there to substitute force for law must, in like manner, come under the review of the courts of the Union; and the unconstitutionality would be so glaring, that the executive and legislative departments, in their attempt to coerce, should either make an attempt so lawless and desperate, would be without the support of the judicial department. I will not 138 NATl'RK OK Till': CONSTITrTION. [chap. II. pursue tlic question farther, as I hold it pcrfectlj' clear tiiut, so ;oiig aa a state ivlains its federal relations ; bo long, in a word, as it continue.s u member of tiie I'nion, the contest between it and the General Govern- ment must be before the courts and the juries ; and every attempt, in whatever form, -whether by land or water, tp substitute force iis tlic arbiter ia their place, must fail. The unconstitutionality of the attempt would be HO open and palpable, that it would be impossible to sustain it. ' ' Tiiere is, indeed, one view, and one only, of the contest in whieli force could be employed, but that view, as between the parties, would Hupersede the Constitution itself : the nullification is secession, and would, consequently, place the state, as to the others, in the relation of a foreign slate. Such, clearly, would be the effect of secession ; but it is equally clear that it would place the state beyond the pale of all her federal relations, and, thereby, all control on the part of the other states over her. She would stand to them p'niply in the relation of a foreign state, divested of all federal connexion, and having none other between them but those belonging to t lie laws of nations. Standing thus towards one aTiother, force might, .ini eed, be employed against a state, but it must be a belligerent force, preceded by a declaration of war, and carried on with all its formalities. Such would be the certain effect of secession ; and if nullification be accession — if it be but a different name for the same thing — such, >, must be its effect; which presents the highly important question. Are thej', in fact, the same? on tlio de- cision of which di'i>cnds the question whether it be a peaceable and cin- MitutUmid remedy, that may be exercised without terminatuHi the fciJend relations of the state or not. am aware that there is a con- sidenible and respectable portion of our state, with a very large portion of the I'nioii, constituting, in fact, a great majority, who are of the opinion that they are the same thing, differing only in name, and who, under that impression, denounce it as the most dangerous of all doctrines; and yet, so far from being the same, they are, unless, in- deed, 1 am greatly deceived, not only perfectly distinguishable, I'ut totally dissimilar in their nature, their object, and effect; and that, so far from deserving the denunciation, so properly belonging to the act with which it is confounded, it is, in truth, the highest and moot precious of all the rights of the states, and essential to preserve that very Union, for the supposed effect of destroying which it is so bitterly anathema- tized. ' ' I shall now proceed to make good my assertion of their total din- .limilaril;/.'' First, they are wholly dissimilar in their nature. One Ims ' Tlio ilulicH are iu tlm oHgliiuI. V^o.] NULLIKICATION. lod rl'crence to the parties themselces, and the other to their agentx. ^('(•;'ssion is a tcithdrnmil from the Union: a separation from jiarlifr:,, .■111(1, as far as depends on the member withdrawing, a diasolulion of the piirtnership. It presupposes an association : a union of several states j compAling the diji'id to fulfd the object for tohich the agenc;/ or trust was c-eated; and i.i ajiplicable only to cases rchere the trust or lUdcijated pow;'rs are trans -cudMl on the part of the agent. Without the power of secession, :ui association or union, formed for the common good of ad tlio mem- bi'is, might prove ruinous to some, by the abuse of power on the part of the otiiers; and without nullification the agent miglit, under colour of construction, assume a power never intended to be dolegatod, or to conver'. those delegated to objects never intended to bi comprehended Ml llie trust, to the ruin of the principal, or, in case of a joint agency, to thi' ruin of some of the principals. Each has, t uis, its appropriate object, but objects in their nature very dissimilar; so much so, that, in case of an association or union, where the powers are delegated to be cxecnled by an agent, the abuse of power, on the part of the agent, to tlie injury of one or more of the members, would not justify secession on their part. The rightful remedy in that case would be nullification. 'I'liere would be neither right nor pretext to secede : not right, because secession is applicable only to the acts of the members of the associnlioa 140 NATUBE l)F THK CONSTITUTION. [chap. ir. or union, and not to the act of the agent ; nor pretext, because there is iiuother, and equally efTicient remedy, short of the dissolution of the iissociatiou or uuiou, which can only be justified by necessity. Nullificii- tioii may, indeed, be succeeded by secession. In the case stated, should the other members undertake to grant the power nullified, and should the nature of the power be such as to defcut the object of the asKocialion or union, at least as far as the member nullifying is concerned, it would then become an abuse of power on the part of the principals, and thus present a case where secession would apply ; but in no other could it be justified, except it be for a failure of the association or union to effect the object for which it was created, independent of any abuse of power. " It now remains to show that their effect is as dissimilar as tlieir nature or obieet. Ni.Uificatiou leaves the members of the association or union in the condition it found tliein — subject 1o all its burdens, and entitled to all its !'dvanta<;es, conipreliending the member mdlifyinix as well as the others — its object being, not to destroy, but to preserve, as has })een stated. It simply arrests the act of the agent, as far as tile principal is concerned, leaving in every other respect the operation of the joint concern as before; secession, on the contrary, destroys, as far as the wilhdrnwiug member is concerned, the association or union, and restores him to Ihe relation he occupied toward tiie oilier niembers before the existence of the association or uiuon. He loses the benefit, but is released from the burden and contnjl, and can no longer be dealt with by his former associates, as on(! of its members. Siicli are really the differences between them — ■ dilTerences so marked, that, instead of bi ing identical, as supposed, they form a contrast in all the aspects in which they can be regarded. 'I'he application of these remarks to the political association or Tnion of these twenty-four stales and the (ieueral (iovenimeiit, their joint agent, is too obvious, after what has been already sai.l, to re(|iiiie any additional illustration, and I will dismiss this part ol' tli<' subject with a single additional rem;'''k. There are many who acknowledge the righl of a state to secede, I deny its right to nullify; and yet, it seems impossible to admit the one without admitting the other. They both presupjiose the same structure of the government, that is a Uiiitm of the states, as forming political comnuinities, tlit; same right on the part of the states, as nuimbeis of the I'nion, to determine for their citizens the extent of the powers delegated and those! reserved, and, of course, to decide whether the Constitution has or has not been violated. The simple ditTerence. then, between those who admit secession and deny nullillcalion, and those who admit both, is, that one acknowledges that the declaration ol' s «!'•] NULWFICATrON. 141 : N i a state pronouncing that the Constitution has been violated, and is, tiicri'foro, null and void, would he obligatory on her citizens, and would arrest all the acts of the government within the limits of the State; while they deny that a similar declaration, made by tlie same uiilliority, and in the same manner, that an act of the government has transcended its powers, and that it is, therefore, null and void, would liiive any obligation ; while the other acknowledges the obligation in lioth oases. The one admits that the declaration of a state assenting to the Constitution bound her citizens, and that her declaration can nnl>ind them; but denies that a similar declaration, as to the extent slie has, in fact, bound them, has any obligatory force on them; while llie other gives equal force to the declaration in the several cases. The one (lenies the obligation, where tlie object is to jiri'wrrr tho Union in llip. onl'i way it can be, by confining the government, formed to execute tlic trust powers, strictly within thoir limits, and to tho objects for wliicli they were delegated, though they give full force where the ol)ject is to (Idntroy the Union itnelf; while the other, in giving equal weight to both, prefers the one because it prexerrcx, and /rjects the other because it destroys; and yet the former is the Union, and the latter the rlisnnion party. And all this strange distinction originates, as far as 1 can judge, in attributing to luillid- i what belongs exclusively to secession. The ditliculty as to the !■ ' -i-ems, is, that a state cannot be in and out of the Union at tiie .-..uiir inie. This is, indeed, true, if applied to secession — the throwing off the n it!, •nly of the Union itself. To nullify tiie Constitution, if I may bo purdonoi the solecism, would, ir iced, be tantamotint to disunion; and, as appliinl to such an act, it would be true that a state could not be in and out of the Union at the same time; but the act would be secession. Hnt to apply it to mdlifieation, properly understood, tho object of whieli, instead of resisting or diminishing the powers of the Union, is to preserve them as they arc, neither increased nor diminished, and th reby tho Union itself (for the Union may bo as elTeetually destroyed by increasing as by diminishing its powers — by consolidation, as by tlisni.ion itself), would be, I would say, had I not great res])('et for Miiiny who do thus apply it, egregious trilling with a grave and deeply- iii'.portant constitutional subject."" All who liiiv(> been convinced liy tlu> argtiincnts against tlio riglit of scc'CHsiou will liavc little difliciilty in pcnHMving tliu weakness » Mr. Calhoun's letter to Gonoriil 1832. rallinun's Speeelios, Ist ed., Hamilton on tlio Hiil)ject of State Iril im- 1813, pp. 51-50. position, dated Fort Hill, Aug. 28, 142 ^-'ATlIiE OF TMIO t'ONSTITUTION. [CIIAI'. !l. of the position of Ciillioun. Even those who chiini that se^'essioii is loEjal ihid it hard to admit liis (h)otrine of nullilieation.^" T'ci- if t!ie aets of the Union eouhl at any time, in pe.ice or war, he paralyzed hy tiie objeetions of a sinjjle State, the Constitution wouhl be no stronger than a rope of sand, and the work of the Federal Convention would have been indeed in vain. If that instrument were merely a treaty which formed a league, not only is there notliing in its context, but every princijile of law, nuinicipal and international, forbids that a luendjer of the Confederacy sliould retain its mend)ersliip and enjoy its Ijcnelils while at liberty to violate its conditions, which require that the citi- zens and courts of every State shall obey the Federal laws and give to the Supreme Court of the United States the right of ultimate deterniinallon as to the constitutionality of acts of Congress." licfu.sals by the different States to comply with the resolutions of Congress had been common under the Confederation, and for that ])nrj)ose tin; C Ilepublic of Republics, 4!h ed., p. 2tiO : " ]?ut a Slati- or its ("invention has no riKhl to withdraw some, and leave the rest of tlie powers; orobsliucl the exi'culion of a part; m- annul ii law, whije ad- hering to til'- Tniun ; In' tin" Const ilii- lion, beinj; a eompan. is not to be liartly suspended and jiarlly executed, by one of the parlies." .lelTerson Davis also said, in his farcnvcll speech in tlie Senato (The Rise and Fall of the Con- federate Government, vol. I, pp. 221, 222) : " I hope none wlio hoar mo will confound thispxprcssioM of mine with tlio advocacy of the rinhl of a Slate to remain in the I'rnon, and to ilisreuard its cotistilutioiial oblinalions by the nnllillcation of the law. Such is iiol my theory. Nullillcalion and seces- sion, so often confounded, are indeed untagonlstlc principles." And again, .\bi'idni'ment, vol. ix, Appeiidix. '- In th(! ConnecticuL convi-ntion, Oli v Union iH the ciMiTive pi'iiieiple. No man pre- tends tlio eontmiy ; wi! all sl I Ills neeesHity. Tlioonlyqu(!!*tion is, KhiiU it lie a eoerciou of law, or a loeic'icin of arms?" "I am for eoor- elon by law — that eooreiou which acts eiily upon dellnriuont individuals." "Tliis le;;al eoereion sinRles ont tho ^{iiilty individual, anil |>unlshes him for bieiikiiiH tho laws of the Union." Klliots Debates, 2d <-(!., vol. v, p. 197. In the .'.amn speecb Ellsworth 8peak.s of (lie power of "tli(! national jndj^es to declare* void an act of Congress not anlhorized by the ronstitnlion." Ibid., p. liMi. Se(> also tho nuthorilies cited Hiiiini. § 17. II T'. S. r, TeliM-s, .'■) Craneh, p. 115, .\, I>. IHIIS ; Martin v. Hnnler's Lessee, 1 Wliealon, y. ;l(IJ, A. D. IMKi ; (\il\ens r. Vir^'lnia, 11 Wheaton, p. ;i01, A. V. iNiil. Tho history oi' this subject will bo dispusscd subspquontly in tho chap- ter oil thi! Judicial Power. " This was tho famous case of tho sloop Active. Journals of Congress, vol. V, p. 372 ; Ro:;s et al. v. Ritten- house, 2 Dallas, p. IGO, A.D. 1792; U. S. I'. Fetors, .5 Crawh, p. 11,';. A.D. 1808; Trial of General Brifjht by Kichnrd Peters ; The wholo Proi'eedinns in the case of Olmslead r. Ulttenhouse, Phil- adelphia, 1K09; Olmsted's Ca.se, Bri«ht- by (Pa.), 1; The case of tho Sloop Active by Hampton L. Carson, The Ciroeii Han, vol. vli, p. 17 ; Carson, History of the Supremo ("ourt of the Uidted States, vol. 1, p. 2ir). >■'' E.\tract from (he jouinal of tho Senate of the Commonwealth of Vir- ginia, befiun and held at th(* Capitol in the CKy of Richiiioiiil, the fourth day of December, 1H09 : - "Friday January 21!, IHIO; "llr. Nelson reported from (lie coin- mi((<>e to whom were c(mifni(.teil tho preamble and resolutions on tho amt'udmeut proposed by the legisla- 144 NATURE OF THE CONSTITCTION. [CHAr. 11. Tlu! (lot^trine of nullification can find no support in the language of the Constitution. It is in direct conflict with the spirit and turo of PiMinnylvaiiiii, to Iho consti- tution of tlio United Statos, l)y the nppointnicnt of an impartial tribunal lo (lociild disputes Ijctwoen llio stato iind federal jiidieiary, that the eoni- irdttee liad, aeeordin!^ to order, talvon the said ]ireanil)les and resolutions under theireonsideration, and directed Inmto report tlieni without any amend- ment. And on this question being put lliereu])on, tin? same were agri.'ed to unanimously, by tlie House, as fol- lows: "The committee to whom was re- forred the communication of tho Crovernor of Pennsylvania, covering certain resolutions of the leglslaturo of that State, proposing an amend- ment lo tho constitution of th(> United States, by the appointment of an im- partial tribunal to decide disputes be- tween tho Slate and f<'deral judiciary, ave had tho same under their con- sii>ratlon, and are of opinion that a I ribi.nal is already jirovided by the con- stilut on of the United States, to wit : The f upremo Court, more eminently i|uali led, from llieir hal)itsand duties, fnui. tho mode of their selection, and from tho tenure of their offices, to decide the disputes aforesaid in an en- lit»htened and impartial manner, than any other tribunal which could be cre- ated. Tho mendiers of the Supremo Court are selected from those in tho United Slates, who are most celebrated for virtue and legal learning, not at the will of a single individmil, but by I he concurrent wishes of tl\e President and Seiwito of the TJinted States; they w ill therefore have no h)cal prejuilices and partialities. The duties they have to perform lead them necessarily to the most enlarged and acartiality. The amendment to tlio constitution proposed by Pennsylva- nia, seems to be fcumded upon tho idea tluit the federal judiciary will, from a lust of jiower, eidargo their jurisdiction, to tlie total annihilation of the jurisdiction of the stato courts; that they will exercise their will in- stead ot the law and tlie constitution. This argument, if it proves anything, would operate more strongly against tho tribunal proposed to bo created, which promises so little, than against tlio Supreme Court, which for the rea- sons given before, have overytliing connected with tlieir appointment cal- culated to iusuro confidence. What security have we, were tho proposed amendment adopted, that this tribunal would not substitute tlieir will and tlieir ]ilcasure in place ot tho law? The judiciary are tlie weakest of tho tlirc'e departments of government, and least dangerous to the political rights of the constitution. They hold neither the imrse nor the sword ; and even to enforce their own judgments and de- crees, must ultimately depend upon the executive arm. Should the fed- eral judiciary, liow(ner, unmindful of their wealtncss, unmindful of their duty which they owe to themselves and their country, become corrupt and transcend the liniilaof their juris- (liction, would the [iroposed amend- ment oppose even a probable barrier to such an improlialilestataof things? Tho creation of a tribunal such as is lu'oposed by Pennsylvania, so far as wo are enabled to form an Idea of it, from the description given In the res- NULLirU'ATIOX. 1 Utter lis well as the ex])rcs,se(l intentions of tlie fnmicr.s of tiiat instniiiient and the precedents of lialf a century liefon; its pro- niul;;iiti()u. Hud it been recognized as a part of our .system of i^ovcrnnient, it would have been as fatal as was the Vdicnuii iH'io ill the ]'oli.sh Diet; the United States would have long siuee suHVred a partition; and the cause of civil liberty througjiout the woild would have met with a reverse from whieii it could not liave recovered within the century. ]?ut although it is hard til liclieve that a mind so acute as tliat of Calhoun coidd iiave In lii llie dupe of its own snjiiiistry. no lawyer can fail to admire ilir in;;cnnity with which was framed his scheme for resistance to iIic tiiriff. and he well earned his reputation as a statesman by the jir;i(tic;d rcsidt which he obtained. § 34. History of NiilliHeatioii, I'lic Tariff of Abominations of 1828 ' bore with especial severity upon the South, Avhere there were no manufacturers who desired "Tucsdiiy Jiin 2.1, IHIO ; " Tlio IIouso (icciinlingli) lliiuinliT of till) (lay, I'c'SDlvod ilsclf into a coin- inittci! of tlio wlidlo lioiisi^oii llio state of Iho <-(>ninion\v('altli Hiitl afti'r some fiiiio spfiiu tlid'ciu JIv. SpcakiT rc- suiiiod tlio cliair aiul Air. llolicrt Staii- ani ri'Dortcil that the t'omiiiittoti had aci'ordiuK to onli'r, had umh>r consid- eration tlio proatiitjlo and lesolutious of tlin select <'oininitlee to whom wore referred that part of the Governor's eoniniiinicatiou whieh rc>lates to the ainenilnii'iit jiroposed to the oonslitu- tion of the United States, by tlie len- islatvire of riMinsylvania, liad f;ono tliroiigh the same, and direeted liiiu to report them to the House without aini'ndinent ; which Iio handed in at the clcMk's talilo, nnd the <|uestiou lieiuK put on aj^rcM'ing to tho said preaiiil)lo nnd resolulioir , they were agreed to l)y the House unanimously." I'inckney's aiRument in Cohens r. Vir- ginia, Wheaton, 2M, ;ir)H, note. § I! I. 1 Act of May lU, 1828, 4 St. ati L., p. 240. < iliu inns of t he lej^islature of t hat state, Wdiild, in tho opinion of your com- inillee, tend rather to invito tlinn prevent a collision between tho fed- end nnd stall- eoiu'ts. It ininht also lirnmie in process of time a serious iiiid dangerous endiarrassmeiit to the (i|ii rations of the {^oueral govoru- Illi'll!. " Uesolvod, thoretoro, that tho log- ii^liilure of this state do disapprove of til.' .inii'iiilment to tho constitution of the rnili'il Slates proposed bytholog- islMiiire of Peniisylvauia. " K.'soived also, that his Excellency the (ii)vernor be, and is hereby re- qin s^'d to transmit forthwith, a copy of till' fiireL;oing preamlilo and resolu- tions to eadi of the senators and rep- l■l■^iclllatives of this stale in Conjiress iinil to tlio ox(>cutive of tho several sillies in tho Union nnd re(|uest that thi'Miniebe laid before tho legislatures tU. nor." Extract from the journal of the Hiiiise of Delegates of the Comiiion- woalth of Virginia: — IK", NATiniE OF THK COXSTITITTION. [chap. ir. protection. While it was before Congress, the legishitures nf several Southern States passed I'esolntioiis (leelarinf,' the uneonsii- tutionalily ol' a larii'f for purposes of proteetion ; and at the saniL' time attaekinjf aitpropriations for iuterual improvements and the Anu-rican Colonization Society.'-' At ii ]>nl)lic diinier in tlie autumn of lS:iT. Colonel Hamilton of Soutli Carolina, afterwards (iovernor of the State, [imposed nullification as ii remed}'.'' In the winter of lISi'S and lW:i!l. after tlie new tariff was in force, the Southern States attain [)asscd similar resolutions. South Carolina sent to tiie Senate its famous "Exposition and Protest" anjaiiist tlie tariir.' The le<,ashiture of (ieorgia resolved tiiat the State li;i(l the unqnestioiuible rijrht "to refuse ohi'dienec to any measure of ihu (ieneral (ioverinnent manifestly ai;-ainst, and in violation of, llie Constitution.""'' Meanwhile, threats of nullification were contin- uous, and tlie doctrine was maintained and comhatted durintr Decemher. ISJU. in the great debate between Webster and llayiie. On April l^Uh, t8;5(), .leffeison's birthday was celebrated by a subscri[itinn dinner at Washington, with the President, Vice-Pres- ident and Cabinet among the guests. The twenty-four regular toasts savored of the new doctrine of nullitieation. At their con- elusion, .Jackson 1 a. . called u|)on for a vohmteer, and gave utterance to his famous sentiment: "Our Feilenil Union; it nnist be pro- served." Till' N'ice-President. Calhoun, followed with another: — - Siiiiinor'sJarlisoii, pp. '215, '21(! ; II Anicviciin Aiiniiiil Ki';;., p. (11; (icor^ia Linvs(itlH'2<,iip. r,H--21l; NortJi Caro- lina, SiiiitlU'ariilina, and Alaliainn alsi) resolved apiiiist tlMMMiiislitutioiiallly of tlio t riff. Acconlinfi to I'rofi'ssor Siiiniii'r (p. 21(1), who citi's an liis aulhorily Ii Aiiwricaii Aiimial Rcf^istcr, (14, Georgia ulllnncd tlio right of sn- coKsion. Tho ri'solutloiiH, liowt^vcr, nowhere expressly alllrm the ri^lit of secession, althoii),'li a lliriiat ot 8ee(!S- sion is inliniiiled. ■' Suain(;r's Jaelison, p. 212. ■• 'I'liese were drafted by Calhoun, and adopteil willi some alteiations. The original dral'l of the " pulilliM'x- position of onr wrongs and (he reme- ilies wilhiii onr jiower to lie eonimnni- talcd to our sister States," and l!u> resolutions contaiuinK (he ])rotP: t as llnally a. .'iH'.l, for a ( od- lemporary an.swer to this doctrine. Sumner's Jackson, i)p, 21."i, 21(1, eon- t.'iins a general acconnt of tliese re-n- lutions. See also, S. C. Laws of I'^'i"- 1S2H, Appendix, I'p. (l'.)-7S: Isil'.i, Aiipen- dix, pp. 7I-1III. •■■ tloorgia Laws of 1>I2S, p. 175. r-'^-j NLLLIKICATION. 147 ••Tiio I'niou : next to our Liborty tlic most dear: may we nil re- iiiciiibei' tliiit it can only be preserved by respecting the ri<;lits of the S::iti?s, tuul distributing equally the benelit and burthen of the Union."' Till' Scfi'ctiiry of State, Van Huren, then gave : — "Mutual forbearance and reciprocal concession: through their ti ndriicy llie Inion was established. The patriotic spirit from which ilicy emanated will forever sustain it."' Ill Niivcuiber of the same year,^ a hill to call a State Convention iiilid to obtain the necessary two-thirds vote in the legishiture of Smith Carolina.'-' The followers of Crawford, in (ieorgia, had iMJlied and prevented any attempt at nnllification tlicre.'" During- tlu' year 18:51, an attempt was made in tlie United States District Court of South Carolina to test the constitutionality of the tariff iiy a icrusal to pay duty bonds, and a plea of no consideration ; but tlic court refused to hear evidence on the point, and tiie M liciiu! failed. •' Meanwliile, threats of nnllKication continned fii the ports of this State, or any of them, or otherwise obstructinj^ the free injiress and egress of vessels to and from the said ports, or any otliei' act on the part of the federal (jove^-nment, to coerce the State, shut up her ports, destroy or harass her commerce, or to enforce the acts hereby declared to be null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union ; and that the people of this State will hence- forth hold themselves absolved from all further obligation to niaintiiiii or preserve their political connection with the people of the other States ; and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do." " • Tlic lepjisliitiire reassembled, and on December 20tli, 1832, re- jjciik'd the act HUspciiding the election of nicinliers of Congress.''' und jiassed three acts to ciirry into effect tlie Ordiiuineo of Nul'.ili- catioii. One of these antliorized tlio frovcrnor to resist the en- forcement of the tariff act, and for that pnrpo.se to order into service the whole military force of the State, to accejit tlie .services of voluuteera, and to imrchiise tea thousand stand of small anus. He was further authorized to call out the militia, — '« State Papers on Nullification, pp. "• .S. ('. Laws of 1832, eh. xvlii. Son 28-31. The ordinance is |irintc(l in note 14, supra. full in the appendix to tills ehuptor, infra. 1 ^:;i.] NULLIKICATION. 151 Lj '• ill I'liso of nny overt act of coercion or intent on tlic part of tlic jrovi'm- imiit (if the I'liited Slates, or nny ()lll(H>r thereof, to t'oininil suoii nn net iimiiiri'steil i)y un unuMnal un,seinl)hi}?e of naval or niilitiiry force in or near tlu' State, or tlie occurrence of any circinnstances indicatini^ tlic proba- 1/iliiy tliiit armed force is* about to he eiiii)l(iyed against tills State."'*' 'I'lii^ form of tlu! oiitli dircctcMl Iiy tlic Onliiiancc of Nullitication wiis f(i]!nul;iti'(l ill iiiiotiicr statute as follows: — •• I do solemnly swear (or alllrm) that I will well and truly obey, ex- poiite and enforce the Ordinance to nullify certain acts of the ('onj:;re88 (if llio rnited States. pui'i)orlin<; to be laws layinji; duties and imposts upon tlie importation of foreijJin cominoditios, jjassed in Convention of iliis State, at Columbia, on tlie twenty-fourth day of November, in the your of our Lord, One thousand ei<;ht hundred and thirty-two, and all such Act or Acts of the Lefjislatin-e as may be passed in pursuance tliiTcof, according to the true intent and meaning of the same ; so help ine God." ''' Tile most imjiorttint act, liowcvcr, was that regulating the action of tlio State courts and olliccis under the Nullificiition OnliiiaiuH'. wliich was drawn hy a tlioroiij^dily equipped lawyer willi great ingenuity, and, as said at the time, "legislated the Federal govcrnincnt out of the State of South ('a)"liua." ^ The eoiisignec of inijiorts sei/x'd and detained for the non-payment of duties exacted under the acts all'ectcd h}' the ordinance, was given the right to a writ of replevin, and in case of disobedience to the writ liy the officer of the United States in possession, the wiit of vopias in withcrnum, authorizing the sliei'iff to distrain the l;ltti ids CIS goods; and similar process in case ot a rt'seizur* for tli(^ recovery of money Suits had and received to the plaintiff's use, ill order to rc(;()ver duties wliiidi had been \nM ; and writs of li dicas coriais in case of arrest under Ciiiirt for acts in violation of the tariiT 1 1' ;'ss of a Federal iws were also a nth. 1/.C( 1. Sales under ordci ju'lf," its of the Federal Courts 111 proceeding uiu ler these acts of Congress were declared null and void. Clerks and other jjuhlic ollicers were forbidden to I'uriiish copies of records in cases where the validity of the ordi- ■■' S. C. LnwH of 1832, eh. v. -- Von Hoist's HlBtory, vol. i, \\ 478, '-' Act of Dec. 20, 1832 ; S. C. Laws (lUotiiiK Grundy, of 1832, ch. iv. ir)-2 NATURE OF THE CONSTITUTION. [CHAr. II. nance was drawn in question, under jjcnalty of punishment hy iniprisonnient for a year and a fine of a thousand dollars. Higher penalties were imposed for the removal of goods to prevent their I'ejjlevy under the act, resistance to the writ and attemj)ts at recajjture ; and finally the keepers of State jails were forbidden to receive persons arrested for disobedience to the tariff laws, and they and all pei'sons who permitted buildings to serve as jails for such purpose were subjected to the same penalties us clerks who should furnisli copies of the obnoxious records.^'' At that time the laws of the United States did not authorize (lie removal to tlie P'ederal courts of such suits, and the decisions of the State courts could oidy be reviewed upon writ of enor by the Sui)renie Court of the United States. The section forbidding clerks to furnish copies of reiords in cases where the validity of the ordinance was drawn in question was intendod to 2>revcnt the opin'ation of sncli writs of error. Then, as now, the United States had no prisons of its own within tlie States, and was ai.'- customed to use, by jiermission of the States, State jails and prisons t(> confine l''ederid prisonere. ^Meanwhile, on Decend)cr 10, Jackson issued his famous proc- lamation to the people of South Carolina.^' The President ordered General Scott to Charleston, gathered tro()i)s within a coiivenii'nt distaniH', and despatched two men-of-war to the same point.'-^' (iovernor llayne Issued a proclamation i.i =3 S. ('. Laws tai'.v of Sta!i'. Smniicr's .lacksoii, p. 'J.S'2. Hani's Li . - illusion, p. :t7:i. T.vli'i-'sTaiii'y, p. Iss. JacKson wiilisciiniMilly I'impimI li'st sonn! (>r its (lorti'ini's coMccrniiii; tho ri'lulions ii'twi'i'n the I'imIimjiI Govimii- nicnt, and the Still I's iiiif^lit hi' incon- sistiml, with liis oiirlicr uttoriiiiiM's, hihI cT)nKc(|iiiMitly innilillnd thi'in in an iii- splrod arliclo imlilisiii'd sliortl.v afliT- wards liy rraiicis 1'. lilalr in tin' WashltiKlim (Hoi"', cud i-cpi-inli'd i;i S'.i'pln'Ks. ('(iiistitulioniil Vii'W of lln' War l.ii'f'Vci'nthi'SlatnsiMiI. i, pp.1112 - •109), In which 11 was salil that he ad- IiiTcd to the prljM-iplcs cxpiv iscil in the Virginia Kcsoliitions. Tyler's Ta- ney, p. l.'tH. Tani'.v Icl'l in liis papers a nieirm- raiiduni as follow-. : "Iwasal Annapn- lis Htteiidinn conrl when (ieneral .Tackson's pidelainaliiin a( the time the South Carolina nnliillea'.lou was prepa. i, and iicvit saw i!. ■> itil It was in print, and cerlainly should have olijeeted to some of the prinei- ple.'i slated In il if I had lieeii in Wa-li- inu'ton. U n. Taney, .Tidy, ISC.I." Tyler's Taney, jip. ISS- Ik;). -^ Summ'r's .Jui-kson, p. '2H2. 5;u.] NULMPICATION. l-)3 aiiswur to that of Jiickson.^ The militia M-ei'e drilled and over twenty -liousaiid volunteers mustered in Sou^,h Carolina, and the -» "0,1 tho 27tli of Noveinbi-r, tho li'gislalui'O assiMiibU'd lit Columbia, iinil, on their nioctinf;, the governor liiid lieforo them the ordinance of tho (■(liivciition. Ill hiB messii(j;e on that (iccisioM, Ii(!ae(|uaint8 them that 'thiH onliimijce lias thus become a part of lliii fiiiidtiim'iilal hiw of Houtli Caro- lina'; that '(lie die haa been at last cieil, and South Carolina has at length ii|i|iealc'd to her ulterior sovereit^uly, as a nienilier of tliia confederacy, and has planted In^-rself on lier reserved rights. Tho rlKhtful exercise of this piiwcr is iiotnquostlon which wo shall any longer argue. It is sufllcient that she has willed it, and that the act is (liiMr; nor is its strict compalibility wilh cinr conslllutional obligation to all laws passed by th(> general govern- iiiciil, wllliin the authoii/.(!d grants of |iii\vrr, lo be drawn in (|ueslion, when lliis imerpdsiiion is exerted in a case ill wliicli the compact has been palpa- l.ly, (li'liberately, and dangerously vio- lated. That it brings up u conjuncture ef ile.p and momentous interest, Is ni'iihi'i- (() 1)0 concealed nor denied. This ci'isis presents u class of dutli>s uhii'h is referable to ;; ^urselves. You have been coinmandeii tiy the people, 111 their highest sovereignty, to lake care that, within the liiiiit.s of this slate, their will slinll b obeyed.' 'Tli.< measure of legi.slation, he says, 'which you have to employ at this crisis, is the precise amount of siii'Ii eniiclnients as may be necessary to render it utterly impossllile lo eollecl, within our limits, the duties imposed by the protective tariffs thiisiiuUitled.' lb' proceeds : 'Tliat you should arm every ciijzpn with a civil process, by which he may claim, if he pleases, ii lesliiuilou of Ills goods, sel/i'd under '■.Nisiiugimpustt.uuliisgiviugBuciirily to abide tho isr.ue of a suit at law, and, at tlio same vime, delino what .shall eonstituto treason against the state, and, liy a bill of pains and penalties, comp(4 obedieiK'O and punish disobe- dience to your own laws, are|iointstoo obvious to reiiuire any discussion. In one word, you must survi>y Ihi' whole ground. You must look to and pro- vide for all jiossibie contingencies. In your own limits, your own cinirls of judicature must not only bo supreme, but you must look to tho ultimate issue of any conflict of jurisdiction and power between them and the United Slates.' "'j..;e governor also asks for iiower to grant cli>a ramies, in violation of the laws of the riiion ; and to prepare for the allernative which must happen, unless llie United Slates shall jms- sively surrender their authority, and tho executive, disreganliiig liis oaih, refrain from executing the laws of (he Uniim, he recommends a thorough re- vision of the militia system, and that the governor, 'be authorized toaccejit, for the defence of Charlcstim and its dependencies, th(^ services of two thousand volunteers, either by com- panies or files '; and that they be formed into a lc>gi(Miiiry brigade, con- sisling of infantry, ritleiin'ii, c.-ixali'v, field, and heavy artillery; and that they lie 'armed and etpiipped, from the pulilic arsi mils, ciMiipli'tely fiu' Ihe Held ; and that •ippropriaticMisbe made for supplying all delleiencies in our munitions of war.' In addition to these volunteer dr«''s. In- recommends that the gover!">r be authorized to ac- cept 'llie services of ten thousand volunteers from the other ilivisions of Ihe stale, I o lie organized and arranged ill regiments and brigades; theotllcers lo be selecti'd by liiu commauder-lu- 154 NATfinC OF THE CONSTITUTION. [chap. II. State inaintaiiud a hold front as if actually resolved in plunge into civil war.-" Some curiosity was expressed upon Calhoun's return to the Senate as to wlietlier lie would take the oath in sujiport tlie Constitution of the United States.^ He did this witli peri'ect calmness and with entire consiotency. For according to Lis theor}' of the Constitution, the proceedings in South Carolina were perfe(?tly lawful. Jackson sent in a message reciting tlie proceedings, stating the insufficiency of the present statutes to deal with the suhject, and asking for further powers. He iilsn ju'ivatcly sent word to Calhoun that lie woidd hang him higher timn Haman if nullification were not abandoned.-" Callunnrs enemies said that he was cowed and driven to cabandon his position. In truth, however, he continued liis action with perfect coolness and came '>ut the victor. Threats by words and action of a ])recipitation of an aruKid conflict between the State and tlic United States continued in South Carolina under the dii'ection of Hayne during January, 1832.^" A reduction of the tariff as a compromise was adjusted after a conference between Calhoun ami Cliiy.'" I'ondiiig its consideration, the nullifiers at a pulilie <'hi('f; and that his whole force bo <'alli'il the Hinte nuanl.'" Jackwm's N>illillca(i(jn Messaj^c, .Jamiai'v Ki, 1833. '^'i Governor Haync's iTessatJc to tho Houth t'arolina Lcfjisluture, Nov. 2fi, 1m;!:!. L.'K'ishitive rrooooilinKH of 1833, p. 2. 2« Von Hoist, Cnlhoiin, p. 104. 20 BciiIoh'm Thirty Years' View, eh. Ixxxv, vol, i, p. 3t'2. i"^ SiiMiMcr'rt .Jackson, p. 28'.), citing Ani"rlie,ii A?iMiial IJcfjislcr, vol. vili, p. 2:10. "' Till' sci-ri'l history of llic coni- proinlsc of 1833 is tohl by IJcnlon in his Tliii'ly Ycai's' View, cli. Ixxxv, vol. i, pp. 312-341. lb- tlnis .IcsitIIics Uki suliscipii'nt aiicicalion between the two statesmen, in which each claims to have had the other at a disadvan- tftK'': — " Mr. Calhoun declared that he had Sir. Ciay down — had him (m hiu back — was his master. Sir. Clay re- torted : He my master! I would net own him for the meauestof my slaves. Of course, there were calls to ordiT about that time; but thii qui'stioii (if mastery, and Ihu causes whldi pro- duced the passage of tho a(!t, wore, still points of contestation between them, and came up for altercation in other forms. Mr. Calhoim elaimcil ti conlroling inlluence, for the mililiiiy uttiluili' of Sonih Carolina, and its iii- timidalin^; elTcct U|Min (he federal t-'ov- eiiiment. Jlr. Ciay ridiculed this idea of iiitlmid.itio'i, and said the liUle boys that muster in the streets wit li their tiny wooden swords, had as \\"li pretend to terrify tlie grand army (it IJonaparte: and afterwards said lie would tell how it happened, nhich w:i^ thus : His friend from Delaware (Mi. .bilin M. Clayton), said to hlin one day — IheselSouth Carolinians actvcr\ badly, but they are good fcUown, and <:;4.] «:. NULLIFICATION. 156 ■ icctiiit,' postponed action under the ordinance until after the ii is II pity to lot Jiiokson lians thoin. ThiH wiiw lifter Mr. Cliiy Imd liroiii^ht in Ills l)ill, and while it liiiKcrod without tho lonst nppiiroiit chauco of piissiii!; — paralyzed liy tlio velieiiioiifc ■ i|p|io:-iiioii of tlio iiiiiiHifiU'turers : niid 111' mixed Mr. Clay to take a new iliove wilh liis liill "- to get it referred to ii ciMiiiiiillee — and by them pit into a Hliiipe in wliieh it eoiild jmiss. Mr. ('I:iy did bo -had (lie refen'iiee niado and a conmiit'.ee appiinted s'.utuble I'm- ilie measure — wmienf strong; will, anil earnest for the bill, and some of ^'eiille temperament, ineliiied to easy iiieasiires on hard oecasions." Callioun yielded but one Important priiiei|)lo during tho wholo coiilio- vi'i>y ; namely, his voto in favor of tho iisM's Miieut of ad valori'in diiti(>s upon II "liomo valuation," whieh ho had piinliHisly deelared to bo uneonslitu- liiiM.d. "After tho eomndttee had lieeii .■ippiiinlc'd, Mr. Clayton assem- liliil llie manufacturers, for without tli'ir i-onsent could noililuK be done; ami in llie nieotiiiR with them it was resiiheil t — (hat Mr. Calhoun's voto was Indis- pensable, as nolhing woidd tie I'onsld- ered secured by the pas.sageuf tin' lull 15G NATIIM-: OK TIIK (JOXSTITUTION. [('II A I', adjnuiiuiiL'iit of Cdiifrress.'''' Meanwliile, the other State h'gLs- LitiirLS passed resohitions, most of which were ajraiiist nullili- cation, some also against the tariff; and Virginia offered to mo(l;:;tc liptw^'m the United States and South Carolina.^ Wehster was ojjposed to eoniproinise. saying: -It wouhl be yiehling great prineiples to faetiou ; and that (lie time liad eoinc to test till' strength of the Constitution and the government." *' He was eonsequeiitly consulted no further ujkiu the suhjeet, anil voted against the jjassage of the tariff hill.-''' .lohn Quine}- Adams expressed the same oj)inion. Pending the negotiations for a eomproniise, the hill kuov.n as the Force Hill was drawn and introduced in order to meet tlie hostile legislation of South Carolina. It contained certain heiie- lieial amendments to the judiciary act, which have since, with a few verhal changes, remained upon the statute-hook. The juris- diction of the Circuit Courts of the United States was extcndcil to all cases arising under the revenue-laws for which no jn'ovisiou 1)3' law had previously been made. They were authorized to give uiiloss his vote aiipoiirod for ovory nmriiiliucnt sopanitcly, mid for tlio Aviiolo bill collci'tivi'ly. AVlicn dii' Srn- iiti' met, and the bill was taUcn up, it was still uiiUnnwM wliat lie would do; liut his friends fell in, one alter (lu! other, yielding their ohjeelions upou dilTereut grounds, and nlviui^ their as- sent to this most llajjrant iusianee (unci that a new one), of that protective legislation, against «lneli they wen- then raising troops in South C'arolina! and lindling a day, and that a sliort on<', on whieli she was l(>bi>, ipno facto, a. seeeder from the Union. Jlr. t'nl- lauin riMuaiiied to the last, and only rose when the vote was ready lo be taken, and prefaced a few reniarks Willi the very notable deelarallon that he hail then to ' delcrmiiu'' whii'h way he would vole. II,' then declareil in favor of the amendment, bul upon ooiidilioiis which he desired the re- Jiorlers to nole; and which being fn- lllo lu theniBolvuB, only showed the desperation of Ids condition, and the state of Impossibility to which ho was reduced. Keveral senators let hiia know iminedialely the futility of his condilions; and wilhinit saying more, he voted oil ayi>s and noes for t!ie ameiidiuenl ; and afterwarils for lliii whide bill. .\iid this eoiududing scene appears (iuili> correctly reported in tin- autlienlii; debates." Benton's Tliirly Yi'ars' View, cli. Ixxxv, vol. 1, pp. 313-;!41. s-'iSeo letler of Cov. Koberl Y. Hayneto 15. W. Leigh. ( lovernor, Coni- mis-ioier of Virgini;:. Slate rajiers on Xullilli'ation, p. I!:i:t. •"Slale Tapers on Xiilliltcalioii. pdmiin. The proceedings between 1). W. Leigh, the Conmiissloner from Vir- ginia, and till' Soulli Carolina Convcii- lioii, iiri' set forlh, ibid., pp. M'J'i ;!;)7, I! 17, :)rM.:i.-,s. ■^ IJeiiton's Tliirly Veals' Vii'W, vol. i, r- 312. ^ Ibid. ; Curtis' Webster, vol. i,ii. 1:11. §:;-!.] >;ri.Lii''icATi()X. l'> rcl'u'f ill a suit for damages to all persons injured in [icrson or lUDlierty tor any act done under any law of the L'nittMl States for iIk' ciiUeetion of duties on imports. Autliority wiis f^i\en to re- move into tlio Cireuit Courts of the I'nited States idl suits in State courts on aceount of aets done under color of tlie reveiuui hius of tile United States. A\'rits of cculiorari were authorized til compel the clerks (jf the Stiite courts to fui-nisli copies of the records in suits thus removed; and writs of haheas corpus ciiin iviiHii, to compel the delivery to the United States mai-slml of those iirrcsti'd mider State process in such cases. Where no copies of the record of the State court could he o])tained from the clerk, it was provided that the record miirlit lie sup^jlied hy ailidtivit or 4." It w.xa till' cnuiciition of the North that the elauao in the Con- stitntioii which f^ave ('oiiirress power to make all ntjedful riilus and n'niilatioiis respeetin;;' tiie 'I'erritories or other projierty belou},'- iiijf to the I'liited States,"" included alwolule power to reguLito their doiue.stie iii.stitutions. 'I'lie South, on the other hand. iiiaiiitaiiuMl that the guaranty in the Fifth Amendment of j)n)- dcfi'iiUMl liy a majority in 1 "^cimte of ten mill livu in llie Houm', upon tho consiUi'ratiDU of tliu s.".,000,()00 bill for tlio same purpose iu 1847. All the voles in its favor wore from tho free Stales, except that of Senator Clayton of Delaware; ami all of the necalivea were from the slave States, except live in the Scn.ite, including Cass of Miehiwin and l)ii;kinson of New York, and tliirleiMi in the House, in- cludiiif; Donylas as before. In 1818, upon the bill for orL;anizini; .a territorial government for Orej^on, Douglas, who was then in the Senate, moved to strike out the general restriction ajjalnat; slavery, and to in.scrt the following: " Tliat the lino of ;W 3U' of north lati- tude, known a« tho Missouri Com- promise Line, a.s delined by tho eighth section of an a<'t cnlillcd 'An act to authorize the people of Missouri Ter- ritory to form a Constitution and State Government, and for the admission of such Stale into the I'niou on an equal footing with the origin.il States, and to prohibit slavery iu certain ter- ritories,' approved March 0th, 1820, be and the same is hereby declared to extend to the I'acillc Ocean, .and tho said eiyhlh section, together wilh tho Compromise therein alTected, is hereby revived and declared to be in full force and binding for the future organization of the terriluries of the Initcd St.ites in the same sense and with tlie same un- derstaniling wilh whii.'h it was originally adopti'd." 'I'he ameiiduunt was carried in tlie Senate by a vot(! of ii-\ lo 21, but defeaud by a vote of 8J to 121 in the House. The Senate receded from tin ir amendment, and passed Ihe House: liill, with an uncondilional reslrirtion agaiii>i. slavery, by a voti^ of 20 to 'A'>. Evi ry Soutliern senator present voted f rr the amendment in the Senate, and hut seven Xorihern niembers, in.lndini; Douglas and Dickinson from New York and Cam])l/ell of Pennsylvania, joined it. All those votes against it iu the Senate were from tho North. When tlie aniendincnt w.as before the House, on Aug. llth, all of tho eiglily- tvvo votes in its favor wero from the South, except four. Kviry one of tho iJl against it was from tho North, except that of Houston of Delaware. ( (a the linal vote in the Semite, every North- ern senator voted yea, and every Somli- irii senator nay, except Benton of Missouri. It w.is claimed by the S.mili that "this was a ccnnpleto and tot.-il abaniloinnent of Ihc Misscmri Com- promNc so-called by both Houses of Congress. It met its linal doom on thw 12th of August, 1848. On that (hiy it fell and W.1S buried iu tho Senate, wliere it had originated twenty-eiuht years hp- fore, but had never y sustaining a plea to tiie jurisdiction, the case had liri'u decided before the (luestion arose.'" Abraham Lincoln had vigorously repudiated the decision; and there WiW little doubt i>ut that the North would refuse to respect it and seek to liave it (iverrulcd. Thus stood the (jucstion at the time of the election of Lincoln to tiie presidency. ^ iiO. History of Secession. The election by the Northern States, for Piesident, of a northern man who had said that the L^iiion could not "endure permanently h;ilf slave, half free," ' and had publicly declared liis refusal to aicpiiescc in the; opinion in the Dred Scott Case, that slavery could mil lie constitutionally excluded from the Territories, convinced liic South that new safeguards were necessary for the j)reserva- tien of their peculiar institution. IJcnewed threats of a dissolu- tion of the I'nion wcii! leceived in such a manner by the North as to make it clear that a majority of the j)eople were resolved to submit to no further aggressions by the slave power. 'Die .success of South Carolina more than a (|uarter of a ceiituiy be- '« Dcbiiips bi'twopii Linculn ;uui Iliiiiiilus, pafsiin. "Pii'il StMtt i). S;imlfi)rd,19 How.,20;!. TIks case ia iliacusscd at length, infra. § DC). 1 LiiuMilu's S|)cc(h liofdrn tho llepulilli'jinSliiliiConvoiilionatSiinng- Hold, 111., Juno 17, 1858. 1i)4 HISTOKY or SKCr.SSION. [cilAl-. It. f(HL' mado it seem i)ro)iiil)le lliiit olliciiil uction on llic pint of the sliive States wtjiild conijicl coiiccssioiis. Tlii' ivsiilt of tlii' prt'sideiitiiil eloL'tiuu liiul proved tliiit iiotliiiij^ else eouUl do so. A junto of nieniburs of (Onirii'ss fmni tlie South, in co-operation witli tlic other leaders of their eonstitneiits. planned a denionslni- tion whieh they i-esolved slionld he more imposing,', and they ex- pected would Ix) no less effeetivo. than the work of Calhoun and Ilayne. On Deeendjer 14tli, 18(10, they issued a jtulilie address to their constituents, in wiiieh they saiil " that the honor, safetv, and independence of the Southern people re(pure the or^^anizatiim of a Southern Confederacy, a residt to In^ olitaiiuMl oidy liy sepa- rate State secession." 2 '{"lie Palmetto State, the location of which, surrounded by slave States, made invasion from the North ditlicnlt, again took the lead. On Decendier iOtlu a convention of the people of South Carolina unanimously adoj)ted the following ordinance of secession: — "An ordinance to dissolve llie I'nion hotweeii the State of South Carolina and other States united witii lier under the compact entitled ' 'J"he Constitution of tlie I'nited States of America.' " We, tlie People of the State of South Caiiilina, '.n Convention iis- seinhled, do declare and ordain, and it is hereby declared and ordiiincd, that the Ordinanen adopted by ns in Convention, on the Twenlv-thiiil of May, in the year of our J.ord One lliousiind seven hundred ami eisihty-eiglit, wliereliy the Constitnlion of the Cniled States was rati- fied, and also all other Acts and parts ot' Acts of the (ieinial Couslilii- tion, are herehy repeah-d, and the I'nion now siiljsistini; lielween Soutii Carolina and other Slates, under the name of the Pnited States of America, is hereby dissolved." Action l)^- a convention rather than by the legislature was due to the fact that, as the jieople through a convention had originally ratified the Constitution, it might bavi^ been contended that t!i(! legislature had no such authority." The people, however, were considered the sovereign power of the .State. The ordinance was followed bj- a declaration of independence diawii with sttidied imitation of the original, to which it. referred in its preamble, and ^ This was Blunod by aljout liuir tlio (Rh(itli houses, inoludiu;^ Ji'lTcisoii a y^u th(> language of Madl.^ou, Davig, Slidell, Benjamin and Wigrall (luotcd Hupru, § 19. :;.;.] 8KCESSION <>I' SOUTH CAIiOl.lNA. l(i,0 : , ..■; fidiii wliicli was cDpii'd its ctoiirhisioii. Tin- Ijoily.set forth tlii^ iIcm- iiiac llial till' ('(lusliliitioii was a coii^iatt, a lii'isuli of wliicli liy one [laily (lissolviid tlie otluMs from tlicir ohlifratioiis. li ici;itf(l tliosu ilaiist's iiisi'itcd l)y way of i'oiii[)roiiiis(' in tin: ( Oiistitiitioii for llic |ir(itiM'tii)ii of tiiL' rif,'lit of property in man ; and enipiiasizial tlic jjro- visioii for lla' rctnni of fufxilivc slaves. As infractions wvvv set fiii'th: tlie ■. nactineiit liy liftcen Xortliern States of jiersoiial-lilierty laws, wiiicli iilerfeicd witii tiie ojieration of the Fii<,'itive Slave law ; till' refusal of (heir ollieei-s to enforce, and of their j)eople to ohey, lliis constitutional mandate; the denial of the right of transit for slaves; and the refusal of two State executives to deliver, on (lumand of the executives of Southern States, persons accused of liavinj;- connnitled crimes in connection witii attempts at forcible ciiiainipation. Complaint was made of tiu; forinaticii of a scc- tiiiiial p:irty, which, "aided in some of the States liy elcvatiiiLf to citi/.cuship persons who. liy the supreme law of the land, are inca- palile of becoming citizens," had elected {'resident a man whose iipiiiions and jiurposes were hostile to slavery. " It has aiinoimced that the South shall be excluded from the coiiimoii Icnitory ; that tiic judicial tribunals shall liecoiiie sectional, and that a war must be washed against slavery imtil it shall cease throughout the rnili'il States." In conclusion it was declared that the I'ldon was dissolvtd ; and South Cai'olina had resunu'd her ]iosition among "the natiiDis iif ilie wiuld as a free, sovereign, and indc])endcnt State."'' Tlic day following the action of the South Carolina conven- tiiiii, the representatives of that State retired from their seals in ('oiigress. On January 5th, IHOI, a caucus of the senators of seven Southern States reecnnnieuded to their constituents iiiuue- (liate secession and the organization of a ru'w Confederacy.'' * Tliis was the work of R. 15. Uhott. Arkansas, wore absent from tin' ineet- lUhddoK, Hislory of Uii' riiitetl States, ing: •' HivoIitiI, Tliat, in uui- ojiiiiiou, \'<\. ill, p. 2U1). It is piintoil at lengtli oaeli of the States should, as soon as li.v I'resliin, Doiunients lUustrutivoof may lie, soccilo from llio I'nion. Re- Arrii'iiian History, p. 'MT). Holvcil, Tliat provision sliowUl be made " Thn following; resolutions werr for a convention to orj;aiiizo a con- Milu|iled by the Senators of (iporgia, federaoy of the soeedinn States: the I lorida, Ahibama, llis^is'^ippl, Louisi- convention to meet not lat'-r tlim tiie ana, Texas and Arkansas. Messrs. l.'itli of February, nt llio i; I. v ^i' Mont- Toninbs, of Georgia, and Sebastian, of gomeiy, in the State it Alabama. ir,6 HISTOIIV (iF SECKSStON. [CIIAI'. II. The second State to secede was Mississippi, wliich adojited nn ordiniince of secession, .Fann;iiy Dtli, 18(51. Florida followed on the lOtli, Alabama on the 11th, (ieorgia on tiie 10th, and Louisi- iiina on the 28th. Kaeii of tiiese States acted throuj^h conventions, and in none was the vote nnaninious. In ?>lississippi, Ala])ania, Georgia, and Louisiana, propo';itions to submit the question to a direct poj)nlar vote were defeated. The 'I'exas convention ))asse(l au ordinance of secession February 1st, and on the Tth submitted it to the people, a majority of whom adopted it on the 2;id.'' All these, like South Carolina, were separated from the fr(;e by th(! Lorder slave States, ujion whom they relied to preserve neutrality Riwiilv d, Tlmt, in viow of tlio hostllo lo^isl.ilion thill is thnMtencil at;iiinst tho seoediiiK Stntps, nnd wliich may be consiunmated before tho 4tli ot March, wo asli iiistrurtiona whether tho doleisations aro to remain iu Con- press until that (bite, for tlie imrpOKe ot(iefealin;^su('ii legislation. R milvi'd, Th:'t 11 coinmittee be ami iiro hereby appiiintod. eonslstiug ot Messrs. Davis, Hliiloll, and Jlallory, to carry oit tho objei'lsof this niceliut,'." (Davi.s, Kiso and F.ill ot tlio Ci)nl'cderato (roveni- menl, vol. i, ji. '204. note). " Mil'herson, Hisloiy of tho Re- bellion, pp. '2(1. Theothorordiiiancea of secession were similar iu siilistan(^o to that ot Houlh Carolina. The Gcor- Khi onliliance coru'luded by the decla- ration, "that tho Stale of Georgia is in tho po-session and exercise of all those lights ot sovereignty wliich be- long ami aiiix^rlain to u Fi'ceand ,Sove- reigTi Sialc"(S'i.iplr'ns, 0>n^litn^ional Vi'wof tho War betweivi the Stales, vol. ii, 11. nil). WhcnTeime-see llnally Becede.l, her Legislature iidopted a declaration ot imicpendence in wliii'li bIio claimeil the right of revol'ition. Tlie so-called "Sovereignty Conven- tion,' in Kentncliy, went through a ;-imilai f.inn (soe infru, over note lid). Tlio Mlssissl]ipi convention ari(>ptod a "Doclaralion of tin imme- dlnto causou which Induce and justify tho secession of the State." Tho pro- amblo to tho Arkiin.sas ordinaneo inonlioned as ono of the movint; causes, Lincoln's call for troops to at- tack tho seceded Stales (MclMier- son, History of tlie Ueliollion, pp. 4. 5, 8 ; Khodes, History of tho Uuilcii Slates, vol. ill, pp. 274, 404; Kay and Nicolay, vol. Iv, p. 2(tl). On.Iaii. fi, IHOl, Mayor Fernando Wood mi- dressed a message U< tlio Comincin Coun'il of New York i ity, in which Im sniil tliat a dissolution of tlio Union into tliree or more republics seemed inevitable; that it was "folly to di.<- gniso tho fact that, judging from tie; past, New York may havo moro caiisn ot apprehension from the aggressi>ii legislation of our own State than tnim external dangers"; and that "amiil tho gloom which tho present nnd pio.-- poctivo condition ot things must "n by tlie Attorney- (u'lieral, .ludgo Jer.;. S. lilaek, to I'resiih'nL (Jiicliaiian, tliat under existing kws the President eould not nse )ree against them, ex- (•ri)t to defend iittaeks upon tlie proj)i'rty of tlie government, and that tlic United States liad no power under tlie t'onstitution to wage Avnr upon one of the States of which they were composed.' In (•use of war tliey knew that tlie border States nuist be at first the l);ittle-gn)un(l ; and, many of them believed, what was said by one 111' tlii'ir lefiders, that their citizens might " go home, raise cotton and make nion(!y,"' leaving the discomforts of the situation to their Irss fortunate allies.*' The border slave States — ^Iai-ylaud,\'irginii;, Kentucky, ann'i>rs(m Davis, tliat two mi'iiil.i'rs(if llinSiipreninCiiart:, .Idd^io (■:iiii|'lii'll o[ Louisiana, aud .ludge Nol- suM or Xi>w Yorlc, cxiircssed a similar virw Id rrosidoiil Lincoln. (Ri8» and Kill! of 111!' Cimfi'donicy, sol. i, pp. 207, 'Ji'iSi. SiM! also Cainpli(>irs address lo tlii'SoiiUicrn llisloiical Soi'loiy. The .Miiiiidiiess of tlii'sii vio\v» will bo con- siili'iivl i'1-.i'Uliei'o. ' 'r:\iHroiuarU, uliich \vasaili-ilnit(?d to IIouoll t'olib of CoorRia, had cmi- siiii'ralili' iiillneni'O In taniinf; K^mi- tiii'ky U)Wiirds tho Nortlicru bidu ^Shalor's Keutufky, p. iV.)). » In IS.'i") and ISofi, Mis.=.0(iri loRis- latod 1o [irovido means for raising flfl,y tl'.onsand voliintciMs, to Im iisod, it was said by ll;o iiroiiiotcr, in " [mv v(mtinK onr Noi-lbern and Southern brethren from Hying at each otJier's throats, as they probably will do at the n(!.xt presidential (>loction in IS.'ifi, or passing that, certainly in ISfiO. unless the border .Slates take action siieli as this to keep the (loacc." (CiUT's Missouri, pp. liOll, :!()1|. »| MclMier^oM, HIsloryof thoHobcl- llon, [ip. I 11. Tlio soparaUi ai'lion of each nf lliese Slates is d(>scribi)il in a subsoiiueut pari of lliia seel ion. 1C8 HISTOllY or SIX'KSSION. [CHA1>. 11. ill lilt,' foUowiiif^ Aiif,nisl ; iiiiil ])i'(iviili'(l for the iippoiutiiiciit df delegatc'K to an iiiteriiiL'diate convciition of the Ijorder States, in which eategory, on aceouut of liev almtnient on tlie Indian 'IVr- ritory, she claimed to belong. In Tennessee, February 8th, ami North Carolina, February 28th, a majority of the people voted against a convention." In the latter State by a majority of only six hundred antl sixty-one.''^ The ri'iiresentatives of the seceding States in the House nf Keprcsentalives retii-eil from their scats witliout ceremony, although in some cases tliey gave written notice to the sjjeaker.'' A ruunbcr of the Senators, howevei-, with the dramatic' instinct of th(^ Soutlici'ii ])eoi)le. seized the ojijiortuuity tn make a scene in their assumed cai)acity as andjassadors from suvereigu States liv valeiliitorii'S which aunouni'cd llu,' reasons for their retirement in ;i manner well calculated to impress upon the pt'oph' of the North the determination of the South and the scr'uuis character of tlir crisis reachi'd." The United States judges and diilrict aitorneys resigned jvs soon as their States seceded; bui the postnuisters did not before (lie bombardment of I''ort Sumter.'' So, there was hardly any chaiiL;'' in the habits of tlu> people until thai time. ^V congress from the seceded States met. l'"ebruary 4th, at .Montgomery. Alabama: II MrlMicrson, History of {h(\ ItiO.cl- lion, pii. 4, .") ; StcplKMiw, Cousliliilinnul View of tlm AV.-ir hotwooii tlio Hliitos, vol. ii, pp. ;)(;;3-;ii',(;. '-Il.i.l. " ]!liiiii(!, Twenty yrnrs ill Con- gri'ss, Vol. i, pji. 21:i, 1:41!. .John K. ISdulliiny of I.(iulsiiin;i, rcmaiiiL'd lnyal iinil rolaincd liis si'.U in tlic House (Niroliiy iinil Hay, Lifo of Liinolii, vol. iv. p. i;).jj. Wih'fall of TcxK.s, ul- thoiii,'!) lii> openly revoinnienitnl t,- epsMloii, rotniiieil liiti seat in tin) iSeii- atu liotli tlii'oii^lionl Il.n'han::irs toriu and at the .spoeiid session ealled liy Lliieola iu Manli, IHUl illiid., pp. 1!)5, lllfij. On .Inly Ii, afiei' he had loft the St>:i,!; e, lie w.is e.xpelleil (Tafl'rt Seinilo Kleeiicn (\ises eontiu- uod liy Furlier, p. 711. fiuo infra.) 1' Tlio Speerh of JelTerscin Diivis, .Tim. 21, which was diirnilied and up- pnipri.-ite to the occisidu, is|irinli>d ia Tho Iii.se and Fall it Uu^ Conl'ciler.iie {iovi'rnnieni, vol. i, i)p. 221 22ri. Kef- ereiii e has already liecn niadu to the SpiM cli of .Iiiiiih P. Benj.iu.in, mqira, §12, no:i< 21. A Bumiiiary of all cf ihein is made hy Ulaiue. Tweuly Years in I'unKrcsiH, vul. i, pp. 211-251. 1.U2 St. at h., p. 1,-1 1: Kllode^, History of the t'niiod .S!alen, vol. iii, p. 1 12. Mr. Jiisi :••.• WuyiK! ". Jlr. .Insiice (.'ampin II of Louisiana n'si.L'ned .md liocaiiio as- hisiani se(.iolai'y of war iu the Cen- tedcnu'V. CIMTTKNDICN UICSCM-rTIOXS. i(;i> §3ii.] uilopluil, on the 8tli, a jji'ovisiunal ( 'oustiUilion ; '" on tlu' lollowin;^ (lay elected president, JetTeison Davis of Mississipjji, and viec-presi- ilciit. Alexander II. Stephens of (icoryia,'' of wlioni Ihe lulle:- had opposed .secession. l)Ut after defeat (nist his lot wilh timl of iiis Stite; ^^ continued in force and oHice until fnrtiiei' lej^islaliou all statutes of the L'nited States not inconsistent wiili tiie uvw Consti- lution,'" and all Federal ollicers wilh similar functions iu the Con- fcdeiacy;^" authorized the appointment by the President of a connnission of three persons to ijc "sent to tlie government of the l'nited States of America, for the purpose of negoliatino- fi'iendly relations between that government and the Confederate Slates of America, and for the settlement of all questions of disagreement between the two governments, upon principles of right, justice, ecjuitv, and good faith;"-' and shaped all their proceedings so as to fai'ilitate a return to the Union without friction upon a eom- pliaiice v.ith their demands.^ It had been wisely determined that KentnelvV and Virginia should lead, as in the past, to obtain concessions to the South under the plea of the danger of disruption. In imitation of his predecessor, Ifeiu'y Clay. John J. t'rittendv'n, of KeMtucky,'^' introduced into the Senate, of whieii he was the old(st member, a proposition for amendments to the Constitution, u]ion the adoption of which the Slave States were willing to remain in the Union.'-" These re-established the iSIissouri (compromise by '« Davis, ^a^i(! nnd Fall of tho Con- fciloralo (iovornnu>nl., vol. i, p. 2'2U. It is (lisciisHOil infra, § 37. 1" 11)1(1., i>. 2;iU. '' SlopluMm, Constitutional View of llin War between tlio Htatos, vol. 11. pp. 'ii;;)-;!!)',). " Coufodenito Statiiti'S at Larj;(<, I'lmisioiiiil (joviM-nmunt, p. 27. -' I!ii.!.. p. 27, 2S. -1 Iliiil., p. !t2. ■■'- hifrc. fj :t7. -^ Ai'cordlii}^ to (ho Now York ilcr- iil'l, llicse weri) drawn by .loliii C. l'-n''i;lnrl(lKo,tlu't;Vici'-I'n>Hld('nt, and M. ('. .Toliuson (McPlKMvoa, History ot llie lleboUioii, p. 70), " Tills is inanifiwl from tlii^ action of Virginia, wliic-ii was <'vidt.>nliy pro- nrrauRi'd ; the minority report to the Hoiiso liysoven ropri>?i>ntativi sof Uio Siavo Stall's, who rci-omnii'mli'd tlie (/rilt(>nil('n Kosolnlions (llel'licr.-^on. History of tho l{i'ln\illon, p. 58|; niul thi> ad(iros.s ot tho Virginia df^lc^ration to tlu'ir coiistltiiiMita upon tho re- jection ot these resolutions (ibid., pp. Bil, U)). Toombs of (tcorgia, who know liow to donumit iiM>re tluin lio was willing to accept, in hlssiM'o.'h In tlio Hi'uatc, Jad. 7, l.siil, laid down ns condlfions upon tho romr.ncnco ot (Ji!or:;la in tiie T'nion, that slavery should bo autUorutd and protected In 17(1 HISIOIIV rH'' SKCICSSION. [CU.W. II f(ii'l>i(l(liii^' slavory ahovc. and t'stahlisliiiiL;- il witli a ri[r],t In pri). ti'ctidii as j)nii)L'rty by tlK'ir fjovcriuiitjiits ht'low, tliu paralk'l of lliiity-six lU'gi'i'cs tliiit}- miiiiites in all the Terrftorifs tlicii inM di tluTcaftcr ac(iiiir("(l, until tlu' admission of eacli as a Sialc. wlirn Congress was forliiddcn to inijiosc; any condition affrctinj,' slavery. 'I'licv t'xpressly provided that "Congress shall have no power to interfere with slavery, even in those phiees under its exeliisivc !:U TiMTitorios of the United States; mill that more efflclent iirovisions shoulil lio niiiile for tlie rcturu uf fiiu'itive kIiivos and erliuinals against .■-lavo ppiiierty. and for tlio imnisli- inentof those wlio sliould aid or abet ins\irreclion in another Slate (Blaine, Twenty Years in Conjiress, vol. I, pp. 21i'>, 217). Ali>xauder H. Sli'plii'nw, tiie Vii'O-Presideut of tlie Confederacy, say.s, in hisConstitntioiial View of the War between thoStates, vol. ii. p. 321 : "The trnth is, in my j\i. ',\~}i\ : '• The effiM't of this upon the iiubllc mind of the Southern States cannot be described or even estiniuted. The slioclv was not unlike that produced by great convulsions of nature . . . tho uphea\ii.gs and rocklngs of the earth Itself! It was not that of fright. Far from it! Hut a [irofound fi'eling of wonder and astonishment ! I'p to //lis lime, (I mnjorili/. I Ihiiili, of eviii llitme 1(7(0 bail farnriil the iidliri/ i>f' Krivmiim, had iIdiio ko uiiiIi r the liilii'fiiiul fonvic- lion that it ifitn tlir Hiirfft trdi/ of mrur- iti'l a rcdrrnH of ffripriinn't, and nf liriiiiiiiiij the lu'drnil tiorirnmciit hmk to conxtitiitiDniU prinriiilvt. Jl.iiiy ut them indulged hopes that ii Kc-roriii;i- tion, orn lle-constructiou of the Union w.iuld soon take place on the basis of tho new Montgomery Constitution, and that the Union, under this, would be continued and strengtheneil. or made more perfect, as il had b(>en in 178!), after the wilhdrawal of nine States fiiun the llrst Union, an 1 tlio acloiition of the Constitution of ITS". This proclamation ilispelled all sinli hopes." He says again that wln'n Soutli Carolina att.icked Fort Sumter, Lincoln should have e.illed a Congrc-? of the States wlii<'li had not seccied, to consult them upon his action la llie matter. "I will now go further, and iill you wh.it 1 think tho Congress '.f States ought to have done undei tli'' eircumstaue(>s. if they had beer, .-' (■(.nveneil by liim. They shouhl 1' called a Convention of all the Sti. with a view to a readjust incut of liicir relations. If tho sce(_ded St.ites li.i' responded to that call, well and goo I. In that event I have but little doiilit that tho result would have been iv peaceful adjustment of all matters in contio\erHy, by tho dendict State.-* CUITTKNDE KKSdlA'TlONS. 1,1 iiiiisdu'tion in the Slave States;'' and should never interfere v. itli slavery in tlie District of Cohimhia, without the consent of .Maiv- 1 111(1 and Virginia, so long as slavery eontimied in these State.-;, wiihout the consent of tiie inhabitants of the District, and with- out coiniieusatiou to them. Ciingress was also inliibited from forhi(hling oHicers of tiie I'liiti'd States, or niemhersoF Congress, to take their slaves to and tiMiii the capital, and from interference with the transport of slaves li.uveen tlie States or l)etwoen a State and a Territory soutli of Uh Missouri line: and was empowered an further ordaiiu'cl that neither tliese nor the provisions of ilif Constituvion as to the ratio of representation and thi! return of tiiLiili.ve slav'cs should ever he aiTected l)y any I iture auiendnK'nt ; ani that U) amendment should ever he made to permit ('ongrest; IhTciiirin'o rof.;! rod (o . . . Ilioso wliicli IkuI openlj' iiml avowodly r.'fiised to j'i'riiiiiii thoir olili«iitiona andor tho <'i>ri:i:iliiliou . . . rocediu^' from thoir I'li^iiioM, (Jiidgo Chasi>'s oiiininu to 111'' loiilrary. iiotwUlislaiidiiigi, mid tlial iipoii tills rodross of grhnuuoes an 1 righting of tin* wrong coiiipluined ol, till' s;'i'odcd Status would havo re- tiirni'd to their fiositioiip ; and the wIhjIi' Fcdoral machinery, at no dis- l.iiil day, would hav<> tioeu rustoreil to iis iiuiinal and liarmonioiis ai'tion in ill its parts, ns peacefully and joy- -iiisiy aa when it first went into opera- tic n.' (Iliid., pp. iU\, 417. See al,«o nis SiM'orh ill opiiositiou to the Hoees- ■ 11 Drdinani'O of (roorgia, quoted .!.. pp. I'tm, an?.) S^'plii'ns gives tho following te.sti- iiioiiy concerning tho altitude of Jef- fcrsmi Dans: "I never saw a word fr'cii liiiii recomnieiiding si-cciision as I lie proper remedy against threaten- ing dangers until lio joined in the gi II Till letter of the Southern Scnatort* and Kepreseutative-s in Congress to tlii'ir States advising them to taUe that course. This was in Di^ccmher, ]8(i(), and not until after it was ascer- taiied in theCommilteeof theSenate, on ilr. Critteudi'n's proposition for iiuieting the apprc'.icn-iona and al.irm of the Sou'iiern Strifes, from the ao- eession of Jlr. Liicolii to power, that tlie Kcputjlicaiis, his Kujipoiters, would not agree to tliat measure. It is well known that hotli he and Jlr. Toombs both declared their williuguess to ac- cept tho adoption of Mr. Crittenden's measure as a final settlement of tho controversy between tho States and sections, it the party coming into power would agree to it in the same spirit and with tho same assurance." (Ibid., vol. i, jip. -tlCi, 417.) See also Douglas' speech in the Senate, Jan. :!d, IsiU, .slating tho jjosilion of Toombs and Davis at that time. (Cong, (tlobe, "2(1 Sess., .'ll'dh Con- gress, appi'iidix, p. 411); Iteport by H. V. Hell, commissioner of (leorgia to Tennessee (.lournal of Georgia Con- vention, p. ;)(iK); article by J. It. Co.\ ill .\lhuitic Monthly tor IStVi, p. 'i'M ; iiifra, note fiO. 17-2 llIS'l'OltY OK SKCKSSIOX. [fllAl'. II. to inti'iRTc willi slavery witliiii tlif StatL's.-' Tlie ivsdliitioiis ;ils(i jr.'ovidcd i'nr :'.iiii'ii(liiiL'iits to tin; Fiii^itive Shivu l:i\v, so as oil llio (niu hand lo provido for tlu: imiiisliment of oiipo- sitioii to it, and oil tln' other to give thi; cominissioucr tlie same fee, ini'sjK'utivo of liis dei'isiou, and to only coiiiind the assistaiifi! of the power of the eouiity in ease of resistance or danger of res- eue. Theic was also a sop to the North, in a d(;elaration that tlii' laws for the sniipression of the slave trade shonld lie elliciently exeented, and, if need he, farther enaetinents for that purpose should he made.-'' A[eaiiwhilc, in order to aid the eanse of slavery, Virginia, iiiiiid- ful of her action during the e.\periinent of nuUilieatioii. on January I'.ltii, IStJl, called a conference of eonunissiouers of — " all such States, whotiier Hhive-iiohling or noii-shivc-iioldiiii;, as are willing to unite with Virginia in an earnest effort to luijust the pivsont unliapjiy colli roversies, in tlio spirit in wliieli the (,'onstitutioii was oiii;!- luUly formed, and consistently with its |)riiiciples, so as to afford to the people of the slave-holding Slates adequate guarantees for the scciiiity of their rights. Tho resfiliitions for the call ex])ressod the opinion that the propo- sitions enihraeed in the Crittenden resolutions, — "so inodilied as that the first article proposed as an amendment to the Coiistitutioii of the United Stales shall apply to all the territory of the I'liited States now held, or iiereafler ae(|uired, south of lalil'ide thirty-six degrees and thirty minutes, and provide that slavery of the African race sliall lie elTeetually protected as property therein during the contiuuai.ee of the territorial government, and tiie fourth article slinll Hceui'e to the owners of slaves the riglit of Inmsit with their slaves le- tweeii and throii','h (he noii-slavediolding Slates und 'rerriloiies, consti- tute tlie liiisis of sueli an adjustment of the iiuhappy controversy wliicli now divides tho States of this eoiifedeiacy, as would he aecepled \i\ the peOphi of this commoiiweollh." '-' The eoni'ereiiee, uhieli iiad no powers except to affect pnhlic ' Jlfol'lier on, History of llio iio- iMllion, pp. 'il, n.5. 15laiue, Tweiit.v Ye;irs in (kjntjross, vol. I. pp. -JBl, '2(12. -•■■ Il.i.1. •' Crltt(Mi(le>i. Report of llio l)c- linleh am! Pro ceiling ot llio (.'onfi'i- oncn Convention, p. !t. Thn ro.soliitious were passed at a speeidl sijssion m' lln' k'Klslaliire, ciiHihI for that piirpos.'. •I'yler. liife ■' ' Times ot tho Tyler-, vol. ii, 1'. KAC coNi'i'.Kr.Nrio, ()pii)i(in, siiico, under tlu; Constitutioii. ainciulinciitx could oidy bo jiiDjiiiSv'd liy CouLfi-cs.) or hy a convcut'uui of tlu: Stit. h (".lUcil liy ('iiM:;!v.s-i u])on tlio upplication of two-tliirds of tliu S(:Ue lo^^asla- tiiii'S,-'* mot at Wiisliiu'_;tou, F(d)i'u;ii'y kli, 1 Siil, and clioso a.s pre- .sidiiig olliuer ex-Frcsidt'iit 'lYli^'i'- Tlu' deli'tjates went appoiutud liy the l(!oislatu''cs, jrovenuus, or couvi'iitioiis of twuuly-one States, .seven of whom were slave States and fouiteen i'ree.^ Three of the Northwestern^ and tiie two I'aiilie States,''" all of whom were free, toj^fetiier with the six who had already seceded and ■|\ xis and Arkansas, whose secession uidess the rest ix'tuiucd, was from their location (,bviously iiu!vit:d)le, remained away. On the tilth, the eouferenee adopted a rejiort whieli r.'com- iiifudi'd the adoption of seven aineiidiiients to the Constitution,^ and these were, on the same (hiy, reported by their president to C'oii- fjress.*' Their opinions wei'e greatly divided. Kiglit of the free .States were opjxwed to the reeonimendation of any specific amond- inents.'^ A recommendation of the re-enactment of the ^Missouri ("omproraiso was carried by the vote of a single State, and would liave been defeated Iiad not David Dudley Field left the city, under the im])re.ssioii tliat his vote in the New Voik delegation would lie counted, and thus cast the voice of that State against the jiroposition.''"' In no otlier case were the votes of more thin six free States ever in favor of any amendment which gave fur- thvn- protection to slavery, except th'.t which permitted State ■-M'liiisUUitioii, Arlifli! V. Tlio iii- viiliilit y of any ivrtioii liy tlio CoiifiT- "Mii'c WiiH (li'iiionslratnl liy Ito.^i'i- S. Baldwin, fi f;raii Ison ct llo.^'i'i' Klicr- niiiii, who had liinisclt liccn fonnorly (iiivrnmr and I'liitod Slates Senator lit C 'njieetit'nt; liul; his pniposition to ■•-''■ninnieiid all tho Slate legislatures til lUiito in a renuest to C'oiij,'ress to eall siii'h a convention in tlie method prescrilied in the Const if ntlon was di.v tc-ited liy thovolH ol' thirteen sLatwivl'O "i.,'ht (ihid., |i|i. 5!)~r,7, 411 417.) 1?ho Ke/itucUy le,t;lidaiurn had re<.)iiostciI I'diii'rnss to rail buiIi u coiiveiUion (ihid., pp. 6a, (;:t|. Tho C'onv<*al VK'W of iSwj Wai' between the State<(, vol. ii, p. 3ii4), and this was Lincoln's preferenoo as o.\prosseil in lii.s inauijural. "'■> Chittenden. Keportof the Pebates nnd T'roeeedin^'s of tho Pei;i-e I'unvea- tion,;)fi.s.'si'iit tci'i'ltory Houlli of llin liiK! nionlioncil, tlie xtatuii of persons held to Borvlee or labor, as it now ex- ("xisIh, shall not be elianRi'd." Aecoi'd- inj; to T.vlei', Chase slated in tho eoii- fi'i-eiiei! '• that lh(5 whole interpretation uf the s(>cti()ii WHS that it was the H^l(»M ll-ci'd by the Mexican hnv uf t'liKiUcipatioM, u'hieli h.-id bi'cu pni- olaiiiied )>y the Mexican pivcniineiit years before the acqiiisiiidn of tli" western territory tiy the I'll i led Slater; and he inainliiined that the hiwiif New Mexico was tho utitttis of fn'O soil." "I thankfid hlin for his explaualioii afterwards. I went to him and siilil: 'You have, at all events, I'stablislicd .your chaiacter as an hy this time thoroughly aroused. Her leading statesmen realized that if suhiiiission was made once again, the future would produce still uiore arrogant demiiuds; lliere would be no limit to the aggres- sions of the slave power: and tlie example wiuild arouse similar o[i]iosition throughout the I'liion to unpopular legislation of (Viry kind, so that the Fedenil government wotild become as impotent and disorganized and society as disordered as in the Spanish .American republics. '^ *^ 'I'liis KIM for till) imrposo of .■uiTiiilliii;.; till' ruliiif! in I'l-ini; v. I'enii- sylviiniii, ](i PetiTS, .'Mil. ■" This was ilesi(»neil to protei't lii.H'lv s:i:l(ii'8 ill SoiUliern ports. See tlio (li.'-inisslon of tie iippi'oprlntc sivlioii of the Const itiition, infra. *- Toll. 2S, 1H(U (Mrl'lierson, IliH- toiy of till" R(«lii'llil, iisrd tliese prophetic words: "I wili suffer di'atli liefore 1 will ('dusi'iil or adviso my friends to rou- sent to any eonpessiim or conipro- n;ise wliieli looks liUi' l)iiying tlie privile^'o of tiikin;; iKi-^r-i'ssion of liie Hoveriinieiit, (o wliiili wn liiive a eoii- fititiitioual rinht; lii'cause, wliatever I may tliinU of l\\>' merit, of the viirimis propositions lii'fore ('oiif,'ri'ss. I should reiiard any <'oneession in the fare of ineniice as the (lostrnr of the Slates. Since thopeacc-olTeriiiK was not satisfactory, the amendment was rejected by the Now England States; in many of the others it was not even considered, and it obtained no ratillcations except by the! wo Stales who first acted upon the subji'ct (Blaine, Twenty Years in CVm- gre.ss, vol. 1, jip. '2(iGa)iiiri lit. to the fii;;ilivc Hiavo clau.se of the Constilu- tiiMi imiiht to lie withdrawn " {Lincoln to w.i'd, Doc. 17, iHoa, ii.iii., p. 2r>;i.) .\nd Inter: " As to fiif;itiv<' slaves, Dis- trict of Qiluniliia, slavo trade anions till' -liivo States, and wluitovor springs of necessity from the fact that tho institiillon is ainoni^st us, I caro hut little, so that what Is done he comely and not allo^ethor (nitrau<'oiis. Nor do I care much about New Me.'ilco, if further e.\(,en.sion he hi'd;.!ed a'-;.iiiist" (Lincoln to Seward, Feb. 1, ISCl, ibid., p. 2(10. See al-ii ibid., pji. 2r)H, 209,1. For a siiminary of tlie ililTerent propo- sitions for a srit Icm.'iil of the conlro- ver.sy, see Nicolay and Hay, Life of Lincoln, vol. iv, pp. '2'20 '222. ■"' Tlu' vote in the Scimte was nine, teen yeas to twenly nays, six senators from the slave Slates refusing to vote, sincp they knew (liat unless the ainendments liad the su|)port of the Norlli in Coufjress, tliey would not liii ralilled by the States. (McPliorson, History of the Keliclllon, pp. CO. (17). *'•> Mel'hcr.son, llislory of the llcbel- lion, p. 117. '" This was the proposition of ex- Governor Haldwin to the Peace Con- ference, Hiipra, note 2H. M He wrote this with the Coiisiiln- tion. Clay's speech in support of the coni|iroiiiise of lS,"iO, .lackson's prochi- niatien aKiiinsI niillilicalioii, and Web- ster's reply to Hayiie lieforc him (Hcrudon, Lincoln, vol. iii, p. HH). Ho IMAGE EVALUATION TEST TARGET (MT-3) /> ^ A^k. v^*^ ■'^.v'^ I I.I 11.25 Ui|2S MTS HO "^" n^B 1^ 1^ 12.2 I ^ m U IIIIII.6 v] v. r >/ h.'' '/ s • * Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. HSSO (716) 873-4S03 II Ly lii.>th, was adopted by a popu- lir vote;**" there being an understanding with the other seceded Stites that they would, as hostages for her i)rotection, remove their President and Congress to Uichmond, wliich was, on .May i;ist, made the capital of the Confederacy.''* Her people on tlie west (if tlic Alleghanies, however, who abutted on tiie free States (if Oliio and Penn.sylvania, knew tliat llieir interests as well as. tlieir sympathies were on the Nortiiern side, and broke away from [\h\ rest of tiie State. Two years later, June '20tli, 1803, Congress aih'illtcd West Virginia into the Union, after her citizens had 401 4()H (SCO iiIko Sleiihi'iis, Constitn- lioiiiil View of tlm War between tho Sliili's, vol. ii, p. 3S9i, proves ooiiclii- sivi'ly that aft^-r tho moveiiiout was uiijcr viiiy, tho jicojilo of tlio South wont fa^.l■r than their h>aders wished. JoffiTson UavLs urKcil them to go nioro t'owly, and said in private coaferenco and l)y letters and telegrams lliat ho was "opposed to seecsslou ns long a« tlio hope of a pc^aeetiil remecly ro- niained" (Letter of O. R. Singleton, (|uiite(l by Davis, Kiso and Fall of tho (' KiMitncky Lcf^iKlatwro adopted llio followin;? resolutions: "Consld- eiinR tho d('plonii)lo condition of tho country , for which Kentucky Is In no way responsible, Bud looking to tho best nieniirt of pn servlnR tlm natural jioaco luid s.^curiiiK the laws, llberly, and j)i'o|)erly of tho citizens of tho Slale; theri>foro, HrMolreil, by tho Hoiiaii of Ilepresenlatives, That this Slate and tlio citizens the'cof, ahould take no pirt in tho Civil Wiir now beirif? wa^'i'd, except as medialorf or frienils of tlie b.-lllK^ront partie-;; and that Keiiludiy should during Ihe contest oicupv a poslllon of strict nfiutnility" (.Shaler's Kentucky, p. 243). '" Slep'.iens, Constitutional Vlow of tho War between tho Statea, vol. il, p. 3f.l. "'^ 5IcI'!ieraon, Hlatory of the V.*'- belUon, p. 114. §3(!.] ACTION OK KKNTUCKY. 181 tnidiis into the State, although lio formed a recruiting caiuii of Kentucky Union soldiers at Camp Dick IJobinson, Garrard ('i)imtv. JeilVi'son Davis offended the conservatives by the state- ment, in a letter to (iovernor Magoilin, "tiiat the (iovernment of tlie Confederate States will continue to respect the neutrality of KcnUicky so long us her people will maintain it theniselvcH." "* The lirst invasion of the Sfcite's soil, by troops from other States, was made by the C'onfederatc forces under Polk and Zollicol'cr, Si'i)teniber Jid, 18(Jl. Grant's army followed innnediately from Ohio. On the 11th, the Legislature passed, over the Governor's vi'to, a resolution, — "That Cioveruor Magollin be instructed to inform those concerned, that Kentucky expects the Confederate or Tennessee troops to l)e with- drawn from her soil unconditionally." A resolution requesting the Federal troops to withdraw was defeated, and, on the 18th, the LegislatiU'e resolved, over the governor's veto, tliat the Kentucky troops should expel tiie Con- fiMJcnile invaders.''' Tiicreafter. Kentucky co-operated with the other loyal States, although many Kentuekians joined the Soutlicra army. A majority of the population seem to have been always loyal, but those who sympathized with the South were allowed not too much liberty to vote.'''' A so-called "Sovereignty Convention" of persons claiming to represent sixty-five counties (if tli(! State, either self-appointed or chosen l)y Kentuekians in the Confederate army, met for three days, in November, 1801, with- out any authority from the Legislature ; and, on the 20l]i, passed an (irdinance of secession, and elected State oHicers."'' The Con- federacy went through the form of admitting the State into their league ; and representatives and senatore from Kentucky-, chosen by Kentucky soldiera in the Confederate army, sat in the Con- federate Congress.''^ Once for a few hours the Confederate troops (H'cuipied the capital of the State and attemi)ted to perform the (•erei. onial of the induction of their State government into ])os- "iSlmlor's Kontucky, pp. 23.'i-247. So« Davis. Kiwi) ami Fall of tlio Con- fi'dcnito Govonunont, vol. i, pp. 385- 4(12. '» Slmler's Kentucky, pp. US, 250- 253. «6SliaU>r's Kt'utU(.-ky, pp. ;120, 331- 33G, 3 18. «« 11)1(1., p. 270. McPhtTson, Hls- of Mill Rebellion, p. 8. '" D.i\ is. lUse 1111,1 Fall of tlie Cou- (edoruto Govorniuont, vol. 1, p. 303. 1M2 HISTOUY OF SKCESSION. [CIIAI'. ir. Hcssion ; but in the nldst of tlieir governor's speech he was driven from the city hy an attack of the Union troops."** Meanwhile, the Stiite remaineil in the Union, and was rognlarly reju'csented in the Congress and Electoral College of the United States witliout any intermission. Missouri, as has been shown above, had prepared for neiitrality six years befoA'."* The Legislature, January 21st, 1801, passed an act for the election of a convention " to consider the relations between the government of the United States " " and the govern- ment and people of the State of Missouri ; and to adopt su measures for vindicating the sovereignty of the Stivte, and the pro tectidu of its institutions, as shall appear to them to be de- manded ; " but it was expressly provided that "no act, ordinance, or resolution of said convention shall l)e deemed to be valid to change or dissolve the political relations of this Stjite to the gov- ernment of the United States, or any other State, until a majority of the qualified voters of this State, voting noon the question, shall ratify the same."'" In the election of delegates, on Fel)ru- ary 1 Htli, the people, by a majority of eighty thousand, determined against secession, and not a single secessionist was chosen.'' The convention resolved, in March, by a vote of eighty-nine to one, that there was " no adequate cause to impel Missouri to dis- solve her connection with the Federal Union." "^ They also ajv pointed delegates to the proposfnl convention of the border States, as well as to the Peace Conference."'' Subsequently, under authority claimed from State militia-laws, some of which were passed for the occasion, the governor attempted to oppose the army of the United States, and left the State to seek aid from the Confederacy.''' In the meantime he had replied to Lincoln's cull for troojjs : " Your rc(piisition i:i illegal, unconstitutional, revo- lutionarj', inhiunan. diabolical, and cannot be complied witli."'° The convention reassembled in July, declared his oHice vacant, a])pointed a new governor in his j)lacc, abrogated the laws luider «9 Sliiilor'H Kpiitucky, pp. 2fi0-272. «'■' Supra, nuto !). '» Carr'8 Missouri, p 278. '1 Hild., p. 2S4. •- Il)i(I , p. 289. '•■' 11)1(1., p. 318. Spo Harper's Maga- zini- fur 1801, p. 547. '* St(>phen.'<, CoDBtitutional View of tho War botwecn tlio States, veil. ii. p. 3C4. " McPliorson, History of tho l!c- bellion, p. 115. !j:lii.] ACTION OF MARYLAND. 188 uliic li Iio claimed to act, and continued to exercise supreme con- tidl ;it intervals, until June, I8(i3, when they dissolved, after the iiilnliiioii of an ordinance for f,'radual eniancipation."" A rump of less than a quorum of the Lc},'islaturc met in extra session at the suiinuoiis of the deposed povernor, October 21st, 18(!1, under the jiiotcction of the Confederate army, away from the capitid of the Stiitc. 'I'lii'v voted an ordinance of secession, wliich the C'onfed- ciatc povernment recognized as valid, and on November 28t)i the Inriii of an admission of Missouri into the Confederacy was trans- iutcd." Missouri was represented in the Congress and the Elec- toral College of the Union throughout the war. Di'liuvarc, which was bounded by the free States of Pennsyl- viiiiia on tlie north and east and the slave State of Maryland on tln^ west anil south, remained loyal throughout, lender the plea that the State law did not vest him with such authority, (iovernor l!iiit(in ordered no militia to aid in the invasion of the South, but recommended the formation of companies of volunteers to aid the President in the defence of Washington and the support of the Ciiiislitution anil laws of the I'nited States.'' 'riie loss 1,' the slave State of Maryland, which separated the national (lapital from the free States, would have been irrci)arable to the Xortli. (rovernor Ilicks refused, in November, 1800, to call a sjK'cial session of the lA.'gislature at the request of a number of citizens of the State who desired to aid the South; and De- (ciiibcr lltth, in answer to the commissioner from Mississippi, ilcclincd to assist in secession."* At the same time he declared liis piuposc "to act in full concert with the other border States." ■'' ri)i)n''s CliiirlcrB nnil ConsUtu- lioiis, |.p. 112:) HHii. " Xiiiilay 1111(1 Iliiy, Lincoln, veil, iv, pp. 'Jlli;-'22n. For I li(> Confpdcnito view (if llicsc pmccciliiitjs, s<>n DuvIh, lliso mill Fall of llio Confi^lorato Clovorn- iiiciit, \'>l. i, pp. •110-132. •» Md'horson, History of the Eo- lioUioM, p. lU. On Jan. 3, IHfil, tlio li'Kisliituro [laasoil n resolution stntiiig llial, "Imviiig p.xlcnildd to tlio Hon. II. Diclilnson, tlio Coinniis-Hionor of MissisKippi, tlio poiirtcsy due lilni, ns lliu Kcpresontativo of a Sovoreign State of the Confoderncy, as well as to the State he represents, we deem it proper, unit due to ourselves and tho people of D.'lawiire, to express our unqualilled liisappioval of the remedy for e.xistliiK (lillliiilties suggested by tho Li^Hislat lire of Mississippi " (Ste- phens, Conslltiitioual View of tho War hetwi (Ml the States, vol. 1, p. 370). '» McPheison, History of the Rebel- lion, ]). 8. Stephens, Conslltutiimnl View of the War between the States, vol. ii, p. 368. 1«4 HISTORY or SEf'KSSION. [CIIAI-. II. 'I'lie Htivte's represcntiitivus in tho Pence ("ouference ivnd Cloiif^res-s sotjtl for llic (.'oiicussions (leiiuiiided by tlii; South; and in tlii' iiiL'iintinif a political campaign for and against secession was in active progress through the State. On April 18th, 1861, the gov- ernor informed the people by a proclamation, "that no troops will be sent from .Maryland, unless it may be for the defence of the capital." On April I'.Hh, a mob attacked the Union troops . 3ill to appoint a iJcciril of Publie Safety, with authority to s))end two miiliou (lollai's in tlic defence of the State ai^'ainst tlie FeiU'ral army. Tills, however, was linaliy (U'fcateil.'^'' On June lOtli. the l-cj>;is- latiire instructed the representatives of the ."Hate in ('on^i<'s,s "to urpe and vote for a speedy recognition of the In(U'pendence of tlic fiovcrninent of tlie Confederate States of America."'^ When till' Li'i^islature reasseud)led in Septend)er. its a\\\t determined tlio character of the Constitution for all time, and coni[)elled the conquered to consent to amendments which eradicated the evil that bad been the cause of the fraternal dis- cnrd. No amendment which disclaimi.d the right of secession was writti'ii into the great charter. Pen and jjaper were not nee(l(!d to uxpn'ss what had been stamped upon it by l)lood and iron.*' " HuHci-'s Bool!, pp. 22«-2;il. '■■' M'l'heison, History of tho Ko- lielliuii, pp. n, .T.tS. *ill>i4, lU.so and Fall of tho Con- ri>iii'iiili> Govcruniont, vol. i, p. 330 ; Uhciilcs, History of the Uaitod Stalfw, veil, ill, |ip. 553, 551. Lincoln hud ro- fiiKi'd to authorize Rii(;h a iJioi'ccdinR in Ainil (Nieolay and Ilay, liiiuolu, vol. iv, pp. 1(17, IC.S). Tho sul)ji"(t of niilitaiy arrost.-i is discussed hilcr. "» Tlio war closccl Au^nist 20, 18CG. Soo pioclaiiiation of I'rosidcnt John- son of tliat date; U. S. r. Ander.son, 9 Wallace, 50, 70; Tlio Protector, 12 Wall., !'.00; Adgers r. Alson, 15 Wall., 500; 15urke v. Mlltenberger, 19 Mall., 519, 525. "' A few .State Con-stitutiona adopted after the outhroak of tlio Civil War expressly repudiate tho right of seces- 18r> ((iNSTirUTIONAL HI8TOIIY OF CONFKOKItACIY. [ciIAT. II. ^ :n. CoiiMtitiitioiial llUtory of tlio Hoiitlifrn ('oiif<'riif.v. Slavery was tho cnrnur-atoiio ' of tlio Confudenvto ('(Histitulion, hnt the doctrine of State rights lay also at its foundation, iind tlie latter was inoro dangerous to its advocates tlian its opponents. § It". ' TliU was frankly admitted by lliu Vlci'-rrcBldi'iit of tho Confod- erni-y, Ali'xiiinlpr H. Htophons, In his Bpcoch of March 21, IHlil, where ho said : " Many (;(>\ crunicntH have lioeu foundod upon the principle of tho fiulKirdinntlon and Horfdom of certain claswsdf the Bnnio race; Biioh wore, and are In vl()lall(>n of tho laws of nature. Our Hystom corainits no such violation of nature's laws. With us, all of the white race, however high or low, rich or poor, are cfpial in tho eye of the law. Not so with tho NcKro. Snlionllnatlon is Ida place. He, by nature, or by tho curse nRalnst Ca- naan, Is (Ittod for that condition which he occupies in our system. T'.:e ar- chitect, in the construction of bulld- in^!s, lays tho foundation with the l>roper material — tho Krauite; then comes tlio brick or the marble. Tho substratum of our society Is made of the material fitted by nature for It, and by experience wo know that it is henl, not only for tho Superior, but for thi^ hifirior nice, that it should be so. It is, iiulcod, In conforndty with tho ordinance of tho Trontor. It is not for us to in(iulre into tho wisdom of Ills ordinances, or to qui'stlon tliem. For his own piirposes, he has nmdn ono race to differ from nnotlier. as !»> has made -one star to dllTer from an- other star in nlory.' Tlio ureal, iili- Jocts of humanity aro best allainod when there is conformity to libi liws and decrees In tho formation of gov- ernments as well as in all thln^;s else Our Confederai'V is foundeil upon principles in strict conformity with those laws. This stone M-ldih was rejected by tho first builders, ■ is he- coino tho chief of tho corner' the real 'corner-stone' — in our new edl- flnllon or Hulivornlon thereof can liavn any hinilint? fon'o." Ill Mississipiil, Art. l.Siv. 7: "The iii;lil to wltlidraw from tlie Federal I'liinii on aceoiint of any real or Hiip- (iiiscil ^?rlevnne(^ sliall never be «h- KitiiKil liy this State, nor ."hall any law In' passed in deroRtttion of tho para- niouiit alleKlanco of tho citizens of tliis State to tho government of the I'lilti'il Stall's." Ill VIrKlnia, Art. I, Sec. 2: "That this Kiate sliall ever reiiinln a member of the United States of America, and tliat llie people thereof are a part of till' .Viiierlcan nation, and that all at- I'Miipls, from whatever sonrco or ujion wliati'ver pretext, to dissolve said uiiinn or to sever said natiim are un- aiiiliorized, and ouijht to be resisted with the whole power of the State." Alt. I, Sec. ,•) : "That the Constitu- tiiin of tlio United States and the laws o" Congress on.ssed in \ .rsuanco there- of, constitute the suiin-mo law of tho land, to which paramount allcgianco and obedience are duo from every citi- zen, anythinR in the Cimstitution, ordinances or laws of any State to the contrary notwithstanding." Ill West VirKinlii, Art. I, Sec. 1 : "Tlin Stale of West Virginia is, iind shall remain, oiii< of the United Slates of .\mi'rica. The C'onstitiitloii of tlic> United States of America, and the laws and tn-atios made in pursuance thereof, shall be the su|irome law of the land." In Texas, Ail. I, Sec. 1 : "Texas is a free and iiide])eiident Slate, subject only to the Ciuistitiuion of the United States, ami the m.iinlen.iiice of our free iiiHtltutions and the |ierpctuily of the Union depend upon the preserva- tion of the right of local seir-gov(>rii- niciit unimpaired to nil the States." In Mls.'Ouri, Art. II. Sec. 3 : "That Missouri is a free and independent State, subject only to tho t'onstilutlon of the United States; and as tho pre- servation of the States and tlie main- tenance of their governments are nec- essary to an indestructible Union, and were intendeil to coexist with it, the Legislature Isnotauthorl/ed to adopt, nor will tho people of this Slate ever assent to, any ameiidment or change of tho Constitution of the United States which will in anywise impair tho right of local self-government be- longing to the people of this Stale. ' In California, Art. I, Sec. ;i : "The State of California is an inseparable part of tho American Union, and tho Constitution of the United States ia the supremo law of the land." In North Pakota, Art. I, Sec. 3: "Tho State of North Dakota Is an in- separable part of the American Union, 1,SS ((INSTITI TIONAI, IIISTOIIY OK CONFKDKllACV. [cilAI'. II. dtviiiod.""'' N'iiraiicics in tlio rupiVHuntutioii of iiiiy Statu were tilled ill sucli inaiiuor im thu proper iiutlioritius of thu Stat« dirni'tcd.'' ll siiid: ■• I'litil tlio iimU},Mirivti()U of the President, all i)ills, orders, resoliilioiis and votes iidopted by tlie ("oiigress siiall be of fidi force without iipprovid by liim."' After tiie inaiifjuiii- tioii of the I'rcsithuit, he iiad tiu! same veto power as tiie I'reai- dent of the I'liited States; except tlial lie was authorized t(i veto separate items in appropriation bills/' ('on},'ress )iad tlii' power of taxation "for (lie revenue necessary to pay the del>t« and carry on the (iovernnient of the Confederacy."" In otiu'r respeets, the Provisional ('oiij,m'css had tlie same powers as ,'i Congress of the Unitiul States, excepting legislation over the tci- ritoriea and any ceded district, none of which tiicn existed in tin' Confederacy, and the appropriation of money from the tieasiny. "unless it be asked and estimated for by the I'resideiit or siiiin' one of the heads of departments, cxce[it for the pur|)()se of paying itti own expenses and eoutingeneies." ' ICxpress powers were also given to admit other States, and to exercise executive powers until the President was inaugurated." 'I'lie impoitation of African ne- groes, from any foreign country otiier than the slave-holdiiii,' States of the United States, was forbidden; and the Congress liail power to enforce this provision by legislation, and "to prohibit the introduction of slaves from any State not a member of the Coii- - Provisional Constitution of tlio Coiifiiiinrncy, Ail. I, See. 1 ; Diivis, Uiso and Fail of tlio Conl'odcriiti' (Jov- orniniMit, vol. i, p. 010. •' Provisionul Constitution, Art. I, See. 2. < Ilild., Art. I, Spc. 2. ■''Iliid., AH. I, Soe. 5. Hoi) infra, over noti'H ',V,\, 34. Il)id., Art. I, See. 6. ' Iliid., Art. I, Si-e. 7. 8 Iljld., Art. I, Soi'. 0. and tlio Constitution of tlio tlnitod States is tlios^iiiMoiiic law of tlio liiiid." In Idalio, Art. I, Soe. 3: "Tho Stnto of Idaho is an inseparalilo jiart of Ihn Union, and the Constitution ot the Uriiled Slates is tlie supremo law of flio land." In Wyoming, Art. I, See. 37 : "The StaU> of Wyoming is nu insepaialilo purl ot tho Federal Union, and tlio Constitution of tlio United Stati's Is tlie puprcmo law of the l:ind." Alt. XIX, SiM'. 1: " The following; articlo shall lio irn-voeablo without tho consent of tho United States and tho peoiile of this State : " The Stnto of Wyoming is iiii iii- si"parai,le part of tlio Federal Uiiinn, and tho (.'onstitution of tlie T'liili'il Ktiiti'S is tlio supremo law of Hie land." Si'e iiijra, § 38. I'lIilVlSKiNAI. <'<)M'i:iH':i!ATr, CnNSTlTITlHN. 1s;» !iMlunicv."'-' Tlu! I'ri'.siilciit, iiiul N'icc-I'ii'siilfiit wcif clcclcil liy CiPii'^'ii'S-i, viitiiij,' \>y Stales. IC.uli wa.s to liolil dllici! fm- one Mil., (IV until a iifiinaiicnt f^'ovoiiiini'ut sIkiiiIiI Iw cstaliiisliKd."* Till! coniiiciisation of tlic I'residfiit was lixid at twcnt y-livu tliou- .siinl (lollais a year. Tho jiidlcMiil j.it'V'- was vested in a Supreme (■(lurt.aiid. until otherwise provided by < ij^'ress. a DiNliiet Conrl in each Slate, the latter court with "the jurisdiction vested hy tlie laws of (ho T'nited States, as far as ajuiiieable, in both the District 1111(1 Cinint Court of tho I'nited States foi that State."" It pro- vidnl : that "'I'he Supremo Court shall be coiisiituted of all the ilisiiiet judges, a majority of whom shall be a (juorum, and shall .sit at such times and places a.-* the Conf^re.ss shall api)oint." ''■' ••'I'iie Congress shall have; jxjwer to make laws for the transfer of any causes which were pending in the eourl.s of the United States t(i the courts of the Confederacy, and for tho execution of the oi'ders, decrees and judgments heretofore rendiu'cd 1)y the said courts of tliu I'nited States; and also uU laws which may be recjuisite to |initect tho parties to all such suito, ordei's, judgments nv decrees, tlieir lieiis, ptn'sonal representatives, or a.ssigus." i^ This Consti- tutiim (!ould be amended by the vote of two-thirds of Congress.'* Iliiiiected: that " The (Jovernment hereby instituted shall taki^ immediate steps for the settlement of all mattem between the States forming it and their late confederates of the United States, ill relation to the public property and pid)lic debt at the time of their withdrawal from them ; these States hereby declaring it to l)e iliiir wish and earnest desire to adjtist everything pertaining to the coiiiiiu)ii pi'operty, conunon liberty antl common obligations of that anion u[ion the principles of light, justice, equity and good faith." ''' I'liiil otherwise provliled by Congress, the sc^at of goverinnent was lixed at Montgomery, Alabama.'" The Constitution was to continue ill force one year from the inauguration of the President, or until a ])erMianent constitution or confederation between the States should lie put in operation.'" In other respects, the instrument was a " I!iM., Art. II, Soe. 7. Tlio object of tlii^j niut tlio correRponding cliiuso in till- pi'rniunent constitution was to ooiTcd t|i(. Ijordcr nliivi> States. '» Ibid., Art. II, Sec. 1. " Ibid., Art. Ill, Sec. 1. '■' Ibid., Art. Ill, Sec. 1. " Ibid.. Art. Ill, Sec. 1. " Ibid., Art. V. 1'' Ilild., Art. VI. " Tbi.i., Art. VII. " Ibid., rroamble. 190 CONSTITUTIOXAL HIS'IHJUV or COSl'EDEKACV. [cHAP. II. Kuhstantial copy of the Constitution of tlie United States. At tliiit time, nearly all expected a speedy return to the originul I 'iiiun, and for tiuit reason the paper was hastily drawn, with the (il)juct of making the least practicable disturbance with the exist- ing order, exceijt so far as was necessary to maintain consistency with the theory under which the jiroceeding w.os justified. The liret act of the Trovisional Congress was passed February Utli, 1801; '• That all the laws of the United States of America, in force and , in use in the Confederate States of America on the first day of Novemlxir last, and not inconsistent with the Constitution of the Confederate States, be and the same are hereby continued in force until altered or rc^iealed by the Congress." '* Tlie next ;ict, passed February 14th, continued in oflice, until A[)n\ 1st, all oIK- cei-s connected with the collection of customs, and the asststiint treasurers entrusted with the keeping of the money thus collected, who were engaged in the performance of such duties within one of the Confederate States, with the same powers and functions which they had exercised under the Government of the United States.^® On February Otb, Jefferson Davis, of Missis.siiipi, was elected President, and Alexander II. Stephens, of Georgia, Vice- 1 resident, of the Confederacy.'-"' On the 15th, Congress passed a resolution dedaring "that it is the sense of this Congress that a commission of three jjci-sons \xi appointed by the President-elect, as early as may be convenient after his inauguration, and sent to the Govenrment of the United States of America, for the purpose of negotiating friendly relations between that government and tlie Confederate States of America, and for the settlement of all ques- tions of disagreement between the two governments upon princi- ples of right, justice, equity and good faith." ^^ February -i")th, an act was passed " to declare and establish the free navigalinn of the Mississip.pi River," wliieh prevented any interference witli the passage of Northern as well as Southern vessels ujiou that stream ;-'■ and, on Februarj- 2()th, the Congress repealed all hnvs of tlic 1* Statutoa nt Larj/-!, Pi-ovisioniil (iovornmont, fonfodoralo States of America, p. 27. " Ibid., \n<. 27-28. -' Davirt, lliso uud Full of tho Coix- fnderatn Governmopt, v. 1. i, p. 2S0. ^' Statutes at Lai-t:e, rrovisiuniil (toveniineiit, Coufederato States of .Viiieriea, p. 292. -- Ibid., pp. yO-3S. I'KOVISIONAL CONFKDKKATE CONSTITUTION. 191 1 nihil Stiiti'S which required the enrollment or licensing of coivst- iiit,' vcssL'ls, and imposed discriminating duties upon foreign ves- sels or goods imported in tliem.^ Tims, tiiere was no interrni)- tioii of the existing business relations with the United States, and liioiins were taken to i^revent friction on the restoration of the L'nlon. The permanent Confederate Constitution was adopted March 11th, after the North had refused to accede to the amendments to the Federal Constitution which the Sontli demanded. Even then, when the more sagacious of them at lea^t must have foreseen the (Linger of a war ^* wliicli would necessitate unity and strength in tlie central government where the command of their armies wa,s reposed, the Southern statesmen did not recede from the theo- ries which they and their predecessors had advocated for the gov- crniiicnt of the United States since the time of Jeffei-son. They did not realize that those checks upon the power of the central government, which seemed necessary for the protection of a domestic institution maintained in their owii States, and regarded at first with suspicion and subsequently with undisguised hostility by other States of a common Union, were not needed in and must be injurious to the welfare of the new Confederacy in which all alike had a common interest in its preservation. The [icrnianent constitution of the Confederacy wtis avowedly modelled upon the C'onstitution of the United States, with a few cor- rections which seemed likely to secure economy and prevent wast© of tiie pul)lic revenues. All other changes were designed to secure tlie interests of slaveholders and establisli those theories of State rights for which they ha ., long contended. The twelve amendments were incorporated into the main body of the instrument, and the stylo of the new government through- out was "The Confederate States." The I'reambie road: — ' ' \yc the people, of the Confederate StatcK, each State netiug in its Bovercigu and iudepeudeut character, in order to form a permanent Federal GorcDimenf, establish justice, insure domestic tranquillity and ■-' II)i(I., p. 38. -* A propliPtic Bpeoeli in tlio Cas- 8mi(iia vein was luiulo liy Alexaniler H. Slepheus before the Georgia Con- vention, in whleh he foretold tlml ile- teat would bo followed by '■ uiilvciBal onianeipalion" (MePhersoii, Il'story of Iho KoboUiou, p. 25). 192 C0NSTrnJTIO>fAL history of COXFRDEUACY. [chap. II. secure the blessings of liberty to ounelves und our posterity, iiivdl-biri the. favor and guidance of Almu/hti/ God, do ordain and estaljlisli ttiis Constitution for the Confederate States of America." The legiKliitive powers vested in Congress were "delegated," in- stead of " granted." "^ The custom, in the ^\"estern States, of allowing immigrants to vote before they had been naturalized, which was criticized in the South Carolina (lecl.iration of inde- pendence, was prevente Hull., Art. I, S(>o. 2. a' lbi(i., Art. I, S,>f. 4. » Ililil., Art. I, Hi-o. fi. 29 Davia, RiBO 1111(1 Fall of tho Con- fedor.aln Govornini'iit, vol. i, p. 200. Ho was of the opinion (h;it tlio prao- tlco ■would have boon bonodolal. The l)rovii7lon was the work of Aloxamlcr H. Slophens (Constltulional Vlow of the War between tlio SlatoB, vol. U, p. 358). The point will bo discussed subsoquently. *> Wilson, Division and Reunion, p. 244. »' Confedornto Constitution, Art. II. Tlds arliclo was laiKoly the work of R. Baruwoll Uhclt of South Caro- lina, tlio Chairman of the ComniittoP upon the fornuitlon of this Constitu- tion. Most of thn oilier (•lian};es fnmi the te.\t of thu Fcnloral Constitution wore suggested by him, except those §37.] PERMANENT CONFEDERATE CONSTITUTION. 1 !).'. cilizcii of tlie Confederate States, or a citizen tlicreof at tlie time of tlio iuloption of this Constitution, or a citizen thereof born in the United States prior to the 20tli of Doceniljei-, 1800," the date i)f the secession of South Carolina, and "who siiall not liave attained the ag;e of thirty-five years, and been fourteen years a ri'siik'nt within tlie limits of the Confederate States, as they may exist at the time of his election." ^ The amount of his salary w:i! not fixed as in the jirovisional Constitution. lie had the |iii\vcr to veto any item in an appropriation bill.*'" This provisi(m, ulii( h was also in the provisional constitution, was first adopted liv ihc Confederacy, and has since been copied into tlie constitn- ;icms of nearly one-half the States in the I'liion.** The disputed ([ii.stinu under the Federal Constitution as to the power rf re- moval from oflice was settled by the provisions : — •'The principal olTieer in eaeh of the executive departments, and all persons connected with the tliplomatic service, may be removed from ollice :it the pleasure of the I'rosideut. All other civil odieers of the executive department may l)e removed at nny time by the I'resident or other appointiiii{ power wiien their services are unnccessarj', or for (lislionesty, iucap.aeity, inelliciciicy, miseondiict, or neglect of duty; ;uiil, when HO removed, the removal shall be reported to the Senate, toiietlier with the reasons therefor." "' 'i'lie frequent evasions of that part of the Constitution which ivi|iiires tlie consent of the Senate to certain appointments to (ilU( were prevented b}' the clause, " No person rejected by the iSeiiute shall be reappointed to the same office during their ensuing . '• .1(1 'i'lic Confederate Congress had in general the same powei-s as the Congress of the United .States, but the latiludinariaii eonstruc- tidii, under which iipprnpriations for internal iniprovcincnts and piciti'itive tariffs had been passed, was prevented by the provision the aulliorRliip of which 1h stilted in 6ulise(iiieiit uotoH (Stephens, Constltu- tii'uiil View of tho War between the Stall's, vol. il, p. 358). '■ Ilild., Art. II, 8oe. 1. "Ililcl., Art. I, See. 7. " Tho cITect of Biioh a provision will 111- (liseussoil aubsoquontly. i^lljlil.. Art. II, See. i; lUU suIh jeet will 1)0 (llseuHKoil sulj.seiiiientl.v In the chiiptor on tho Kxeeiitivo PoHer. 80 Il)ld., Art. II, See. a ; tills siib- Joct will also be dlacussod subao- quontly. ID4 CONSTITUTIONAL HISTORY Oi' CONFKDKKACY. [CHAI-. II. tliiit tilt! [;(i\v.'r of tiixiitiou sliould be liiniti.'d " for revenue necfH- xari/ to p:iy tin; War between the Stateb, vol. 11, 1-. Xa). "» Ibid., Alt. I, Si>('. 8. Till! acute and leannvl aiitbor of Tho Ilnpiililiidt UcpiililicH has criticised this as an iiuuocossary ulmndoniiiotil liy tins framors of tbi< Conrndi-nid' Constltn- lon of 0111' of tho argiinu'iits in favcir of the rinht of seeossion (-Ilh cd., pp. ;)1)H. .'l'.)'.)). •«' Ibid., Art. I, Sec. 8. S=i"-] •KUMANES'T COXKKDEUATE COXSTITUTION. 195 l'V'ili'i;il (lUTuiicy, the exact iimouiit of e;i;'li iippropilitioii, and the |iiiiliose.s I'ur whicli it is iiiiide ; and Coiigiess shall grant no extra coiiipeiisation to any puhlic contractor, officer, agent, or servant, iille'i' sueli contract shall have been made or such service ren- dcied;"' ^"' and that everj- law or resolution having the force of law, must relate to but one subject, to be expressed in its title. States were permitted to lay duties "on tonnage " "on sea-going vessels, I'ortlii' improvement of rivei-s and harbors navigated by the said ves- sels": provided that such duties did not conflict with any treaties cif tlie Confederate States with foreign nations; and that any sur- plus revenue, after paying for the improvement, should b;' p:iid into the connnon Ti'casury.'" States were also i>erniitted to make (•()iii[ia(ts to imi)rove the navigation of rivers which flowed thnnigli two or more of them.''^ Till! Confederate Courts luid no jurisdiction, because parties wcie citizens of different SUites;'*'' and the provision for the re- turn of fugitives from justice was exju'essly limited to casi!S where the crime was connnitted against the laws of the State which demanded the return.*' 'I'lie main provisions, however, were the guarantees of slavery, wiiicli were thorough. The old circundocutions were aban(h)ued, and there was no s(iueaniisbness about calling a slave a slave. The Congress was expressly forbidden to pass anj' law denying or iin[>airing the right of property in negro slaves.'"' (^itizens of ciicli State were secured "the right of transit and sojourn in any State of this Confederacj', with their slaves and other iiroperty; and the right of proper!}' in said slaves shall not be impaired." T.x provision for the return of fugitive slaves was extended so as to cover tln)so who might escaj)e from 'I'cri'itories as well as States.''* The importation of negroes from any foreign country other than the slave-holding States or Territories of the I'nited States was expressly f'>rbid(len. Congress was directed to legislate for the enforcement of this prohibition ; and had the further power to pro- ^'Coiifodcrato CoiisUtuUon, Art. I. Sec. n. " Il.M., All. I, Si'c. 10. '■-'ll.i.i. "Iliiil., Art. Ill, S.'c. 2. "IliiU., Art. IV, Si'i'. a. « Iliid., Art. I, Soc. !). *'' Ilild. South Caroliiin iiinl Floiiilii woro opposiul to tlu'ni> iMoliihitiiPim. (Niitioiml Iiilcllijji'iicer, Jliiirli 28Hi, 18(U, citod by Itliodi'.^, vol. Ill, p. 190 CONSTi'rrTIOXAI- IIISTOIIV of (•ONI'KDi'.ItACV. [CIIAV. II. liihit tliv iiitrodnctioii of a slave from nuy State "not a inenil)cr of, or any TiTritory not bolonging to, this ('onfeileraoj-."^" New States could bo admitted only by a vote of two-thirds of each house, tlie S(Miat(! votinjT by States.''^ JiXjiress power was f^ranted for the accjuisition of new territory; and the power was delegated to Congress to legislate and provide governments for the iidiabitants of all territory belonging to the Confederate State's, lying witliout the limits of the several States ; and to jierniit tliem, at sueh time and in sueh manner as should be provided bylaw, to form States to be admitted into the Confederacy. " In all sueh territory, the instituticui of negro slavery, as it now exists in tlie Confederate States, shall be recognized and protected by Congress, and by the territorial government; and the inhabitants of the several Con- federate States and Territories shall have the right to take to sueli Territory any slaves lawfully held by them in any of the States or Territories of the Confederate States." Any three States, acting tlirougli their conventions, liad the right to a convention of all the States summoned l)y Congress, to take into Cfinsideration such amendments aa they suggested ; and any proposed ameiulments agreed on by such convention, voting by States, and ratified by the legislatures or conventions of two-thirds of the ;>- veral Stales, were to become thenceforth a part of the Constitution. ]»ut no State could, without its consent, be de2)rived of its equal " repre- sentation" in the Senate.'"' The government established by tlie Constitution was declared the successor of tlie I'rovisional (iov- ernment. All laws passed by the latter were continued in foree until repealed or niodilied ; and all oiUcers appointed by the same remained in olliee until their successors were appointed and quiili- fied, or the ollices abolished.™ The Constitution was to be in foree upon its ratification by the conventions of live States ; but until the election and meeting of the new ("ongress, the Provisional Congress were authorized to " continue to exercise the legislative power granted them, not extending beyond the time limited hv the Cor;stitution of the Provisional Goverinnent." '■' " C"onf«'(li>i;it(> ConsUtution, Art. I, Soo. 8. 8i'f Hiiprn, nolo !). " Iliid., Alt. IV, Hoc. 3. Thisclausn was drawn liy Jolin Perkins, Jr., of Loultiiiinu 'Slejilions, Constitutional View of tlie War between the States, vol. il, p. ;i3S). " Ibid., Art. Ill, Sue. 3. '■" Il)id., Art. VI. " Ibid., Art. VII. § 37.] I'EKMANEXT CONKEDEKATK CONSTITUTION. 1!)7 'I'lio Confetlerate Constitution was riitiliod in most States liy tlir saiiio Conventions whieli had passed the ordinances of secession. Ill (u'orsjfia, tlie convention defeated a proposition to submit it to tlie people. In Tennessee, it was submitted to the people and ajj^rovud after it had been ratified by the Legislature.''- Vir- iriiiia and Tennessee, through commissioners appointed in the foiiiier .State by her convention, in the latter by her legislature, eiiterid into what was termed in Virginia a convention and in 'IViiiies.see a military league, by which their rcsfiective military fiiices, arms and supfdies, were placed under the direction of the I'lcsiilent of the Confederacy until an ordinance of .secession and a ratiiication of the Confederate Constitution could be adopted. A similar transaction took place between the connnissioners ap- pointed by the rump legislature of Missouri and the Confederate (iovernment."''' The lirst act to provide for the defense of the Confederacy was that of the Provisional Congress, February 28th, 1801, in which it wus provided — "'i'luit tiic I'resideut be further authorized to receive into tlie services of this government such forces now i i the service of such States i.s limy be tendered or who mny be vohuitccred liy tlie consent of their Stato, in such numbers as he may require, for any time not less than twelve months, unless sooner discharged.'"'* On ]\Iarcli Gtli, 1801, a law was passed to establish and organize a jici inanent army of the Confederacy, as distinct from the iirovisional army for which provision was made in the last-named statute, 'i'lie number to be i-aiscd was nine tliousand four hundred and twenty. OHicers who left the army of the United States received tJie same relative rank in the Confederate army whicli they had lii'ld in the former.^ •''- JloPhorsou, Hititoi-y of tlio Un- lielliou, pp. 1-5. Davis said that it w;is siiliniiltci! to iiuti riitlflod by tlie \>'■|>]:U^ of tlie rospoptive Statos (Riso iirid Fall of tlio Coufoderato Govorii- iiiciit, vol. i, p. 23S). But ho evidontly (•uMsiikM'od tho ju'tion of tlioso con- vi'iitlons llio action of the people. ■■■' llri'licrsoii, lli.slory of tlio Ec;- bollioii, pp. D, 8, 11. Duvla ^Iti60 and Fall of tho Coufodorato (iovi-: ninoiit, vol. i, p. 20!)) said that tin -o i roi-oed- iiigs weieronstilutional bi'foro I ho sn- cession of tho.so States under Arliclo I, Hootion 10 of tho Fodoral CoiisiiUition, bocaiLso th(>y wiTO "in siu li iniiiiliieut dangor" as would not adiiut of dolay. ^* Davis, Ri,-oand Fall of tho Cou- fodorato (lovi'inmoiit, vol. i, p. 304. '■^ Ibid., pp. 306, 307. 198 CONSTITrTloyAL lirSTOllV of CONFEDKUACY. [CHAl'. II. The weiikiH'.ss in time of war of a conatitutiiin full of guarantiis of pci'soiial liln-rty aiul cliucks iijiou tlu' powers of the {foveriiiiieiit is iiianifest in the history of the Confederaey. I'he eonstitutiomil ohslrnc.ions to direct taxation made it almost impossihlo tn collect the funds necessary for military operations, exiu'pt liy borrowing through the negotiation of bonds and the issue of a paper eurreney.*^ The passage of a legal-tender law was pre- vented by constitutional objections in the minds of the President and (^ongress.''" 'J'lie governor of Cieorgia vetoed a bill to make Stale taxes payable in Confederate currency, amongst other rea- sons, because he thought it violated tlie constitutional [irohibitinn against making anything but gold or silver a legal tender.'*" Other governors assisted the Confederacy b}' approving bills which made a tender of Confederate and State bonds and th(! notes of State banks sullicient to stay executions;'''-' and in Florida it was enacted tluit a refusal to accept Confederate cuiTency should terminate an exemption from military service.'''* A tax upon the eircul ition of Confederate currency, accompanied by provisions for ftniding tlie same, was subsequently passed by the Confederate Congress and f'" Davis, Rise and Fall of the Con- frdonili! (iovcrnmont, vol. i, p\\ 4'.).1- •100. "So loiifj US tlipro sri'inocl to lio a proliiihllily of lii-iiif? able to carry out those inovlsionrt of tlu> Coimtitu- tioii fully, anil in contorniity wllli the inteiilioMS of its authors, there was an obvious (lifllculty in framing any Byslcni of tiixation. A law wliieli t-hoiill exempt from the burden two- thliils of llio i>roperty of the country would be a.s unfair to the owners of tl'.e reiiiainln;.^ Ihinl as it would be lii- a(le(iuale to meet the reciuireuuMits of tli(> public; service. The urgency of Uio need, liowever, was such that, after f;reat embarrassment, the law of Ajiril '2tth, isr.u, uliovo mentioned, was framed. Klill a larf^o iiroportion of these sources was unavailalile for sonio lime, and the Intervening ex- igencies perndtting of no dehiy, a resort to turtlior issues of troasurj- notes became unavoidable." (Ibid., p. 41)0.) "Within six months after the pas- sages of the war-tax of Aiigust I'.ilii, ISt'il, the popular aversion to taxation by the general government had so in- lluenced the legi.siation of the several Statesthatonlyiu South CaroUna.Mi?- sis.'^ippi and Texas were taxes actually collected fro!u the people. The (|Uo;aa from the remaiidug States luid been rai.sed by the issue of bonds and St:itc treasury notes. The public debt of the country was thus actual lyincreasc'l instead of bi'lng dindnished by llio taxation imposed bj- Congress." (Ibid., p. 49,'-). ) " J. C. Schwab, The Finances of (ho Confederacy, a valuable monograph, Pol. Sc. (Jmir., vol. ii, pj). 4;)-r>0. <•» Dec. 15, 1803; ibid., p. 51. '■'I Ibid., p. 51. «" Florida Act of Dec. 3, 1803 ■, ibid., p. 51. .] TAXATION, IMI'UESSMP2NT, AND 8KQUESTUATION. 109 iiisl!l'u(l under tlie tax [inwer against constitntioiml objections ."^ Kiiiiilly, iigainst tlie protests f)f many leaders of tli;; jieopli^"- tliey were obliged to resort to a pnn^tiec to wbieli Wiisbiiigtoii was (biveii during tbe revolution,''-' and iin aet v/as passed Miinli :20th, ]Sii:'>, -wliicli authorized the impressment of j>ropert\' of all kinds, ii'.clnding slaves, needed for military operations, Avith ccu'tain ex- ciiiptions, at arbitrary ])riees lixed by joint eommissioners ap- pninti'd l)y the State and the Confederacy, or in certain eases by iipjiraisers, upon payment in certificates of indebtedness.''' This jiractice was the cause of many desertions from their canse."^ 'I'he Supreme Court of Creorgia once issiied an injunction against the impressment by the Confederate army of a hotel for use as a licispital.'"' On August ()tli, 18(!1, an aet was passed " for the sequestra- tion of the estates, jjroperty and effects of alien enemies, and for thi: indeuuiity of citizens of the Confederaie States, and persons iiidiiig the same in the existing war against the United States." I'lider this, which was subsecjuently held by the courts of the United States to be voiil as an infringement of the Federal Con- stitution,''' debts due to citizens of tlie free States, the border .slave States being expressly excepted, and to all pei'sons, irrespec- tive of their citizenship, who aided the Uiutcd States, were confis- cated. Nearly two millions of dollars were collected from this source.''* Obedience to the law was, however, refused bv many uiuhr the claim that it was an infringement of the Confederate Constitutiou ; ami the celebrated Petigru, whose position at the '■' Ilii.l., p. no. S'"i' Davirt, Risnniiil Fiill Ilt Aloxanrtor H. Stcplii'iis proti'stcd npiiiiist (IiIh prac- li('(> (Consliliilioiml Viow of iho War liclwi'iMi t.lin States, vol. ii, p. r>70). "' Si'o I 111! I'cmai'k.'^ of fiovcriior Clin- ton ill tli« Ni'w Yorl; Convontion of nilillcT.Uon (Eiliofw Drbatof^, 2<1 od., vol. ii, \K IlfiO), and of (iniyson in tho Viij^iiiia Convention (iliid., vol. iii, p. 'JllOl. '' Tlii.s is reprinted in Chase's De- cisions, p. 597. o'" Alexander H. Stephens' testi- mony liefore the .Toint Comniittee on Ilnconstnu'tion i Report of that Com- mittee, Part III, p. l(i.">). «o While r. Ivey, HI Cm., 180. " Willi.inis r. BnilTy, UG U. S., 176; S. C. 102 r. S., '2-48; Stevens v. Grlf- lith. 111 U. S., 18. '" The amount coUoeted up to Sept. ao, lH(i:t, was #1,8C2,,''),")().'27, as reported by tl-e Confederaie Seeretary of tho Treasury ( Mid'herson, History of the Rebellion, pp. 203, 20,')). Tlio law is reprint(!d lu Chase's Decisions, p. 684. 200 CONSTrTUriOKAh IIISTOUV OK CONKKDIOKAI^V. [cilAP. II. Ii.ir 11. till' South wiLs similar U> lliat of t'liarli's OX'ouor in ilir. N'oilli. k'd a vi},'i)nius oppusition, in wliiuli lie was luuilly dvoi- iuIlmI hy till! onui'ts.''" Oil tlio recoinineiulation of Congress, the Stiites ffded to the Confederacy all the land and other propurty of the United States within their jurisdictions. This included the sum of «");!(!, 000 in coin at the New Orleans mint and eustoni- iioiise, for which the State of Louisiana received a vote of tiianhs."' It was found necessary to regulate, if not ri'strain, the liberty of the press hy an act jiassed in Januaiy, iSfJiJ, wliich forbade, under the jienalty of a (ine of one thousand dollars and one y;iu".s itnprisonment, tlie publication of news concerning the ntiinhfr, disiiosition, movcuKMit, or dislvibution of the land or naval forofs, or a description of vessels, battery, forlilieation, engine of war, or signal, unless lirst authorized by the I'lvsideiit or Congress, or the secretary of war or navy, or commanding oilicer of post, district or expedition;"' and in the same year to jiass a bill to "regulate the destruction of jiroperty umler military necessity." "^ The Confederate (iovernment was obliged to follow the oxaiii- plu of the United St:iti'S by a conipulsoiy draft of soldiers nniite by the authorities at Ikichmoiid, inider an act i)i the ConftnU'iMte CongressJ^ The conscription was vigorously oppiwed by the State authorities and high Confeihirate oHiiers, ujjon tiie ground tiiat the ContVder.itc (iovernment had no siiidi constitutional poweis, aivl that drafts could only be made by the Slate authorities. The arguments f(U' and against the right were similar to those used at the same time in tlu; North."* The subsequent eonscriptiou 1 i\v, •" An iiUorosUni? ri>|inrt of lii.s nr- guinoiit is to lji> foiiiul ill Mi-PhiT.'-oirs Ili.sloi-y ot lliu lt(>li«'llioii, pp. '21)."), aOC. Tin- lliiMl(M'i;iioiis, sen Kii'liiiioiiil K.\- luiiiiii'r, Oct. 11) iind Nov. 8, ISCil; Rii-lii\ion Iliid., vol. iii, p. 3'22. '1 Mi'Plii'i-.«oii, Ilislory ot tlw Rc- iiellioii, p. 117. •-Ii)id., p. 117. rdiruary, 1801. Alistracts ot Ihrso an; piililishcd in 5IcI'1ioi'so:i'h IlisUiry of till) K.'liollion, pp. 117 119. The llrst act is ri'pi-int<'d in Cliasc'H Do- cisioiiB, 11. 571). '•* Hoc) llio vi'i-y nlilo a. .;iini('iit in tlio lot lor of Ji'0'ci-son Davis in answer to tlio con.stitiilioiiiil oiijcelions ot Govonior.Josoiili K. Drown, of Geoiyiii, datod May '20, 18(12, tlio slylo of wliicli is eo logical and toinporatc, ami in that rcsjiecL k) illffcront from tlio otiier wi-ilin.uts ot Jeri'ovKon Davis. a8 to siigf^ost, tho snspicion that it v.as " Si'o lu't of April Ki, 1HG2 ; act of llio v.-oik of hi-s attorucy-gouorul, lliat, §^57.] STATE KKillTa. 201 ulii;li iiniiullod the stivtutoiy rii^ht to exeinptio:! from iiiilit;irv ftrvico obtiiiiiL'il l)y tlio i)iiivlmsu of Bul).slitutL's, was likewisu vi^'- oroiisly iittiirki'd, liut, w;is .siip[)')i'tt;(l hy tins tli'C'isioiis of llui lii'^li- est ((iiiris of N'irgiuia, Nortli Carolina, (ieorj,Ma, and .Maliaiiiii.'' !t \v:is lit'ld, liowever, that tlio ('oiiffdorate yo\i riiiiu'iit liad no |]ii\vii- to draft any State od'u'cf, not ovtn a policcMian or a justice iif tilt' j)L'a(x'.^'' Tlio disoluirgo by St:ite I'oiut.i of consoripls by Wilts of liaboas corpus was counnon." it was lu'ld that u Cou- fnlcrak! soldiur was not i;xoiii])t from arrest on civil i)rocLSs."8 Muili friction was also caused by the objections of the militia to serve under olHcers of other States,'" and at one time the gov- ernor of Mississi[)pi refused to order them to leave the State.** The doctrim! of State rights was also a formidable obstruijtion to till! military operations. It was said of Davis, by one well qualilicd to judge him, that he was a man of narrow views of con- sliliitioiial construction. " A straw of construction across his path I'ininciit lawyer, Judali V. Benjamin, Ii. is r,.piiiitt'il In lull In DavU-, Ulso iiuil fall of llio Confodoralo Govcru- iiu'iil, |ii). G '."i 514. Tills nioasiiro was also vigorously opi'Oscil liy Alexnudor II. Stephens, 1/otli on eoiiKtitutioual groumls and on tlio^o of ("xi>odieiicy (Constitu- lutimiiil View of tlio War lieUveon tho Stall's, %ol. ii, pp. 570-574, 700, 791). Tliis conntiUitiuiuil qui'Stlou is subse- ciiiciuly (iisciisscd ill the ohaplor on the war powers of I ho UuiU-d [slates. ■■' r.iirrowtih.s r. reytoM, 1(1 (inittan tVii.;, 470; Gnt'.in r. Walton, 1 Wiii- sti.u ,X. C.i, ;i;j:l; Paly r. Harris, 33 (ja. K.ipp. 3:i; /■,'.(: jitirk. llcCaiils, 38 Al;i., 107. This siilijci'L will bo dis- iii-si'd Kiibsi'(iueiitly under the War- I'owir and Iiiipiiiniieut of tho Oblina- lic.M V f Coiunu'ts. ■• Aiidri'ws r. StrouK, 33 Oa. Supi)., li'.il; .lohiistoii r. Mallctt, 2 Winston (N. ('.), 13; ]5niroii.;lis r. Teyton, Ifi Grall/ui (Va. , 470, 4H3. " Matter of Ilryiin, 1 Winston (N. C), 1; Matter of (luyi'r, 1 Winston (S. C), (10; Matter of Hitter, 1 Winston (N. C. , 7(1; Mjitter of Hine, 1 Winston (N. C), 1(.."> ; M.Uter of lioydeii, 1 Winston (X. C), 175; Jfat- ter of Curtis, 1 Winsti.n (X. C), ISO; Matter of Took, 1 Winston (X. C), IMG; Matter of I'rinee, 1 Winston (N. C), 1!)5; Matter of Hunter, 1 Winston (X. C), 447; Matter of Wy. rick, 1 Winston (X. C), 4.TO ; Matter of linidshaw, 1 Winston (X. t'. >, 454; Jlaller of Soniers, 1 Winston i N. C), 459; Matter of lliissell, 1 Winston (N. ('.), 403; Matter of CuuninKiin, 1 Winston (X. ('.), (1(14; Jolinstou v. Mallett, 2 Winston (X. ('.), 13; Vp- ehurch v. Scott, 2 AVinstou (,X. ('. i, 137; Cobb r. Stallin^'s, ;t4 Ga., 72; Kx piirtc Cain, 39 Ala. (X. S.), 440; Kx parte, Graham, 13 Law and 12 Kq., Kich. iS. C.\ '277. " K.r purlin Harlan, 3!) Ala., X. S., 5(13. ■■' Davis, Itise and Kill of the (^)n- fedeniti' Governnicnl, vol. i, p. 544. •'' Cox, Three Decades of Federal Logislatioii, p. 312. 202 CdNsr; II TIONAI, IMSTOIIV ok COSKKDKItAfY. [CMAI'. II, would stcpji liim from tlic most (liiilinij uisli of liis licart." "' At tlic out-ctof till' \Mir li(! could ])roltiilily ]i.i\v. seized AViisliiiij^'toii liiid lie not lii'i'ii unwilliiit,' to iiiviide tin- soil of X'irLjiiiit and Miirv- land during their delilxanitions over .sfi'essiou."^ He contiiiimllv vetoiMl war moasuros hecauso lio thought tliom undonstitulidtial. ]5ut i\\('. State governors considered him a dangerous latitudiniiriaii. rate States, (qxin whom it did 'lottake effect until lifter July 1st, 1H()2, should lu' foiover Imnis'ied from the Stale; and that any citizen thereafter undertaking to rejjresent the Slate in th<.' Congress of the United States, should, in addition to ban- ishment, lie liable to Ik- ])unished by the confiscation of his jiioj> t'rly, and be guilty of treason.*' On August 14tb, 18(!1, President T>avis issued a proclamation requiring every male citizen of the United States, fourteen years of age, then within the Confederate Slat(!s, who adlu'red to and acknowdedged tlie authority of tlie Unitecl States, and wa.. I'ot a citizen of the Confederac}', to de- part from the Confedei-att States within forty days. The border slave Slates were excepted from tliis proclamation.^' 'I Ti'slitiidiiy of John ]i. ]!;il(l\vin, Si>on]iiMiif till' Virt!iuiii lIoiisiM.f Dclii- piitos, Ipcforc tin' .iDiiil I'oiniiilttc'O on Kocoiirttnictioii, rail II, p. 107. ''■•' Klioilcs, Illstoiy of tliu Uniti!(l 8tato8, vol. ill, lip. ;i"4-;i«l. "■'Cox, TliiTi' D(?ciuic's of Federal Li'tilsliitlou, p. ;tl2. " Ibid. '■•'• This Ktory was told tho wrltoiliy a r/ontcdoratc olllcer. ■■' llcl'liorson, History of the lle- lii'lliim, II. 8. I' Ibid., p. 121. ^■'"■1 MAirriAi, i,A\v. 208 111 Davis' iiiaupiiriil at tlio institution of llieir pennaiicnt con- stitution, Fcbiuiiry 2:2(1, 18(i2, lio siiid : — " 'I'liroiifjli nil tliu in'pcHniticH of an uiit'(|iinl Htrugj^le, there linn been no ;irt oil our part to impair pcrHonal lilicrty or tlu! fii'cdoiii of spt'ccli, (if tliniii;iit, or of tilt! ])r('SH. Tiie PoiirlH iiavc liccii open, tlic jiuliciiil fiiiictioim fiiilj' pxcciiti'd, anil every rifilit of the peiieefiil citizen niaiii- tiiirii'd iiH Hccurely us if u war of invaHion had not dlHtiiilied the iMIld."'- W'itiiiii live days lie approved an act wliieli antliorizeil the sus- liriision of tlie wi'it of habeas ('orpns. Oii iMarcli first lie phieed i;i. 11111(11111 under martial law, and jiassports wen^ retjnired fioni ilin-^t,' who wished to enter or leav(! llie Confederate eupital until liis troveriiiiu nt aliandoned it.**''' Two later acts extended his piiwiTs in tiiis respect,'"' under which ailiitrarj' arrests were made tliiMi'.irliout the w hole Ctmfederacy. These statutes and proceedings were denounced as unconstitutional in the Conjjress, the Stale lej^islatiires, and the courts, and created niueh opjiosition to the ('(iiilederacy, although the courts upheld them.'-'' The Vice- l'ie>ident, Alexander II. Stephens, was their vigorous opponent.^ When a Confederate general had appointed a civil governor of die city of Atlanta, he wiote to tlu^ latter: '•'^'oiir oDice is un- kiiiiwii to the law. (Jeneral liragg had no more autluu'ity for aiipdiiiting you civil governor of Atlanta than I had; and I iunl. or liiive, no more authorit}' than any street-walker in your State. I'n.ler his appointment, therefore, you ciiii rightfully ex- ercise no more jiower than if tlie a[)poi!itment liad been made " llluxles, History of llio Unltod Sta'.cs vol. ill, 11. noi. ".\cls of Fii-sl ('oiif(>(lcrnlo Con- gress, |i. ] ; R!,0(lcs, iliid., \>. 001. »>Ilii(l., i>i.. COl r,03. '■" Si'O Mc-i'liiT-iin, History of tho RplirllioM, pp. 1'21, 1S7, 188, 01«, (119. Tho Siipronu! Court of North GiroUua wi'i'.' (lividcil upon tho sulijoet, with ii iniijorily in f^ivor of tlio constitu- tidn.ility of tho Ku.spenslon (Mirhcr- f"n, Illsloiy of thi> Ui'licllion, i>. 120). I'r.ulii 1(1 salil, in his nrt;iinionl in Mil- li^•.■u^s Ciiso (4 Wall. 2, .I?;: "When civilians arrosted by military iinthor- Ity petitioned for rclcuso by the writ of habean roi-jtiut, in o\-ery cnHO, suvo cue, tho writ was c;raiited, and it was decided Ihit there conld bo no Biitpensiou of the writ or d<"i laraflon of martial law by the ixeeutive or by any other thau tlie supreme iegislativo authority." "-Stephens, Constitutioiwil View of tho War between the St.ateM, vol. ii, p. 570. Tho State le|,'islaturo of G(>ornia, in JIaich, ISlll, when tho ConffMleniey was in desperate straits, passed resolutions protesting; nfj.iiast the Buspunsion of tho writ of liabeaa 1204 CONSTITUTIONAL IllSTOIiV OF OONFEDKli.VCY. [CIIAP. 11. l)y ii slruut^w iilkt'r." ■'•' Tlio doctrine of State rights furtlier iiijiireil the Ci'iifederacy, l)y iittein])ts iu the State legislatures to insti- tute separate negotiations for peace ^ and secessions from tiie Ciinfederacy .'■'•'' In but one ease did it i)rove beneficial. Davis and Lee, than whom no one was more conipetent to pass judg- ment upon such a subject, were strongly of the opinion that negroes should be euii)loyed in the Southern army. The o[\\»h sition in the Confederate senate was so strong that Davis filially said, in his exasperation, " If the Confederacy dies, there should be written on its tombstone, 'Died of a theory.'" At the close of the war, when it was too late to jirove of nuich value or mischief, the measure was finally carried through their Congress by the votes of the senators of Virginica, who believed the measure dangerous as well as inexiiedient, but yielded to the instructions of their State l^egislaturc."*' The last act under the Confederate Constitution was at Charlotte. North Carolina, on April 24th, 18G"), — the api)roval by President Davis of the terms of the agreement between (Jeiierals .loliiistou and Sherman that the Confederate army should disband, peace h restored, amnest}' granted, and the Confederate States return to tlie United States with their former jjolitical rights anisKi|'i.i (Mcrii.'rsoii, History of 11,1' Ki'Ik Uion, p. :!'.)'.). Jlorc tliau (iiic- tliini (it llio lo,V('i- hoiif-o of tlio Con- foilcniln CoMf^ross «ii])p(5it( d a nwolu- tidii pi'otohtiii^; against tlie siisponbion of ilio writ of halicas cdrpiis; and a now lilli extendiiiK its power of sus- pen>ion was at first defeated iu tlie BOIiato (ibid., pp. 618, {'.I'.li. Sec also HtcpluMi.s' tostinioiiy bot'orn tlie .loiiit Coniiiiitten on ll(M'OiiHtni(liou ilii'pnrt of tliat Coiiiniltlco, Part III., p. V'l). "'■ Steiiliens, Constitutional View of the War between tiio States, vdl. ii, p. 7Sfi. '■" Ke(> tli(> IcMcr of .[cITcrson D.ivi.-i to the State soiialois of (teor.t,'!.'., mi Slati> ncf^oliations for jicaco ('MiPlii'r- Koii, Hi.slory of tln^ llebellioii, pP- Glfi, G17> ;■ also ibid., p. -l.ji;, r,ll- r,2'2. '■'■■' Co.\. Tlir('( Decades of ]■".■ I>'ral Lepsiadon, |i. itll). "'1 Divis, Kiso and Fall of tli.' ("n- fedoratu Oovernmout, vol. i, pp. TdJ 510. §i58.] rROni.KMS OF UKCdNSTIUTTIOX. 205 icininiiu'iKliiig liis action before lie yigueil the j'^'I"-'''- 'l'I>ey i';i:lli'.'r locomincnded that he should afterwards request the States to ratify his aetion, whieh was considered to ho l)eyon(l his con- stitutional powers, and only jiistilicd hy the enicrgeney."^ The i,'ov> rinnent of the United States relieved them from further em- lianassnient hy a refusal to approve tlie agreement, a destruction of tlio Confederate government and the ciipture of its President.''* g 38. Reconstruction. Tlio restoration of peace and order after the close of the Civil War, and tiie readmission of the conquered iieople to tlu^ir former ri'liitions with tlie Federal government, presented the most dilficult [loliticiil and constitutional problem wiiieli the United States has liad to solve. It was accomplished only by wiiat was, in fact as wcl! as name, a complete reconstruction of the Union, '''lie re- sult had established the illegality of secession, and the i)roceed- iiigs liy the successful army had been justified upon the position that tiio war was made, not upon the seceding States, whicli could not he. and had not been, in law or fact separated from the I'liioii, but upon such of the peoj)le in them as had com- hined to oppose the laws of the United States.' When the »' Tlio opinions of the Confoilornle calilni'l wcro i-pprinlcd in tlu' New V(irk Sim, Fcli. It, ISHO. Xo Btudoiil, j^iioiilcl f;iil lo rxiiiiiliiP tho lili's of tliiit l«'ri(Mlii',i|, uhiili coiilain morn valua- Uji' liis!oi'ii'(il niatf'rial ami nioroiiccu- Ml(Miifniiiiiiiioii conccrninf^ cotistitu- ti iiinl i|iii'slion.s tliaii any oUier nows- \Ki\ii'r ill tlio world. ■•« him. § 38. Tho dociFionsof tho marts upon tho validity of tho nrti of tliii ConfiMlcralo Government arc din- c'lssi'il snbHi>(|upntly under tlie War I'owpr. For an interestinR iiei-oiint of tlm si'cossioii of Spiii-la from tin? Achaian IjpiiKii;' hoiv'Mse of the di'iuand for wiiTie LiicedomiiiiiMii (llilniH'ers vho liad altiiikc'd nnollier Federal eity; — " dfrrrvenmt nnuuciiimliiin Hiirirla- tern Achaeis " — ; nnd tho conseiiueut waraftainatlttiy thoLenfjuo, B. C. 189- 18H, which resulted in the Burrender of thi- nialefnelors, of whom seventoon were itiuiiediati'ly massacred, and tho rest, sixty tlireo in numlier, executed th confederacy witlioiit any ro ■m-t ruction (llild). § ;18. 1 III Lincoln's I'roclainallon of April 1"), 181.1, callins for troops {miprn, § ;;'!, ovi'r note .l.'i, and vfra): "Whereas tho laws of tlie TTnited States have liec-n for some timo pni-t, nnd now am opposed, and tlm e.^ecu- llon tliereof olisl meted, In the States of South Carolina, OoorKla, Alabama, Florida, Mississippi, Louisiana and 206 UKUO.NSTIUCTION. [cum: II. luttles were over, the South and their friends in tlie North w- joined tii;it, now it liad been established tliat tliey luid not gone out, these States must be still witliin the I'nion, and as sueli tliey were entitled to ininiediate rej)resentation in both iiouses of Congress, and complete local self-government, including full authority to regulate the right of suffrage, to deternune the status and civil rights of the blacks within their boundaries, and oven lo pay tiie debts incurred for the j)roseeution of war agiiinst tlie national government.^ The victors felt their moi-.il obligatidu not only to protect from the vengeance of a majorit}-, embittered by defeat, their wliito allies in the South, who had risked their property and lives in supi)ort of the Union through the war, hut Texiis liy combinations too i)0WPifiil to Ipo Hii|i|irossocl l)y tlie ordinary courso of judii'ial profOt^dings, oi' by llie powors vested in the ni'irelials ))y law; now, therefore, I, Aliraliam Lin- coln, I'resident of the United States, in virtue of the power in nie vested liv liieConstitiition and the laws, have thought lit to call forth, and do call forth, the militia of the several Stales of the Uiiion to the aggregate mimber of 7r),O0(), in order to suppress said comhinatiotis and to cause the laws to be duly executecl." ^ The best statement of this |)osl- tion is in the minority report of the Joint Committee ou Reconstruclion (Mcl'herson, History of Ri'cMuislrnc- tion, pp. !);i-]01. Sei also rollard, The Lost Cause Regained, p. 51). Ex- S(!nator Henry L. Dawes, of Mas- sachusetts, tlius describes a scene in the Senate during October, IHdl, speaking of BreiUinridge of Ken- t ucky : — "One of the deliales in which ho look iiart In that session wassodiii- matlc in some of its features tliat the lni|iression it made upon mo is still vi\id. It occurred a few days before the disaster at IJall's Hlul'f, in which the laiuent(Kl Baker, on than you do? You may def<'at us in tlie Held, but you cannot disfranchise us till after conviction and judgment of court; and you can- not do that till you have tried us liy twelve of our own peers in the very State whoso people have themselves revoltc will govern ,voii as loii- quered provinces.'" (The Century, .July, 1895, vol. I, p. 464.) §38.] i'RonLE>rs OK i;k('()N\stkc:ction. 20T ;il.so to cure for tlie blaiks to wlioni tliey had given freedom, and who, untrained to self-supi)ort, and without civil rights recognized liv liiw, nuist, if abandoned, sink, if not into aetnal shivery, into iiraitical serf(h)in to tlieir former masters. The situation was further eoniplicated by tlie ehause in the Constitution whicdi wmilii, if unamended, give to tlie Southei'n whites representa- tion in tlie House of l{epresentatives based U])on the whole nunilier of free inhabitants, although by the State laws then upon their statute-books, the blaeks, who were, in ]\Iississip[)i, Louisiana ;uul Soutii Carolina, more than half the population, could not vote, so that, if the result of the war left that unchanged, the uoiKpiered section would have gained a stronger voice in the national councils than before.^ 'i'he disorder inevitable from the passions and habits engendered during live years of internecine strife, during which the courts had been so often closed, and the frruater portion of the property of the whites had been destroyed, was moreover heightened by the presence of the mass of freed- incii, untrained in that self-restraint without which libertj- is iiitdlerable, not accustomed to voluntary hilior or respect for contracts and the rights of [iroperty ; and to preserve order ap[)eals were continually made for interference by the Inion army.^ In •' " A lar;;!' proportion of the popii- laliciii liail liiMOiiic, iuKtoail of nn'n- chaltils, fri'i> men mid cltlzciiH. ThniiiKli all tlio past strunRlc? these hiul rrmaini'd true and loyul, mid had, in laiKi' niindiorB, fought on tho sido of till! I'liion. It was inipossil)Io to abimdoii tliciii without socuring thoiii their rights as free iiii'n and citiznns. The wlloh^ civili/.eil world would have cried out against micli base iiigrati- tuile, mid the hare lilea is olTeusix c to all right-lliiukiiig men. Hence it be- «ime iniiiortaiit to imiuiro what could he (loiio to seeuro llieir rights, civil and piilitieul. It was ovideiit to your OininilLleo that iidequati) security could only bo found In appropriate eonstilutionnl provisions. Hy an ori- ginal provision of the Constitution, reprosontutlou Is buBod ou the wholo number of froo persons In eaoli State, and Ihreeflfths of all other persons. When all become free, rejiresentation for all necessarily follows. As a eoii- sequeneo, Iho iuevitaJile etTec't of Ihn Rebellion would bo to increase tlio political po\v<'r of tlu? iimurreetionury States \vhen(Oiistrue- tloii, p. HH. See also the spei'ch of Thaddeus Stevens, in i!h! House, Dee. IK, IHfio, cpiotc-d by 1)1 due. Twenty Years in Congress, vol. ii, pp. 128 i;t(l.) * Tlie eondition of affaiis is de. scribed in the testimony before tho .Joint Commitlee on Uoeonstruetion. 208 KECONSTUUCTION. [CIIAI-, II. such a state of affairs, it was the helief of many that h)cal sclf- goveniineiil wi)s inipossihle. Tlie theories jjiopounded to iiui't the situation may he redui^ed to iive : The Southern theory; the tlieory of eonijuered provinces ; the theory of State suicide; tlie presidential theory; and the theory of forfeited riglits/' Tlie Southern theory has just l)een exi)lained. The tlieory tliat the seceded States wei'e conquered provinces, v/ith no constitutionaf rights, whose lioundaries, if need were, miglit lie ohliterated, whicii was tliat of Thaddeus Stevens,'' was only logical if the legality of secession was concede tluToforo cease to exist legally or constitutionally when the State on wliirh it depends no longer exists ; for the incident cannot survive the |)iiiici|)al."' 'I'iic })r('si(l(Mitial theory was. that the President as commander- iii-iliii'l' had the eoiistitiitioiial right to organize temporary ;,'o\( riinients in tiie States which liad been the seat of the in- surrection, until in his opinion they were capable of selt'-govern- mciit; tliat by his j^ower to pardon he had the discretion to ilcttrniine the time when the insurgent people should receive iiiiiiHiiiity for their treason and restoration to any riglits which ili( y liail forfeited by rebellion ; and that by the imposition of ciiuilitions upon the grant of these privileges he could compel sill li cliauges in the State constitutions as were demanded by the iiL'w situation. The theory of forfeited rights was that ujjon which Congress finally acted. It was a compromise between the other views, and !i;iil little support in the logical interpretation of the Constitution, ultliiiiiLjIi great practical advantages. According to this, the iiisui!,'i'iit States had never left, could not go out of the Union. anil liad always retained their i)olitical existence, but by their rt'hillion they had forfeited their j)olitical right to share in the councils of tlie nation and even to complete local self-government. In ihc enforcement of his plan the President had the absolute powor ti) grant pardons" and the power to control tlie army as coiir.nander-in-chief, ^ although Congiess claimed the riglit to rcjiulate by law ^^ the exercise of the latter executive function. On the other hand. Congress was vested witli the powers to cxcicise exclusive jurisdiction over the admission and exclusion of iiicnibers," to suppress insurrei'tions,'^ and to guarantee to each StiU(! a republican form of government.'^ The clause containing this last grant was called by Sumner " the sleeping giant of the Constitution." ■ Jlcl'horson, History of the R(>- bellidii, pp. 322, 323. This theory is ndvdcutcd l.y Jolin C. Hind ill Ills Tlicdi-y of (iiir Niitm-.il Existciico, and Hiciwii' nil iii The Aiiicrioiiii Republic. Tlii> iilcii w.is of coiirso RURK''>^t('d by tlio Ii'm^'IIhIi pro(Mdings in 1688; and was iMimilly revolutionary. » Constitution, Art. II, Sec. 2. » Ibid. '" Constitution, Art, I, Sec. 8, con- cluding clauso. II Conslitution, Art I, See. .'>. '■^ Constitution, Art. I, See. H. "Constitution, Art. IV, Sec. 4, Luther v. Borden, 7 How., 1, 12. 910 KECON8TRITCTION. [chap. ir. During tlie early sUipes of the Civil War, C-ongress proclaimcil the theory upon which the South suhstupiently relied. In July. 1861, the following resolution, introduced by Crittenden in the Mouse and Andrew John.sou in the Senate, was passed with but two dissentients in the former and live in the latter body: — " Hi-noh't'il, That the present deplorable Civil AVar has been forced upon tlie country by the clisuniouists of the Southern States, now in revolt against the Constitutional government, and in anna around the. capital. That in this national emergency Congress, Ijanishing all feelings of mere passion or resentment, will recollect only its duly to the whole <'ouutry ; that this war is not waged upon our part in any spirit of oppression, or for any purpose of conquest or subjugatiou, or purpose of overthrowing or interfering with the rights or established institutions of those States, but to defend and maintain the supri'iiiaoy of the Constitution and preserve the Union," [in the Senate the it- solutions here said, " and all laws made in pursuance thereof "] , •' witli all the dignity, ecjuality, and rights of the several States unimpaired; and that as soon as these objects are accomplished the war ouirht to cease." '* 'I'he existence in tiie ('nifjii of the seceded States was re- cognized in the imposition of the direct tax of 18B1, when their ])roporth)n was assigned to them and the amount of the deficiency of each was made a charge upon the lanrs appointed by the President, and justice Wiia a(biiiiiistcrcd by judges detailed either from the military service or civil life, whose decrees were subject to revision by the ollicer in coiiinuind of the district. In some cases, taxes, or I'atlier rcqui.sitions, were levied upon the inhabitants by the olliicrs in cliiirge. Of the constitutionality of these acts under the war- power and the power to suppress insurrections, during the pend- ency of actual war, there can be no doubt; and the proceedings were sustaineil by the SupreUiC Court of the United States.^" The standing in those States of the blacks and the disloyal whites, who were not prisoners of war or actually in arms against the I'nion, was, however, a question of serious dilHcult}-. That of the whites was settled by acts of Congress which imposed a test-oath, called the iron-clad oath, upon all otlicei-s of the United States '■" and grand and petit juroi's,''^ under which all pei-sons were disqualified from oflice and the jury-box who were unable to swear that they had not voluntarily assisted the Confederate (iovcriiinent or the insurrection. Both houses of Congress, thniugh their power to determine the qualifications of their menil)er8, excluded all persons who, in tlicir opinion, were guilty of ihsloyalty.'^ Several senators from the Confederate States, '■• Oiso of Fliiiulcrs iinil Hiilin. lilaiiic, Twenty Years iu Cougress, vol. li, p. :!(!. -> Cross r. H.arripon, Ki How., ICA, I'M: lluinilloii r. Dillon, 21 Wull., 7:!; Lclti'Msdorfer v. AVclili, 20 How., 17(!; The (irapo.sliot, 9 Wall., 129; Moeluin- wa anil Trailers 1?" k v. Union 13ank, •J'i Wi.ll., 270; N.-w Orleans v. N. Y. Mail MteaiMship Co., 29 Wall., 3H7. This subject will bo iliscubsed aubse- qiieutly in the chapter on tho War Power. 21 Aet of Jnno 17, 18G2, 12 St. at L., p. 4,10. 22 Act of July 2, 18(12, 12 St. at L., p. 502. 2'' Cnso of Philip F. Thomas, of Maryland, Tatt's Senate Eli'c'lionCasoa, continued by Furber, p. 21)7, and cases cited infrd in the section on the suli- ject of (lualilluatioua for lucniben) of Congress. 212 RECONSTllUCTION. [riiAr. II. aiul one from tho Inyiil St;ito of Kentucky, wcro oxiiclK'il f(ir treason.-' Tlio viiliditv of IIiIh iu;tioii hy tliP House and SenUo is beyond dispute. Tlic Liw preseribing a tcst-oatii for gr.uul jurors remained upon tlie statute-book until May 14tli, 181S4, wlien it was repealed,'^ after tbe elear intimation l)y tbo Supreme Court tiiat altliougli it niigiit l)e a eonstitutional exereise of tiie war-power, it was uneonstitutional in time of j)eaee.'-^' Tlie coii- stitutionality of tlie act imposing such a (est-oaili ujion oflicii-s of tlie I'nited States lias never lieeii brought before the Sujiicini' (!ourt for review. An extension of the act so as to ajiply to attorneys in llie Courts of the I'nited States was subsequently lield uneonstitutional as an ex pout fiicto law.'-"^ The statiis of tiio blaeks was a subjeet of greater dillieulty. At the outbreak of hostilities, neither President Lineoln nor a majority of tbe Hepubliean party was prepared to do any act wliicli might make it appear as if the objeet of the war were to aliolisli slavery. The negroes left behind by sueb of their former owners as bad fled within the Confederate lines, and those who had es- caped thenee to tbe Union army, and sought protection, were, iiowever, capable of affording valuable assistance ; and, moreover, the consciences of the Northern civilians, as well as soldiers, were offended at the thought of returning them to slavery. Orders iiy (ieneral i'Vemont, in Missouri, August 31st, 18(51, and General Hunter, May 9th, 18G2, of which the former emancipated the slaves of all persons in the State of Missouri who bad taken up arms against the Uniteil States, and the latter all slaves in tlie States of Georgia, Florida, and South Carolina, were rescinded bv President Lincoln, who said : " That whether it be competent for me, as Commander-in-Chief of the army and navy, to declare the slaves of any State or States free, and whether, at any time, in any ease, it shall have become a necessity indisj)ensable to the maintenince of the government, to exereise such supposed power, are questions which, under my responsibility, 1 reserve to myself. -* Sop tlin Biilispcpiont Boetlon on eximlHion from C/onnress. •■!•"' 23 St. lit L., 22. *' U. S. r. Gnle, 109 V. S. 05, T.l. See also Burt v. ranjaud, 09 U. S., 180, IHH ; Atwood V. Weems, 90 V. S., is;i, 1S7, 1S8. ■i- Ex part,' Garland, 4 Wall., 32:1. Tliia subjoot will bo discussed sulise- queully. §38.] CONTRABANDS. :21;5 iiiid which I ciinnot feel justified in leaving to the decisiini nf (■(miniiiiulei-s in the field. '"-^ A temporary solution of the iirohleiii was iitfiinU'd 1)}' tii(! ingenuity of (Jeneral lU'iijaniin V. Ilutk'r. niio ivfuscd to return tilaves tiiat iiad eseaped to tlie I'nion lines, upon tliu plea that they were eontraband of war.^ Finally, September '2-'l, l.S(')2, Lincoln issued his Enianeipation I'roclamation. which deihired liiat, on the first day of January, 18(!;i, "all j)ersons held as slaves within any State, or designated i)art of a State, tlie peo- ])le whereof shall then be in rebellion against the ITiiited States, siiall be then, thenceforwaril, and forever free " ; and, at tlie ap- poinU'd time, a second proclamation, declaring the freedom of all slaves ill tiie insurgent territory.*' Destitute freedmcn were sup- piirted by the War Department, in wliich a Freedmen's Bureau was establisbed."' 'i'iie I'resideiit observed the same care in preventing the olliccrs of the Union army from committing him to any course of action towards the insurgent States after the restoration of peace. General (irant was instructed — '• to liiivc no conference with General Lee, unless it be for the capitula- tion of General Lee's nniiy, or on Bonie minor and purely military iiiiittor"; and "not to decide, discuss, or confer upon any political question. Such questions tlie President iiolds in his own hands, and will suhniit tliein to no military conferences or conventions."'''' lie liad previously disajiprovcd the action of (Jeneral IJutler in iinleriiig miinicipa' elections in the district under his command, to decide whether the local goveninients organized by Pierpoint ill V'irijinia should be continued. In liis letters he said: — -■* McVliorson, History of the Roljol- lioii, pp. 21.') I25t. '•"' IJullor's Book, p. 2r)7. His aolion was ajiprovcil liy tlio Dopartmont of Viir. Ill) wns flir(!ctO(l to keep a list (if I liofii^ilivos employed by him, with the names of tlifMr masters, in onler lliat loyal inasterH mi}?lit reefuve com- piMisalioM from C-ongross iiflor tlio AVar {MiTlierson, History of tlio llo- boUioii, pp. 211, 245). '' JleVlu I'Hon. Ilistorj- of the Eobel- liim, pp. 227, 228. The legality of tills proelamutiou will bo considered subsef|uently. Later statiito.s emiin- eipateil "alile-liodii'il coIoivmI ])(>i>ons" dratted into tlie army, iiinl nlvo tin^ir wivi's and eliildn>n, with provisions for eompensation to loyal owners (13 St. lit L., 11, 2!»). ^1 Tlio abandoned land in llic South was tomponii'ily appropriiUed lorllieir support (JlePlii'ison, History of tlio Uelpellion, |ip. .5'Jl, .'i',).')). "- Slanlon's telegram to Grant, Nov. 3, 18(ir. (MePlierson, History of the Reeonstruetion, p. 122). 214 RECONSTRUCTION. [CIIAI'. 11. " Nothing justifica the Biisponding of the civil by tlic military au- thority but niilitury nccpssity, auil of tlic cxiBtenco of Hint neceHsily tlic iiiililiiry coininiimU'r, and not a popiiltir vote, is to tlccidc. Ami wiiat- ever is uot williiu siicli necessity slioukl bo left untliBturbed." "'Jin^ course here indicnted does not touch the cnso when the military com- iiiander, finding no friendly civil government existing, may, under tbc sanction or direction of the President, give assistance to the people to innugunito one." " Upon the collapse of tlie Confederacy, tlie Soutliern States as- sumed that their former position in the Union remained iinim- jiairud ; iind tiieir governors summoned meetings of their legisla- tures to adopt such measures as seemed appropriate to them. Thcsi; proceedings were, however, suppressed by the Union army.'* Ill N'irginiu, the President at lirst suggested that "the gentlemen who have acted as the Legislature of Virginia, in support of tlie rebellion, should meet, under the proteetion of the army, with- draw the Virginia troops and otiier support from resistance to the General (Jovernment " ; but, upon finding thatsuuh permission hy him would be construed as a recognition of the legal authority of the legislature, he promptly recalled his proposition.'"' The shot which killed Lincoln was more injurious to the South than any other fired in the Civil War. It was his earnest desire to restore the insurgent States to their normal condition as soon as possible, without any more change than was absolutely neces- sary in the fundamental law. That the validity of the Proclama- tion of Emancipation should be recognized he was determii'.ed; but, beyond that, he was not disposed to inijiose further material conditions upon their return, although there can be little doulrt but that he would have found some means of protecting the freediiieii from opjiression.'*' And his consummate tact iukI »3 Lincoln to Butler, Auk. t>. 1804; not sent tin Dpo. 21, IKIM ; Nk'olny nnil Hay, Life of Lincoln, vol. Ix, p. 443. 3* Davis, Rise and Fall of thn Con- fcdorato Oovomment, vol. ii, pp. 740, 7r>7; Dimning, Tlie Constitutioa in Reconstruction, Pol. So. Q., vol. ii., p. 558. " McPlierson, History of tlio Ba- cons! ruction, p. 2C. s" In a sjxioch by President Jcilin- son, February 22, ISOG, ho b:i1i1: " Sliorlly after I reached Washiiiglon, for the purpo.so of bcluK inauKuratcd Vice President, I had a conver!=;ition witli Mr. Lincoln. Wo were tulUiiii; about the condition of affairs, a.-d In §3S.] IilNCOLN'8 PLAN. 21A til Illness, supported by the confidenco reposed in him by the people, and till' use of the executive powera and patronage, wouhl have iiiiulc liim successful in any conflict in which the opponents of liis jMilicy in Congress or the Soutii might have eiigagcd/''^ On Dcccnihcr 8th, 1803, he issued a proclamation of amnesty, grant- iiiij; pardon to all persons who should swear that they would siipimrt, protect and defend the Constitution of the United States iiiKJ the I'nion of the States thereunder, and ahiih; by and faith- I'lilly support all existing acts of Congress and proclauiationH of tiie President made during the Rel)ellion, with reference to slaves, "SO long and so far as not modified or declared void by the decision of the Supreme ("ourt." I'ersons who had held high (illicc, civil or military, under the Confederate (iovernment, or who had left seats on the bench or in the Congress, or resigned commissions in the army or navy of the United States in order to aid the Itebellion, and all who had engaged in any way in treating I'liion colored soldiere or sailors, or their officers, otherwise tlian lawfully as prisoners of war, were excepted from the proc- lamation. He then continued: — "And I do further proclaim, declare, and make known that when- ever in any of the States of Arkansas, Texas, Louisiana, Mississippi, Teiiiipssee, Alabama, Georgia, Virp;inia, Florida, South Carolina, and Xni'tli Carolina, a number of persons, not less than one-tenth in num- ber of the votes cast in such State at the presidential election of the rofonnin to mjittors iu my own State. I siiiil we hail e.-illed a convention and (IciiiiukUhI a constitution, abolishing sliiveiy in tlin State, wliieli provision nils not eontiiinepo8e(l ncquicscoiieo by the Niitioiinl Kxcoutivc in nny rca- soiiiilili' li'iiiporiiry State arran};enieut of the freed peoi)le is nmde wllh a view of liiudly modifying; tlie conftmioa and dcHtitutioii which must, at licsl. iittciid all classes by a total revolution of liil)or Ihrouuliout whole Stiiti'H. It is hoped that the already ilecply i.lllicU'd people iu those Stales may bo somewhat more ready to give up the cause of their iilHic- tioii, if, to this extent, this vital matter be h'ft to themselves; whili; no power of tlie National Executive to prevent au abuse is ubridgid by tlie pi'oiiosition.""" Ill' suggested, sidjsefpicntly, to the governor elected in fvouisi- ana tliat the right of suffrage should be exten(le. 117, US, Iu explatiiition of lliis imirlanialion, ho wiid in his iinnuiil iMi'!isiip> to Congress of tiio BiniM' iliilc: "lint why tender tlio tii'inlils of this provi-ion only to a Stall' Ki'veriwneul, si't np in this par- Uiiilar way? This si'i'lion of tlio Conslilutlou eonleniplatcs a ease wlieii'in Iho element within a State, favoralilo to repuhliean noveinment, In llie I'nion, may bo too fceblo for au 0|i|iiisile and hoslllo element external to or even wllhin tlio Stale ; and sueh are pnvisely the eases witli wliieh wo am now dealing. Au attempt to (juaraiiii'o and proteetn revived Slate govern nii'iit, eoiiHtriieted in whole, or in pii'iHindi'i-atiny part, from the very eli'iiii'iil, againHl wlioso hostility and viol 'e 11 is to lio [iroteeled, la sim- ply absurd. There must bo a test by wlik'li to Hoparalo tlio opiiosing ele- laciits Ko as to build only from the foiniil; and that test is a siilUcieutly iiberal one, whieh accepts as sound whoever will make a sworn recanta- tion of ills former niitfOundni'SM " (MeriierKon, Ill.-^lory of 1 lie Kebeillon, p. IKll. In his sp(!eili of A|)rii Uth, 18(15, Lini'oln said: "This plan was. In advance, submitted to tlio then Cabini't, and (li.-;tinctly approved by every member of it. One of thi'ni suggested that I should then, and in that connection, apply tie' Kmauciiui- tion Pioclaniati.nl to the tle'ielofoic exc-eplcd parts of Virginia and Lonisi- nna ; that I bliooM drop tlio sugges- tion abmit appreiiticcsliip for free people, and tliat I sslioiild omit the protest against my own power, ill re- gard to the admission of memberH of Coiigi ess ; ijiit even lu' approved every liart or pared of tli(' plan wliiih iias since been cniployod or toiidieil by the action of Ijoui.slaiia " (iliid., p. (W'J'. This was Chase. '■• McFlierson, History of tlie Kelicl- lion, p. IIG. *" "I barely suggest for your pri- vuto eonsideratlon, whether some of 218 RECONSTRUCTION. [CHAI-. 11. Pm-suant to this proclamation, in the spring of 1HG4, under the protection of the army, State governments were organized bv a minority of the inhahitants of Arkansas and Louisiana, — in the former State by more than a fifth, and in the latter by about an eighth of the number of voters at the last presidential election.*' In Aikiinsas, senators and representatives were elected, and ap- plied for admission to Congress. The members of the National Legislature, however, were by no means satisfied with the action of the President in thus taking tiie initiative without consulting with them. Many of their leaders, moreover, not only cherished feelings of bitterness against tlie South, but were more impressed than he with the necessity of ensuring protecti.m for the emancipated but helpless blacks, and providing in the conquered States indenuiity for the past and sepurity for the future. The scheme of I^incoln was dcrideil as a short-hand method of reconstruction by means of ten-per-cent gov- ernments.^2 The Senate, June 24th, 18G4, refused admission to the senators chosen by Arkansas upon the following ground, stated in tlie report of the committee of the judiciary : " While a portion of Arkansas is at this very time, as the Coniniittco are informed, in the actual possession and subject to the control of the enemies of the United States, other parts of the State are only held in subordination to the laws of the Union by the strong arm of military power. While this state of thingis continues, and the right to exercise armed authority over a large part of the State is claimed and exerted liy tiio military power, it cannot be eaid that a civil government, set up and continued only by the sufferance of the military, is tluit re- publican form of gorernmeut ■wliieh tiie Constitution recjuires tlic United States to guarantee to every State in the Union." " the colored people may not be lot in ; as for Instance, thoso who hnvo fouKlit gallantly in our raiilvs." Liiiciiin to Michael Hiihn, Mnroh 15, 18(11 (Uliiino, Twenty Years In Congress, vol. li, p. 39). *' In Arkansas, for tlio now Consti- tution, 12,177; against It, 226. Flsli- baek's Case, Taft's Senate Election Cases, continuod by Furber, p. 205. In Louisiana, 6,830 against 1,506. Blaine, Twouty Years in Cont!reas, vol. II, p. 40. <■•■ HIaino, Twenty Years In Con- gress, vol. 11, pp. 40-4.1, 79. *'■' Case of FIshback and Hnxtor, Toft's Honato Election Cases, contin- ued by Furber, pp. 202-205. 588.] OPPOSITION TO LINCOLN. 219 Similar action was token by the House.** At the same session (il Congress at which these senators elect were refused admission, 11 bill was passed which authorized the President to ajjpoint pro- visional governors of eacli of the States declared to be in rebellion, witii authority to organize State governments through an elec- tion hy the Avhite male citizens whenever a majority had taken the oath of allegiance, with the exclusion from the franchise and fioiii eligibility as delegates of "11 persons who had held office iiiiilei' the Confederate Government. It required that such con- V, '111 ions should insert in the State constitutions disfranchisement I'liiiii tlie rights to vote and hold office in the legislature or as governor of all persons who had held civil office or a militorj^ ollice of the grade of colonel or higher under the Confes. When this inipdrtunl bill was phioed before him, ho laiil it aside and wont on Willi the oilier work of I he moment. Mr. Sumner ami Mr. Boulwell, while their nervousness was evident, re- frained from any coinment. Zaehariah Chiinilli'r, who was unabashed in any niorLiil presnnie, roundly asked tlio Presidi'iil if ho intended to Kij.;ii l.ho bill. The President replied: 'This bill has been placed before me a few minutes bel'oreC'onj;resM adjourns. It is a niiilter of loo much iiiiportanci! to bo swallowed in that w;i ' If it is vetoed,' cried Jlr. Chandler, 'it will damaKO us fearfully in the Northwest. TluMcnporlaut point is that one pro- hibiting; slavery in the riMMinslructeil States.' Mr. Lincoln said: 'Tliatis thoiioint on which I doubt the aulhor- ily of Conf;i'e>-s to act.' ' It is no nion^ th.iii you have done yomvelf,' s.iid the Senator. The I'rc.iideiil answered : ' I eoni'eive that I may in an emeigiMicy do Ihiiins on ndlitary Hioimds whicdi cannot be done coiisli- tulicinally by CouKiess." Mr. Chainl- ler, expressing his deep chagrin, went oat, and the President, addressing liio laenib. IS of the Cabinet who wwa seated with him, said, 'I do not see how any of us now can ■'., 1o nialic the fatal ailmissicv- >' . ;nl. .whenever they please, may of i '.■'• i.v.ii nio'.ivo dissolve their connoc •) ' vitli the Union. Now wo eannot survive that adnda^ion I am convinced. If tint bo true, I am not President ; the-c gcn- tli'nien are not Congress. 1 laboriously endeavored to avoid i:iiit ipiestioji ever since it llrsi began U) he asserted, and thus to avoid confiisiiui and disturliance in our own eoniicils. It was to ol'viute this liiicBtion lliiitl earnestl>' si.' red tho movement fcr an amei: i lun' abolishing slaxcrv, which pass. 1 ■ .■■ So ate and fad'd in till' House. : tiuoigiit it much lidiiT it it were possible to rostoro the tiiiou § ■•^•] OITOSITIOX TO laNCOLN. 221 Mi'iiiiwhilc his lenient treatment of tiie Southern Stiitcs had lauseil considerahle ill-feeling tow.irds him iimony le;uler.s of the lU'jiuhlican party out of Coiifrress as well as in it. A move- iiiiiit to secure his defeat in the convention and the nomination in his jjlace of Governor Tod of Ohio had heen supported by a number of other war governors ; but the will of the people was too .strong for them.^" After Lincoln's renomination, and the adjourn- ment of Congress, Senator Benjamin F. Wade of Ohio, and Henry Winter Davis of Maryland, the chairmen of the Committees on tliu Uiibellious States of the two houses of Congress, united iu a proti'st published in the New York Tribune, August iJtii, 18G4, ai^itiust liis refusal to sign the Keconstruction Bill ; ■*' but the jiaper liad no effect except to aid in defeating the renomination of l)avis.« liefore the presidential election, Tennessee had also organized a government under Lincoln's proclamation, and presidential electors were chosen in Tennessee and Louisiana. February 4th, 18G5, Congress passed the following : — " ,Ioint Kesolution declaring certain States not entitled to reprcsenta- tioa iu the electoral eollep;c : Whereas the inhabitants and local uiitliorities of the States of Virginia, North Carolina, South Carolinii, (icorsiia, Florida, Alabama, Jliasissippi, Louisiana, Texas, Arkansas, aiul Ti'unessee rebelled against tiie government of the United States, and were in such condition on the 8th day of November, 1804, that no valid cleotion for President and Viee-rresident of the United States aci'didiiig to the Constitution aud laws tliercof was held therein on said day : Therefore, Jie it ri'xolvnil, That the States mentioned in the picainbit! to this joint resolutiou arc not entitled to representation iu the electoral college, and no electoral votes shall be received or counted from said States."" nil limit till! nocosBlty of a violent c|iiiirr( I'nioii (lining tho war - ii inornly nu'lapliy.slcNil i|iio8tiou, and one uii- ui'ii'Bsary to lio forccii into discus- slim '" (Nicolay niid Hay, Llfo of Liiu'Dlii, vol. ix, pp. I'iO, 121). *'• Tho writer loarni'd this from tlio lalo Judge Dwight Foster, wlio was then Altornoy-GoniMai of Masaachu- sotts under Governor Andrew, who sympathized with this niovemeiil. " Mi'Pherson, History of tho Re- bellion, p. ;t;i2. *• HIaino, Twenty Years in Congress, vol. ii, p. 44. <•' MePliorfon, History of llie Ko- belUon, pp. 577-579. 222 UECONSTIIUCTION. [CIIAI'. II. Lincoln signed this resolution and informed Congress that it — " h;is been signuil liy tlie Executive in deference to the view of Coii- ^less implied in it^ passage and presentatioa to liiin. In his own view, however, the two Houses of Congress, convened under the twelfth article of the Constitution, have complete power to cxchide from counting all electoral votes deemed by them to be illegal ; and it is not competent for the Executive to defeat or obstruct tliat power hy a veto, as would be the case if his action were at all essential in the matter. lie disclaims all rigiitof tlie Executive to interfere in any way in the matter of canvassing or counting electoral votes, and he also disclaims that, by signing said resolution, he has expressed any o|)iiiioii on the recitals of the preamble, or any .iudgment of his own upon tiie subject of tiie resolution." ^ His last piihlio .speech was a defence of this plan of reconstruc- tion, in which, however, he said that he was not inflexibly com- mitted to it.^* Lincoln's death, however, on April loth, tSlio, placed tiie presidency in the liands of Andrew Johnson, who was by no means qualified to acquire the leadership, or even to command the respect of the party who had chosen lum Vice-President in order to acknowledge their obligations to the Union men of tlie South. The diiliculties of the situation were increased by tlie action of (leneral Sherman, wlio, flushed with tlie triumph of his unparalleled march to the sea, three days after Lincoln's dcatli, assumed to solve the problem of reconstruction in an agreement for an armistice with General Johnston in Nortii Carolina. In tliis, he individually ami olhchilly pledged himself to procure the neces- sary acts by his superiors for a general amnesty and the inuneili- ate restoration of the seceded States to their political position before the war ; >• the people and inhabitants of all these States to be guaranteed, so far as the Executive can, their political riglits and franchises, as well as their rights of person and property, as defined by the Constitution of the United States, and of the States •espeetively " ; a cliiuse whicli, if executed, might have restored slavery ; in return for the disbandment of the Confederate iuniy and the resumption of peaceful pursuits by its oflieers and pri- 60 Mcl'hcrKon, History of the Bo- bolUou, pp. 577-579. " Ibid., pp. 608-610. § a«-] SHKR.MAN S AUMI8TICE. 22S vales. 'I'liis agreement was promptly ratified by Jefferson Davis, (111 lioiialf of the Confe(.lera(!y, with the approval of his cabinet ; lint, lis soon as received in Washington, it was disapproved by the i'lLsiilent and cabinet, and Sherman was ordered to resume hos- tilities immediately.*'^ After at fii'st inclining to severer measures against the South, inllucnccd l)y the persuasion of Seward,"'-'' who was still Secretary (if State. Johnson pursued the policy instituted by liis predecessor. On May 2'.)tli, IStio, he issued a proclamation which directed the administrative and judicial oflicera of the United States to en- force tiie laws in Virginia, and said — "that, to carry into effect the guaranty of tlie Federal Constitution of a leimblicaii form of State government, and afford the advantage and security of domestic laws, as well as to complete the rc-ostablishinent of the authority of the laws of the United States, and tlie full and com- plete restoration of peace within the limits aforesaid, Francis H. I'ier- poiiit, (lovcrnor of the State of Virginia, will be aided by the Federal Government, so far as may be necessary, in the lawful measures which he may taltc for the extension and administration of the State govern- ment tiiroughout the geograpliical limits of said State." " On May 2!Hli he issued a proclamation of amnest}' similar to that of Lincoln, with, however, more stringent exceptions, in- ohiding in the excepted classes all '• persons who have voluntarily participated in said rebellion, and the estimated value of wlioso taxable property is over twenty thousand dollars," '^' He immedi- ately ajipointed provisional governors of the States of North {!ar- oliiia, .Mississipjii, Oeorgia, Texa.s, Alabama, South Carolina, and Florida, v/itli instructions to each — ■'- McPlicrson, Hi; 'ory of tlie Rfi- conslruclioii, pp. 1'21, 122. Tho opiu- ious of tho Coiifcdcrato Ciibini'l on tlio sulijcct aro puliliahcil in tho Now York Sun, Feb. U, 18H0 ; nupra, § 37, over niilc !)7. " lilaiuc, Twenty Years In Con- gress, vol. ii, pp. (>7-G8. As early a.s Nov. 21, 1HG3, however, .lolinson had wjitteii to tlm PoBtniaster-Genonil, Miuitgoiiiery Hliilr : " I hope that tho Prosidout will not bo committed to tho proposition of 8tute.s rclapsintj into Tenilories and held as such." "Tho iustitution of slavery is mmc, and th(>re is no good reason for de- stroyinf? the States to brini; about tho destruction of slavery." (Xlil'hersou, History of lli'eoustructiou, p. 1!)9.) '* Mcrherson, History of tlu^ llo- eonstruetlou, p. 8, See ir\fra, over note 58. «6 Ibid., p. 10. 224 EECONST RUCTION. [CHAI". II. "at the earliest practicnble porioil, to prescribe such rules nnd rc<;;iilii- tions as may l)fl necessaiy anil proper for coiiveninr; a convention, com- poseil of delogatcs to bo chosen by that portion of the people of said State who are loyal to the United States, and no others, for the pin'pose of altering; or amending the constitntiou thereof; and with anthority to exercise, within the limits of said State, all tiie powers necessary and proper to eiiablo snch loyal peojjle of the State of North Carolina to restore s;iid State to its constitutional relations to the Federal Goveru- nient, and to present snch a republican form of State government as will entitle the State to the guaranty of the United States therefor, and its people to protection by the United States against invasion, insurrec- tion, and domestic violence; that in any election that may be hereafter held for choosing delegates to any State convention, as aforesaid, no ptrion shall be qualified as an elector, or shall be eligible as a member of such convention, unless he shall have previously taken the oatli of amnesty, as set forth in the President's proclamation of May 29, A. D. 18G9, and is a voter qualified as prescribed by the Constitution and laws of the State of North Carolina, in force immediately before the twentietli day of May, 1801, the date of the so-called ordinance of se- cession ; and the said convention, when convened, or the legislature that may be thcreaf!;er assembled, will prescribe the qualification of electors, and the eligibility of i)ersons to hold ollice under tiie constitu- tion and laws of the State, — a power the people of the several States composing the Federal Union have rightfully exercised from the origin of the government to the present time. " And I do hereby direct : — "F/r,s7, That the military commander of the department, and all ofli- cers and persons in the military and naval servioe, aid and assist tlie said Provisional Governor in carrying into efff!Ct this proclamation; and they are enjoined to abstain from in any way hindering, impeding or discouraging the loyal people from the organization of a State govern- ment, as herein authorized. ^'Second, That the Secretary of State proceed to put in force all laws of the United States, the administiati'^n whereof belongs to the State Department, applicable to the geographical limits aforesaid. " Third, That the Secretary of the Treasury proceed to nominate, for appointment, assessors of taxes and collectors of customs and internal reveiuie, and such otlier olllcers of the Treasury Department as are au- thorized by law, and put in execution the revenue laws of the United States within the geographical limits aforesaid. In making appoint- ineuts, the preference shall be given to qualified loyal persons residing §r,8.] JOHNSON S PLAN. 22r) within the districtB where their respective duties arc to be perfonned. But if suitable residents of the districts shall not be found, then per- sons rcHidiiig in other States or districts shall be appointed. "7w//(/-/A, That the I'ostmastcr-Cieneral proceed to establish post- olllci'!) and post-routes, and put into execution the postal laws of the Uniti'il States within the said State, giving to loyal residents the prefcr- oniv of appointment ; but if suitable residents are not found, then to apiMiint agents, &c., from other States. •• Fifili, That the district judge for the judicial district in which Norlh Carolina is included, proceed to hold courts within said State, in apconlance with the provisions of the act of Congress. The Attorney- (luncnd will instruct the proper ofllcers to libel, and bring to judgment, conliscatiou and sale, property subject to confiscation, and enforce the administration of justice within said State in all matters within the cog- nizance and jurisdiction of the Federal courts. •• Si.i-lh, That the Secretary of the Navy take possession of all pub- lic property, belonging to the Navy Department, within said geograph- iciii limits, and put in operation all acta of Congress in relation to naval alTiiirs having application to the said State. '• Si'rciiili, That the Secretary of the Interior put in force the laws relating to the Interior Department applicable to the geographical limits aforesaid."'" I'nder the immediate supervision of the President, wlio sent ciinstiiiit instructions in teiCgrams signed by himself or the Secretary of State, and issued thirteen thousand pardons within nine months to members of the excepted classes wlio seemed will- ini^- to nid his pcdicy, the governors called conventions which jirocccilud to amend the State constitutions. These repealed or (Icclaicd null and void the ordinances of secessioti. All but 5Iississippi declared slavery to be abolished ; and most, under lii(ssui(! by the President, annulled their war-debts and ratified till' Thirteenth Amendment, which abolished slavery, altliough sonic with the qualification that the ratification was " with tlie uinlci-stiinding that it does not confer upon Congress the power to legislate upon the political status of freedmen in tiiis State." ^' Tliereupon they immediately elected membei-s of Congress and '" MePherson, History of tho He- construetion, pp. 11-12. " Alaliiima. Similar uro tho ratifl- cations of South Carolina and Florida. Ibid., pp. 18-28 ; Blaine, Twenty Years in Congress, vol. II, p. 76. '226 RECONSTRUCTION. [chap. H. State legislatures which elected senatora. In Virginia, Johnson liad recogni/x'd tlie I'iorpoint government, headed by Francis I[. Pierpoint, who had been elected governor in 18(51 by a cnn- vention composed mostly of residents of what subsequently became West Virginia.^ All its archives and property were taken from Alexandria to Richmond in an ambulance.™ Pier- point called together a legislature which reorganized the gov- ernment without a convention, after having obtained by a vote of the people authority to amend the State Constitution."" In Louisiana, Arkansas, and Tennessee, Johnson respected the State governments organized during the life of Lincoln. All these proceedings were instituted, and most of them completed, while Congress was not in session. When the Thirty-ninth Congress assend)led in December, 1865, senators and representatives from nearly all these States were ready to i)resent their credentiiils for adn)ission. Many of them could not take the iron-clad o;i'Ji and were excepted from the proclamations of amnesty. Amongst these wiis Alexander IL Stephens, the Vice-President of the late Confederacy. The President informed Congress in his message that a restoration of loj'al State governments, accompanied by the abolition of slavery and obedience to the laws and government of the United States, had been established in all the seceded States, except Florida and Texas, where — "the people are making commendable progress in restoring thoi.- State governments, and no doubt is entertained that they will :it an early period be in a condition to resume all their practical relations with the Federal government.' ' " He said further : — "The full assertion of the powers of the General Government requires the liolding of Circuit Courts of the United States within the districts whore their authority has been interrupted. In the present posture of our public affairs, strong objections have been urged to holding those courts in any of the States where the rebellion lias " McPhersou, Ilistory of the Eo- construetion, y. H ; mipra, over notes 17, 3,'i, 54; and § HG, over note 59. '^ Blaine, Twenty Years in Con- gress, vol. ii, p. 79. 00 McPliersou, History of liio Ro- construetion, p. 26 ; Cox, Thri'ci Dc- cades of Federal Legislation, pp. I-'-- 424. »i McPherson, History of the Ke- coustructlou, p. 67. CHAP. ir. §38.] JOINT COJIMITTEE ON KECONSTUUCTION. 227 exisltil: iiiitl it was nsorrtiiiiicd, by inquiry, tiiat tlie Circuit Court of till' I iiittnl States would not ha held within the district of Virginia iliirinji the mitunin or early winter, nor until Congress should have ' an opportunity to consider and act on the whole subject.' To your delibera- tions tlu; restoration of this branch of the civil authority of the United States is therefore necessarily referred, with the hope that early pro- vision will be made for the resumption of all its functions. It is iiiniiift'st that treason, most flagrant in character, has been committed. IVrsous who are charged with its commission should have fair and Impartial trials in the highest civil tribunals of the country, in order that the Const'tution and the laws may be fully vindicated ; the truth fli'aily established and affirmed that treason is a crime, that traitors siionkt be punished and the offence made infamous ; and, a' the same time, that the question be judicially settled, finally and forever, that no State of its own will has the right to renounce its place in the Union." '* On December ath Georgia ratified tlie Thirteenth Amendment. Tlie United States were then thirty-six in number, of which twenty-seven constituted three-fourths. Georgia was the twenty- ■ seventh State to ratify, and on December 18th, Seward, the Secre- tary of State, filed a certificate under the seal of his department, stilting that the amendment had been adopted. Subsequently,, four of the lo)nil States and one of the former members of the Confederacy also ratified this amendment. But even after the votes by those four loyal States were added, it has never ob- tained the requisite ratification by tlu"ee-fourths of the States,, uiik'ss the validity of this action by the governments of the funner insurgent States, organized by Lincoln and Johnson, is recognized."^ Tiie majority of both Houses lost no time in manifesting their opposition to the policy of the President. The usual courtesy of tlie privileges of tlie floor pending the decision as to their lulinission, was not extended to the Southern representatives.^ On Decemlier IStli, 1865, a joint committee on Reconstruction was appointed, with instructions to " inquire into the condition of the «=Iliicl.,p. r,5. ''' Il)i(l., p. 6. Seward was critlcizod at V.\" lime for hiH recogultion of the validity of tills action liy thf) iiisnr- t-'init Siulos. i^Duuuiug, The Coustitu- tlon in Reconstruction, Pol. So. Q., vol. il, p. 591.) «* lilaino, Twenty Yoars In Con- gress, vol. il, pp. 112, 113. 228 ItECONSTKlOTION. [(.'MAP. II. Stiites wliicli formed tlic scwiillcil foiifeilerate States of Aiiu'iica uiid it'iHirt wlietlicr tlie^' or any of tliciii are entitled to he rc'inc- seiited in either House of Conjij^ress, with leave to report hy hill or other\Aise." Tiie report was not made until June IStli. 18(!(). In the meantime, the leg'islatures anorers to make labor contracts within the first ten days of .January, to be in force for an entire year, compliance with which could be compelled by justices of the peace. I'oU-taxes without rcpresoiiti- tion were also imposed upon them, in some States, and in one Stiite at least were collected by the compulsory labor of the de- linquents."'' "5 Johnson recommonded this in a fh'oular Irttor to tho provisional rov- crnors whom ho iipiioinliMl. In a ti'ioRrani to Governor W. L. Sharkey of Mississippi, Aiignst 15, 1865, lie naid that liy such action "You would coniplctcly disarm tho adversary and set an oxaniplo tho other States ■will follow. This you can do with perfect safety, and you thus Jilaco tho S(Uithorn States, in refcrenco to free persona of color upon tho same basis with the free Slates. I hoiio and trust your convention will do this, "nd as a consequence, tlio radicals, who are wild upon negro franchise, will bo complotely foiled in tlioir nl- ternpt to ijcep Iho Southern S.ads from renewing their relations to tiio Union by not accejiting their seiiat0 Tlic report of the Joint Coininittee on l{ccon.struction, like most imjiorlaiit state (locuuieiits of tiie Aiiglo-Saxt)n race, was liased upon coniproniisc, and nieiitioner after Innocently indulge his own opinion, whether, in doing the acts, ho brought the States from without into the Union, or only gave them proper ossistauce, they never having been out of it." (McPherson, History of the Eebelllon, p. 609.) 232 KECONSTR UCTION. [chap. II. to control the conduct of its affairs. To aiimit such a principle for one inoiiicnt would be to declare that treason is always master and loyally a blunder. Such a principle is void by its very nature ftnd essence, because inconsistent with the theory of government, and fatal to its very existence. On the contrary, we assert that no portion of the people of this country, whether in State or Territory, have the right, while remaining on its soil, to withdraw from or reject the authority of the United States. They must obey its laws as paramount, and acknowled-fe its jurisdiction. TJiey have no right to secede; and wliile they can destroy their State government, and place themselves beyond the pale of the Union, so far as the exercise of State privilege; is concerned, they cannot escape the obligations imposed upon them Ijy the Constitution and the laws, nor impair the exercise of national autliority. The Constitution, it will be observed, does not act upon the people; whl.e, therefore, the people cannot escape its authority, the States may, througli th.e act of their people, cease to ex'st in an organl/i' 1 form, and thus dissolve their political relations with the United titates." The obligations of the North to the freedmtn and the ditllculties arising from the original provisions of the Constituliun concerning the proportion of representatives were then stated. Olijec- tioua were raised to the regularity of the proceedings for the election of representatiwS from the south, and it was said: " Your committee arc accordingly forced to the conclusion that the States referred to iiave not placed themselves in a condition to claim representation in Congress, unless all the rules wl.ieh liave, since the foundation of the GovernnK'nt, been deemed es^ .jiial iu such cases should be disregarded." 'I'hc dis- loyal temper of the South, as proved by the evidence taken before them, was then set forth : "With such evidence l)efore them, it is the opinion of your com- mittee — " I. That the States lately in rebellion were, at the close of the war, disorganized communities, without civil government, and without C(n- stitutions or other forms, by virtue of which political relations conhl legally exist between them anil the Federal Government. "II. That Congress cannot be expected to recognize as valid the election of representatives from disorganized comniuuitics, which, from the very nature of the case, were unable to present their claim to representation under those established and recognized rules, the obser- vance of which lias been hitherto re(piired. " III. 'I'liat Congress would not lie juslilied in admitting such com- niuuities to a participation in the government of the country witliuut K m, J §38.] .lOIXT COMMITTKK ON IIECONSTKUCTION, 233 liist iirDviilinn; such constitutional or other guarantees as will tend to sociMv tlie civil rights of all citizens of the IJepiiblic ; a just equality of ivpii'soiitatioii , protection against claims founded in rebellion and eiiiiU' ; a temporary restoration of the right of suffrage to those who liavo not aetively participated in tlie efforts to destroy the T.'niou and ovi'itlirow the Government; and the exclusion from positions of public trust of at least a portion of those whoso crimes have proved them to be eiK'inies to the Union, and unworthy of public confidence." It was s;ud that the State of Tennessee occuiiied ii position apart from all the other insurrectionary States ; and it was the subject of II separate report which recommended its immediate restoration to full rijL,dits in the Union. ■'Till' conclusion of your committee, therefore, is, that the so-called Coiil'iMlerate States are not at present entitled to representation in the Coiijrn'ss of the United States; tliat, before allowing such representa- tidii, aileiinate security for future peace and safely siioiild be required; that this can only be found in sii'.-li changes of tlie organic law as siinll ileteniiine the civil riglits and privileges of all citizens in all parts of tlio Ke|)iiblic, shall place representation on an equitable basis, shall fix astiirnia upon treason, and protect the loyal people against future claims for the expenses incurred in support of rebellion and i"')r manumitted slaves, togetlier with an express grant of power in Congress to enforce these provisions. To this end, they offer a joint resolution iov ainend- iim the Constitution of the United States, and the two several bills de- signed to cany the same into etTect, before referred to." 'riic minority report, which was signed b}- the three Denioeratie ineiiiliers of the committee, set forth the Southern theory, ami eliiiuied tliiit the excluded States were entitled to immediate tiii- t'diniitioiial admissiou."** Aeeompanyiiijj: the report of tliC majority was the l'\nirleentl» Aiiieiidment of the C'onstitutii ii in a form slij^htly different from its liiiiil adoption. This had, in fact, lieeii reported (ui April oOtlj, '■' liotli ropoits (ire printed in MirhcMson, History of Ilivoiistnir- tliiii, pp. H4-U)l. The luajdi-lty report Willi thccvideiiee, wliieli in wi'U worth I'linriil stiiily, WHS printoil liy llie dm crniiKMil rrini lii« Oflli'i'. The ma- jorily weio W. V. Fessendeu, .James W. Grimes, Irit Harris, ,1. it. How- ard, Ocor^o H. Wiiliaiiis, Tliaddeus Slevi'iis, Kliliu ]5. Wiislilmrne, .Instill S. Morrill, .luhn A. Uiii),'ham, Itoweoo Conliliiit;, (icdr^e H. Iloiitwi'll, Hi'iiry T. l!lciw. TIki iniiioilty, ItoviM-ily John- sou, A. J. l{ot!ers, Heury Grider. 234 RECONSTUUCTrON. [cirAi-, 1806, more than a month before the ju'esentation of the full ruimrt of the Committee. The Committee also reported to their rcsppot- ive houses two bills. Of these, one declared cerfcrin persons tliciein designated, including high Confederate officials and Confederates who had held high Fede' al office, ineligible to office under tlic Government of the United States. The other was " A bill to pro- vide for restoring the Stiites lately in insurrection to their full political rights." It provided that whenever the Fourteeiitli Amendment should have become a part of the Constitution of tliu United States, the senators and representatives duly elected from any State lately in insurrection, which should ratify the same ami modify its constitution and laws in conformity therewith, should be admitted into Congress upon taking the required oatlis nf office.*^^ Neither of these bills was passed; but Congress 8ul»- sequently enforced their provisions. The Fourteenth Amendment finally passed through Congress, June 13th, 1866. It would have been well for the Southern States had they immediately accepted it. For then each would have re- tained the control of the right of suffrage within its jurisdiction; the country would have been saved the evils that resulted from the sudden entrance of a horde of ignorant blacks into the enjoy- ment of a right which most of them were unfit to exercise ; ami the provisions for an increase of representation in proportion to enfrancdiisement, together with the influence of the democratic s[)irit of the people and the age, would have undoubtedly pro- qucutly in tlio chapter on Impeachment. "5 Act of .July 23, 18G0. 11 St. iit L., p. 209. !'"> Act of Fol). 0, 1HC7. 1"' M( rhorson, History of tho Ko- con.stniction, p. ICil. los Act of Jan. 8, 18G7. § •'■'<•] 1!EC'( iNSTlil'CTION ACTS. :4" mill to (li'liiil n Huniciciit iiiilitjiry force to enable liiin lo peifin'm lii-i (Imii'M ami I'lifoicf his aiitiiority. It wua the duly of tlio olliccr to pusorve order mid to i)!!!]!."*!) •' nil distuiln'is of the ])iililic pence and ci'lniinids, and to thin end ho may allow local civil tiiliiinals to take juiisilicttion of and to try olTend- eis, or, wlu'ii in his judjiiiient it may lie necesHary for the trial of otTendi'is, lie shall have power to organize inilitaiy commissions or triliuniils for that jiurpose; and all iiiterfereiiee niiiltr color of State authority with the exercise of military authority under this act shall bo null and void." 'I'lie ajiproval by the ollicer in command of any sentence of the iiiililary Cdnunission or other tribunal alTcctint; the lite or lilierty of any InrsiMi, was recplired before its execution, and the ajiiiroval of the I're- HJiliiit was re(iuired before the execution of any sentence of death. It w:is provided : — '■'I'lial when the people of any one of said rdiel Stat'.:; shall huve formed a constitution of iioveninient in conformity with tne C'on.ititu- tioii of the United States in all respects, framed by a convcPcion of (Icleuales elected by the male oiti/ens of said State twenty-'iiie yeara (lid and upward, of whatever race, color, or previous condition, who have been resident in said State for one year previous to the day of such election, except such as may be disfranchised for participation in tlio rebellion or for felony nt common law, and when such ccmstitution Hliall [irovide that the elective franchise shall be enjoyed by all such per- sons as have the qnalilicatious herein stated for electors of delegates, and when such con.stifution shall be ratili"d by a majority of tlie persons voling on the question of ratiticatioii who are (piidifled as eleetors for delegates, and when sneli constitution shall have been submitted to Congress for examination and approval, and Congress shall have ap- proved the same, and when said State, by a vote of its legislature elected under said coustitntiou, shall have adojited the amendment to the Constitution of the I'nited States, projiosed by the 'riiirty-niutli Congress, and known as Article Fourteen, and when said article sludl have become a part of the Constitution of the Inited States, said State shall be declared entitled to representation in Congress, and Senators and Representatives shall be admitted therefi'oiii on their taking the oaths prescribed by law, and then and thereafter the preceding section.'^ (if this act shall be inoperative in said State: Pnirinil, That no per- Hm excluded from the privilege of holding olliee Viy said proiiosed nniendment to the Constitution of the I'nited Slates shall be eligible to election as a member of the convention to frame a constitution for any of said rebel States, uor shall any such person vote for members of such 24(1 n iccoNSTnucTiox. [C'UAI'. II. convention." " Tliat until the people of said rebel States shall be \ge of a test-oath tlien to be udniinistured. 'J'liis act further provided tliat the State conventions shouhl liave the power to pro- vide for taxation to pay their expenses."^ A second supphMiient was passed over tlie President's veto, whicli declared that it liad been the true intent and nieuiing of the former reconstruction acts "that the governments tlicii existing in tlie rebel States of Virginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, Louisiana, Florida, Texas and Arkansas, were not legal State governments ; and that thereafter said governments, if con- tinued, were to be continued subject in all '.espects to the niilitarv coniiuaiiders of the respective districts, and to the paraiuouiit authority of ( )ngress." Power was given to each district com- mander, subject to the disa[)proval of the general of the army, to remove any ollicer or person holding any civil or inilitaiy ollice ill such district under any power granted by any so-called State or municipal goveriinient. The acts of ol'licers of the army i:i 2'i'^-'viously removing such oHicers were conlirmcd. It was niailc the duty of the district coiiiniauders to remove from ollice all j)crs()ns disloyal to the goverunicnt if the United States, or \\lio iisod their ollicial iiiHueiuie in any manner to hinder, delay. jirevent or obstruct the due and proper administration of llie reconstruction acts; aiui liiuiUy it directed that "No (bstrict c(iiii- niaiider or member of tlu; IJoard of I?egistratioii, or any of llio '"1 Act of March 2, 18«7, 11 St. at I-, 428. iK Act of Marcli 23, IfiCT, 15 St. at L., 2. !; :;S.] ItECONSTUTTCTIOX ACTS. 241 olliicrs o'- appointees acting under tlieni, sliall be lionncl in his iutjiiii liv the opinion of any eivil oflicer of the United States." '"■"' 'I'liis last provision vas intended to weaken the authority of the Attorney-! ieneral, A/ho, in his previous opinions,""' had criti- cized the aetion of some of tlie district eoniiiani). Ill Vii-nliiiii, Miircli, 27, lsi;i) (Mrrin'i-sini, IIisl"'■' III South riii'olliiii. In Si'pti'nilKM-, lH(i7 (Davl.-*, Uisd mill Fall of tlm Con- frdcriili' fioM'rninriil, vol. II, p. 714). In Lnuisiiiiui. MiiiTli ■J7, IHCJ iXIrriior- son. Hi.^lory of till' Hi'coiislrui-lloii. p. 20(!). Ib Virglula ulso, (Cnx, Thraa 248 RECONSTKUCTION. [chap. cnil"" and a State ti'disurer,"' as well as local officers of uvcrv (li!.suriptiun, were removed, and in many cases soldiers detailed to diseliarge their duties, to administer the laws of the State, to dctiT- niinc controversies affecting liberty and proj.'erty without any qiiali- lications from previous study or experience in tlieir systems df juris[)rudence, and to collect and disburec the taxes and otLcT revenues of the State without filing any hond."^ I^egislaliues Decades of Fi'deral Logislatlon, p. 489). 1" In Loiiisiaiiii, ilnrch, 27, 1807 (MclMiciHoii, llisUiry of the Ro<-ou- stnii'tioii, I). 'iOG). "1 AUonii'y-di'ncral SlaiiliiTy, 12 Op. A. G., 1!U. Davis. His,, and Fall of tho Coiifodciato (tovi'riiiiicnt, vol. ii, !>. 7.")'J. "-"In oiiK of llu'so districts, tin' Rovornor of u Slalo has bocii di'posiul under a threat of military force, and another por.son. called a ijovornor, has been appointed l)y a military com- mander to 1111 Ills place. Thus i)re- sentiiig the straufic spectacle of an official intrii.sted with the chief power to execute the laws (jf the Slate whoso authority is not rccof^nizcil by tho laws he is called upon to execute. " 111 the same district, the judne of one of the crlniinal courts of t he State has bei'n isummarily dealt with. lu tills instance, the judge has, by mili- tary order, been eje is cerlainly not aulliori/.ed to try any one for any olTciico as a nieniher of a military trilmnal, and he has just as little authority to try and jiunish any olTcnder as a judge of a criminal court of the Stale. It hap- pens that this private cllizci., tlius placed on tho bench, is to sit as the solo judge in a criminal court who.-^e jurisdiction extends to cases involviiij; the life of the accused. "If he has any judicial jiowit iu any case, ho has the same power to take cognizance of capital casi's, and to si'nteiice tho accused to de.itli. iiad order his exc>cution. A straii.u'c spectacle, when tho judge and iIid criminal may very well 'change places'; for if the crindnal has un- lawfully taken life, so too does the judge. This is the inevitable result. I'.ir the only tribunal, tho only judges, ir they can bo called judges, which a military comniamlcr can constiliilo and appoint undi'r (Ids act, to iiilliii thcideath penalty, is a military court coniposi'd of a board, and calleil in the ai't 'a mililary cominiBslon.' " I see no relief fiu' tlio condoinued against tho soutenco of this agent o; tho military commamh-r. It i-; not tlio sort of court whoso sentence of death must be first api)roved by the comniamlcr and llnally by tho Ticsi- deut, for that Is allowed only wlier.' the sentence is pronounced by a ' mili- tary commission.' Nor is it a m'h- tenco pronounced by tho rigliU'ul court of a State, but by a court and hy a judge not clothed with authority under the laws of the Slate, but con- stilulcd by the military authority. As the represeiilatlvo of this mililaiy authority, this act forbids Interference, • under color of State aulhorlty,' with th(^ exerci.so of his fuuclious." (12 Up. §38.] MILITAUy GOVEUNJIENT OF THE SOUTH. 249 wiiv forbidileii to meet.'"' The people were, in .some cases, I'or- liuli'k'ii to elect local ollicers,'" or even to go through tlie form of cli()i)Niii;4' presidential electors;"'' and voters nlHO ibid., pp. lhC-ls7. 1 On March 2',ltli, IKOil, (loupral Smui'iniiii i'o|ioili'il : tliat out of 5,4411 ollii'i's ill Vii^;inia JUll of tlie iiu'uni- bonts wore alilc to tulco tho tesl-oalh, 1111(1 ciiiisoijuoiiUy woro undisturbed; .");I2 li;id licou lilled liy his predecessor, and l.'.i72 liy liiiiiBelt': and tliat 2,tii;l rcinaincd, tlio iiuMiiiibcnIs of wliicli nc'r«>iliw|iialilicd liyCoii^;ress, and that 111) wart unable to llud elij.;ildu men wlio were Pdinpi'teiit to dis(diiii't,'e tlicir duties. ( lIcriicrsDii, History of Ih" UecorLstruction, p. M~>.) "■See Davis, KIso and Fall of tlio Oml'edcmte (iovernnient, vid. ii, pii. 74'i, 757 ; Mcl'lieisoii, History of the UiMoiistruelion, p. ;12.5. "* Mel'herson, History of (lie R(?- construetiou, pji. 2118, 428. "^ In Texas, Sept. 21), 1RG8, iliid., p. 429. "'("ox, Three Decades of Federal Li';,'i;.laliiin, p. .'i.'id. "" The Act of March 7, IHiU ^i:\ St. (it L., t4i,llrKl impo.scd ii tax of two cents u pound ou uiimuuiil'aclured eolton. This was continued by the act of June ;iO, IHftl ibi.I., p. 22:)); Incceasod to three cents a pound by the act of July l;i, ISC.O (14 Si. at L.. 98); rodueed to two and a half cents a pound by the act of March 2, 18fi7 (il)id., |). 169); and repimled by the act of Feb. 3, 1808 (1.") St. at L., 34). Tlie con.stltutionallty of the tax was alUinied by a divided court Fel>. 20. 1871, in the unrepoi'led case of Far- iniii);lon r. S.iunders, niter two arjjii- lucnts, (he lli'^t ill Decemliei', lsi',',1, in wliicli it sopiiiuicnls claimed that it wnn a direct tax and a tax upon iwporls. 11!^ lIclMicrson, History of the Ke- construciion, (i. 420. "■■' Mcl'herson, History of the Ke- construclion, p. 429; Davis, Hise and Fill! of (he Ouifederate (Toveinrnent, vol. ii, pp. 7;i:l. 'i' Act of March 2, 18(17. 14 S(. at L., 4h7; Hiipra, over nod' 9,5. '-1 Mcl'lieison, History of tlie Ke- coiisiniclioii, pp. 204, 31(1. '-■- Mid'hiM-Hon, History of tlie Ro- eonstriiction, [ip. 20(j, 208, 428. •2r>o 15KCOXSTRUCTION. [<'11AI'. U. liws of til 'ir Stiitt'S -were directed to violate tliem;^^ to ciiipanel jui'irs out of a iImss dis(iualiiied !)}• tlieir State statutes;'-' to taki' testiiiioiiy wliicli was l)y statute made in(!ompetcnl ; and to dciiv ri'uuMlics to wliieli suitors were entitled by law ; and in some cases tliey were imprisoned for their refusal. ''■'''' Punishments prest iil)eil hy tlie State statutes Avere forbidden.'^ A new code of jienid law- was in SOUK' cases set up by the will of the general.'-'^ Permission to ](ardou. as provided by the State constitutions, was in sonic c;iscs triven to tiie State governors, and in others withheld.'-'' .Viid many persons, in violation of the constitution,'-' Avere tried iiiioii ( liininal charges liefon; military commissions and ini[)risoned uinlci siiiteiices thus illegally imposed. In one case a civilian was scii- tcMceil to death by such a commission, althougli he was ,it tlif time under indictment liy the State court for the same oiVcnccs; and the j\ttoruey-(ieneral adviscid the President to approve tlir sentence; liut the execution was prevented by an escape,'-'" wliitli it may be hoped was collusive. 'J'iie interference of the military with the civil government was not confined to the maintenance of lu-der, the elevation of tin' colon.'d i-ace. and the jiromotiou of the policy of ("ongress. 'i'lir admiiiistraticui of justice I'elating to private rights between jiri- vate citizens was arbitrai'ily controlled. l'',xecutions and jmlii-ial sales were stayed.'''"' i'Jxeiiiplions from attachments, arrests, aiid executions, uidcnown to the State laws, were ordered.'-''-^ Decrees 1-1 Si'o Davis, Itisi' arwl I'all of the Coiil'i'doriUc Oovoi'nmcul, vol. ii, j). 7;):i. '•^< Pavis, Kisi" and Fall of tlio Cou- fi'ilcratc (iovcriiiiKMit, vol. ii, |). 744; Oliinioii of Henry Staiihory, 12 Op. A. (',,, IMl, ls7. >--■■' JIclMu'i-soii, History of llic Itc- coustniclioii, I'p. '21)2 2ai. i^i Mi'1'liiM-son. Hisloiy of the Ho- conslnii lion, p. 2ai. .Iiislilicatioii for nuiny of lln'sc ads was soiinlit uiulcr tho Civil Uifflits Hill, wliich had not tlion licoa (liiclai'y ficnoral Iloiir, siislaininn siicii a jinictici'. See i;i()p. \. (1., ."i!l; Mid'licr.sou, IliHtory oi Ihi' Itcconsl ruclioii, ]i. 47."). i-i'i Sen Wriivcrs Case, 111 Op. A. (i., .'ill; Mc'I'licM-son, llistoryof llii' Kci'iin- .siriK'lion, p. 475. M.S. li'Ucr by E. K. Hoar to llio writer, Oct. 1, IS'.tl. '" Such orders in Soiitli Cai-olina were jnstilled under au act; of tin' Stale Lenislatill-e, wlilcll was afler- wards ln'ld nneouslltulional liStati' V. C.irew, Itieh. S. C. i:! Law. 12 E(|. •^77t. 1'- Oi-di'P of C.eneral Sii-Ub's in North iind Soutii Carolinu, .\piil H. 1HC7. McPliurson, lUslory ot tlie lie- ^;X] MIMTAIIV COVKltN.MKNT OF THE SOITK. 2r>i (if State courts in suits affecting rights of property were setiii-ide,'*' ii:i(l ill one case the Federal army resisted the enforcement of tlie iK'crco of a Federal court. "^ 111 marked contrast witli tliis conduct of other district command- ers was tliat of General Winlield Scott Hancock, whom, on August liilih, 18(17, Johnson detailed to the command of Louisiana and Trxiis. in the i)hice of (iciicral Pliilip TI. Shcri(hiii. His lirst step «;!•; the promulgation, on Novcnihcr 21ttli, lS(i7, of liis famous Gen- eral Order No. 4l), whicli is replete with the doctrines essential to eniistitutioinil lihcrty : — •• Tlie (■I'lu'ral C'oiiiniaiuliiig is gratified to loarn that peace and (piiet niu'ii la tliis I)e|)artiiiciil. It will be his purpose to |)rescrve this con- (liiiiiii of things. As a means to this groat cud, lie regards the niainte- ]i:uiee of the civil authorities in the faithful execution of lliu laws as llie most ellicient uiuler exisling cireuiiistances. In war, it is indis- pi'iisiilile to repel force by force, and overthrow and destroy opposition to lawful authority. Hut when insurrectionary force liaa been over- tliiown anil jieace established, and the civil authorities are ready and willing to perfori" their duties, the inilitaiy power should cease to lead, and the civil administration resunie its natural and rightful dominion. .Siileiniily impressed with these views, the General announces that the f^rcat principles of American liberty are slill the lawful inheritance of the people, and ever should be. The right of trial by jury, the habeas corpus, the liberty of the press, the freedom of speech, the natural riglils of persons, and the rights of property, must be preserved. " I'rce institutions, while they arc essential to the prosperity and happiuess of (he people, always furnish the strongest inducements to peace and order. Crimes and offences coiiiniitted in this district must lie referred to the consideration and judgment of the regular civil tri- liiiiials, and those tribunals will be supported in their lawful juris- (lietioil. iiiiistriietion, p]i. 202 201. Soo iilso lli"onlcr ill Virginia, Mareli 12, ISdS, iiiiil. p. 1117. '■•' Diivis, IiiHi> iiiid Fall of tlio Om- federalo Gi)Voriiment, vol. ii, p. 7U9, "i:i Tit. Tlieso proeei>iUng8 woro lii'lil by the Supreiue Court to be void liiiviw^e not, Hiillioi'ized liy tlie Iteeou- ^tnifiion Aets, Eaymoud r. Tlinmas, ill V. 8. 712. " liUu Mcriier.soii, Ilisloi-y of tlio llo- conBtruotion, p. 321. Tiny iiiv p;iI(I to have bion written liy Ji'iv. S. Ula.'li. I'WBlaiiK-, Twi'Mly Years in O'li- yrcss, vol. ili. p. 'I'M. 11" D.ivis, liis(^ ami Fall of IIh' (''>ii- fedenilo (JovcniineiU, vol. 11, p. 71'J. ii;>,s.] REIIAHILITATION OV Si:\'r.X STATES. 20.3 a Ciinstitutinn of Stato government, wliieli is republieaii," and tliiit iis U';t, 428, 429). »i Iliid., p. 380. '" (triiiit's rKMiornl Order of tlint dale (Mi'PliprHon, History of the Ito- coustruotion, p. 422). 2M IMCCONSTKUCTIOX. [(■MAP. :[. sen, a joint resolution, wliicli duuliirud " tlr.it noiiu of tin; St it, wlioso inlialiitiints wore liitely in rolxdlion shall ht- I'litilk'd to r,; i- resentiition in tlie electoral college " until after eouiplianec witli the Keeonstruetion legislation."'' Tiie platform U[)on which Grant was elected President con- tained tlie plank : — " Tlio {fiiaranty hy Congress of cqmvl siiffrngc to nil loyal men at the South was (U'inaniU'd l)y every consitloration of public safety, of gnui- tude, and of justice, and must be maintained; wiiilo tiie (luostioii of sutTrage iu ail the loyal States properly belongs to tlic [jeoplo of tliuse States." '■'■' But ]{epuhlicans a.s well as Democrats had protested against the injustice of forcing upon tiie South a rule which the Nortii was unwilling to aeceijt."''' 'J'hc blacks above Mason an. •10. m llopubliwm Natioiuil Platform, "' 1(1 SI. iit L., p. C3. adopt 0(1 nt Chiongo, in Ma.v, 18(;8. "s 10 St. at U, p. 07. ""Blaine, Twenty Voars lu C!on- "" 10 St. at L., p. 80. grt'BS, vol. li, p. •112. ^ ■]■'.] Ki:ilAI!ll,lT.\Tl<)N (IK VIUdlNlA, MlSSlSSU'l'I, TiCXAS. 'Ihit till' lit Is cniu'cniiiit;- lln'sc Stiites statwl in its preaiuble that tlio iii:(i|il(' hail Iriiiiifd ami adojited a Constitution of State govorn- iiiiiil which was ivpublii;an, and the legishituie had ratihed tho twci new auienihiK.'nls, and that "tlie performance of these several iictti ill f,''0()d faitii is," in tiio case of Virginia "was,"'"" a con- (liiiiiu prci'cih'iit to the representation of the State in Congress." '''i 'Jill' hody of eiuh aet stilted that the admission to representation was — "niioii IIk' followinif fundaineutiU couditions : First that tlic" State " Ciiiisiiiution sliiiU novel' be so ninended as to deprive any citizen or class of cillzmis of the riilled States of the rl^lit to vote, who are ciitiiliil to vote by tlie Constitution Iiei'oln reeognlzed, except as a piiiiisliiiutit for such eriini'S as are now felonies lit commou law, whereof tiny shall have been duly eonvicted under laws eiiually applicable to all tin; inhabitants of said State : I'lUiriilcd that any alteration of said Constitution, prospective in its effects, may be made in regard to tlic time and place of residence of voters. Second, That it shall never be lawful for the said Stale to deprive any citizen of the I'nited States, oil account of his race, color, or lu'evioiis condition of servitude, of the lisilit to hold oirice under the Constitution and laws of said State, or upon any such ground to require of him any other fiualilieations for iillicc than such as are reiiuircd of all other citizens. 'J'hinl, That the Stale Constitution shall never be so amended or changed as to deprive any citizen or class of citizens of the United St.ates of the school lights ami privileges secured by the Constitution of said State." "^ The last condition referred to the establishment of a system of free education for all children in the State. A hitch in the proceedings, caused by the action of her legis- lature, made Georgia the last State to obtain rehabilitation. Alter licr ratification of the Fourteenth Amendment and the admission of lier rciiresentatives to the Thirty-ninth C^)iigress, the legisla- ture, believing tlie State secure, admitted members -who wore dis- ([ualilied by the Fourteenth Amendment and ousted from tlicir scats all colored men elected, upon the ground that altiumgli the State Constitution gave them the right to vote, they had acquired no riglit to hold olliec ; and then rejected the Fifteenth Amend- 'M 111 St. at L., p, 03. 151 10 SI. ulL., pp. 07, 80, >M 16 St. at L., pp. 63, 07, 80. 250 KECONSTlirCTIOX. [«'1IAI'. II. nioiit."''^ Tlio Supi'pine ronrt of the State snl).so(pU(iitly liuld tliiit iu'i;i'0('s liiiil tliu coiistitiilidii;!! lijrlit to liolil (illitHi. '■''■' 'J'lii' I'"uiti(tli Congress, in Deccinber, 18(i9, rofiisuil to admit Irt delegation tn either house, hut lefeiied tlieir eredeiitiiil.s to the ronriiitters dii I'rivilefjes and l^leetions.''"'' On Deeeniher "2'2d, (Jiant ajiiinivcil "An aet to promote the reeonstruetion of tiie State of (ieoiLria." Tlie fTovernfU- was reqniied to reeonveno the Oeiieral Assenil)ly to perfect its organization in conformity with tlie new statutory rcqti'ienients. It " decdared tliat the ex(dusion of any person or persons elected as aforesaid, and heing otherwise qnalilied, from participation in the jirocecdings of said Senate and House of itcp- resentativcs, upon the ground of race, color or previous condilioii of servitude, would be illegal and revolutionary, and is herehy pio- hihited." All niciuhci's were required tit take a test^oatii, swear- ing that they were not disciualilied by the Fourteenth Aniendnicnt, under the penalty of [)unishnient by the Federal court for perjniy, 'i"he ratification of the Mfteenth Amendment was made a further condition to the admission of the State to rijpresentation. And liu! President was directe'"> St. at L., i;i, 1."). "1 .\pplel(iii's .\niiiial Eni'y<'lopiB- dia for 1H71. The Cdtinrcssi iiiul re- port tjivoM an account of the Ku-Klux Klaii, House Ili'porls, No. 22, Parts 1 to i;), 42d Cong., 2d sess., vol. 11, Fel). 11), 1872; Senate Reports, No. 11, Parts 1 to 13, ibid. House Mis. Doc, No. 2,3, 40tli Coni;., M sess., vol. 1. Jan. IH, 18()9. A pood account of the organization of the society in Noitli Cai-olina is in the testimony taken upon Governor Holdon's impeach- ment trial, infra. Tho best hislnry of the white outrages in the South Is by Cox, Three Decades of Federal Legislation. 258 KKC'ONSTKrCTION. [t'llAl-. H. (iiif siicli controversy; but witli tlieir usual wisdom they decliiic(l to iuterfore.'''^ So gii'iit were tlic (lisorder and corruption, tliat tivo KimIl'i;i1 judges in llie Soutli, durinj; (irant's adniinistration, \v(!re foivoil to resign so ;ts to eseapo inipeaclinuMit liy tlu; national HnustMif Representatives. W'itliin live years after the Heconstruetion \v't. islution till! (iovernois of four of the Southern States, besiilcs a nuniliei' of Slate judges and other administrative o^ieer^i, liail iieen inipeaclied ; "'■' one of i. jiu eonvieted and removed finni oiliee;''^ a lil'lli had lh:d the State to avoid impcaehment ami ;i eriminal [irosccution ; '"'' and an attemitt to iiii[)eaeh a sixth "''' hud l)een almost sueeessful. In Arkansas, hefoie the service of pm- cess, tlu! J louse began the proceedings by locking the (roveriior in the executive chamber and barricailing the door."'' In the saiiK^ State, two years later, in 1874, two Kepublican governors aiiil two Republican legislatui'es, both sides representing a minority of the people, claimed legitimacy. One governor was intreuciicil in the state-house with militia and cannon for his proteitidii. while the otiier proclaimed nartial law and marched with tnxips to attack him. The interference of the Federal aiuny protecteil the man in possession.""" The greatest ti'iivesties of local self-government took jiliicc in iiouisiana. 'J'here, on jViigust itth, 1.S71, the Republican St:itf Convention was organized in the room of the Circuit Court df the United States, and l"'eileral soldiers prevented the adniissidii of any delegate without a [lass from the marshal of ihe rnitufl States. During Januar}-, 187:i, thi; marshal, sui)ported Ijy tin' army of the I'nited States, arrested members of the State legisla- ture in order to overturn a majority, liater in the same montli, ;i "'■- A|ipl('l()ii'K Amnml Encyclopu'dla for 1S72, p. 4sr). ""'3 Oovci-iKir Williiim W. Holdi'ii (if North Caniliim, in ls71; Hariisoii Rcotl of rioiiilii, Powell CliijUiri of "■'< Ilolileii of Noiili (laroliiiii. "■•■' Hiilloek of Gi'or(.'iii. ™ II. K. Scolt of Soutli t'iii-oliriii, in 1H72. "'' Journal of Arkaiusas House nf ArkauHus, anil Hen ly 0. Wannoth of llepicsoiitativi'sfor 1S71 ; Tlie liruni:,- Louisiana. Tli.' last tluon in ]«72. HaxtiT War, liy John SI. D.invll; At- These jiroceeilinKw, wliirli givn an in- lanlie Mont lily, vol. xxix, p. .SSH. ntru<'livo pictUH! of the tinn's, will Iks "■» The]5rooks-13axter War, liy.rolin (leserllied in a sulisequont chapter on 51. Darrell. Impenrhnienl. I.oriSIANA. 259 iimnliii' (if St:it(! sciiiitoi's wi'W ,t;ivcii itifiij^o on t\n arnR'tl revcimn ciittiT ol till! I'nitcil Stiitos toiivdid iiiicst liy llie st,'i;LCf;iii(-iil-;iiins, 1 Uii.s K'liVL' tliinr liimse iiRfiipiihle of nation Uiv \\; '.. of a am I[I10II .'''" A few weeks bef (ire Duicll, tlie Circuit .liidLff of tli' ('iiitcd States in tlio saine Stiite. eiijoiiied a cliiiiuiiiit from aeliiig' i;s iroveriio liinillv. wlieli oi V of Louisiiiiiii or asscrtiiiir anv claim to tiiat olli 11(1 it of coiiit, issued till' famous "midiiiisur[> llu' most imiiorlaiil con- stitutional powci' of a Icf^islative house, tin; deteiiiiiiialioii of the (iiialilieations oi its members 170 With this or ■(ler as liis liaiiiu r th iiiiii'slial le(l a trooj) of Federal soldiers to the stale-house and liy fnic(' prevented any from taking part in the org nization of the legislature without such credentials as the Federal judge (Irtciiiiiiied to be sullieieut.'"' Filially, on .January 4th. iHTo, (iciieral de 'J'robriand imitated Charles I; and, more successful tliiiii the King, entered a house of the State legislature; with a lile ef soldiers, arrested and ejecteil at the point of the bayonet five iiicmhers with the clerk; and not only obtained iinmunity, but actually escaped censure from either Congress or his superior ollieei's.'"^ '™ Aiiplotoii's Annuiil Eiicyclopip- (lia, 1K71, pp. 172, -l?;!; ihid., for 1M72, p. 17; Cox, Tliri'c Dim-ikIcs of Fcdenil Lcnlsliitioii, pp. ,').')."), T)")!!. '"'' Tli(> Kiipi'ciiie Court, fur want of jiirisilii'tioii, ilc'iiicil n writ of |ini!iilM- tiiiii iiKiiinst lliis procfiMliii};. Kx jiuiir Waniioth, 17 AVmi., 01. TliU order was coiidciMiicil 111 a n'|)ort of u coii- trrcssidiial coiiiiiiiltt'c. IIoii.sn Jlis. rilU'., Xo. 211, -I'Jd ('0M(,'., 2(1 RCSH., vol. iv. An alistnicl is reprinted in Apple- ton's Annual I'lneyelopipdiii for 1H7;1, pp. 417, 14S. '"' Appleton's Annniil Eneyelopii'dia for 1.S72, p. 4811. "- TIm" reports of r()nj.;r(?BKionnl ('"iiiinilleeR and other persons on tlie 8ubj('(.'t, are printed in Applctou's Kn- eyelopipilia for 187(i, pp. 494-498, 7.10- 712. Tlie white party were ftiiHlly co- erced into th(> aeeeptaiice of what, wan known as Iho Wheeler eoniproinise. Hy this, tlio decision as to tlio con- tested elections was snlpniilled to \ho arlpilratioii of the congressional coin- niiltee of investij»atlon; and they aKree(l that after tlio award had been ratilled hy the leKislativ(> eoin- inittee.s on elections and ([ualillea- tions, and by th(< approinialo houses, a n^soliition should 1j(! adopteil Ijy tho let!islaturo nu'oKni/.in).? as governor the Repuliliean KellottR, whoso chv- ti'in w.-is ilisputc'l, and deciariiiK that ;,.. :iii(l Iho rest of his tioveriunent would not li(< disturbed, and he W(nild not b(! lnip(!achiMl for any past olUcial 200 KECOXSTItUCTinX. [CUAI'. U. 15y sucli uses of tlie Ft'dcnil iiniiy uiuk'r (leneral (iniiit. civil libeiiy was dunieil tliu Soiitli until tlio eiul of lu.s two admiiiislr.i- tions, ill lcS77, when 'J'ildoii and Hayes eacdi claimeil to be electuJ President. .After tlie decision of the JCleetoial ('(uiiiiiission was (.■h'arly manifest, the Soiitliern representatives, wlio, by iiiil)ii.s- teiiiiy-, niiniit have prevented thi; count of tlie votes, made a har- f^'ain with the I'epreseiitativcs of Hayes, by which they iiL,'ri'cil to withdraw tlieir dilatory itroceediiiy-s if he would Ieav(^ their State Ljovernnieiits alone, lie carried out the eontract, thus desert- in;^ the Southern eandidates who had aided him in securini^f his position, and eacli of whom liad obtained more vt)te8 for f,fov- eriior than lie for President. With the withdrawal of the troons, the earpet-lnij^ goveriiiiients fell likt; houses built of cards. In one State only was there any friction: Louisiana, where there were two I'ival letjislatures, and tlu; lottery company owned eiioui;li blacks in oie of tiidin to give the other by their secession the (juoium neeessary for a valid organization. A contiaet was made with the corporation; and its legislatoi's inarelied like cattle to the other house, which then orij;-anized, and eslalilished a valid. erticient and honest government. But as the price for this rescue of the State from the hands of its des])oilers, the tax-payers were obligerl to insert in the new Constitution provisions which leijal- lids. Tlic! text- of tills c:,tnu)i-(liiiiiiy fliciat [lo.slt.ions unless rot.iirni'd by till' Ki'tiiriiiniilk'linl; l)y iiiillinilcd nplinijiriiiliiMis for the piiyiiiciit of iiiililiii expenses, nml for the piiymont iitl''t;islalive wiirniiita, voueliers, and olii'cks issued (llI^in^; the years 1M70 to ]s72; hy laws declaring thai no person in arrears for taxes, afliT de- faiill published, sliall liring any suit ill any eunri, of the Stale, or he al- lowed to 1m' a wiluesa iu his own he- lialf; measures which, when eoupled with tlio extraordinary burdens of taxalion, have served to vest, iu tho lanmiaire of tJovornor Kellog^''s eonn- M'l, 'a de)4re(! of power in tlie j^o.ernor df a Slate, si arci'ly oxereiied liy any SDvereiLtn in the world.' With this ninviition is a {.ji'iieral want of eonli- ileriri' in the integrity of tho existing Stale and loeal olTlcials, a want of coiiiideiiee etiually in their persons a[id in their persouuel, which is ne- ciiiapauied by llio paralyzalion of liiisiness and deslrueliou of values." l!<'port of Charles Foster, William Waiter I'lielps a^id C" irlisou A. rol- ler, suli-eoniiuiltei! of a Cougri'ssional iiiinndttee, whieii was adopted by the full eominitte<> and presenled to llie house by Creorgi" F. Hoar, Jan. Mill, 1K7.J. A majority of the full i-iiiiiniittee and of the snb-eoniuuttee wiri' Kepulilieaus. '"'Til.' iiistory of this transaction was loid by the New York Sun, Nov. 20, I'^IH. Thai the account there given is correct tlie writer Ijiiows from in- toMunlioti given him by a pronunenl citizen of N'"w Orleans. ThoWorudey I'e'iicreni'O, al wliieh the bargain was iiiaili' betwei'U Hayes' repre.senlatives iiini criaiu Soullj(>ru luonibors of tho twenty yeitr-s.''" So closed tliis, lie history of the I'liiteil Stiites.''* House, is (iiscribod in the New York Herald, Jan. 5, ISKS. '"* "lly own public life has lieon a very brief and insiguilleant one, ex- tending little lieyonil tho duralion of a single term of senatorial ofllee; but in that l)rief pi'riod I ha\o se<'n five juilges of a liigh court of the Cnlled Slates dri\i'U from olllee l)y threats of impeacliment f(U' coiriiption or malad- uiiuistra'i(Ui. I have heard the taunt from frii'.K.iiest lips, that when the Ignited States presented herself in the East to talio part with llii- eiviliz(Ml world in generous competition in the arts of lifi', the only product of hor institutions in whieli she surpassed all others beyond question was lier corruption. 1 have sei'U in the Slato in till' rnioii foreiiio.-l in power and weallh four judges of tier' couils im- peached for corriiplion, and lb" politi- cal adnilnisU'aiion of her ehii'f eily become a disgrace and a by-word tliroiiglioiil the world. I lia»e seen tho chairman of the Commilleo on llililary AIT.iirs in tlie House', now r, distinguished member of this ci.uii, rise ill his place and demand the i .p il- sioii of four of his nssoeiales for mak- ing sale of tlieironicial privilege of se- lecling youths to be ciliicaleil lit our great mi 111. a ry school. When tlic:!;i'eat- est railroad of the worM, bindii.g to- gether the continent and uiiiliag tho two great seas which w.ish our shori'i-., was linished, I have seen our national triumph and exultation turned to bit- terness and shame by the unanimous reports of three coiiimitlees of Con- gress, two of the House, and one Inic, that every step of that iiiighiy enter- prise had lieen taken in fraud. 1 liavo heard in higliest places llio sha ueless doelrine avowed by men grown old in jiublie olUce, thai the true way by 202 KKCONSTIiCCTIoN. [cilAr. II. Tlie constitutionality of tlie reconstruction Icfj^islation lias never l)t'uii decided 1)\' the Sui)renie Court of tlic United States, altlioiigli several attempts were made to Ijrinrr tiie point before it for du- cisiou.i"'' Applications were ina enter- tain these hills, upon the ili(m ami tlio gmtilUa- tioiKit piT"i)iiiil n'M-iif;c. Iluiv(> hi'iifd lliat, >'ii"«|iirl(iii liaiints the l'oot--ti'ps of tlic Inintcd ooiiipanioiiH of llii' ProKi- ilciit." (Sciiutor Or. .fRo F. Hoar, of M;issacIiU!»«tt», whi-n nianafior for tlio IImuki- of tho iiiipcai'linii'iit of William AV. lii'lknap, Trial, pp. 2lH), '201.) '•'■' Till' ni'W coiuts of thii rocou- ntnifli'd Sditos niiturnlly bi'ld tho Ri-iiiii.-iinirtion Aits Ut be constitu- liiiiml. Iiiviii 1'. Mayor, !>7 Ala., 0; KontiT r. Tlaiiicl-^, '.111 (111., :l'.) ; (lonu- Ui r Tavl'.i U (in., 7I>, 00. In Siiprcim' CiiiHt, li.y ^MTiTi'iit proccssi's of ratio- ciiinlion, h.'id Umf Gcoruia "in elTi'i't, .tfi.mlril froiu till' F»''l"Tiil I'liioii, mid wan mil, u«t4( lar. Iiruuf(ht hark ns .a i-.iiii|iirii'fl I'-rritory." i Nirliolas ii. Hovi'ii.-r. 4g «:i., ,514, ril r. Kii'ld, It.') T.'xas, 7.">I ; frnk r. .*\ '■: and thr T'. S. Ciri-iiil t'otirt for Virginia I hi rr Di'dier, 2 Hiii;lii's, l,s;i. INK, per Wait,!' r. ,1.1 ; It was lii'ld ;li,'il l-lii' ri'i'onstrui'ti'd constitulions of tliosi) Stati'b wrrn in forro within tliciii as soon as they wi'iv ivililiril h.v tho pooplo, nilhoii|.!li llirir approviil liy ('oiifji'i'H.s wassoniolinii'aflorwanls. In Jlis.-issippi, it w;i« hold that the I'rosidont had tho jiowor to appiiiiil a provisional {{ovornor niiil 1o i-ioalo provisional ooiiiis; that thoso cuiirls wore I'ourts croulod by tho rnitiil Stales in tho nature of toiritoml oourls; but that tliey oould nol try not ions at ooninnm law without a jury. Slot I I', liillnorry, III Miss., 11!), liit- laT, 141!. Tho court saiil that the fnots ostablishod a oonquo.st of thi' State, alllunijih this was an un.'^oinid view of till! Coiislitiition. In Nnrtli Carolina, it was held that the ai'lion of tlie eonvenlioii onllod under tlii' direeiioii of the ri-osidont wa-- \.iliil. altlioiij;h voters (|iialilled by tlio pro- vioiiH Sl.'ilo Constltntiou wore not iil- lowod lo taUo part in thooloetion. Tin oourt said that it would iissunio, fur the purposes of the arjjiinioiil. that tlio St.at() w.is a eoiiquoiod nation, sini'o that roliovoN>iri riTioNAi.ri'v f)i' i,i:(;isi,atu)n. 2(i3 till' jurisdiction of I'oiirts of cciuity.''"' In tlie famous case of Mc- (iiidlc. an apjjual was takon to tlio Sn]iriMny Coiiit from the de- ii,i,iii iif tin; Circuit Court of tlic rnitcil States upon a writ of liilicas corjjus obtaiiicil In- a prisoner held for trial liy a niililaiy ciiiiniiission in ^lississipjii u]ioii tiie chari^c of ])uiilisl,inL; articles ill a newspaper which impeded the reconslructiim fif tlie State and incited a hrea(di of the ])eaee ; and the ([uestion i(;ia r. ({rant, G Wall., 211. Tli- Mlllljc'ci will IllMlisCllSSCll SllllSCM|110Iltly ill till' cliaptor oil the Jiiiliclary. ' ' l-A-parto SlcCardle, (! Wall., 31rt; V 1 ., 7 Wall., ,i>()r> ; Cox, Three Dociidiw "f I'lMliM-al Lcsislatioii, p. r.4S. I'nr I'ii'lil'.surguiiu'iil, sochls Works, vni. i, p. r,is. '"» Justiics Kiclil nnil Grior. Their proti'.' Field's Works, vol. I, p. 518. 1"'7 Wall.. 7(HI. I'-'Ilild., p. 720. 2(i4 KKCONSTUUCTION. [(•IIAI-. II. t('ii(U'(l to defeat (lie just rij^lits of oiti/-ei)s, were void." ^^'^ That tlie action of the I'l'esident was only iirovisioiial. That the acts of the uToveinnieiit which he iccogni/ed were valid before Coiifrrcss interfered,"'^ and that Congress liad the exclusive riglit to .." '"' " Wc do not in(|iiii-(; lion' iiilo tlio coustitutidimlily '>( this lcij;ishitiuii sd f.ir lis it ri'liilcs to iiiilitiuy luithority, or to the p;irainoiiiit authority of Congress." '"" There are, however, two dicta by Mr. .'usti(-c Swayne in otlit-r cases to the ett'ect that — " The X;itioii!il ( oiislituiiou ■iivcs t iiinv froiMiion iieci'ssmily bowiiiic part of tho ])r(ii)li', and t!i(> people still ciirisliliiti'il tlic Stale, for States, like iinlivuluals. n>(;:iii their idenlily, th(>UL!li chaiiKeil to some ex- tent ill thi'ir eoMsliluetit eleiiuiiits. And iT'was tlie Stale thus eoiistitu ri'- Rtoraliiin of the government which exist cil l)cfor(> till! rclielliori, without a new election of ollleers, was obvi- ously iiu|iosKil.|(>; and before any such election could properly he held, it was necessary (hat the new Com. lit u- tion should receive siuh uincndmi'nts as would conform its i)rovisicjiis to tho new conditions creiiteil liy eninn- oipaiion, and afford adeipuite security to the )M>ople of tho State. In tlie ex- ercise of the power conferred hy the fiuai-anly <'lause, as in tlie exercisiMif every niic]. constitutional power, a discretion in thi" choice of means is necessarily allowed. It is e.-,seiuial only that the means must he neces- sary ainl proper fscipieiil case where lidity of u;i older hy a district i. .mander, sellinji Uhlilf tho decr(>e of ix Sl.ito courl, eanie ir (piestion, tlie Supreme Tourt lu'ld lii'' order void as not uut' rized by llw act, without passing upon the pev.er of Congress. Kaymoiiil v. 'J'lionias, ',11 f. S., 712. § '■^■] VXCONSTITl'TIO.NAI.irV Ol' 1.1.(;1SI,AT;()^ 205 not l;:nilL'(.l to victories iu tlie field and lliu dispot'.sioii of the iusuiireiit fiHirs. It carries with it inherently riffhtfiil authority to guard against all liiHiiediat renewal of tlie oonliict, and to remedy the evils growing (int (if its ri^ie and progress." '" And speakinLf of a constitution adopted under the coercion of the lecoiistiiictioii legislation : — "Congress autiiorized the State to frame a constitution, and she fleeted to proceed within the scope of the auliiority conferred. The result was submitted to Congrcsa as a voluntary and valid otlcring, and was so received and so recognized in the subsequent action of that li(i(iy. The State is estopped to assail it upon such an assumption. I |i(iTi tlie same grounds she miglit deny the validity of her ratiiication (if the constitutional amendments. Tht^ action of Congress upon the ^•lllj(•(•t cannot be in.piired into. The case is clearly one in which the jiiilii'ial is bound to follow the action of the political department of liie goveru'iient and is concluded by it." '*' Tiic vilidity of the acts of Coiigress is, therefore, open to in- vestigation; and now tluit more tliiin a (jiiarter of a century has since elapsed, and what they accomplished cannot be disturbed, it wonld seem as if the question were capable of a dispassionate considera- tion, in view of tlie luno'tiagc of tiic ( 'onstitiilioii. tiic decisions cif llic courts on cognate (pK'stioiis and tlu' action uf Congress in (ithii- respects towards tiic Stales wliich wi'ie thi^ seat id' IJic insiir- rcitiiiii, it seems iiiipossihle lo tiiid any jiistilicatioii lor them in law. precedent, or eonsistenc}'. The war was instituted against tlu? South upon the theory annonneed by the President'*'-' and botli liiiiises of Congress.""' that it was not the States, Imt a portion (if their iiihaliitants, wlio had rebelled. 'I'iie remanence (d' ilic States in the I'liion was asserted i:i both the statutes during tile war inijiosiiig upon them a direct tax,'"' and those sini'c Xivi '■' It.i.VMioTid r. Tlioinas,!)! tT,S.,712, 711, 715. Ami lo the same effect in Strn:iii ,■. Kalm. 11 Wall., ■lllll, .W". Scral-.iCiiiHi r. Harry, If) Wall., CIO, i'''i:i. lii .M.Mr-!i r. llun-du^'hs, 1 Woods, ■li;i. ITil -172, Mr. .Iiislice Bniilley held ut chciiU, lliut the validity of the rr- lonsinii'ted Constitution of (ieorjiia Wiis a |iolitieal question as lo wliieli tlie iiiui-ts must follow Coiit^vess, and that "Konie sort of ri'haliilitatioTi was necessary." >»8 Wliile r. Hart, 13 Wall., (Illl, (1-1!». "' See Lincoln's proelanmlivMi cal- ling; for troops, Hiipru, note 1. 1'" .S'iq)ru, over note 11. Se(! Tim Amy W.irwicli, '2 Spranuo, I'J.'l, ICl, l."ill, UiO; s. (',, 1 IVd. ('as., pp. 71!t, S17. '•■•' 1'2 St. at I.., :i'.)5, 4'2'2. See also •Jf)(! i;K('i»xsTi;r("Ti()N. [< ilAi ])eiU'(' ami lief'ii'(> llic I'ci'oiistnictidii li'<,nslalinii, dividiiiLr tlirm into (listiirts iind circuits lor tlic courts of tlic ruitcil Stiitrs."'- wliicli can only sit in States, not Territories,'"^ and providiiii,' fur lli(^ exjicnses of tin; courts, held tliero with the consent of Con- t;ress afti'r they liad heen divided into military districts. Tlir Senate coniirnied th(3 appointments of judges, district attorneys, and marshals in those States for that ])urpose."^ The Cliicf- .lustiiH! of the I'nited States sat in Is'orth Cai'olina in .liiin. llSi)".'"'' at a time wiien the Statt' was in cliarije of a district 'iiiii- niinder. The existence of the disfranchised States in the I'liidii was consiMjuently recognized hy all three of the dcpai'tments iiitu which the l''cderal government is divided. "Martial rule ciiii never exist where the courts are open and in the proper and ini- ohstructed exercise of their jurisdiction." " If this governnuiit is continued after the cotnts are reinstated it is a gross ahuse of . " 196 The guaranties of liberty in the Constituti( power intended for war as well as jjeace. for times of rehellion as will as of general actpiicscencc! in the authority of the governuiriit. and ai'e only suspended when military necessity suspends all l;i\v and the courts are closed.'-'" The iegalitj- of the ratilication of the Thirteenth and Fourtceiiili Amendments depended upon the legal existence of the State i,'ov- ernments wlii'•'■• Sen AiiM'rle:in Iiisiiraiico Co. V. Cmler. 1 Vi'liTs .111; M.-Alli.' . ". u. s.. Ill V. s., in, '"* See JohlliMmV velixil' I lie ^;l•l•llllll siipplenii'iit " ' the lici-niistriK 1 i(in Acl, July III, JsilT, m Clmse'H Deil^i.iliM, p. |;l'2. '"• Mr. Ju»tle« l)uvls, wilh tlio eon- eiinciu'e nV a niiijority of the Siipiviih- Courl, ill I'lr-jitirlc MilHuHM, 4 Wall..:l. \i'. This siiliject is iIIhiuss.hI --uIw- cnieiilly llliiler llie Wiir-l'iiwer. '■■; XhlM. •'•i» See Huprii, over noln lilt; Jnliii- moii'h mnfsii»e on the ailiiiUnleii e( Tenluiiuee lo re|iri»u\i|itati >M 111 I'eie urcHH, i|nole(l wHjiiNli (HIT nete Ht ; iiml IllHM'hloj' Ihll Kei'ond t«a|>|lllMlielll 1. the IteeonsllllelloM Vel, July I'l. I'-l''- ''"JStewuil ('. Kuhu, 11 Wall., 1'.I3, §:!S.] rNccNs'rrrrTioNAM'i'v oi' Li;(;isi,Ari(iN-. 207 villi ftii(jrantc, md iiowluin rmxitnlc is well recoLfiii/oil Ijy interna- lioiial law.^"* But no rule of law or lojrflc can sustain tliu theory which allows self-governnu'iit (o relinijuisli constitutional rights while it denies it in all otlier respects, either within the State or liy representation in the national legislature.''^'" The Reeon- slniction Acts must ('onseciucntly be condeniiuMl as miconstitu- tioiiiil, founded on force, not law, and so tyrannical as lo iiuperil die lilierty of the entire nation should tliey be recognized as bind- iii;^- precedents. There is mncdi more support for the conduct of both liousos of ('oneness in refusing admission to tlie delegations from the Southern States till after the ratilication of tiic new amendmentvS and the if-iiKiking of their constitutions. In action of that character nei- ther house is bound by rides and limitations such as liedge tlieiii ill wlien enacting laws. 'J"hc jurisdiction is expressly vested in their uncontrolled discretion. And few legislative or administra- tive, not many judicial ollicers, feel tliat. in determining upon a (liscn'tionary act, tliey are bound to follow rules of law whieli ciiuiiict with their views of public policy. iliere remains, however, anotlu'r and broader view of the entire (|uesiion. The experience of eiglity years had jiroved that there was need of an alteration of our Federal system to create citizen- ship of the United States, and give to those who possessed it rights which the States could not destroy, and which should be under tiic protection of the Supreme Court of the United States. Few hvi' who would now revoke from its jurisdiction the power to TidT: Hayinoinl r. Tliomiis, HI V. S, 712, 714, 715 ; ijuoted, supra over noli' 1.S7. '-'"' Eliihiustimo v. Ilcdri-ci'liutid, 1 K iMii|i r. 0., ;tltl, 300, ;ti;i; where this II I im was iipplli'd to i-i'licvc n niili- • ! \ olllci'i' from iiriliility for nil net, in ■■■ i"iiiiu(>n'd forolKii coiinlry not pro- l'''ii d I'rom IdiJi liy !\iiy pro\iKioii of ii I'ohstitution, nllhounh open lio^tili- ti'>s lind I'casi'd in tlio viidnity, and i!m' n.iliv(> courts wi'ro open at llii' line'. William LawriMicc o' Uliio il. iini'd iiutliority for llio Kci-onslruo- tiiiii Icglsliitii.n HiidiM- tliiH maxim (CoiiBroHsional Ctlolio, 2d bi>8s., 39th CoMK., p. 10H3). Si'o also tlie t.po(>ch of Slii-llaharser, quoti'd liiy Ihiiiuing, Thi> Couslitiition in RcH-onsinulion, Pol. Sc. Quart., vol. ii. p. TiiKS ; and tht> opinion of Aliorni'y-(T<'ni'rHl E. B. Hoar in Uic Weaver Casts W Op. A. Ct. ■•i"' .\eeording to The llepuMie of Kepuhlies, 4lh >'il., p. 4'2(! : " Thaddeus Sto\4Mis said llu're were only nvo men in all (Vmi^ress wlio agreed that tlie.so matters were constitiilional. 'In all lids buHiiu'ss.'said lie, • weacloulsido of the Constitution.'" •2{\H UKCONSTIIL'CTIOX. [I'llAI'. iiiuiul tlio ad of 11 Statu a-i well as tin; National covurmiKMit, wliich takes lir,..l lllCll V, Hi' properly witliout iliu' jiioix'ss of law, or wliiiji estahli.'lu'S liu'i|iiallly liy statute. TIk^ coiidiiioii. too, of tlie slav't'.s amoiirr tlieir former mast ers (leiuaiKk'il some iiit(U'positioii for th( pr iteelion ; and history i V I Ills taiiirlit that no class with the exclusive right of government ciiii refiain from legislation unfair to those who are disfranchised. That a period of prohation, or a gradual admission of the frccd- mea to tlu' right to vote, would have l)i;en hetter, few can doiiljt; but, after Lincoln's death, it semned to the most careful students of the subject, that the choice was peremi)t()ry between immc(li;itt' nt for all or permanent disfrancliisemcnt. wiliiuiit ifr entranclnsenii hope of a future right for any. The unwisdom of tin; (lis ehisemenl of the leadei's of the South is most ap[iai'ent. when we cons ider that, after five years of civil str lie, Ul \\lllr|l so much blood and treasure was wasted, the victors did n mand, as an atonement, the sacrilice of a single life not destio 'Jt in battle, or for a violation of the laws of war: and romenilwr. not onlj' the decimations in Rome and the guillotine in Fraiicu, but the explosion of the Sepoys by the ICnglish in India less than ten yeai-: b(d'( and the militaiv exct'Utions in South and Central America to-day; their magnanimity seems, indct'd, witliout a ] ):u- dlel. 'J'he South failed in an attenuit to leconiplisli a i-evoiutieii tl le security of slavei'v. Their failure was f( ved bv a : ccssfid revolution et'l'eeted by the Ncrth,-"- which destroyed ihi le eanlcer in institution tlial had been tl ceme!ited the Iniiju as to make it str( th. loily [I d :)lit ic, and so ■onger and more ijeneliiial than before. At the start of secession, the Southern statesiaeii aniiouiieed that tliev would never retuiii without a icconsi ruction >f the r ( )ii their return, i\\ry found that lion had brouglit to j)ass. -And their children now aihiiit a reconsti'iic- I, that what they obtained was better than what they scnight.-" -"■-' Hoc lliiiiic, I'diiiilardovoriiiiLOiil, tliitt iduIiI Ih' ni.-iili', niid li.v Cox, in II. •i4ri. TlirncDi'i'iulcH of Fi'dcral Li'ijislatimi. ^O'' Siiprd. § 3(1, iidli' 21. The liiltcr IkioU hIiows nioro iip|Jii'ii:i- '-'"* Thconly jiislorii'sor lli'cdiistnii'- turn of tlie cxtriiordlui'ry iiilliii'in'iMif lion nr(' by liliiini', ill Twc'iiiy Yciirs in Tli.-tdilcus Sli'vcii.s upon tlic liclinii Cniiijrcss, vol. ii, wliich conldins tli(! taken. A bitter nrcoiinl of !-'i.ai' best (IcfcMi f llii! lictioii of C'oiit^'rcHS (if the evi'llts, written fi'diii I'l <''in- ^ :;:..] SKAT or suvi:i;i:i<;ntv. 2o!> t; ;{!». S«'i(» of Sovoreiffuty in the Unit«Ml States. Acn.iiliiiL;' til till' iloctiiiics of jiirispnidciii'i; wliicli luv usually ai rpiiil. iIhtc is a Hovereign jiower in every form of goveninieiit, iiii;;[i;ilili' of eoutrol l)y liiw, every aet of whieli lias legal eilieacy.' TIr: siiiiiidiH'ss of this position has in later years heen iiiipiijriied,^ iiml the wrilei' lias exjiressed Ills (Hiiuioii on thcsnhject in another ])l;u'(.'.'' Tile (jnestion, however, wliicli is more alistiact tiian jirae- tic;il, seems to belong lather to tlie domain of iinis])iii(lenee tliau to thai III' constitutional law, and it will not lie discussed in the lniMiit woik. I'nder its iiilhieiice, hi^fore the Civil War, the dis- liplisiif tiie sciioolof extreme State rigiits argued that because the •si'viral States were termed sovireigii their powers were illlmit- :ilili', and includeil tlic rights of nullilication and seei'ssion.^ Sim- ilarly iuiluenced since the restoration of jieace, later wi'iters have seciiiiil III contend that there are now no limits to the powers of till' 1 .'liied States, except the express prohihitious in the Consti- tiitiiiii.'' Ivich of these dogmas is without sujiport in precedent. Tlicrc ai'e certain powers which are the usual attributes of sove- ri'ltjiily and these are apportioned between the United States and f.'ili'nil'' poiiil of vlow, is liy Davis, Kis.' anil B'iill of tho Coiifodciato Oov- .Tiiiiwiit, vol. 11, pp. 718-70.'). Mc- I'li.Tsun's History of thn Ui-roiislnic- liiui irf in no st'iiso ft liistory, but a viTv valualilo ('oiiipilatiori of tho iliM-iiiiii-nls anil iinpoi-tant furls. The .■•liiili'nt shoiilil also consiill tin' dr- liali'> in ('on(,'ress as well as tin' nows- liapi r:. 111' (lio liiin', anil tlii^ li'sliniony lalii'ii iii'i'oni till' .Joint ConimiUoi' on licriinslnii-liiin, us wi'll as thai taUi'ii lii'i'iinwi imniln'r of sulisi'qiionl I'oiii- niiUi'i'sofConiiri'ss. Tliori'ai'osi'vi'nil vajiialili' iiionosniplis; aiiioiif,'sl flii-m Al'i'ii's History of the .•VilininistnUion iif 'iovi'iiior ("liainhciiiiiH la South Canilina ; and Thi> liroolvs-Daxtor War ill ArUausas, Ijy John M. Darri'll. A full ami impartial history eft 111' iii'iiiiil roniains tn In- written. §;W. ' (h-utiiis, Jiis Hi'ili I't I'aris, LlhiT I, c. :i, ('.7; HoIjIh'S, Works, vol. il,p. (i!t; Austin, Lectures on .Tuiispni- deiiie, vol. 1, p. 171 ; Holland, .Juris- prudence, chap, iv, 2il ed., jip. .I!)-!;). iJIaine, Early History of Institu- tions, Iji'dure xiii. "The Suliji'ilion of the State to Law, Anieriian Law Koview for IbHO, II. 51',). < See the Kepublie of Ili'pul.lirs, liy H. .J. Sat,'e; Slephens, Coiislitutioual View of the War lietwem the States; Calhoun's Works; Davis, Uise and l'"all (if the Confederate (Joverniiieiit, vol. 1, and other autliorilies cited iu this chapter, miprii. '' See John C. Hiird, The Tln'oiy of our National I'^xistcnco; and ii pamphlet by the sanio author. I'onie- roy, Conslitiitioiial I..HW ; Tiedeinau on Coiistitutioual Law. 270 its wislii's. i NATCliK or TIIK CONSTITrTKlN. [I'll .\|'. ;|. Iiiit till' liiiiits ol' (Mcli ;nv jircsciili' ' fi'tain p iwiii's u!i!h;, )'illi.' 'I'Ik' uliimatu rij^'hi of Ikut.H'I.s ti) iirconiijlisli li l,m11v tlii'ir componunl iiiciiihi'i-s." liv the I'\m1cim1 ( '(iiislitutiiiii ; mid llicrc aru cf tlial iiistninii'iit w iilidraws t'roiii soveivif^iily, wliicli imm ii'iiiovc a., ./.m.v.o i.. .i. v,w.,n,.,oii i. ^.un it I'xists at all in tiu^ I'nitcd Status, rests in tliu us wisiii'S. 11 11 I'XisM ill ail 111 iiii^ I iiiu'd r^iaius, rt'sis in tlic Ijedplu (if tiireo-fouitiis of tlie several States acting tlirounii tlitir legislatures or conventions with tlie previous consent of two-iiiirds of liotli houses of Congress, wlio may anieiid the I-'ederiil Cmisii- tution.'* IJut even they are forhiddeii to deprive any State, with- out its eonsent, of its ecpial suffrage in the Senate.'-* Jj 40. S«>v«'r»?iB:ii Powers <»f tlic United States in Oeiieral. 'I'll 1' vei'S of the I'liited States are divided into two ci; those exercised lievond (heir hoi'dcrs and those exercised will III! their territorial jurisdiction ; and these agai sul in art! sulidividcd into two, th uitliin the Teriilories and the District of Cohiiiiliia aiiil those within the several States. In all external rclati 111 transactions with foreign nations, the sovereignty of tiu; rnitcil States is al)soliito except in so far as it is limited hv the exiiri'ss language and implied restrictions of the Constitution. That iii- striinicnt expressly grants to Congress the powers to regulate coiii- nierce with foreign nations, to regulate the value of foreign coin, to deliiH! and punish piracies and felonies committeil on (lie ]ii(;li seas and otYen'ses ayfainst the law of nations, to declare w; J- rant lettei-s of marque and reprisal, and to nii.ke rules coneerniii<,' cap- tures on land and water;' to the President the j)Ower to receive ain hassadors and other public ministers;^ to the i'rcsideiit ami » M.Cullocli r. llaryluiKl, 4 AVhcii- Co., 1,")S U. S. (Ull, fili,-) ; llaim', Th« t.on, ;U(i, tiri^O'i; Colien v. Vir;,'inia, (}onci']iti()n (if .Sovcieih'niy iiml its I Intcnmtloiial L.w. C Whi'nton, 2(11, ;iH0-;iS2 ; Ti'iiiicssco IiiiportaiH V. Davis, 100 r. S. 272: I'olloik .Tiiri al Sociclyl'apors, iHr,', 1N,-|M,|i|i. V. Farini'iH' Loan and Trust V.i V. S.,12',(, ,'').-)(!, 1.")" 2(1, It ; Dii-cy, Law of thi'f'oiu'tilutidii. pp. l:t7-II0: Fdst.or, Tlin Siili,ji'i'tiiiM and (>)nKtiMitioii, .\rliclo I, Soclioiis !( of tlio Stale to Law, .Viii. Law lli'viow 10. foi- 188(1, p. .'ill). Constitution, Article V; Callioun, 'J Const it u lion, Arliclo V, Worlis, vol. V, p. 3i>: Mr. .Tustii §■10. 1 Coustitiition, Arlicli' I, Sc Uradli'V, in Hans r. Louisiana, I'M tion S. V. ,S, 1, 11 ; Chief .lust ice Fuller in rollooU I'. Farmer's Loan and Trust, Constitution, Arlirle II, Scctioal! ■I. s(ivi:i;r.i<;N r(ii;itc tlic power to itjipoiiit iimliiss.iilois, ollur |iiil)li,' iiiliiislci's iiuil (diisiils; ami to lliu i'rcsideiit mid Iwo-lliiids of tlm Sciialo'iH |ilrsrlit till' powiT lo lllilki! tI■(■ati(^■<.■'' It ex |ilcs.sl\ forhiils tlii' si-v- rliil Sliili's to (liter into iiliy tli'iity, alliiuiee of colifeilenitioii, to },friiiit Icttiu's of iiiai'(|iie ami I'eprisal, ami without the consent of ('(iiii,M('.ss to lay any imposts or duties on impoits or exports, except wluit may lie ahsoliitely necessary for exc;ciitin;^' llicir iiispeclioii liiws. lay any duty of tonnage, keep troops or ships of war in time (if peace, ciilcr into any atfiecniciit or compact with anollit:' State, (ir with a foreif^n power, or cnyan'c in war, unless acliially invaded, 111- ill such imminent daiigcr as will not admit of delay.' It has III. '11 said that in their transactions with forciirn nations and action wiiliniit their own territorial limits the riiited States have all the ]MiWers usually exercised liy sovereigns which the Coiistitulioi: (li)(!S not expressly wit hold.'' Except in so far as they are ex- pressly inhihiled hy the Constitution, the I'nited States liavt? ali- sdlule and exclusive sovereignty over the Distri(!t of Coliinihia '' and the Territories." 'I'heir full jurisdiction over the Tcrriiorics, aliliDUgh formerly denied,** is now iirmly estalilishcd." The (^xtent of the jurisdiction of the rnited States within the Stales has heen a (juestion of more dispute and dinicnlty, Imt is iiiiw settled hy repeated adjudications. The two governnicnts, Stale and Xational, each exercise their functions side hy side, with a far iiion^ extensive range of action in the former iIkiu in llu; latter: hut when they do come into conllict the former has to yield. It is still true in suhstanee, as said by .Jefferson, that they coiisti- tutu "co-ordinate deiiartments of one single and integral whole;"' the foniier having the power of legislation and administration in affairs which concern their own citizens alone, the latter over whatever concerns forcitrners or citizens of other States. And tlu! ■' Coii-lilmioM, .Vrlicli' II. Section '2. * Ciiiistiliiliiiii, Ai-ticlr I, Scclieii ID. ' See In iv Ne!i(,'l(>, i;i.". T. S., 1, St. S.^i ; Jiiiifs r. V. S., i;i7 IT. K., 202, 2I'2; C'liac Cliaii Till^• i'. V. S., 1;10 U. S.. fiSl, i»'i. I'l'H". ; l''(in« Yun Ting r. U. 8., till r. s., mis, 7o.">, 700, 7ii, 712, 71:), Miioi.Ml inim; Eliiu v. V. S., 142 U. S., 651. r,r,',i. '■ C(iiif.|.itiiti(iM, .Vi'lielc I, S(jotiou 8. ' ('-j 1.1 1.25 1 lU 1^ lllll^ u lllll^^ tut 1.4 |,.6 ^ 6" ^ ► V] vQ 7 '%J^' 7 # p// PhotDgrapbc Sciences Corporation <^ 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 ■^ XATUIIK OF TIIK COXSTITUTION. [('It.Vl'. II. usual simile is tluit of the sol-ir system, with ii pnnniarisDii of llie Unitcil Stitcs to the sun and of the Stati'S to the pliiuels, cacii moving in its ri'speetive oriiit, a deviation from whicli hy any, if uni'heciied, woidd bring destruetion njion tiie whole.'" Witliin the sjihei'i' of the powers vested in them, the United States aic supreme." Every State law or ollieial action in con- iliet ■\\itii an act jiassed in exeeution of a ])ower of tlio I'nited Slates is void.'- And there are no limits upon the action of the I'nited S; itcs in the immediate execution of such a power '^ except tlie express iidiilntions of tlie Federal Constitution and the im- plied condition that the I'nited States can do nothing which ]iro- vcnts or materially hinders the disciiarge of those fun(.'tions wliicii are essential to the existence of one of their coini>o'.ient States." Even a State police power which it has exercised as it deemed necessary for the protection of tlu; liealth or morals of its citizens nnist yield when it conflicts with a powt:r vested by the constitu- tion in the I'nited States."' The L'nited Stiites are a government, and consequently a corpo- ration capalde of contracting to the extent of their powere of action ''' and of suing to enforce their rights '" in the absence of " Till- iNirlicst iipo of this siniili' known 1o Uio writer wns liy Jolm Dicliinsoii in thi^ Foili'ral Convi'iitioii : " Heconiimii'il till! iiroiiosi'd ii.'itiimal system to (lie s-oliir system, In wliloli tlio Stales were i\w planets and ounht to lie li'ft to niovn freely in their ]iro|er orl)lt8" (Madison Papers, Elliot's Doliivtos, 2d ed., vol. v, p. IfiS). " My llie siinie instrnniriit. Tiiey are foi-liidden to intert'eri! with tiie foreign rehitious of tiic Fnion :" ami to coin money, and emit hills of credit.' riu'}- ciiii- not gr;iiit titles of noliility,'* or estahlish a form of jfuvernniciit which is not repnhliciin," or assume or pay any debt or ohligiitioii incurred in aid of insurrection or rehidlion against the I'liiti'il States, or any claim for tiie lo.ss or eniuiicipatiou of any slave.'" or pass a hill nf attainder or rj- pout furfo law," or deny or ahriili^t' the riglit of citiy.eiis of the I'liited States to vote on acuount (if race, i;olor or previous eondition of servittnle,'- or abridge the priv- ileges or iniUMinities of citizens of the I'liited States,''' or deny to tlie citizens of the other States the privileges and inununities wiiii h thev allow to their own eitizinis." or authorize sluvcrv or invnliiii- tai isi'rvi tndi 'pt as a pniMshment for a crime after convictiiiii.' irot'j or deny to any person within their jurisdiclinn the eipial tion of their laws."' Tiicy are compelled to respect contraitiril rights '' and all other I'ights to ))ropert3\"* i'hey cannot make anything but gold anil silver coin a tendei' in piiynient of dchts. oi' pass any law impairing the obligation of contracts.'" or deprive any jierson of life, liberty or property without due process of law.'-" '11 ley ai e directeil to deliver fugitives from the jusliee of iiiioll State to tiie executive thereof upon his demand.-' 'i'heir , .)iiils are ohligi'd to respect the [lublic acts, rci'ords and judicial pni- eeedniu's o f the other States.' .\iid thev ai( lenahle tn tin jurisi sdicti )f till Siipr ■me (' )urt of the I'liitiid States in .-a its by other States of tiie I'liio States.'-^' I'oreiirn States and tlie I'liiled In other ies|)ects ciieh Stat(! has full and complete jurisdictin '• Suimi, 'jj 10. « riiiidtitutioii, Arliclo I, Soctlon 10. ■ n.iii. '■' Ihiil., Article IV, Section 4. '" Iliiil., Fomli'entli .Xmeiuliiiput. " Iliiil., Aiiiele I. Si'ilicin 10. '- Iliiil., Kil'teeiilh Aiiieinliiient. '■' lipid., Fourteen Hi Amendment. » Iliid., Article IV, Soetlou 2. Iliiil., Thirloonlli .Vincinli-.oiil. ' Iliid., Foiirteonth Amciiil iieiit. '" Ibid., Artleie I, Seel in 10. '* Iliid., Fourteenth .\iiieiiiluieiil. 1'' Iliid., Artlelo I, Sei-,iiin 10. ■"' Iliid., Fourteenth .Vncndi'ieiit. ■■'1 Ibid., Artiele IV, Seelioii 'J. ■" Ibid., Arlielo IV, Seeliii:i 1. ■-•' Iliid., Article III, Khventll Amondinenl. 11.] STATK S()Vi:i!KI(iNTY, :it) mm he ald'ilmtes of soveruigiily over cveiy tliiii<,' iiiul jumsoii uilluu Its honli the (iiiistiliitidii nor \)V 'I'lu; powers not y voliil)ittMl by it to tlio States an; reserved to till' St lies respectively, or to tlie jx^ojile.""''^ 1'lie iloniuin of a State ineliules llie I'egulation of the doniestie 7-elations of its lilizeiis. iiieluiling marriage, (livoree, ami other sexual relations,^' adoption anil the rigiits of {)arents over their children,^ education,^ iiiliiiitanee and tlie acuinisition of property within its horders, by lllrSt O devise, ineludintr the riidit to forbid a devise of land tlnriiii to the Tnited Statt^s;^ the title to real and personal i)ro- pcitv within its jurisdietion ; -•' all its internal eommerie and iiiaiinfiutnres, inidudinL th prohibition of the manufacture ( f an arii'li' intended for export,'"* and full eontrol over monopolies of manufacture, eoninurce and other business which are eonlined within its limits;^' and th )se immerons neeessary regulation* I'lir the preservation of iiealth,'''- property,'^' and morals,'''^ the main- tciiaiice of order,'^'' and the adjustmi'nt of rights to projiertj- held ill iiiiiiiiion,'"'' which are usually classilied under the i)oliee powers. Maili State! has absolute control over the structure of its internal i,'n\criiincnt and the right to local self-government without in- terference by the rnited States, provided that it preserves the ■-'• lliiil., Tontli Ami'ndiiH'nt. '^ Hum V. lliiiil. i;U U. S., AppoiKHx rlxv.; Mii.vnard i'. Hill, l'2r, U. H., I'.H); IVirc r. Alal>iiiiia, llHl V. H., r>SS; (iroi'n r. Stiiti', r>S Ala., 1!M); s. c., 01) Ala., 2:11 ; /'.'.r pitrle Kiuiicy, 3 Hiisjlios, 1 ; K.r/i((rt(! l'iani,oi.«, 3 Wooils, 3(17; Fran- cois i: Stall', !) Tox. App., 144. •-" III rv liiirnm, 13(1 U. S., ."iHll. -" llirldimi'au -i'. (^ity Directors, 3 Wniiils, 177; Pi'Oplo ex. ril. KiiiK i'. (ial- liitihrr, 1)3 X. Y.,438; ('i)iiiiumiwoal(h r Di'iiis, 10 Weekly Xr^ • s iTa.;, 1.">(1; Li'lii'W I'. lliunimcU, KKi Mo., 5K1; Stall' crn/. Gariii'r v. XlcCaiiii, '.21 Ohio St., I'.IS; Caiy r. Carter, 4S Iiid., 328; WanI I'. I'jooil, -IS Cal., 3(1; Clirisiiiaii r. l!reiil;liaveii,70 J[isH.,477. See, how- ever, Clayliroiik r. City of Owonsboro, It! I'eil. 11., 'i!)?. •" U. S. f. Fos, 1)4 U. S., 315. •■» U. S. V. Fox, 04 U. H, 31,->, 320. *' Kiilil r. Tearsoii. 12S V. S., 1, 20, 21, 22. Cf. Pattersou v. Koutueky, 1)7 U. S., ,101. 8> Veazie r. Moor, 14 How., 508, ,".74 ; The Slaughter House Cases, 1(1 Wall., 3(1; V. S. 1'. E. C. Kiiiglit Co., l.-.(l U. S., 1. ■" Smith r. Alabama, 1-24 V. S., 4(15 ; I'liwell r. Peiiusylvaunia, 1'27 U. S., (178; Plumley r. Commonwealth of Mas.saeluisetts, 155 V. S., 401. *' U. S. r. Dewilt, I) Wall., 41; Pat- terson 1'. Kentueky, 1)7 IT. S., ,501. »• Stone I'. Mississippi, 101 V. S., 814. ^ The Jamt's Gray r. The John Fraser, '21 How., 184; Vanilorl.ill ti. Adams, 7 Cowon (N. Y.), 349. *> Wurls V. Iloaglaiul, 114 U. S., GOO. NATURE OK TIIK CONSTITLTION. [("IIAI-. II. republican form and does not inf/ingo the express i)rovi.sions . •" U. S. V. Railroad Company, 17 Wall., 322. ver, two eon- sliliMMIuins particularly applicable to tlio federal Ky>.t('m of America, wliidi placn that system in u vory interc-sting poiat of view. " First. In a pintle republic all the power surri-ndered liy the people Is S'lliniltted to tho ndminislrati'Mi of u sln^ilo novi'rmnenl; and lie! nsui'- patioiis are guarded «,i{ainsl hy a divi-lon of thi^ (government into dis- tini't and separate departments. In the i-oMiponiid Ilepublii! of America, tlu! power surrendered by tlie people I.s lir t divided lietween two distinct pivernments, and then thi> jmi-tior allotted to each subdivided anionn distinct and separate departments. Hence a doulile sec\irity arises to tlie ri^hls of the people. The difrer( soi'iety against tlio injustice of tho other part. Different interests neces- sarily exi.st In different classes of citizens. If a majority be united by a cominon interest, the ri^;lils it fiirllicr fiimtcil, Tliut tiiis net sliall coiitiniio aiul 111' ill force for iind diirinfr tlie term of two years from tlic passing thereof. Approved Jn:ie 2."), 1798.' TIIK SKDITION LAW. AN ACT IN ADDITION TO THE ACT KNTITLED "AN ACT FOR THE rUNlSHMENT OF CEUTAIN CHIMES A(UINST THE UNITED STATES." Sr.tTioN 1 . Jli; it enocli'd by the, iSciiate and Ilniiso nf Rcpri'seutatirpx of the I'ltiti'd Sldtcn of America uhhcih^iM, Tliut if any persons siiuU imlawfuUy combine or conspire together, with intent to op|)()sc imy measure or nuasiires of the government of ti\e I'niled Ktiites, whicli aro or shall lie directed by i)roper anthority, or to im|icdc the operation of any law of the United Slates, or to intimidate or prevent any person holding a place or ollice in or under the government of the United States, from undertaking, performing, or execnting his trust or duty; and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful assembly, or cuiabination, whether such conspiracy, threatening, counsel, advice, or alti'iiipt shall have the proposed etl'eet or not, he or they shall be ilociiii'd guilty of a high misdemeanor, and on conviction, before any cdiirt of the United States having jurisdiction thereof, shall bo punished liy a line not exceeding live thousand dollars and by imprisonment dur- ing a ti'iiii not less than sis months nor exceeding live years ; and fur- ther at the discretion of the court may be holdeu to find sureties for his goiid behavior in such sum, and for such times, as the said court may diieet. Sf.c. 2. Atid be it further enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published or shall knowingly and willingly assist or aid in writing, printing, uttering )r publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame tiie said govern- ment, or either house of the said Congress, or the said President, or to 'Pruston's Doeumcnts lUustrutivoof Amerieau Histoi-y, 2d ed., pp. 278-280. 'J82 vii:(ii\iA iir.sor.fTiKNs. ["'IIAI'. II. Iiiiii;; tin 111 or lillicr of lliciii, into (•(>nt of llic liiilod Stall's, or lo stir up Hcilitioii williin tlif I'liili'il Miiti'M, nr to excite any unliiwfiil cuinliiliatioiiH liierein. for opposing or resisliiiK any linv of the I niled States, or any aet of tlie I'resiileiil of llie liiiU'd Slates, and one in piirsuanci; of any sneli law, or of tin; powers in iiim vested liy tlii' '■onstiliitiun of tlio I'lilled Statua, or to resist, oi>p()se, oi' ne I'liited States imvinij jurisdiction tiu'rcof, sliall lie ])unislieil liy n lici' not exceeding two thousand dollars, and liy iniprisonnieiit not ex- ceeding two years. Si:c. ;!. Ami he it further ciutctcil, mid dcrlnrcil, 'I'liat if any jier- 8ori Bliall be prosecuted under this net, for the writinff or ijublisliini; any liliel aforesaid, it slndl lie lawful for tlie defendant, upon the trial of tlic cause, to {iive in evidence in his defence, tlie truth of the mailer con- tuined in the pulilication charged ns a libel. And the jury who shall try the cause, shall have n rifiht to detorniinc the law and the fact, un- der the direction of the court, as in other cases. Si;c. 4. ^lii'l hi> it fiirllur cikicIi'iI, That this net shall eoiitiniic and be in force until the third day of March, one thousand ei;.;lil hun- dred and one, and no longer: /VocfV/cf/, that the expiration of the aet shall not prevent or defeat a prosecution and punishment of any olTence ajrainst tht^ law, during; the time it shall be in force. Approved, .Inly It, 17'.»8.- VIUGINIA UKSOLLTIOXS OK 1798. VllKilNIA /" ivit. In Till', lIousK OK I)ki.1'.(;atks, Friday, DecenduT 21st, ITOS. Resolved, that the General Assembly of Virtot'ily Wi'clarc, that it viiws till' iM>wi'rM of the Kt'clcial ( lovi'innicnt, a^ rcsiui ' ,' I roni tin' com- pMcl, to which till' Htuti'S arc parlies; as liniilcd Ky thi I'l.iin sense and iiilmlion of the instrument eonstitutin;; that com| i "t : as no farther v.'ilid Ihaii tliey arc authorized liy tiie firanls cinnu'rati'il in tiial coin- |iie!. and that in ease of a delilieialc, palpalili ar I dangerous cxercisi; < ■ oilier powers not ;:;ranted by tin- saiil coinpacl, the states wiio are jiriies lla'i-elo have tin' ri'j;lit, and are in duty bound, to interpose for ^aresting the pro|jre>s of tiie evil, anil for nniintainiM'^, within their risjiectivc limits, the .'iiillioritics, ri;j,hts, and lilierlie- appertaining,' to tlieai. 'I'liat the (leiicral Assemlily doth also express its deep regret, that a bjiirit has, in sundry instances, lieen manifested hy the Federal (iovcrn- iiient, to enlarge its powers liy forced constructions of the conslitiiMonal charier whieli dclines them ; and that indications have a|)peared of a de- niuii to expound certain ffcncral [ihrases (which haviniLr liei n copied from till' very limited (iriint of ])o\verH in the former articles of confideration were tliu less li;dile to Ite misconstrued) so as to de-troy llie iiieanini; :uiil elTect of tile particular enumeration, wliicii necessarily explains anil limits the jjeneral phrases; and so as to consolidate the states hy ilr.;rees into one sovereij^nty, the obvious tendency and inevitable C()iisei|iienc'! of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed nidiiarchy. That tliedenoral Assembly doth particularly protest ajiainst the pal- liiiMe and alarininij infractions of the constitution, in the two late cases of the "Alien anil Sedition acts," passed at the last session of Con- srrcss ; the first of which exenMses a power nowhere delei;atcd to the Federal (lovernment ; and which by unitini;; IcLrislative and judicial powers, to those of executive, subverts the i)octivtiv i :■ to tlio pt'opk' ; " and tliat no power over tlio froedom of rcli^iion, frtcliiHi of !~pef('li, or freedom of the j)ri's.s hein.'i' delefrated to tlic I'llited Slntes by llie Constitution, nor proiiibited liy it to the states, all l;iwfiil powers respecting the same did of right remain, and were reserv od to the states, or to the people : That thus was nianifestod their determina- tion to retain to themselves the right of judging how far the licentious- ness of speech and of tiie press may be abridged without letiseiiiiij; their nseftd freedom, and how far those abuses which cannot be sepa- rated from llieir use, shoidd be tolerated rather than the use bo destroyed; and thus also they guarded against all abridgement by tiic United States of the freedom of religious opinions and exercises, ami retained to tiieniselves the right of protecting the same, as this stale, by a Law passed on the general demand of its Citizens, had already protected them from all human restraint or interference: And that in addition to this general principle and express declaration, anotlii'r and more especial provision has been made by one of the amendmeiils to the Constitution which expressly declares, that " Congress shall make no laws respecting an Kstabli;5hment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of flic jiress," thereby guarding in the same sentence, and tmder the same words, llie freedom of religion, of speech, and of the press, insomuch, tiuit wliat- ever violates either, tin'ows down the sanctuary which covc^rs the others, and that li!)els, falsehoods, defamation, e(iually with heresy and false religion, are withheld from the cognizance of federal tribunals. Tliiit therefore the act of the Congress of the United States passed on the 11th day of .Iidy, 1 TDH, entitled " An act in addition to tiie act for the punishment of certain crimes against the United States," which does abridge the freeilom of the press, is not law, but is altogether void and of no elTect. IV. licHiilri'il, that alien friends arc under the jurisdiction and pro- tection of the laws of the state wherein they are ; that no power over them has been delegated to the United Stales, nor prohibited to tlie individual states distinct from their power over citizens; and it being true as a general principle, and one of the ameudmeuts to the Con- stitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibiti'd to the states arc reserved to the stales respectively or to the people," the act of tlie Congress of the Uidted States passed on the :.'2d day of June, IT'.tH, piililled " An act concerning aliens," which assumes power os'er alien friends not delegated by the Constitution, is not law, but is altogether void and of no force. Arri:Ni>ix.] kkntucky kesoia-tions ok 1708. 287 \ . limolrcil, lliiit ill adiUtioii to the {{enenil principle as well :;s the ex|iiiss (ic'chiration, that powers not dclej^iiteil arc reserved, aiiotlicr and miMo special jirovision inserted in tlie Constitution from almndiint (■aiiliS. Attest, Thomas Todh, C. II. K. In Senate, November 13th, 17'J8, unanimously concurred in. Attest, B. TiiUKSTON, Clk. S.ii. Approved November 16th, 17U8. JaMKS (iAKliAUn, / ih>.~:i do- hided by the expectation that we shall be deterred from wiuit we nin- ecive our duty, or Hinink from tiie prineiples contained in tliose resoliitioiH, — therefore, licmilri'd, That this Coiiimonwealtli consideiri llie I''('der:d riiion upon the term.H and for the ]»irposes specilled in the late eoiiipact, con- ducive to the liberty and hajipiness of the several Slates: Thai it docs now iiiieqiiivocally declare its attachiiienl to the I'liioii, and lothatcom- paet, a^irceably to itH obvious and ri'al intention, and will bo anioiiLj the last to seek its dissolntioii: That, if those who administer the {iciieial / t/n/.it' :tiivi'r(!i(/nliex "f all inundhorizi'd (vIs dmn'. intdiT valnr of tliiit inslri'iitinl, in the rujldf'il rcmedij : That this Conimonwealth does, under the most deliberate re- consideration, declare, that the said Alien and Sciliiion Laws are, ia their opinion, palpable violations of the said Constitution; anIN.\NrK ()!•' Nfl.MKICATION, [rilAP. I[, hiiiitlrcd (iiid thirty-two, are un.iutlioiizod by tlio Constitution of the United Stiitos, iind violiite tiio ti'uc nicunint; nml intent tlieroof and nro linll, void, and no l:\w, nor l)indiii;f ti|i(in tliis Slate, its oIliceiH and citi- zens ; and ail iirondses, eonlracls, and oliii^ialioiis, made or eiitend into, or to lie made or entered into, «itli pnrpo.se to secnre the duties ini])()sed liy said acts, and all jndicial proceedings wliicli sliall Ipo lieiv- after liad in alliruianee thereof, are and shall be held utterly null and void. And it is further ordained, that it shall not he lawful for any of the coiisliluted authorities, wlietherof this Stale or of the Inited State:<, Id enforce the payment of duties imposed liy the said ac's within the liinil» of this Stale; lint it shall lie the duty of the le;iislature to ndo[)t sneli measures and i)ass such acts as may he necessary to iiive full elTect to tills ordinance, and to present the enforcenieut and arrest the operation of the said acts and parts of acts of the {'onj;ress of the I'nited States within the limits of this State, from and after the 1st day of l''ehniary next, and the duty of all other constituted authorities, and of all per- sons residing or being within the linnts of this State, and tliey are herein' required and enjoined to obey and give elToct to this ordinance. And such acts and measures of the legislature as nniy be passed or adopted in obedience thereto. And it is further ordained, that in no case of law or equity, decided in tlie courts of this State, wherein shall lie drawn in (juestion tlio aii- tiiorily of this ordinance, or tlie validity of such act or acts of tlic legislature as may be passed for tlie purpose of giving effect thereto, or the validity of the aforesaid acts of Congress, imposing diitiej, Hlinll any appeal bo taken or allowed to the Suprcnie Court of the United States, nor shall any cojiy of the record be permitted or allowed for that ])ur|)ose ; and if any sucli ajipeal shall bo attempted to be taliiii, the courts of this State shall ])"oceed tr) execute and enforce their judgments according to the laws and usages of the State, without reference to such attempted appeal, and the person or jiersons attompt- iug to take siudi appoiil may bo dealt with as for a contempt of the eiiuit. And it is further ordained, that all persons now holding any ollloe of honor, jirolit, or trust, civil or inilitary, uuder this State (meinhers of the legislature excepted), shall, within such time, and in such manner as the legislature shall prescribe, take an oatli well and truly to oliey. execute, and enforce this ordinance, and iiiich act or acts of the legis- lature as may be passed in pursuance thereof, according to tlie true intent and meaning of the same ; and on the neglect or omission of nay 8ueh person or persons so to do, his or their ollice or otlices sliall be ■IM'.M'IX.] I''II!ST OKDINANTK OK N CM.IKICATK IN. U!tr> fdvtliuiili v;ic!itoil, iinil sliall lie fiilod up ms if such pci-Hon or porsoim wore ilcnd or luid rcHiiriicd ; and no iici-Mdii liiM'caflcr clcr'lid to iiny dlllci' of lienor, [U'otit, or trust, civil or military (uicniliers of tlic Icfiis- latini- excepted), shall, until the lejrislaturo Bliall otherwise j»rovi(le and liiroci, enter on the execulicui of his ollice, or l)e in any respect coin- p(t( nt (o dischari,'e tlie duties thereof until he sliall, in like manner, have talicn a similar oath ; and no jurors shall be empanelled in any of the Cduits of this State, in any cause in which shall he in ij'U'stion this ordinaiici', or any act of the le^isUitun^ passed in pursuance llicreof. unless he shall first, in addition to tlu; usual oath, have taken an oath tli:il he will well and truly oliey, execute, anil enforce this ordiiinuce, anil such act or acts of the legislature as niaj' be jiasscd to carry the same into openitiou and elT'ect, accordinj^ to the true intent and mean- in;^ thereof. And we, the people of .South f'arotina, to the cud that, it may be fully understood by the jjovernment of the liiited States, and the people of the co-States, that we are determined to maintain this our ordinance and declaration, at every hazard, do further declare that we will not suhinit to the application of force on the jiart of the feiieral govern- ment, to reduce this State to obedience; but that we will consider the passage, by Congress, of any act authorizinj; the einployment of a mili- tniy or naval force ap:aiiist the State of South Carolina, her constitu- tional authorities or citizens; or any act abolishing or closing the ports of this State, or any of them, or otlicrwise obstruotiiig the free in- gress and egress of vessels to and from the said ports, or any other act on tiic part of the federal government, to coerce the State, shut up lur ports, destroy or harass her commeree, or to enforce the acts hereby declared to be null and voiil, otiierwise than through the civil tribunals of the count ly, as inconsistent with the longer contiiitiance of South ( ariilina in the Inioii ; and that the people of this State will henceforth hold themselves absolved from all further obligation to maintain or pre- serve their politic.'d connection with the people of the other States; and will forthwith proceed to organize a separate government, and do nil ulhir acts and tilings which sovereign and independent States may iif right do. Done in conveition at Columbia, the twenty-fourth day of November, m the year of our Lord one thousand eight hundred and thirty-two, and in the lifty-seventli year of the declaration of the independence of the I nitid States of America.' ■'I'restou's Doeuinents illustrative of Ainerieiin Flstory. pp. ;i()0 303. 20t5 Si:CO> [) OKDINANCK OF NUU.IFrCATtON. [CUAP. 11. AN OHOINANrE TO NULLIFY AN ACT OF THK CONOUESS oi' TllK TiNrn:i) states, ENTrn,Ei) "AN act FruTiiEii to I'ltoviDi; FOU THE COLLECTION OF DUTIES ON IMroKTS," COMMdNLV CALLED THE FoUCE HILL. We, the people of the State of South Carolina in convention as- aomldi'd, ilo dccliire and ordain that the net of tlic Conjiivsn of the I'liilcd StalcH, ontitk'tl, " an not fiirtiii'i' lo piovide for tlie t'oilcclioii of duties on ini;)orfs, approved the "ind day of March, ISIi.'t, is unaiilhcu- ized by the Constittition of tlie I'nited States, sidiversive of tlial ( on- slitution, and deslruetive of ]iul>lio liliorty, and that the same In. and siiall i>e deeiiu'd null and void within the limits of this State; ;iiiil it Bhall lie the duly of the Le(;ishiture, at hueh time as they may di'i'm expedient, U) a'rsoii wiio shall do !Miy act in executiim or enforceuiont uf i!ip same williin llie limits of tl,i~t Slate. We do fiiither ordain ami ili- clare, that the aiieiiiance of the citizens of this State, while tiny cdii- tiniie such, is (hie to the said Suite; and liiat oliedience only, and not allejiiance, is due hy them lo any otiu'r power or auiiiority, to wlioiii a control over them has lu'cii, or may he di'le;iated liy the State; iiinl llifi (leneral Assemlily of the said Stale is liereliy eiiipowei-ed, from liiii' to time, when they may deem it proper, to provide for the adiiiinisin lion of the citizens ami ollicers of the Stale, or siicii of the said oilic is as they may thinic lit, of suitable oaths or alllrniations, liindini; them to the ol)servaiice of such alleu:iance, and alijuriiit: all other alle|_r;anee, aixl also to detine wliat sliall amount, lo a violation of their allcLriaiiec, and to ])rovide the proper punishment for such violation. Dour at Cohiinliia, the eijiliU'cnlh liay of March, in the year of oar Lord one thoiisMud eiiiht hundred and tiiirty-thiee, and in tiie tifly- sevcnth year '-i' the Sovereignity and Independence of the liiitcd States of America. Hor.LiiT Y. IIavni;, Delegate from the pai ishes of St. I'hillips and St. Micliaels — I'lvsideiit of the Convention. Isaac W. Uaynk, Clerk. ClIAPTKIl TIT. TIIK TIIUKK DKI'AKTMKNTS. {; 4'2, T\n' Tliroc^ I>i>|>iirliii4Mits of tlio i'iiin<>iit ol' llic riiltnyl States. 'riii; f^oveninieiit of tlu; I'liituil StiiteH is dividud into tliii'u grunt (li'|i;iitiiioiit.s, — tli(! li'i,'isliitivi', till! I'xociitivu and tlic judiciary.' Tlir liist inukt's tlu! liiw.s ; tiic second curiit's tlicni into I'il'iil ; iirni till' tliii'd decides idl dispiilcs In wiii' ii (lu^y give oi-easioJi. These (lt|iiu lineiits iiic not, iiowiiVer, ii' solutely iudepcndt'nl. 'I'iie exeeiilive li:i.s tli(! power to interielo ill legishitiiili hv iiis veto, uhicii can only lie overcoiiu; liy tiic vole of two-tliiids ot" fiuli legislative liousc. 'I'lie ii|i])ci' clianihcr of tlic Icgislatiire ili.ieliaiges executive functions in connceliou with the I'residcit !) 12. ' •' It Is l)olinvi-(l to tio oiKi of tlio cliic'f mi'iits of thn Ainc'iii-iin XystiTIl of Wliltl"!! (•OIlStllUtiOMlU l.iw, timl all tho poworH Intrimtcd to tlm ■.{oviTiirnoiit, wlii'thcrSliti'oriintional, uro (livlili'd into tlirco ut'""' li'ipi'it- miiits, till) (!Xi'(Miliv(>, tlio h't^lslalive mill llic judiciiil. TImt tlio I'mn-tioii ii|i|'r(i|ii-i:ite to caidi of llicsi" liniiic'lic« of pivcriiiiu'iit sliuU liii veslcil in n Hi'puriilo Ijdilv of iuiIjIIc sorvaiits, anil lliiit llio iii'rfi'clioM of t!io nysti'iii n'i|uln'H lliat tlie lineK wliirli siimratu mill (Ihiili- tlii'Ho (li'imrliiiciits sliall t)0 liiiiiiill.v ami cloarly ilollni'd. It is also fssi'Utial to tho sucwssfiil work- ing of this HyHtniu that tho persons iMitriisti'U with power In any one ot Ihi'Si! liriinches shall not he jiennitlcd 111 eneroaili upon tli(> ]iiiwers i-onliiled to llie (ilherti, Imt timl each slmll by till) law ot It.-t i-reatlon bo limited to till' exeroiseof tho powers appropriaie 111 its own (lepartiiient and no oilier. To tlieso niMieral pidpositimis there lire in tho l.'iinstitiiliiin ot the I'liitiMl Stiles cortulu iiu|iortant o.\eoptioi;s.' •2i»7 Tlietio oro then staled siib'^lantially as Mit fonh in the tixl. (jlr. .liLsliee Xllllor in Killioiirn r. Thoinp.son, KKt U.S., 1(;h, I'.Hl, 1!)1.) "Oiiii braneh ot the KovornmenI I'annot eneioaeh on the doniain of iinotlier without daiinor." (Chief Jiis- tiee Waile in the SinliinK Fund (!ase,>*, !i;i I'.S., 70l>. 7ls, i|Hiiled with approv.-l by Mr. Justk'O Harlan in t'loiij^li v. Curtis i:it r.s., ;i(u, ;t7i.i "Tiie iiiai,il"nanc'o of the svsieni of ehoclis and baianees elianieleri.'^iie ot republiean eoiistUiilloiis rei|iiires thoeo-orilinutodepartnipntsof tfoverti- luenl, whether federal or Slate, to refrain fioin uuy infriiiKOincnt of tin- independeneo of oaeh other, and the possession of property by tho jurtiei,;! depiirtnient eaiinot bo arbitrarily eii- criiaelied upon, savo in violation of this fiuidaiiiental jirlneiplo." (Chief .Iistli (> iMiller, In re Tyler, Mil U. S., ll'il, 1«'2 bS); to the same effeet In re Swan, l.';(l IT.S., (',;17, li.'i'i.) The deei- sioiis as to whiih head partieiilar powers belong will bo dlseussed later. 298 Tin-; TIIIIKK DKPAUT-MENTS. [CHAl'. 111. upon tlic i-adfiufition of treaties and the eoiiiinnation of ajipoint- nicnts to oilicu : and also judicial functions in the trial of ini- pcuchnients. The judiciary has been constitutionally vested with the power to appoint to certain ollices '^ wliich many consider tn be executive.'' In the main, however, these departments are distinct and iivlc- jK'iideiit. Hach of them is vested with powers to protect it.s.lf a<,Minst encroachment upon its jurisdiction by the other. 'I'lic k;;- islative may ])e checked by the executive, through his veto powir and his po\v(tr to refuse to execute a law which he considiMs tn lie unconstitutional. It may be checked by the judiciary, tluoiigli their ])ower to refuse to enforce unconstitutional laws and to i^jive I'clief to those injured or threatened by action founded upon Ihciii. The checks upon the executive b}' the legislature are tlie [unwr of two-thirds of the Senate and a majority of tlie lower House td renu)ve him by impeachment, the power of a majority of citlier house to withhold the payment of tlie funds needed to discliaraic his functions, and pcrhajis the ])0wer of two-thirds of hotli to prescrilie, over liis veto, the manner in wliich he shall dischiuifc his duties.'' The checks upon him by the judiciary are tlieir ])()wer to ordei' the punishment of any of his subordinates, if not of himself, for illegal action in pui-suanco of liis orders; to foilmi suoli acts wlieii threatened, and in certain cases to command iiiciii, or pcrhiips even him, to obey tlie law. Tlie checks upon the judiciary are the power of the legislature to remove tlieir members in the same manner as the executive. I>y inipeachiiieut ; the power of either house to refuse the ajipro- j)riations necessary to carry on their business ; the po\>. er ef the legislature and executive, or two-thirds of both houses witlmiit tlie executive, to limit their jurisdiction and prescribe the mamuT in which it shall be exercised, except in so far as it is jirotcfteil by the ("onstitution ; and the power of the executive to refuse Ui enforce a judgment whicli he considers unconstitutional, and to pardon all whom he thinks were improperly convicted/' There thus exists a system of checks and balances, viu li ol ^Conwliliilion, Arlicln II, Si'dion < Sen .si/jim, § 3S, ovi-r uolos !M und 3 ; Ex jmrlr Su-bolil, KM) IT. S., ;!71. 0."), and infra, cli. XIII. " Till) Fcdcnilist, Nd. xlvil. Soo f' .Iiiilgc Frazior was ri'inovcd iipoii tho (ILscusmIou of this (luestlon, »'Ji/"m. iinpeachmont by tho Legislature of §4;].] IirSTOKY OK TIIK CLASSIFICATION iiliU wliicli lias been used or threatcntnl. dc'sigiied to preserve the ori- ginal form of the Coiislitutiou iiiicliaiiged.'' This system is the ])eculiar cli:ii'acterislif! nf the I'liited States, and has estahlished tliens a presidential form of govei'iimeiit as (listint^uisiied from the cabinet governments w hieh usually prevail, ill tiicse, the legishitive and executive funelions are both exer- cised by the same l)ody wliieh has usually ab.-olute eoiitiol over tiie judiciary liy the power to remove tln>ni and appoint their suc- cessors ; and tiie nominal liead, whetlier called king or president, has his power rediiceil to a shadow, while the judges are power- less against the assaults of the legislatui'e. The importance of the •iiaintenance of this principle is recog- nized in the Constitution of the United States, both by the manner in v.liieh it distributes the powers granted by it, and by the lan- guage whicli it uses. In most of tlio State constitutions, fnuu their earliest foundation, tlie principle is expressly declared. Thus the present Constitution of \'irginia ordains: — " Tlic legislative, executive ami jndieial departments shall bo kept Hi'pieato and (hstiuct, so tliat ni'itlier exercise tlie powers i^roperly be- Iciiiiiiiig to either of tiie others ; nor shall any person exercise the power of mure than one of them, except as hereinafter ])rovidcd." ' And the present, which is also the first, Constitution of Massa- ehusetls: — " 111 the government of this Commonwealth, tiie legislative depnrt- ineni slialt never exercise the executive and judicial powers, or either of tJH'iii; the executive shall never exercise the legislative and judicial powers, or eitlier of tliein ; tlie judicial shall never exercise the legisla- tive and cxecniive powers, or eitlicr of them; to the cud that this may I'o 11 irovernincnt of laws and not of men."' >; 4;j. History of tlu' i'lassUU-aticm of flov«»riiincntal Powors. The chvssilication of governmental [lowcrs into three is as old as Aristotle, but the iniiiortance of their se[iaration was lirst cx- 'IVmii'ssco, for Ms intorfi-ronee liy tho cnsoa (infra, §45\ mid tlii' i out writ (it habeas eoipns with the action iielioii of Coiiiiiliolier Howler in ro- of till! lower lioaso. (8eo in/i,i, 5 tl-4, fiisiuf? to audit IIk- wiirrtuil for liio nnd Appendix to lliis vohiiiie. ) Cases iiayiueiit of the su^nr bounty, ofllic i('fu!-iil liy llio exeeulivo to eu- i' Co 111 pure Cooley, Coiislilutioiiiil fiiri'o (leeisions wliieh ho considered Liiiiilations, (Uh ed., pp. 45-47. UMciiiistiliitional, were Iho conduct of ' Article IT. Jailisuii in rcKaid to the Ciieioiceo ^ x'arl Fir.st, Article XXX. 800 TIIK Tinir.K DKrAUTMKNTS. [fiiAi". in pliiiiicd I)}- .M()iiti.'.S(|ui(;u.' His (^'leal work was a uu op ted as iiif;i! lihle iiy the Icailers nl' llic Ainei'icaii people tliroughout tliu IIl'Vo- lutioii and at tiio tiiiio of the Federal Convention.''' More tliau half the first State constitutions contained declarations of tlm importance of the distinction. 'J'iie rest recognized it in their structure. The lirst constitution proposed for Massachusetts was rejected partly for llie reason that the poweis were not kept sidli- eiently aptut.'' The llrst resolution of tlie Fe(lcral Convention was, "tliuta national governnicnt ought to ])e estalilishcd, consisting of a .su- preme legislative, executive, and judiciary."' This was adopteil by a considerable niiijority.'' The onl}- contest was over the (pics- tion whethei' they should create a new and national governnicnt. or should nieitdy amend the Articles of Confcdei'ation. Th-ic was no dispute as to tlu^ tripintite division of tlie goverunieiit if that were to be national in its cliaraeter.'' The Constitution was opposed upon the ground that these pond's ^ i:\. 1 S'lj.m, S (1, note 10. ■-' Supra, ^ (i, noLO !). ^ Tho ro.isdii.s (issifjiK'd liy the Cmnity of &si .x r.vn coiiliiincd in ii pninphlt'l. calli'il 'I'lic K-.s.'x HoMilt. liiilillslicil ill 177S. li, ((iiilnins tlio folldwing liiiit,'ii;iyi': "Tlio lo^islulivo powoi' must not 1m^ IniKtod willi dim iissi'iubly. A .siimN^ iisHomlily i.-; fi'o- iiuciilly iiilliii'iiciMl liy U\f vicos, fdllios, piissions, find projiidicos of nu in- dividual. It is linldc tolii'iivfu'icidus, mid to o.Noni]it itfu'll' fnnii tlic Iiiii'iIi'Mh il liiyff on its mnHlitiicnls. Il, is siil)j('i.'t to imiliition; iunl aftor a ei'iii'.s (if yi};irs \\\.' Iio pmniiilcd to voio ilsidr porp(>Uiiil. The l,jeel. Hol- liuid was jjovorned by one repf<'sen- tativo as.seiulily, annually elected. Thoy nftorwiirds voted llieinselveM fr'im annual to seplenuial, then for Hie; nnd llnaily exerted tlio power of lillinfj up nil vaeaueie.'!, witlioul appli. eatioii to theirrousliluents. The };ov- ormuent of Holland is now n tyranny thmuih (I rcjiiililic, Tlie rofiiilt of a .siu^le as:-einlp|y will In- lue-ty ami indigested, and llieir judsnienls fii'- (pienlly uli.'-iu'd and irieuiisivtviil. TiKM-e iiiusL lieasecoud bedyio revise with 1 liies.s and wlt-dom and to contiol with llrnmess, indepen.liut upon tho llrst, eil.jiei' roi'llieirereaiioii or existeiu'e. Yet, IIh) llrst niust ii'- luin a I'ij^hl to a similar i 'vision and eoiiti'ol over the Boeond." See the New Kn^land Alaf^azlno for Jlaicli, 18:i'2, p. 1). See also the stateineiil of thi^ I'oasons tor tlie re,jeet,liin of this (^uistitiition in the paiiiplilet lilod HH/ini, § S, note 7. ^ Siiiini, S 17. '■Six to ono on the llisl vc.te In the eonimitli'e of the whol ■. Ni'W York beiuK divided and tlie imIicm- Stales abs(Mit. Seven Ut three on tin' reeonsiiliM'.itioii, Maryland beiir.; d.- vided, ,S'i(y.i7/, !} 17. over noteso luid I*^. '■'■'.Vn independenco of the thn'i' !;real depart iiients of eueli otle'r. as I'ai' as po'^sible, and the respoiisil'ility of all to tlii> will i.f tho eonin"i:.:i^ seonicd to bo ({''a^'rally adnibtil »- ciiAr. in I iis iiifa! tilt! Ut'VO iloiu tli;iu lis of the t ill tlieir isetls was kept .sufii- S " that A [t of ;i su- is adoiitfd ; till! (|iif.s- iverniiK'Ut, III. Tli'ic .!rmnent it ,es(! pouci's rofiiilt of II ( Iwisly mill IjJlllOlllS fl"- irii'iiii.-i-l"iil. ly 111 ri'visii Diu :uiil til lulrpi'ii I! ul ii'irii>;.:iiin st IllU'^t 11'- ■visioii iinil KiMI till' f(ir Man-li, stali'iiii";! of linn (if lliis ilihli'l, liloU j-l-] CLASSIFICATIOX OI' (lOVKUNMKNTAL roWKi;," 301 t,. Ill .,1 ■, N.'W ll,,' olhiT Ihr iM 111'' li lu'il;-; il.- -, iiii'l 1!<. f Iho lliivi) I'll Olll.T. Ill* 's|»iiisil'ility (■omiiniii'l>i Ulllllll'.l'l 11" wi'i'ii'il siinicieiitly (listiurt on account of tin- executive fmu tioiis iri'. ■;! I > (lu! Senate and tlie veto power lodtjed in liio I'residcut. T'l'S' o!>j(.\:tion8 were auswei'ed in the ruderali-it by the statement tliil (lie doctrine only meant " tliiit where the wliole [lower of one ili'iiartnieiit is exercised by the same hands which possesi the irJiole iiiiui'mf a'.iotlier department, (lie fuudauiontal princijiles of a fiee ciiii^iituliiui are subverted;"" that thi.-i was s'lown by tlie praeliee in (iivat IJiiiian and the several States; and that a certain iiiix- tiiio iif fill! powers was css(!ntial in order that each miylit be alilo til i;!];n-il itself ai^ainst the eneroachnieiit ■; of the otlieis.'' "Til! Hritish ('oustitntioii was to Monte-qiiieu what Homer liN liri'U to the didactic writers on epic poetry. As the latter li.iv.' considered (he work of (he iniiuortil bard as (he pi'rfcet iiiiiiji 1 from which (he [iriiiciples and rules of the epic art were to 111' ih'iwii, iuid by which all similar works were to he judged, so tliis '^irat po'iitieal critic ajipears to liavi! viewed the Constitution cf bu:;land as ihe sta;idard. or, (o use his own ex; ressioii, as (he iiiimir of political liberty, and to have delivered, in (h" form of flriiii'iita;y (riidis, (he several characteristic 2>''i'ieiiil'.'s of that li;iilii'i;lar system.'-'" In tlie century ■which has since elapsi.'d, by till' rirm establishment of a system of cabinet ll-r()ii-trii''lfil » Madisim in Tim ri>(l»>ralisl, No. K'lvrnuiii'iii." iMailiwm Paprrs, Kl- \\\l[. lidt'a DclialcH, 'Jd cd., vol. v. \<. 3'J7.) '" Maiiip, Poimlar (tovorniiii'iit, p. 'Till. Fnloralial. No. xlvil. 239. ' It'lJ., No. xlviii. " " The separation of tho exocutive 302 TUK TllUKl-; DEPAKTMKNTS. [chap. 111. liowmer, there are no .signs of its iibamlonnieut I)_y tlie iicopk'; 1111(1 tlie wi.sdoiii of the cliaiig-es elsewhere it reuiiiiii.s for tlie iiuiuv to (leteriniue. B 44. Itcasons for the Separation of the Throe Powers. 'I'lie rea.soiis assigueil for tlie separation of the letjislative, ex- eeiitive, and judiciary, are that they cannot he iM)iiiliined wiliiimt the ereation of an arbitrary govei'iinient. That tlie authority to make an art a crime, to eoiulemn for its eonimission, and to cxi- cute the seiiteiire, wlien united in a sinj^Ie man. make liiiu ;i desiiot, and that human passions an; too strong to kee[i hiiii finiii an alaisivc use of siudi stri'ngtli, are universally adniitt(!d, without the need of any reference to liistory. 'J'hat when tliese poufi^i are vesteil in one hody of men, tliat body usually degeneratis into a mob, unrestrained by any considerations of justice or mod- eration, is less generally recognized, because the instances iiie rarer; but it is usually eoneede pelled, made the English nation iniiiort foreign kings ; wliicli, „wice within the century, have made the French people voluntarily submit to an emperor; and wiiicli make many of the most iiitclii- gent of our own day still believe that no rejuiblie can endure. 'J'licse dangers weie observed and descriiied by Mont' siiiiirii before the history of his own country reinforced his iliustiatiniis. And the continual eiicroaehments which those vested witii 'W jiower seek to make upon the others are even more apparent iiow than then. In earlier times, the executive was the strongest, lie in iiinst countries suiieeeded in destroying the legislature, and made the power from tho li'Rislativo is .'t drcviiii, p. fit, (inolcil tiy Doulro, ro'isUliainn thoiiKli Moiilowpiicu Ims PKtJililislicil of C'aniidii, p. GH.) Si'o nlso Wil«iiii, tlio liclicV Hint it 1h ono of tlio fjrcnt Conwri-Ksloiiiil fSovprniMi'iil, pp. '-'•'<"). Focuritirsof lilicrl.v." (Oolilwiu Smith HOC), ;U1; Hti'vciis, Hoiirccst of tlic Con- in Tlio li.v.stuudor, Toronto, May, 18H0, stitutlou of tlio U. 8., 1st cd., p. 17. ^^■'■] KQUILIIIRIU.M OF TIIH TU. ;K DKI'AKTMKNTS. 303 jU'lkiiUT .snhsorviont (o liis will. In HiiiopL". (hiriiitr tlie iiiiio- ti'L'iilli ceiituiy, tlie legislatuics have Ix^eii tliu iiivadeis. 'I'liroiif^h tlicir iiowcr to I't'luse siip{)lit'S to cany on thu ucoVL'ininL'iit tlicy line nearly cveiywliere destroyed the autliority of the execiifivi:; iiiiil in those eouutries wlieie they have the power to reniov(^ th(! jailiiiaiy, they must inevitahly prevent its imposing any ohstrne- ticm to tlie innnediale aeeomiilishment of their arl)iti'ary will. In the United Hlates, the (liiee departments still remain, eacli in full force, as cheeks and halanees ui>oii eaeh otiier; and (Mpii- libriuni, with a few variations, seems to have i)'.'en maintain ■(!.' $! -i.*). IC(|Uilibriiiiii of tlic^ Tlirvo I><>|»ai'tnieiit.'' in (Ik; I'liited States. Of the tliree departments, the strongest is the legislative, and the weakest the judiciary. The legislature has the control of the jan-se, and ean starve the other two hy refusing them the sniiplies with which to carry on the government, or even to snppoit liieni- Tlm executive has the jiowcr of the sword. He can c( ni:ni> til e army to comp ■1 ooeilienei; to !i ill. I5v tl nis means. in fiiinu'r centuries in l",iiro[ie, and in paits of South and Ccntial .Vinerica to-day, that department has al)sorl)L'd most of the functions ■ly tlie power to register if til..' other tv Tl e ju'.ticiary has mere ■h. its d,' DHlv en witii a declaration of the ItMSO ns for its action. It can I'liree them by the aid of an executive ollicer. Congress is eliosen hy the [U'o[)le at hiennial eh'ctions, so that a iiinjoiity of the lower house nearly always represents the i)e(. pie's Tlie V resM lent is electc(l cvi fc veais liv what is ii I'ffiM'l a direct popular vote, and consc(pienlly nearly always rc[)- ri'sen ts tl u; wishes o f at least a lai'LTc minoritv. T jllilge; appdiiited i)V the I'rcsidi'Ut and Senate, and hold olliee, unh^ss im- lieaclied, for life. So tiiey may represent the opinions of a pir;y wliieh hiis passed out of existence, and have no .sympathy wil'.i thu pivvailiiig . nolo 11. .Iiuliiiiii'Mls of tlie Slato foiirt.s lira SI"). ' Tlio iiiarslinl, wlio in up- ii^imlly cxcviili'd liy the slicrilT, wlio Jiinntwi by tlio I'msidonl iiutl Souate. i.s im oloelivi! county olUecr. ?.04 EQUILIimiUM OF THE TUHKK DKI'AIiTMI^NTS. [ni\!'. H!. tlio locrisliitiiro was in sviii]);itliy : tlic C'lirrokct's" ciises, wlioiv' ilie ]' ri'sidcnt, siilcderal courts without (piestion is crreater than that previously I'.'posed ill any Irihunal in the world. The last volume of the re- ports of the Su])renie Coui't of the United Stites contains the record of their siicee.-i.iful assertions of c;reater power to inti.>rfeie wi til the civil administration of tlu^ Statt am 1 with the taxiiii' power of ronj:fress,'' than was ever exercised hefore. So elsewhere, the executive, wherever civil liberty has pre- vailed, has been \inable to resist the assaults of the lejiislaliirc, ami ry been le people's lie threat to withluiid the supplies has in the present eeiitu ■du lei'ii's to (^omp(d ac Peters, ril5. Tliia will htt oxplaiiieil later under I lie .Iinlieliil Power. " Kx pnrlr Merryiiiiiii, Taney, 'itCi. * Letjiil Toiuler Cises, Kno.x r. Lee, 12 V/;ill.,4.57. See in/rn. '' Kx parte MeCiirille, C, Wall., 31«; Siiitrn. S 3H, over noti> 202. ' In re Delis, l.-,H IT. S.. .V,t. * Piilloek r. Fiiriuers' Loan nnd Trust Co., l.".H V. S., ('.(11. " Thoro nre two njiparent excep- tions : Prussia in 1800 nnil Derniinrk nt the present time; tint It ean lianlly s. c. 7 Wall., 50G ; supra, § ;18, over lio said that civil liberty then existed nott! 179. in either. .] EQUILIBRIUM OF THK TIII!i;i-; Itr.rAIITMKNTS. !!):■) liis oilicc, and the reserved riglits of the States, evil', was never chosen hv tlii lie, li 1" vu-c piv -ident elevated liv th tple to ho piesicU'nt, l)Ut \v is a ■t;)l of an i'.ssnssiii ; ;ind mii- st'i|U(iilly had not tlie ]inl)lic ciiiilidi iice r('])os;'d in an oiliccr \vl;o ilisili;ii'L;'i'S dntii'S whirli the i)i'ii[)le havi- eh'clcil him to jici'foi'ni. Wli 111 a sill iiUar atteii.iit was made to fori re one of his SU' rrssoi's. to siL,Mi a])]irii[)! lation hi Ih^ itli ell uises fontanilliu' h'u- I. nil I f wlili h lie disapproved, the I'lesidiMit, althoiii^di the pievi DiiLiref had refnsed to \ote tlie neede d supplies, retiiriied h 11 Iter hill with veto niessaLres: threatened si ircci ■tive extra :;e iiiilil the jTovernincnt received the funds iieees-arv for its iiiaiii'e- iiMiirr : and after a protracted strnjfL,de, puhlic' opinion eonipell' I itiire to vield. 'Die P resident ol the I'liitt I'Xi'l'ClM'S, Wl th the a{)])roval of the jieople, more >titiitional !■ !. ISi;; Miiiini, !} :1H, owninti' OJ. '• SiiMM' will ITS iiiuliiUiin thill Cmi- (jri'-^s lias (•iiiTDacht'il permuuciiUy llpiiil till' li'.lli'P (li'ii.-irtllirllt'-'. S('i> Uul^v-y. W.'lstrl-, ].. iM): ('■■lltnillilll Aililnss or III-. Jiistird Milli-r. I'ro- fos.-iir W(»iilri)-,v Wilson, iilso, In liis iiili'iTsiinn worii on Coiij^rcssioiiiil Ciivi'niiiiciit, cliiinis tlwil Uii> iloi'triiio ot 111.' iiiilcpiMiiliMU'O of 111!" tliri'o di"- |iiirlini'iil.s is, liorrowipi; Uii> wonlsi of Biiid'luil, "llic litiTiiry llioory of tlio Ciiiisiitiition"; iind timl, in fact, Con liri'^s is siiin-cnio (\'l : ">(',,., .;|.|..s Htaml.s iihrosi, h, ipl. s'-!v oiilsiilo of llii> ili'ptirliMi'iils: " iii'd ( ]'. 'I'.)'): "TIcM-o isnosii'iil-ir li'L'lsl.itiiin in I'Nistciii'c wliirli is .so .-hiiL iipto tin' oiii" liiisiiicss of Iriw-niaUiii;; as is onr ('oiiv;i-i'.-s " i si'c also pp. atl'J ami Ull .. .\iiil his whole work seems to lie a \ it,'oriiiis arf^imieiit in fiiMir of j/ivinn to ("oiigrosa power to break down the oxeenllvo ratherthan a demoiisl ration of the position that that power lia.s been already obtained. CHAPTER IV. CONCiKKSS IN (iKXHHAL. 5^ 4 tidii reads : — •• All li'LrislMtive Powers heiciii ij:i;iiiti'«i shall he vested ill a (,'()ri;i:ri'88 i>( the I'lutfd Stiili's, which shall eo!isist of a Senate and House of li'si'Mlatives." O))- 'I'he lirsl (Is of the artiile clfaliliL;' Coiiijress show tlial the liowel's lliel'ein "'la iiti'd arc limited and not ij-eMeral Tlie to d! h'L,dslalive I'owers lierein granted," renui'ds hotli the Coiil.ni'SS id tin; people ol tlie existence ol' some limitation. The iiiin> diiction disjilays the <4'eneral ohjiH'ts. iiici'ates some of the powers of ('oiiM-rcs-i The ( 'oiistilulion it-ilf cim- whiid 1 mieiit pei'liaps fall within the ^-ciiei'al expressions ol the ill 'X(diides (illii-rs )f till Irodiietory pai't. Tlie.ie in'oliiliitioiis are in some dej^ree auxiliiiry to a due eonstriK tion of the ( 'onsiilntion. When a jreneral power liver certain ohjeels is graiiicil. aeeompanieil with certain exeeji- lions, it may he considered a-; Icaviiii^' that e'eiiei'al power uiaii- liiillisheil ill all tiiose respects wliicdi are not thus exei'pted. " ' It is V •ant of ■tiled that the ( 'oiistitiilioii of the riiited St ites is a powers;- wiii'reas tlie State eoiistiliitions are, so far a -the. State h'nislalnres are eoiieerned, limitations of liowel's pn iiisly CXlstlllL S-I'l Jlicvlc (' cm IIh^ e'nilslil lltidll. (lel.v.iti'il " in.-!(\'i:;iiiscd by tlie terms, recommendations and ordinances.- 'l"he, lircscut CenLjrcss of tlic I'nited States is a national legislature, ;iiid its sonree may lie traci'd throunh (lie IJritish Parliament to llie iiieetiiigs in tiie woods of (iermany desciibed by Tacitus.-'' Tlie form of governnieiit which prevails usually in luimitive ('(iniMUinities comprises a l^ing or cliii'i', a senate or gatlierin; still follow the early lastiini of attetuling armed.' <>!' siicii a chiriclcr were the fed- ir.il assemlilies of ihe .Achaian, Aetolian and I.^■(•ian Leagues, whiih ('■I. r. ricl,.>U, K; How., tli;, 1:W ; Pi-alt r. Allni, l:!C(.nii., li;), V>r, : l'ro|.I(> ,:r rrl. M-Ii.'iial.l V. Kci'Icr. 'all N.Y., M:i. IT'.i. 5 17. > riiicf Justice Miir.sliiiil in Gilil.diis r. Opl'Mi, i) AVIioiUon, 1. 1^7, Miic'imI supra, § li, over note '2'S: .loliii Allium iilso expressed lliis ojiinioii, liilt JelTeivoii (lisaj^jreeil to ii. See Woi-i;s of Joliii AdiiiiiM. \ol. viii, y. 4;i:i; •Ien',.|'.soii'H letter tojoliii Ailniiis, Fi;li. ii, I7s7, JolTertJoii's Works, vol. lisli Coiislitiilioii, eh. i. ii, p. I'.i'i, (luoleil ill lli'.;elo\v's note lo Sioiy on the Count ilulion, 'Ah e.!., - Siiiiri. S ■_'(;. ,Soe also ^ CJ. rolo a. ■■'■•('e lieail systen:e iv ele IroiivC- dims le'i hois." (Xlolllesiinlell, L'Rs- l>rit. des Lois, tome xi, ell. \ i. ■• Sjieiirer, rolilieal Iiistiiiitions, S I'll ; I'l mail, (Irowtli of the Eiig- no8 C'ONCKKSS IN CKNKKAI,. [I'n \!'. IV, iMcli ciiizL'ii liad a right to attend, altlioujjli tlicy vot'd In i ui.s.' 'riicy wen' tuanifcstly iini)ra('tical)le wlu'ii a j^'ovithiiiciiL w :s s[irr;;,l III' i'f[ii'c-;(iuili\ .' iiiiil'ediTalii)i;s si'i'm In iinvr lie'-n enrMjiscd i>l' tile j)resent and i'nrnu'i' niai;istiat,'S of tlie dilVerenl eiliis. wlm ;(i'ted laliier as; ainlias> idms tiiiin !etji-.lal(iis, and \i!.'d I ly cities, i/aeli lia\ inn' an eiiual |)(>li\ilatinn." Siicli nntlielintfs nf ;ill iVeeiiieii ti> dreiile (i ilestinlis .-idiniilli ■dl ITer( \iil''c I'eijaMiless (ll ilillerelie.s ;M wmI: li iilii id llieiii 1)V llieir kinus e.ii d a seie>.| 1 M)ii\- (ll iiiy, advisers v.'cr^' c'.ls Idiir.irv anidiiL;' llie 'ierinaii trilies wlios ■ (ieseendaiit^ (■'.iKiiicrcii l']ii.t;land and North Aiiiei ie.i. 'I'lieii' liiiij'.s tu'eni to lia\>' liiid certain hei'cdit'iry ri^li!' i liiii ilieii- liic:il ni.e'islrnles wel'i' el."ct( and with tiieso \wiv joined certain coiii|i mioiis or assi>t.inls.' I'lio companions were the pintot;. jies oi' the assistants in the colouii'S and of our jucsent nu'i'iicrs ol' ( 'oin^'riss. The wars dnrin;.^ the aiiijiiu'iitid! tiou of the dilYerenl trilies into u of Mnijl.ind and the consolidi- ill'.;]!' nioiiiirchv stientrtlitau'd till' jiowers of th(,' kin;.;' ;;lid tlie class of iioliles who arose, s that tl le iioweis ol the latl cr iK'caiiic HI liv, Ih tile niriuer iii ■'■ I-'r-rciiiini. Ilij-I(irv of I'lvler:!] lllinl ex lilniialc viiitim, (|ii(iil iiI(ix ii'X vcl prili- iil iioliili- ■!Hi|'i(\ in-o 'I'acitii.-, (Icr- t.is, |iroiii. dc mis licUdi'iiiu, pruiit ';iiiii el. us fai'iiiidci <■-{. jii;dhinlui', iiucldrit.T.o miijei'ili idilidi iii:ij.'is (iii.iiii jiilii'iidi jKil'':-- (iiiiiics. iliilnnii'ii iitca iniiiiiii(ii|U(iniiii lal". Si d!s|ilicuil Ki'iiti'iniii, fi'ciiiilii (iciii H iilelii'iii iM'liitriiiiii (Vl (ijiiid |irii: iispcniaiitii;-; sin plie'dil, fiiiiiioiiscni ci|ics|p('rti'iic'c'ii1i:'-. Cp'iltiMl, tii^i (|iiid ciiti'iut. ll'mniatis-i'iiiiiii iissciisii- fdrluitiiiii ct siiMiiiiii iiicidi'ril. ("it "tl iiriiiis liuidiii'i Jl.i.' dicUiis, cum iial iiiclicatiir luua ant Jl.) "Klinunlui' i'l iisdciii iaililolur; nam aKciidis i(>!iiis li(ic ct lirincipcs, (iiii , jura per (uif; .■luspiciitissimiini iidii crcdiMit. Ni'c ([lie rcddunt. C'litciii Hiiii;iili» dieriiiii niimcniin, i.i nos, s(>d iinctiuiu pl(>ln ciimilcs (Miiisiliiiiii siiiiii I >'l coinputaiit. Sic ciinslitiiiiiit, sic con- aiicKuitas iidswiit. followed this analogy when he directed the sheiilTs to suni- tiiiin four discreet men from each coiiutv to his coiiiicil at < )x- " Supra, § 7, note 3, Ji. 3((. ■■' Slalihs, Select Clmrlcrs, lip. 10, 11, 2ss. '' I'lc'einiiii, (ii'owtli (ir tlio Eiij.tli'^li Coiistilnliiiii, I'll, it; Niiniian (Ajii- i|iii's(. vol. i, p. 591. Appeudix; Taylor, Uriftin and Growth of tho English Constitution, p. 184. " Slevons, Sourci'S of tlii' Coiistiln- tiiiii, Isl I'd., II. (in. i|uiitinK Ki'iiitili", Siixons in England, vol. ii, pp. 2Hii, •2.'17. 1- Slublis, Si'loct Charters, pp. i), •287. 13 Supra, note 7. IH) (■(>N(;i;i;ss IN (ilONiMiAl,, hllAI'. IV. fold." 'I'lli toWllsllil s was ;i ili'Mlciji ill lill- sllilClllllll' li\ tl iiiciil of the rojiiTSi'iililtioii of tlic I' ivr\f illlii llis four fleeted iiihl- |iiiiiioii.s.'' Oil tlu' ( 'oiiiiiieiii, ihc lowiis hail formed leai^iies for iiiutini prutci'lioli ii;;;iili.>i tlie liiaeliHes in llieir sieiiiitv, at wliiel 1 a! first the rc|ireseiit.ili\ cs of eai'Ii town \\ . ri' the iiia),'ls- tnites whuiii it had eleele(l for ''elieral pill ( )ilt ( f ilii grew the ri'invsc'iitatioii of the (owns in tiie liiird otate,-, ( , S| laiii d ■ ranee Simon de Monifoit iierhaiis took the iilea from Spiiill. wliell. to streli;,'lhell himself ill his contest Willi lli'lirv III. iu^ siiiiiiiioiied to I'ailiaiiit lit. in l\l''.'t, two leju'cscntiitives froiii C'lic'li city and horoiioh. us \m'11 as the lhed in i'"iaiiee and Spain : hut the eleiey. fortunately for civil lili.rly. had the folly to cast asidi' tlii'lr opportunity, iiiid chose at liisl to oraiit their aids in eoiivo- cation, a p!i\ile,L;e Vvhieh tliey afterwards reliiiiiuisheil ; and the; liccaiiie siilijeet to i'ailiameiii w ithoiil itiiy different represeiilatioi than the other commoners, t \ee[) 1 louse of Lords. ''^ I Ihroiie-li their hisl til. Ill the northt'in countries of continental 1', III the pt'asalits wcic scpara lops 111 tiK the iiiiririiei's tcly represented ; and in l-'inlaiid tin four e--tiitcs still assi'inhle. \\'hether the reprc-seiitativcs of tin tl il'ce est. lie; cvei' coiidiieied their dcliheritioiis in the same l)IV l.i iM..daiid is a matter as to \vlii(di historians disiivrec.''' Cir- '■• A ('i)|iy of tlie wril i- prlntrii in Stiitiiis' Select Cliarl.-rs, 'iHl. .•i.;,'re('niriU Iu'lweon .\n'liliN)i(i|i Sliil- ind Loril CliiiMiejldi- Cliii'i'iiiln!) '■• Iliid.. ]!. 2S7. '"' Iliiil.. PI., -tan iSpepic,.]-, I'.iliii, a! tl„ (In in llii'ii, iiiidcr C'litirl.'s I, just iiflor Iimliliillons, § 4r»H. In ricren-'i 12")0, tlie I'iti/.uus (livlili'il into !.'r. ri'.,toralion. BLslioji (iilif-en pro- '. in nuunciMl it to lio " the Kfeatcst nlK'i'ii- uiiH, timi of tlM> Constitution over nimli' of wliiih PiK.'li clios" 11 captain, uikI tlie witlioiit express law." (Spcaki'r •aplainw In conncil ruled the i-ity Onflow's note to Hiirncrs IIMory "!' tibiil.. S 1" ■ Stul.hs, Scli'<-I Cliai-toi s, jip. 10 14. 'Siiilil.>;, Select Clnirtcrs, jip. :is, r.i i',._vuiic, i.s! Kc^iisicr, p. 2:: ^ly own Tinii's, Oxl'oid cd. of isr.;!, vol. iv, pp. n-iO'.'-J!.^ 31). Tlie rit;tit ot rarliauient to tax nics this. Coke, 4 InstitnlcH. p. 1. the clergy and (lie snrrcudcr of ihc tlial tlicy did. (Tayior, Or jurisdiction of (he <'onvoeations o\ the Buhjccl was ariaugcd in a vcilial p. 47s. •r (Innvlli of the English ajii.stitnti' §^'■1 OIIIIIIN III' CnNclll-.ss. an tiiiilv '.hv kiiij,'lils (if till' .sliiits ami tiir ii'|iicsiiitativ('s ol' lln' lHiniiii;li-i siiiiii wiilidii'w 111 a st'|iarali' imily rallcil ilic ( '(niiiiuiiis, ttliicli. alter a serifs of lialllts, fdiit^lil iisiiallv in tlii! (tliaiiilici's (if l(f,Mslatiiin and tlic ('(iillls of jiislicc. lnil Sdincliliics in llic licld. nli- UiUcd llic cxcliisiM' ri^^lil (if taxatiiin. anil iiy i:s use lias I'cdiu.'cil tin- [Miwcr (if till' Cidwii t(i a cciciiiiinv . and llic I liiiisi." (if liOids ttriicti(iii. 'I'lic carh' ('(ildiiics ill Ndilli Aniciici ucic cdiiidiaiKin-i (I'catcd li\ llic kiiijj, siiliject Id liis visitiirial |id\vcr. cxcr.'iscd tludindi the i'livy ( (iiinril and tiuunj^li tlu imwcr (if llic coiiris in dissdlvu them fur a lii'cach iif the cdndilidiis nf their chartcis.-" 'I'Ijc lliinccn arc iliviili'd li\ ihc' histniian-* intd thi'cc clasM'-i : cliaitcr, criwn. and pfd- jniclaiy cdhinies ; -' Inil in sniistaiice, al the diulircak df the Rov- ipliitiiin. their fdini (if L^'iivernnicnl was sniistantiallv tlie sani,'. At •,li>' licid was a tfuverndr a]ij.iii:iti'il hy the Ulti'j^ nr iu'dpi ietoi's, (■\cc|ii in ('(inncetieiu and IMhkU' Island, wlnie he was ehuseii hv '.he jieii[)!e. Next eanie a cdiiiieil a|iiidinie(l hy the kini^' (ir (jjov- ♦MMdi'. (If in Ccinnceticiit and lihdde Ishind, as I'dinicrly in ,Massa- cliusctis. a hddy (if assistants chi sen hy |id]inlar eleelidii. In the t'lnly settlenu'iits there was no aiulmrity hy law hir pdjmlai' ivliieseiitalive assenihlies. Sindi assendilies -were not I'diinallv ilistiuitcd. hnt L^'l'ew n]i hy iheniselves, h('cansc ii was in llu3 na- tinv iif iMioJishnien tn asseinhle." -- Tlit! Ilrsl met at liie call iif till- ■^nvcnidi- (if N'i.Li'inia. in liil'.i; and two yeaiN later was san^- tidiir'd I'v an didinanee nf the ( (umeil df the eomjiany in I'Jnj;- luid.-"'' .Miissaeliusetls fdllnwed this exani|i!e in I'i:!-! withmii iiiiy !ee-al anthiirity.-' and in the sam(^ .y-''ii' ii rejiresentative assem- bly incl in Maiyland ; where, nnder the cliailcrs. oii finally all the fivrnieii hid the lii^lit tn lake )iait in le^yisluidn.-'' These ex- aiii|'l( s were f(.ll('we(| in the other cdldnies.-" The eai'ly assem- ■-''^Tli(> Cirirlcr of :\[.-!ssiiclnisollv -'- Scclcv, i;x|iaii~inn cif I'.iiu'laiid, was ci.ni-i'!!! ( II. Ml ;; j.i I i'l l(i>;l. mi. I. r ('liar!.>. :iiiH ill till' (Viiin dl' llellM Slut., in- sn Klii;,''s Bench, lii«aii li.v wire faciax. (lie ('(la.-titiilioii (5111 oil.), § U). (llcv.rll's S-,i;!c Tri 1071.1 Mil. vii:. |>. TV en llic Ciii^litiilioii , ."til cil.), S (111. ]!l:lclistcll(>'s ('(llllMKMlti'll'IcS, vol. 'Stevens. Sources of tlio Constf- i, |i. IDS; S'.ory on tlie t'oiislitution tutioii. pii. 17-ls. (5tli (1(1.), § 151). *' Ibid., ii[i. 18-25. h^TVI ;;iii CONCUr.SS IN (iENERAL. [CIIAI'. IV. l)iivS sat together with the assistants or councils;^' })iit soon t!nv si'iuuiited. The subsecjiient liistory of the relations between I'^iiLrland and the Noi'th Anieriean eohjuies shows a constant strus;- f^le, on llie jiart of tiie popular assenihliea, to assert the powers and privih'^fes of the Ifonse of ("omnions. and to reduce that of tlie governor and council over legislation to what was allowed in Kn<,'- luud to tiie king and House of Lords. IJy the outbreak oC tlie IJevolution. the peoi)le believed in the legality and justice ol tiiese i-hiinis ; and they were exercised against the protest of the ollicci's of (he crown, but with only "poradic, opposition. ^'^ Most of tiie State conslilutions organized during the Kevdliitidn coutained two legislative Jiouses, of which the lower, in S'inie, liml liie exclusive power of origin.. 'iiig money bills, and lli'' litter, nsn- I'.Uy called u siuat ■, was inorc aristocratic in its eoinpusitioii. Ihii ilirec of the lu-st State constitutions, — those of I'cinisylvaiiia, Dehiware and (ie(n'gia, — and at the close of the Kcvolution Inii two, — (ieorgia and Pennsylvania, — had a single cbanilier, al- though till! legislature of X'ermont. wliieh was then svcking .»1- niissioii, was siinilaiiy composed. Since the adoptii'ii nl' the l"\>deral Constitution thesis also have adopted tlie bieaiiie::i! form.-'-' vMinost every ste[) in l!ic growth of the Englisii ("onstitutio!i.— even the origin of cliancm-y juivs:iiction from tiie extr.ionHiiaiv jiowevs of t!ic executive and his council. —- may be found rrju'e- (luceil in the iiist ;ry of one of tlie .\-!ierie;iii colonies. 5J 4S. I'rocoodiiijiS in flic Coiivcntioii as to tUf CoiiiposMioii ol' <.'ori!.;r<'s.s. This bi'ings us to a coiisidciation of tlie lirst of the three greiit coniproiiiises of tin; Con-titution. 'I'iie miin obstacle to a uioie jierfect union iirose from the conlbeiing inter<'sts of two groups ef Stales — the birirer and the smaller — and of two otlicr cross-se.- -"This was the ease in M;issicliii- li'iai'i iKIioile Ivl-.nd Cnloiiy L.'iws, I'^l. of f^i>;t.s \n>Ml Kill; inM:ii-yliMiil., § '.»'.!;. lli(( En.u'lisli (ViMslltnlion, ji. 24: Mo- -" rii;iliiii'i-.i, Iiilnnlactlun In tli'' ran, llisniiiiil Dcvoloiinicnt of tlic Hi- Itovolt ot the .Vuicriciiii Colonies. ;i'M- 'MMienil Kystcrn in Ann'ricn, Jolins Him. Mopiiins Hinilii'.H, vol. xii, |i|). '211, '21il., vol. V, ]K laS; infra, §75. S14 CONCllKSS IN . lltH and 178. Sec. liow- ever, tlio roniiirUs iif Uiekinsoii, iliid., pp. Its t-tl); (Mid of Sp'il','!it. il.ld.. p. l;37. Shi'l'iiiiin had siiK^i'.'^ti'd iiii aniil- ogoiiH HclitTMi' hi till' f'oni iiii'niiil Ccm- Uross, Aut,'. 1, 177(i. Jolui Ailiiiiiti' WorkH, vol. il, p. 4'.)'J. " Si'i' till' .Mjn'oi'lics of (iiiiinhit,' lii'i^- ford of Ni'W Jersoy i ildil., p. 2iW ,o Gouverni'iir SIorHs (ihlil., p. '27111,1111' of Gorhani of Massai'huHoM.s (iliiil.. p. •2r,~». " Ills sie,'U'i'f''loil W.I ; !.■. Mlnjili''!. llild., pp. '2,"i;i -'2,-15. 11 II. id., p. '27:i. '- Iliiil., p, 27.1, Si'o ii.JYit. i! (il, ovi'r unl.o 1"'!. i-is.^ rilOCKKDINCS IN TlIK CONVENTION. :)].-> Wi' WM ()l)taiiR'(l by tiiu iiilluciic(! of Fiankliii," wlio iv])n s-iitcd iViiiisylvania, the second State in jiopiilation. It was caiiiid iisriiiiist thu vote of I'eniisvlvaiiia in the Convention liy live States U, four, Massacliusctts l)einfr divided ; N\.\v York, Ne^y Ilanipsliin! iiiid liliode Island, wlio would have voted with the majority, Ijeinfr ;!l.sent: and North Carolina, winch had formerly acted with the Iir^rer States, with one dissentient delcfrate, giving the easting vete.i^ A motion for a reconsideration, made by (Jouverneiir Menis in tlie Convontion immediately after this conference, was net even seconded.'^ Thus the structure of (:\)ngress was liiially 'inia, Soutli 1111, J. Massaoliusotts, divided ; Mr ' Towle, llistor •y iiiid Analysis of Carolina, (l.'orRia, the Constitution, 3d cd., p. (ia CHAPTER V. TERM OF MEMBERS OF TIIF; HOUSE OF REPRESENTATIVES. § 40. Term of Moiiibcrs of tin- House of K«'i»r«seiitativcs. The Coiistitutiou provides thai " Tlif House of lii'iireseiitalives sliall bo composed of iiu'inhiTS cliosoii uvuiy sei-oiid yciir." ' 'J'lic history of (lie iMit^lisli I'arlianu'ut and of lli;^ cxt'-nsioii of ils (crni from two to S(!vrii years by the Sepleiiiiial .\el uikU'I' (ieori,''!' 1. in order to defeat the will of tlii> peopK'.- liad tuiLc'.it tlie framris of the Coiistiluti )ii thu ii!ij)'):1a;ire of liiiiitiwc,'' the (hiratio'i ot' tlii' eeessily of the il.ilj>l:iic;ltioll term of meinl )ors o f ( oiiirress. TI that a statute was void wliieh extendc^l a h'tjashitive ter III hi'vniKi the limits of the ( 'inistitntioii, seeiiied to (lie men p:)rt of liie power e,f the eiaiiis to Uichiro an aet of tln^ le'dsbiturk' iiiu-oiutitiitioiiab' T\ leir eaiitioii was [ir ived wise bv the aetion of tiie V reiirli \,i- tioiial Con vent the 1 ion in eontiniiinjf the greater ]iart of tiieiiiselves in eL;'isialive ass 'MUUv whi •h tl lev est il)hs hed in their eiins'iitii- lion of IT!'."). Ibi 1 no such sifen'iiard lieen inserted in tiie ('(in- stitution (if tlie I'nitcil St it>'S. there can ln' litth) douiit Imt tiiat at least tl [■'ederal Con'ifrt at tl 10 close (1 f til ministration of Adams, and ]ierhaps liter ones would have eoiitinneil themselves in oili(('. undei' tlie eonvietion tiiat tliis was indispensable le the imblie welfare. Tiiu terms of the coh)iiial assemblies w( IX('( by hiw. and varied from six inontlis to seven years.' W'lieii tiie lii-st Stale (iiustitutioiis were aihipted, Uliode Island and Coiiiiec- §1'.). ' ('oiistiliitidii, Arliric I, Sec- tion 2. - A. [). 1717, Iliillani'sf'oiislilutlonnl IHstery, ■Widilletou's Anioricaii Kd., ' Di^n (1. liiiyard iind wife i'. Siuglo- ton, 1 llartiii . \. C.i, 12. ■< The lYMlei-iillst, No. li. vol. ill, II. 22H. 31G $!•'•] ti:i:m ok .mk.mukks of tiik I!o;sk. ;n7 liiui coiitiiiucil und-'i' llifir ()1<1 clmrtois iiiid foniifr iniu^tice :ii' .Miiii-ininu;il ck'i'liDiis. TIiu other Siiitt's, cxccj)! Soiitli ('iiMilli.i, wlii'n.' tlu'v v.i'w l)ii'iiiiiiil, 1im<1 iiiiiiiial clc'tioiis.'' !)>'li';^-,iti'^ to till' CoiigK.'SS under tlio Conrcdi'mtimi were aiiiiiiidly appoiiitml ii.s the Stale lel;•i^^latl^■L' directed, sulije^-t to retail al any iiiiic, iiii'l iiiel'iLjilile I'"!' nioi'e lliau lliivc yi'ai'.-; (lut ol' six.'' 'i'lu' ; rni (if two years was elio.sini hy the I'edeial ( '((nveuvinii as ;i c'laiiiMiniise lietweeii the iidvdeates of ainiiial eleetioiis a. id thus,' \\lio ^\•islled tiie old ICliijlisJi practice of a triennial tiM'n!.'' TIlis feature of tlie Constitution Wius perliaps tliat most attaeir ilicir perfection. In ]:i-iietiee, the term has lieen foniid to he suh- jcet til mure ciitiei. ni for its hri'vity than it-* Ic uj;'tl! : and llu' pii-.- *Tlii' I-'.Hlcinli^l, Nil. lii. « Artii'Ics of Coiit'cihM-aLkiii, V. 'Till' lli'bt voto was in fiivcn- (if a tijirii,i:il tiMiii. N'e-.v Yorli. Ni'W •JtTsc \ , r.Miiis.vlvaiiiH, Deliiwiirc, Miiry- l:ai'i. Viiginhi, (111(1 ("rcorf-'iii, 7; Massii- rliii-^rlls I Mr. Kiiin, ny, Mr. fioiiiiiiii (Minsidfn'cd aiiiiual Wiivi'iiiin,; ('(inii(>cti('iil, Xei'lli Oiro- linii, 1111(1 Soiilli (Viroliiifi, im, 1. "Wf. Mnilisiiii scM'iMidi'il tlu! iMoliiiii for thriM' y(!iii'K. " Iiisliiliilily is diu' 'f till' f'l.'al vices (if (iiir Ei'iMililic lo 1 o ri'iui'.li.'il. Tlii'('(! years will lie iici-es- sary iii ii (»i>veniriliMit so exlensive, fur iiieiiiliei's to form raiy knu'vledjiP (if III" Mirious inlerestsof tlu' Klalcs to whirh lliey do not Im'Iomil;. ;iiid of wliidi ihey can know Imt liltle from llic .'•ituatlon 1111(1 iiffiiirs of tlieir own. One year will lieiilmo'd i-oiisuiiied in pri'piiriiif; for, mid tni\ellinn lo and fniiM, till' sent of iiiilionnl oniee." Mr. Gi'iry; "The iieo[il(> of New Kii|;lan(l will nevi r fjive up Ue> luiiiii of .•iiiiii;..! eleetioiis. They know of llie tr.ia.--i- tion made in Kai/laiid from trU'iiir.d to se|il(iiiilal eicelions, :iim! v.ill con- sider such an innovation here us lie )ireladi> to a like iisii;-|iiil Ion. lie Icclioiis as i!i(' only defense of the iieoj.h' au'aii'st tyi-;inny. He was as iiinch tciiiins a Irienniiil house as ii^faiast nil liia'r.a- tary executive." (Maiiison I'ap s, KUiofs Dchates, 2d ed.. pp. 1S;M; ;, i Nine days inter tlio lerni of tln'M years was strickiMi out. Jtassaciiu- setts, roiinecticiit, ]'("nnsylvaiiia, \'.i-- Kiiiia, Xorlli Caiiil'iia. Sinitli Cti-iiin i, fieort;ia, ay, 7 ; Now York, Pela-.-.:ee, Maryland, no, II; New Jersey, ili- vided. The term of two years was tlieii Inserted, neni. eon. (Ibid., pp. 2'2t 2'J(i. » No. lill. ais Ti;i;M OF MKMr.i:i;s ok tim; iinrsi:. [('IIAI'. cut tciilciirj' of St;iU' uonstitiitioiis is to li'iiLftlieii tlio Icrnis uf liolli Ifj^'isliitivu liousfs. Ill a iiiiijoiitv of tliu State Icrrisliunivs, a-;.seiiiblvmeu are I'lectud for two years, and State seiialors Uiv four. Ju Louisiana, the terms of members of botli lenses aiu four years.''' It is the practice in many congressional districts, \v!n'n; o;ie party is in a large majority, to give to each satisfactory mciii- b>'r an election to a second term, and then to elect anotiier fiom a different jiart of the constituency. Tlius rotation in dlTnc is the rnlc. 'J In H.'lj^iiiiii, ro]ir('.sontHtives nri' •'liM'lcd for four years, onc-liiilf of tlio liiniso bciiiK I'oiiewi'il cviTV two years, a:iuti<'S for four years, one half every .second year {.•Vrlicle ;i'.l . In ilo.viio. deiuilies for 'lWo years and seiiatei's for four years, ono-hidf of the .■-emdi' ovory seooml year (Artieios B'i, 5H). In Vonozuola, doimliea and senators fur fouryoars ( Article 21). lullie Arncu- tino Kepublic, deimtios for four ye.-irs one-liaif every sei'ond year, seimters for nine yi'ars, one-third every tliinl year (.Articles .12 and IH^ In liray.il, deputies for three years witli a (,'u.ir- anly of minority n-pro.'-onlation, semi- tors as in tlie Ardent ino ( Articles 17, lit'. In .lapan, menitiership in lie' House of reels is hereditary or fm' lifo on appoiiiimeiil liy tlie Miliiido. The diet seems to be chosen every year and also iipo.i a di.'-solutio..|^Ari:- chs ;t4, Ii5). The Hawaiian <'onstir.;- tion is similar to lliat of the Unili'il States in this respect (Artieios 3',l, 51 1. CHAPTER VI. THE ]{i(;nT ok suffuage. S5 i'O. Provisions in the Fodc'ral Constitution concerning the Itiglit of Snft'rii^e. Till'. ivfTulation of tlie rijilit of siifTiiiyf in a ivpublu; corresponds to that of the sncccssion in a nionarcliy ; for it determines the nilfi's of tlie coinitry. It was the intention of the franiers of tlio I'VdiTal Constilntion to leave to the States the iinreslrieted power ovtr tlie riy:ht of suffrage within their respective borders, provided tliat tlie form of government remained repul)liean. Tiie onh' jiro- visidii upon tiie sul)ject which they inserted was the section follow- ing that wliicli has been last considered: — •• 'riic House of Itoprcsentativea 8l;all be composed of ^rembers ehoscu I'Vt'iy st'ciinil Year by the IVoiiK^ of ll'e several States, and the Klecloi'S ill fiu-li State shall liave tlie (^ualiticatious iXMiuisite for Klectors of tlic most miiaiToiis liraiieli of the State I.,egisl:uure." ' 'I'liis ii'iuained unehanged till after the close of the Civil War, when, by the h'ifteenth and last Aniendiiieiit, it was ordained: — •■Si;iiiii\ 1. Tlie right of citizens of the I'liited States to vote sliall iKit he denied or abridged Iiy the biiited States, or by any State, nil account of race, color, or previous couditiou of servitude. ''Si;iTioN 2. The Congress shall Lave power to enforce this arti- cle liy appi'opiiato legislation." S .">!. History of (.'oustitutional Provisions as to tlio Iti^lit of Suffrano. 'i'lie (pialiliiations for the right of snifrage were diiTerent in the (liferent (dliuiies. In some, the owneisiiip of a freehold, and in otlu IS that of a small anionnt of pers(Uial property was recjnired. Ill otheis again the right depended upon the jiaymeiit of taxes. At § no. 1 Constitution, Article I, S(!otion 2. 31U ;i20 THE RIGHT OF SUFFRAGE. [CIIAP. VI, o:ie time, in New Iliiveii and Miisaaclnisetts, only rliui'di im'iiiticrs li;ul tlie rij^lit of snffnige. In liiiode Island, only fi'ecii(>lilt:s c'lecti'd freemen of the towns, a!id tliijir eldost sons.' In all lli;; fianeliise was eonlined to freemen, and in most to whites; Imt in a few itseems that those with tin' other necessary iinalificitioiis wcr" not, cxelndeil on aeeonnt of color.- Similar (li\ersitics cKislcd in t'.ie State constitutions at the time of tli'' I'^cdcral ( 'oiivcmiiiii. All relifrions tjualilications had been tli 'n aholishcd c\cc|ii iii .'■louth Carolina, and the fi-andiisc moi'e liherally ;'xlended : in live States to freemen of the African raee.''' and in one to women ' who lio.ssessed tin; ollu.'r (jualilieations ; })ut nowhere t:> all free nudes. Exeejit iiei-ha[is in Jihode Jshmd, tlu; ri^Lfht conld only I)e cxer- oiseil hy freeholders, taxpayers, or tlie owners of a small amount of pei'soind jiroi'.erty ; '' hut no approach to uniformity eoiUd he found ; § fil. ' I'oiiro's Chnrtcr^ auil r,in»ti- tlitinns. (ind tlic lolniiiiil sliililtcs u! Rhodo 111. aid, collivtcd in ii jiolo to 12 U. I., Appcndi.-c, ji. .Wl. - Sec the dissriitiiig opinion of Mr. Juslico Curtis ill Dred SniU v. Saiid- loid, 19 How., 3'J;!, r,7;t, 574. ■' N(!W ILiMip.sliirc, Slii.s.^ncliuselts, New York, Now.Toist'y, iind Nor'.li Oir- oliiia. Suiloi'. Miiniii'l,4Dov. >VBiit. (N. (1. ,'20; Coiiimoiiwciillli r..\.vi.'s, Ifil'icli. (M.1HS. , 211); di.-.'.it'Mliii.L; opinion of Jud^i' Cur'iis in Drod Seol t r. S;indl'ord, 19 ];o-.v., ;j;i:!, 'iH-'u-l .-Hid citiitioiis. ■> ••Lucy Siun.'.KMlH. Ii. i;ii:i'Uucll, citi/.i'iis of Now .JiMSi'v, li;iV(> iiiailc ;in iavcsliitiition, tho r(!.siill ot wliicli is roiniirkalilc, and proves Unit pre- viously to 177(i only men voted, but that in 177(1 tho orininnl State eonsli- tulioM conferred on all inhaliitdufH (njen or \voniea, wlilto or liluek). pos- se.s.'^in;; tin" preseiilied (luiililleations of £."() clear estate laid twelve mouths' residonee, and this eonslitutioii re- niJiineil in foreo niitil LSM. In 17;)fl, the Le^'isliituro, in an act re.nuhitin;; elections, used the words, ' lie nr ^lic>,' in roforenee to voters. In 3797, another act rolativo to electors re- peatedly designates tho voters as ' ho or she.' In the same year, 1797, sev- enty-live women voted in Eliziilicth- town r|ition of lUiodo I>ilan(i and Con- iiiTtiriil, liail constitutions of their Duii. Tlii-'Hu two contiuiR'd to act im- iliT tlicir diurters from tlio Crown. ri'im an examination of thoso constl- luliuns wt> llnd that in no State wero .ill fitizciiH perinittod to vote. Each State determined for itself who should liiivc tliat power. Thus, In New Himi'ishiro, 'every male inhabitant ot I'acli town and parish with town I I'ivilej;!";, and places unineoriiorated in ilie Sliite, of twonty-ono years of ap' luid ujiwards, exeeiiting paupers aud perffons excused from paying tiLKes ut their own request,' wero its viiti'is; in JIassachusetts, ' every nuilo iuliabitant ot twenty-one years of ago aiwl uinvardg, having a freehold ostato witliin the commonwealth of the an- nual iniome of three pounds, or any tsiato of the value of sixty pounds'; in i'.lioile Inland 'such asareadnutted fri'e if the company and society ' of tlio 11 limy ; in Conneetleut such por- fiinsn-i hail 'maturity in years, quiet nnil peiicenble behavior, a civil eon- viTsalinii, and forty shillings freehold iirturly pminils personal estate,' if so leitilli'd by the selectmen ; in New Ynrk, 'every male Inhabitant of full aco will) shall have personally resided within one of the eounties of the State for si.\ months immediately preceding till' ilay of election ... if during the time aforesaid ho shall have been a frpeholiliT, possessing a freehold of the value of twenty pound . within the I'ouuty, (H- have rented a tenement therein of the yearly value of forty sldWugs, and been rated and actually [laid taxes to the State'; In New Jer- sey, ' all inhabitants ... of fullage who are worth lifty pounds, proclamation- money, clear estate in the same, and have resided in the county iu which they chilm a vote for twelve months immediately preceding the election'; in Pennsylvania, ' every freeman of the age of twenty-one years, having re- sided in the State two years next be- fore the election, and within that time paid a State or county tax which shall have been assessed at least six months before the eleclitm ' ; in Dehiwaro and Virginia, ' as exercised by law at pre- sent'; in Maryland, 'all freemen above twenty-one years of ago liaving a free- hold of (Ifty acres of land in the county in which they offer to vote anil residing therein, and all freemen hav- ing property in the Slate above the value of thirty iiounds current inom y, and having resided in the county iu which they offer to vote one whole year next preceding the election' ; In North Caroliuii, for senators, ' all free- men of the age of twenty-ono years who have been inhabitants of any one county within the Stale twelve moiilhs immediately preceding the day of election, and possessed of a freehold within the same county of fifty acres of land for six months next lieforeaml at the day of the election,' and lor members of the House of Commons ' all freemen of the age of twenty-one years who have been iidinbitanis in any one county within the Slate twelve months immediately preceding the day of any election, and shall liavi; jiaid public taxes'; in South Carolina, ' every free white man of the age of twenty-one years, being a citizen of the Slate and having resided therein two years previous to the day of elec- tion, and who hath a freehold of llfty 822 I'liK ititiiiT s adopted, and it i^xeitud little dismission iu the Federal or St;:it' Coi. veutioiis. Tae Artii'les of C'onfi'deraliou directed that — " foi the more convenient inaiiii^eini'nt of tiie general iiitere,Hls of tlie IJiiitnl States, delegtites shall be annually appointed, in such maiinor as the legislature of eacli State shall ilirecl, to meet in Congress on llic first Monday iu November in every year, with a power reserved to eaeli State to recall its delegates, or any of them, at any time within the year, and to semi others iu their stead for the remainder of the year."' Ill all of the States hut two, delegates to the Continental ('(in- gress were appointed Iiy the State legislatures. In Conncitii iit and Rhode Island, they were eleetei. by the people." I'ptiu the Hi'st vote in the convention on the proposition — " that the memliers of the first branch of the national legislature ought to be elected by the people of the si'verul States," six Suites voted ay ; two, no ; and two were divided.'* Six days later, a resolution " that the first branch of the national legislature be elected by the State legislatures, and not by tliu acres ot himl, or a town lot of which ho liatli l)ccu loyally siiizcil uud pos- sessed at IciiBt six iiionllis licfuresucli election, or (not liavinK such freehold or town loti, halli been a resident within tlie elcetion district iu whidi he iilTcrs to giN e his vole six uionllis before said election, nnd hath paid ii tax thc> preceding year of three shill- ings sterling towards the support ot the goveriUMOut ; ' and in Georgia such 'citizens and inhabiUints of the the election, and shall have P'siili'd six months within the county. " " See the debate reported in Minll- sou Papers, Elliot's Debates, 'id iil., vol. V, pp. :t85-;)SH. ' Tiio Federalist, No. lii. » .\rticlcs of t'onfedoratlou, V. 9 Tlio Federalist, No. xl. "* Yeas: Massachusetts, New York, Peuusylvauia, Virgiida, North Caro- lina and Georgia. Nays : New Jerai'y and South Carolina. Divithd; t'""- Slate as shall have attained tlie age uectlcut and Delaware ( Wiiilisnn Pa- of twent.v-one years, and shall have pers, Elliot's Debates, 2U ed., vol. v, p. paid tax for the year next proueding 137). s-'i.] IMtOVISKlNS AS TO HKiHT OK SfKIMJAdi:. 1523 ]i((i|ili'," was made by OLMieral Cliarles C. I'inukiit'y (jf Soutli Cari>- liiiii. and ncijativL'd by eif,dit Status aj^aiiist tlii'i'c." Two wi'oks iil'inwards a resolution tbat ivjiresentativts •■ oiiglit to Ik; appointed ill siicli manner as the legislature ol' eacli State shall direct" was rrjcitcd by a vote of six States to four in ; ' favor; one being ilivided.'- An attempt by (Jouverneur Morris to eonline the fiaiiciiise to freeholders obtained the supijort of no State but Diliiware.'^ In the end unanimity prevailed.'^ I'Vom the beginning of representation in lOngland, the mem- li( IS of the House of ("onunons were chosen by a direct popu- liu' vote ; while in France representatives of the third estate in tin' States fieiioral, and until the middle of the j)resent century, iiuMiibcrs of tlie jVssembly, were usually chosen by elec:toral col- luges, so that the people voted only for electors. The advantages iif tliis system were supposed to be that the selected wisdom of 11 .TiiiK! I'ltli, 1787 ; Coiiii('ctl<'\it, N'cw J.'i-ii'y, South Caniliim, ay; Ma^-sa- claisi'llH, New Ydi'lv, Pt'Miisylvaiiia, D.'lawan-. JLirylaiid, Vii'iiiiiia, Niiilli ('.■iniliiiii, (ti'iirt?ia, no (Ibid. pp. t(iO- IM). 1'^ This resolution was moved by Gen. Cliarles C. Pinokney of South Cuniliiia. Yeas : Couiiecllcut, New Jrisi'y, Delaware ami South Carolina. Nays: Mas.sucliusetts, New York, r.'iui'^ylvaiiia, Virginia, North Caro- Ihia, (ieoi-Kla. (Iliiil., pp. 2'2;i-22t.) Jliirylaiiil was (livi(l(>(l (ibiil, p. 3HH). iitiuuvcrneiir Morris said: "He had loii},' leanieil not to lie the diipo (if words. Tlie .sound of aristocra(^y, till iifore, had no elTect upon him. It was the thing, not the name, to which lie was opposed; and one of hi.f prineipal ohjoelions to the Consti- tiiliiin, as it was now before us, is, that it threatens the eounlry with an aii!-t(iiiaey. The aristocracy will Krew out of the House of llepresentii- tivcs. (iive the votes to people who liavc MO property, and they will aell thcrii to th(> rich, who will be able to liiiy (heiii. We should uot couUue our attention to the present iiionient. The time is not far distant when tliis (■ouiitry will alxiund with inechaiiics and niaiiura 'turers, who will receive llieir bread from their employers. Will such men be the secure and faithful (.[iianlians of liberty? Will they lie the imprefjnablo barrier against aris- tocracy? Ho was as little duped by the association of the words ' ta.\alion and representation.' The man wlio does not nive his vote freely is not repri'si'iited. It is the man who die- tati's the vote. Children do not vole. Why? lieoause they have no v.MI of their own. Tlie i^^norant and di . d- eiil can bo as little trusted with tiio public interest. Ho did not ooiicelvo the difllculty of deliuing 'freeholders' to be insuperable; still less that the restrict ion would be unpopular. Nlne- teiilbs of th(> people an- at present freeholders, luid these will certainly be pleased with it. As to merchants, Ac., it they have wealth and value the riylil, they can ae(iuire it. If not, they don't deserve." (Ibid., Jip. 3b0, 387.) " Ibid., p. 389. :m THK iJiciiT OF sri-i'i;Ac!i;, [ril.M-, VI. llic coUcjjc was prciitcr tliaii tlio ii^Ljit'LTate wisdom of tin- jKoplc. Ill iinii'tico it liiis l)L'('ii I'oiuiil tliat, siicli ;i com.sn on tin' ()iu( iiaiid ti'iids to lower tliu clmnictiT i .1' til ■|)rcsi'iit:itivi', siiiiH' it facil- itates iutriujue if not ln'iliciy. aii'l on tlie otlier lessens liis eare for his eonslitnents. to wlioni lie is not diicetly resjionsilile, 'I'he oxperiitnee of I'' ranee lias tans^lit tiiat eouiHiT as well as otlieiii tlie iinwisdoni of sneii a nietliod of election."' Tlie natural imitatii on ol the jiiactiee m the niotliiM' eoinitry had made the eolonial lej^isla tares elected directly hy tlii! jieojile, and tilt! same practice liad prevailed in the eaily State constitu- tions, except in Maryland, where the senate was ''oseii tlironjjh tl lis pIDVl- an intermediate hody of electors. In the dehati sion. the advocates of a choice of the lower liou. 'onjjfrcss by the State legislatures i-csted upon the ar<,'iiment of Siiernian. "The jieople." he said, " iimiiediatcly should liavi- as little to do lay le ahoiit the L'overnmcnt. 'i'lu'V want information 1(1 are constantlv liahle to h ^led. Tl lose wild pi'cva ilcd. ri ferre' Ibkl., pp. 13G, 137. rl] THK KIKTKKNTll A.MKNDMKNT. 82r> t« na. TIk- Piftociitli AiiiriHlinoiit. 'I tic coiitlitiiiii of till' ciniiiiidiiati'd liliicl.s in tin; iiismrcitioiiiiry St;iti'< at till' cldsr (if till! Civil War. si'i'iiii'il tu iliMiiaiiil .some iii- liiimsitioii fill lli>ir ii'lirf: hut I'veii llii'ii llif si'iioiis loiisuijueiiceN of II siiiiili'ii I'Visli into till' fianiliisf of a lionic of iiu'ii iinaccUH- toiiioil to loiitrol tiiL'ir own juisous and jirojii-rty, iiiiii'li loss fitted to iiiil in llio governiniut of States, in tlii'ee of wliieh tliuy were ill a majority, mado botli the I'residents and Con<:fri'ss j)ause. Liiieolii in liis attempts at reconstruction wnit no fiirtlier tlian a tentative suj,''j^estion tliat one State should ;_;iaiit the ri<,dit of suf- ir.[i^v to colored men who had fouoht in the I'nion army.' .lohn- soii tried hy his influence tu iniliire the Southern States to grant the hallot to thosi; who could read ami write or who paid taxes on reiil estate assessed at two hundred and tifty dollars." Hut neither reronmicndation was adojited ; and the invariable result of an oli- fjanliy followed, namely, legislation oiipressive to the disfranchised class.'' Congress at lii-st had proposed no further remedy than that I'ontaincd in the Fourteenth Amendment, which reduced the representation of any State that denied the right of suffrage to any part of its male adult population. When that clause of the amcnd- ini'iit was first liefore the Senate, on Mai'ch lHh. 1S(!(I. Henderson uf .Missouri moved as a suVjsiitutc: "No State, prescribing the ipuililications rciiuisito for electors therein, shall discriminate against any person on account of color or race ; " and said of his propo-sition : " I am aware that the Senate will vote it down now. Let them vote it down. It will not be five years from to-day be- fore this body will vote for it. You cannot get along without it."'' Only nine other Senators voted for his motion. It was not until after the former slave States liad rejected the Four- teenth Amendment, that Congress intciposed to establish negro sulVrage. Hy the Keconstruetion acts, of which the iirst was passed over Johnson's veto, March 2d, IStiT,'"' the States formerly the scat of the insurrection were compelled by military force to adopt constitutions extending the right of sufTrage to all § '>■>. 1 Supra, § ;t8, iioto 40. '' Supra, § 38, over nolo 65. " Supra, § 38, over nolo 60. * Kliiinc, Twenty Years in Congress, vol. ii, p. 203. ' Supra, § 38, over nolo 103. 326 THE HKIHT OK SUFFRAGE. [CHAl*. VI, adult colored men within their jurisdiction.'' At the same time no step was taken toward conijiellinff .similar action in tlic loyal Stites, altliouirh a nunil)er of tlicm voluntarily adopted it. The platform of the Republican party, upon which (Jrant was elected in 1808, contained tlie plank : — " The guaranty by Congre.ss of cqunl suffrago to all loyal men at the South wiiw (loinanileil by every consiiUnation of i)id)lie wafety, of irrati- tude, and of justice, and must be maintained; while the question of suft'rajre in all the loyal States properly belongs to the people of those States.'" " There was .something so obviously unfair and unmnnly in the proposition to imi)0.se negro suffrage on the Southern States by national power, and at the snuie time to leave the Northern States free to decide the (pu'stion for tiiemselvcs, that the l{ei)ubli(;aiis became hcaitily ashnmcd of it long before the political eanvasii had closed." ^ At the opening of tiie ihird session of the Fortieth Congress, in December of that year, various propositions were offered in both houses for an amendment' to the Constitution which would extend negro sutfrnge throughout the country.** On .January J'Oth. 181)0, the House of Heprcscntatives, by a vote of one hundred and (ifty to forty-two, thirty-one not voting, passed the Fiftcentli Amend- ment in thi! following forn? hieh differed in oidy a few iininii- terial words from that finally adopted : — '• Si;c. 1. The right of any citizen of the United States to vote shall not he deiucd or id)ri(lged by the I'nited States or by any State '»;/ n'liKoii of race, color, or previous condition of Klarcr;/ of itiiif ci(i::i'n or W'f.v.t 1)/ n'lixciin of the Uiiitcil Stitti'x. '• ,Si-,c. i. The Congress shall have power to enforce by appropriate legislation thv provifvni^ of this article." '" The Senate desired a more; radical remedy, which would jirevent discriniinatioh by^ the States tiu'ongh religious, educational, (ir property qualifications, as well as those forbidden by the ainend- «' Supra, § US. » Ihld., p. 4i:i. " Mil'luirsou, History of the Eo- I'J .Mi-l'luTsciu, Hip'.oiy of tlm Re- constriK'tloii, p. :tfit. ednRtnietlcin, p. 3!)!). Tlie itulics " DUiiue, Twenty Years In Congross, lienoto words not used in the llnal voi. ili, p. 412. form. :%i §o2.] THE FIFTEENTH A.MENDMICNT. 827 mi'iit wliich the Ilonso jirnposoil ; and wliicli «oul(l extend tlu) jndtcction to tlie riglit to hold office us well us tlie I'ij^lit to vote." I'lHiii tlie motion of Henry Wilson of .M;iss:iehnselt;s, that body aduiited an amendment whieh wonhl liave altered the eonstitutions (if more tlian half tlie States in the I'nion : — '- " Xo diserimination sliall lie made in any State aniong the citizens (if the Iniled States in the exercise of tlie eleetivo fianeliiso, nr iit the rlijlil t') huld ojl'ici' in any State, on aeeonut of race, color, uaticily, property, education or creed." " A further atnendment was added to alter the second article of the Ciinstittition so as to prevent the appoiiitnieiit of ixesidential (■l(\t"is liy a State legislatnre ; and tlie measure returned to tlie lliiii>e, which refused to concnr in either. 'Ilie Senate refused a I'diirerence which the Houses re((nested ; and passed a new amend- ment in the form finally adopted, except that the words "to hold ollice " were added after " the right to vote." In their debates the Democrats made a strong point that the ([Uestion should not lie suhmitted to the legislatures then in session, wlio had not been cluisen with a view to such action, which the national platform of the l!ci)ubliean party had exjiressly disclaimed." Propositions to siiiiMiit it to the legislatures next chosen and to State 'onventions were, however, voted down.'"' Tlic House refused to accept the senatorial proposition, and piisscd an amendment substantially like that liist adopted by the Senate, iiroliibiting dis(|ualiliealioii from olliee as well as suffrage ••n!i account of race, color, nativity, property, creed, or previous (■(iinlilidii of servitude." 'J'he Senate refused to accept this then. \ ciiiil'crcnce was held, which resulted in . recommendation of the fdiiii which had origiiiiilly ])asscd the House, with a few verbal changes. On February •J.")th. 1S()!\ the Amendment finally jiasscd the House, and on the 2t!tli the Senate, by a majority of iiiiirc than two-tl.irds in eacli ; and was sent to the State legisla- tures in its liiial form : — " Tliiil., p. 1112. '■- HlaiMr'.'rwcTily Years in CdiiKreas, vnl. ii, p. 41(1. '■ Iliiil., pp. 4ni, 417; MePlierson, Ilisldiy of the Bijconstruetion, pp. 4Ull-l()4. '* niaiiie, wlio volcil f(ir llio Ainouil- nioiit, iiricrwnrda mlmiili'il tli.'it the Idiitit WI18 well talicMi (Twenty Years iu CoiiKi'ess, vol. li, pp. 413, 414 i. » 11)1.1., p. 41.1. Mel'her.son, His- tory of llio Keeinislnielioii, p. 40S. 328 THE HICHT OK Sri-TltAGE. [CHAl-. VI. " ARTICLE XV. " Skction 1. The right of citizens of the I'nitcd States to vote sliuU not lie denied or uliridiied by the liiited States or by any State on aeeount of race, color, or previons condition of servitude. '■Skotion 2. The Consrress shall have power to enforce this article by appropriate legislation." '" Tlio iJLH'iiliar language! used, which gives color to the claim that citizens of the United States previously jiossessed the rij^ht of suffrage, was chosen to conciliate those who claimed tliat tlm Fourti'enth Amendment had already conferred the franchise upon all citizens of the United States ; ^" a po.iition which the SiiprciiKi Court has f ince said was untenable.'" On April lOtli, ISO'.t, (irant approved an act of Congress wliicli made tlie n'tilication of tliis amendment a condition precedent to the admissi(i:> of Virginia. Mississijipi and 'J'exas to re[)res('ut:i- tion ; ''•' and on Decemlicr '2'2d, an act which took iVom (icorfrii the representation tliat had liecii ivstored to her, and made lur adoption of the Amendment a condition precedent to her rclialiii- itation.-" During the following year, the Amendment was ratified by tlie legislatures of the following States : Alabama, Arkansas, Cdii- ni!cticut, {'"lorida, (ieorgia, Illinois, Indiana, Iowa, Kans;is, jyoii- isiana, Maine. Massacluiselts. Michigan, Minnesota, Missiani, Mississippi, Nebraska. Nevada. New ilani[)sliire. New York. Noiili Carolina, Ohio, Pennsylvania, liliode Islam!, South Carolina, Texiis, A'crmont, \'irginia, \\'est N'irginia and Wisconsin, tbiity in ail, twenty-nine only being essential to its adoption. ( )!' tliese. tlie New York legislature, subse([uent to the ratification by some, bat before three-fourths of all the States had ratiiie ', repealed the riiti- lication of New York. Since enough ratilicaiions were obtniiud without counting that Slate, the cjuestion bei;ame innnatcrial. The h'gislatures of Ohio and (ieorgia, to which the (pU'stion wiis lirst submitted, refused a ratification; Ijut a subsequent Ohio h'g- i» Mi'lMinrsoii, History of tlu- Kc- bi'llion. pp. 'll):t wr,. " Si'u the Speeches of Cliiirli's Suiiiiiir ami (toort^o F. Kilimiiuls In tli(( Si'fiate, Fob. 11, IHGU ; quoti'd by .Iiid;;!' Coolcy lii Ktory cii tin' Coiistl- tiitioM. rilli I'd., ij l'.li;;». nolo 1. i« IT. S. r. lti'e,sc, M V. S., -^U, 217. i" K; S;. lit L.. |). (!.■). Supra. § ;W. " KJ Si. at L., p. SO. ,S'H;>ra, § 'M. "'-•J TUK FIFTEKNTH AMENDMENT. 82» islatnio,^' and <-he Georgia legislature after its reorganization under ;iii:ul of Congress,^ gave the ratilieations of their respective States. Till' li'u-islatiuvs of California, Delaware, Kentucky, Maryland, uiianiiiHmsly, and New Jersey, voted against a ratilication. In TiMiMi'sscc, the Amendment failed to pass the ITonse, and was never reported to the Senate hy tlie Committee on Federal Rela- tions, to whom it was referred. On^gon also failed to ratify.''^ On March :50tii, 1870, tiie Secretary of State iiled a certificate stating that the Fifteenth Amendment had heen adopted.^ The Fifteenth Amendment was self-executing,^ and inunedi- at<'ly upon its adoption erased from all State constitutions and staiiitcs the provisions ohnoxious to its commands.^ "It does not cdnfiM' the right of sufTiage on any one. It merely invests citi- zens of tlic United States with the constitutional right of e.x- eiiiplion from discrimination in the enjoyment of the elective fraiicliise on account of race, color, or pievimis condition of servitude." '■^ '-' MiPliprson, History of llio Ue- coiiKli'iiciioii, p. nCi'i. -- Siii>ra, § ;iH, over notes 150, l.'iT. ■-' MePlierson, History of the llo- coMsiriielioii, pii. 488 -t'.IS, r).)7-5(')2. -' Iliiil., p. 515. Tlio struKglo in tlio Imliiuia le^islaturo over iiie qia'slioii of m(ill<'iition gnvH oeension tci bliiirp pailiaiiieiiliiry taeliea. An iiUeiiipl liy tlie Deiiioenitle, Benators to |iii>veiit a (luoriini liy (lieir iiliseuee \v;is preveiili'd l)y loeliinn the door nnd tlien eountin^! thoMS wlio n'fiu.ed to vole (see the N. Y. Worlil, May 3, 1HHS-. In (ho lower liouse, all hut ti'U of the Deiiioerats resittned, thus redmiiii,' the iiiemljership to less than two-thirds of tlie members elected. Those who roinainod called attention to the constitutional provision, that "two-thirds of each house sliall con- slilnle a quorum to do business," and insisted that the assembly conse- (|Ui'id.ly I'ould not ar't upon Iheaniend- "ii'iit. The speaker, however, ruled thai this section cited ilid not apply to pruceedluys upon the nitillcation of an iniiendoii'iil to the Federal Con- stitul Hi« action was approved Ipyai. , rilv of the niemlicrs present, some taKinij lli" position that tlio ju-esenco of l«. -thirds i.f tln' actual iiiombors of the liow-i- was suflicient in all oases. Tlio amendment was ralilled by two-thirds of the niemliers and a majoi-ily of all originally electpil, and then question as to its validity was raised in ('onj^ress. (McPlu'i'son. Ilislory of Keconstruclion, pp. •lOC •11)1, note; Ou'bin v. IJutler, Tafi Senate Klectioii Cases, conliniieil by I'lirber. i)p. 511, 551 ; infra, Ch. XVIII.) "Civil Iti^'hts Cases, 10!) U. S., 3, 20. -I'' Neal V. Dolawaro. 103 U. S., 370, 383. ••i' r. S. r. Harris. 10(1 U. S., 02:), (!37 ; infra, ^53. In Mills v. (Ireen, (37 Fed. 11., HIS, which wasafterwards reserved upon another point, and is a case of very doubtful authority, .TiidKc (iofT hold that this ameiiilment invalidalod u ri.'gistrutlou law uf SuulU Curoliuu^ S80 THK KKiHT Ol'' SUFKKA(}E. [CHAI'. V[. 5? na. The Power of Coiipfress over the Kl{;ht of Siii'tra;;^. Till! only express power of Congress to affect tlie riglit of siif- fninje witliiii tlie States is contained in the second section of the Fifteenth Amendment, which provides — " that the C'o!igres9 shall have power to euforce this article hy ap|)ro- priate legislation." Pursuant to this, Congress may pass a law to protect the right to vote, at least for representatives in the lower House, l>y niiikini' criminal a conspiracy to prevent, by force or intimidation, a person from exercising liis right of suffrage at sucli an election on account of his race, color, or previous condition of servitude.' This amendment, l.owever, gives Congress no power to legislate for the protection of any civil rights of colored men, or othere, except the right to vote free from discrimination as aforesaid.^ It wiis tlie opinion of the Supreme Court of Pennsylvania, that the act (if Congress which provided that " all persons who have deserted the military or naval service of the United States, who .shall not nturn to said service, or report tluimselves to the provost-marshal within ' sixty r raeo, color or i)revious condition, wiio liave been residents of siiiil State for one year previous to such election, except sucli as may lie (lisfraucliised for participation in rebellion or felony at conunon l;iw."' And in each of tlio acts readmitting them to representation Con- gress provided tliat the State constitution — •■ sliMJl never bo so amended or clianged as to deprive any citizens of the liiiteil States of the riglit to vote who are entitled lo vote by the (iiiistitution herein recognized, excei)t as a inniishinent for such crimes as are now felonies at common law, whereof tliey shall have been duly piiuvicted under laws equally applicable to all the inhabitants of said Slate; I'rovided that any alteration of said constitution prospective in its etToct may be made in regard to the time and place of residence of ViltOl'S."" riiese statutes are inoperative upon the power of those States til amend tlieir constitutions so as to restrict the right of suffrage witiiin the limitations of the Fifteenth Amendment." Congress has the absolute power to regulate and restrict the suiVrage in the Territories, and in the District of (^)hnnliia, al- '■roiistitutiou, Article I. Seelion 4. H9H : 8. c. U So. llep., 472: rollanl's "('oiislitiitio?!, Article IV, Seelion;!. LcsKoe r. Iliittaii, .'1 How., 'Jl'2, U'J:t. '22H ; ' II Si. at L., p. 4'2'J ; Kupra, § ;!S, IVnnoli r. First jriiiiiei|iiillty, ;t Ilow., over iiole l(i;), 581), CIO ; Stniiler r. (irali.-iiii, 10 How.. " Siiimi. i? 37. H2; AVlthors v. Buckley, 20 How., 84, 'Siiroulo V. Frodoricks, r,H lllas., 93. 832 Till', lilCHT OV SUI'FHAGi;. [chap. VI. tlioiiyli it iil)ricli,'e.s tlie rij^hts of electors under previous l;i\vs;"* provided that in so doing it does not enact ii bill of attainder (ir ail cj' post f (I ft law," or a discriniination on account of race, color, or [jrevioiis condition of servitude.'^ In the exercise of this power, Coiirrress may prohibit a polygamist to vote, even thougii he does not actually cohabit with more than one wife, if, after hav- ing previously contracted a polygamous marriage, he continues to live with two or more women in the same family, treating them as his wives in all respects except actual sexual connection ; and it may authorize a territorial h'gislature to disfranc^hise from the rights to vote and hold oHice all persons who themselves teach, advise, or encourage polygamy, or are members of any oi'der or association which gives such teaching, advice, or encourageinent,'' In this manner the Constitution has been circumvented. § 54. Liiliitatioiis of the Fcdoral Const if iitioii on the I'ower of tlie States over the Kiju^ht of Siiffra;fe. The only limitations im{)osed by the Federal Constitution upon the power of the States to regulate tiie right of suffrage are the Fifteenth Anu'iidnient, the guaranty to each State of a reimhlicun form of government,' and the inhibitions against the euactMiriit of bills of attaindi^r and cr pout f ado laws.'^ The Fifteenth Amendment has been previoush' considered,' Should a State so restrict the light of sull'rage as to establish ii narrow oligarchy, Congress luider its power to guarantee to all the inhabitants of the State a republican form of government may perhaps abiogati: so much of the State legislation or constitution as contains the restriction.'' Some authorities hold that disfranchisement, either dinnitly or 1" Murphy r. Kanisoy, lit U. S,, W, 45; Iiinis r, liultoii, 2 Idiilio T., 407; 8. 0. 17 Pile. Kci>., 2('i4; Woulcy V. Wat- kins, 2 Idaho T,, 5"),"). n Const! tut ion. Artii-lo I, Scrtion '.). I'-i Fifloeulli Anii'MdniiMit, " Davis V. licasoM, VM V. S., 3M, 347; but sec Stiilc v. Findlcy, 20 No- vuda, 1!)8; s, c. H) Vtu: Il.-p-, 2tl; whenMindcrii Stato constKution giv- ing every male cilizon exuc((l couviets and pauppis I he lifjlit to vote, it was Ill-Id tliat Mormons could not, ho ex- cluilod by nirans of a toat-oalh or otherwise, § ,'')t. 1 Constitution, Article IV, Sec- tion 4. - II lid.. Article I, Section 10. ^ Supra, 1} !i'i. < Constitution, Article IV, SoctioD 4 ; 8upra, § 38, and infra. I"1\VI,!;S OK CUNCIiKSS OVIOlt KKIHT OI" SIFlMIAl K liv Uu iiii)i(psiti(in of ii tust-oiitli, on accfunit of a oi mic sill ii lis troiia i-i1i'd iiifr:i, nolo 12. Si'i' iil^o K-cjific/e Giirliinil, 1 Wiill., ■W'l; I'linuiiing^^ v. Jrissomi, 4 Willi., -" ; mtpni. ij .I.!, and infra miilci' Hills "f AlliiiiiiliM' ami Ex pusl, Fiiclo Laws. '' .Viiilcrson r. Baki'i', 2:1 Md., Ml; Itlujr r. UiKlcy, 41 Mo., ('ill; Slate v. Ncal, 42 Mo., 119; Randolph r. (iood, 3 West Va.. .I.")!; Uurch v. Van Iforu, 3 Bart. Elootiou Caseb, 405 ; luuis v. Kolloii, 2 Iilalio T., 407; Wool. Watkins, 2 Idalio T., S.to. Seo Stiitc V. WooUon.41 Mo.. 227. ' Siipyii, ji :w. « "When the rij;ht lo vel.- . depriveil . . . or in any way iihri f.rccpt ftir I'drt riiHttinii in ri'Itrtlin ulhcr rriinr." 9 Davis r. li.'a-oii. l:ri I'. S., a47. 1" .Murphy v. Itamsoy, 114 U. S. 45. y 1'. also . IS l!,-ed nr 3:; 4 Till'; iiKiiiT OK si-n'i;.\(ii:. [•'IIAl'. VI. (lipiivod (if any nf tin: rii^'lils or privilc^'cs sih'UIciI to any citi/.ciis tlioreof, iinU'Hs l)y tin- law of tin; land, or the jiulgniuiit of his pi'CM'S." " 111 lliat and oilier States such test-oaths haveheeii lirld invalid as addiii;^ to tiie ([iialiliealions for votini^ preseiihed hy their respective eoiistitutionsJ'-' I'rovided that no (liscriiuination is made on aceonnt of race, color, or previous condition of servitude,''' the rij^lit of sufl'ragc is exclusively within the control of the individual States, and may be extended or abridpred b}' any one of tlieiu to any extent not prohibited by the terms of its own constitution, without any in- fringement of the ("onstituiion of the United States, iiiilos the abridjifment is so made as to constitute a bill of attainder, or roteeted by the Fourteenth Amendment;"' and a State legisla- ture, unless prohibited by the State eonstitution, can eoiisc(piciitly deny tlu ':;:''lit of sidtrage to minors, lunatics,'" pau[)ers,"* woiiicii."' persons not possessing a cjertain property or ednealioiial (piulilica- tioii, or non-taxpayeis.-" Constitutional and statutory provisions for the exclusion from the right of surtVage of persons who have been guilty of specilied crimes, have been so construed as to re- " Given r. Sliiinnvay, :i'.) N. Y.,41H, 4'2(i. Si'n also tlii> (•itatiiiiiH in iiulc lU. 1- Gi-ciMi I'. Shiiiiiway, ;!'.» N. Y., •118; llisoii r. Fair, 24 Arkansas, Kil; Da- vics r. lIcKcMkcy, ,'> NcvH,;2 V. S., 211; Hot Ki'i' Kx parte Yarbroiij^li, 110 U.S., 651, (ir, I -(iC,-). Ill Minor v. Happcrsott, 21 Wall., 1C2. '" Tliompson v. KwiM;^, 1 lircwsli-r (I'a. 1, (!8, (i'.»; Clark v. Kdljiiison, M IlliiKiis, -tHH ; McCrary on Klcctioiis (llil iMl.i, § so. '" Opinions of Justiors, 12 1 Mas*-;,, I'M). '» Minor V. Ilappcrsclt, 21 Wall., 102; Van Valk('nl)UiK v. Urcnvii, 'i:l Calirornia, 43; Kolirliarlicr r. Mayor of Jackson, 51 Miss., T.\'>; Sponcrr v. Hoard of Uo^-islration, 1 MaiArlliur ^I). v.), Kil); UlooiiuM-r. Toilil, Wasli- iiiKlon T(;rrit(iiy, 19 Pai-. K''p., I'liJ; Ojinioiis of Justices, C>2 Maine, 5!){>. ■i" B^clcner v. Gordon, HI Ky., GG5. J."t4.j I'OWKIIS OF C'ONOKESS OVEIl UUJHT ill'' ST KI'liAdK. nss (juiie a conviction of such crime in a coiiit of justice iKifurc tlie (lisiiualillciition becomes operative, ami not to allow the rejection liy tlie election oHicer of a vote upon such a ground before con- viction.-' An express provision givinjj to the election ollicers siuii riifht of exclusion before conviction would lie of very doubt- ful constitutionality, inasmuch iis it niigiit be claimed to amount t(i tiic ini[)osition of a penalty or infliction of a punishment with- imt due process of law.''^ Wiiere the State constitution autiiori/es the Icifishiture to exclude from the right of suffrage peraons con- victed of iid'amous crimes, the legislature cannot enact a disijuali- lication for conviction of a crime such as du(dliiig, wliicii is not infamous.^ In tlie absence of express language a constitutional^* or statutory ^ disqualilication by a State for the conviction of a felony or infamous crime does not apply to the conviction of a mere statutory offense against the United States. Where a State constitution jirovided that an elector sliould forfeit his right of siitTiag(^ by "a conviction of any crime which is punishable by iiuprisomnent in the penitentiary," it was held that a person who liail been convicted of a crime punishable by fine or such impris- iiiuiiciit, but who had been piniished by a mere line, did not forfeit his franchise.^ A pardon, when not limited, restores the I'ight of .suffrage which has been lost by the commission of a disqualifying criiuc, ,„i!r -> Huhor )'. Roilly, m Pa. St., 112; s. c. ]!iif,'laly's Electiim Cu.sos, 69; Slab' I'. SyiiiDiiils, 57 Maiiio 148; Car(e Garland, 4 Wall., 333; infra. 336 THK KKillT UK SUFFRAGE. [CIIAP. VI. ji$ 55. U8III1I ProviMloiis of State CniiMtitiitloiis na to tlio KIkIU ol' S^lt'^■|■ll}?l^ Altliougli llic jiowcr of 11 Stato itvor tlm rij^lit of suffracrc williiu its jurisdiction is vciv liioiid. tiiat of iv State Icf^islaturo is not. All tlic Stiitt) coiistiliitioiis conlaiii provisions wliicii I'stalilish lim qualiilcations of voters ami rostrictions upon tin; ri^ht of siitTiiif,'L', lu the alvionee of laiij,'iiaj^e wliicli ffraiit.s tlie power, citiicr I'x- pressly or liv clfur implication, ncitlifr the State lejrislatur(' nor any lioanl of local government can add to the (lualificaticiis of voters at till' election of a State ollicer, or memhcr of tin; legisla- ture, or any otlu.'r election wliicli ail'ects tlio State at large.' The lietter o[iiniou would seem to hu tliat in such a case they have iii) I)ower to add to the constitutional {lualilieations of voters at elec- tions which are pundy local, such as the choice of a coiinty-seiit;^ but exjjres.s power upon the subject of local elections is conferred liy a few State constitutions, and less explicit language niielit lie re(iuir(Ml to grant such authority over them than ov(!r general elections. It h;is been held in ICentucky that tin; Icgislatnre may restrict to tax-payers the right to voti; for municipal ollieers.'' Inasmuch as the Coustitntion directs that the State legislntin'es shall pri'sci'ibe the (imc. place and manner of the idcctiou of \v[>- nscntativcs in Congress, subject to alteration by ( 'ongress,'' and shall (linnet th(! manner of electing presidential electors.'^ it was the opinion of the Supremo Courts of two dift'erent States that the jiiiivisions of their constitutions whicdi re(piirc(l votei's to cast their § 55. ' Uisoii V. Fiirr, 21 Ark., Kil : Stiite cr rel. Kiiowllim i'. Willinms, 5 Wis., ;!()8 ; State v. Hakor, ;1H AVis., 71 ; Monroo r. Collins, 17 Ohio St., 6(!5 ; Stato r. SyiiKiiiilH, 57 Mo., 14S ; Stato V. Stateii, li Colli. (Toiin.), 23:t; Davio.s r. MeKeoliy, 5 Nov., .Sf!!! ; Clayton r. Harris, 7 Nov., fit ; MeCalT(>rty r. (tiiyor, 5'.t l>a. St., 10!); Huber r. Kciily, 5;) Pa. St., 112; Qaiiiii v. State, ;i5 Imi., 4H5; Kanddlpli r. Good, 11 W. Va., 651 ; GrooM v. Slnunway, H!) \. Y., 418 ; Qiiinii r. Stale, lia Ind., 4K5 ; IVople r. Canaday, 73 N.C., IDS ; Stato v. Tuttlo, 53 Wis., 45. Cooloy's Constitutional Limitationw, (itli od., pp. 79, 753; McCrary 011 Eioctlons, 3d ed., {)§ 14-18. ••"Stato r. AViliianis, 5 AVis., ;il)H; State V. Loan, 9 Wis., 279; Collin r. Hoard of Eleelion Coniniissionoin of Petioit, 97 Jlich., ISS; s. c. iiG K, W. Kep-, 5i;7. ■' Bucknor r. (lordnn, SI Ky., I'lUn. Seo Slato ;• Dillon, 32 Florida, 515; s. c. 14 Sontliern Hop., 383; llayoref Town of Valvordo r. Slifittnok, Celd- rado, 34 I'ae. Hop., 947 ; cmitra, IVoplc V. Canaday, 73 N. C, 198. ♦ Const itntion, .Vrticle I, Sootion 4. <• Ibid., Article II, Soelion 1. •J STATK r-ONSTlTfTlDNAr, PlioVISIONS. lUots in the loi'ivlitii'S \vl\ere thuy rcsitltid, (Miiild not in'cvcnt \\n'. •i,'isl;Uui'e.s from piissiiifr l:i\vs wliicli allowccl soldiers in iielivc Tviif to voti! in tiii'ir ciinip-i at tiie seat of war witliout (he State." 1 constitutioiiul provisions in several States antliorize sni- Sprciid uis liiiis til V(jte m tniie or war Tlie Slate ieffisiatnres cannot, however, grant tiie ri;,'-!)!. to vote ;i Congressional election to any exeept the electors of the most iMUTons hnmeh of the State legislatnre, or take from any of ill electors the right to vote for nienihins of the national lions- ji'csentativea.' Tlr powe r to resjnlate the manner of an cK'ctiou does not inelii(h,' the power to impose (]Ualilications npi VI Iters ( lifferent from those contained in a Stale Constitntion.' I'hr State constitutions n^iiially grant the right to vote to all il ■ cili/ens of the I'niti'd States, and lesidcnts of the State, wiio aiv (it sou nd d, hi it been convicted of certain s pecilii iriiiii's, and are not inmates of poorhonses or similar asyiuiiis. Tu.i Stales — Colorado and Wyoming — allow female siitt'iagi' lections; '" Montana npon all (jnestions suhnuited to tix- Kansas at nmnieijial elections ; the last and a niimher at all ]i.l\rl> of iitlurs at school elections. Whei till State constitntion is .siliiit upon the siilijcet, the legislature has tlu^ ]iower to witliliiiid the right of snlTrage from women," or to confer it iilmii them, either wholly or in part: as. for exauijilc. in local scliiinl elections, which aic sometimes held to lie impliedly e\- wiitiil from the constitutional provisions as to the (jualilicatiiins (if voters.'^ Where female suffrage was authorized, it was held " Opiiiion.s ii.lc, 1.-) Ohio (N. S.), .'■i7;!. Tlio stiituli's luitlioiiziiix thfia so tu vole wcri' liclil inviiliil uinlcr *'i(> f(,i-iiit>r iou.sliliaii,ns (jf CaMfdi'iiiii ami lliclii- g:iu. Day v. Joiios, yi Cal., '2(11 ; TwiUihill f. UloilKotl, l;i Mi.h., 127. *Oinsliiiiii(in, Artlclo I, Scclioii 2. '■'Collin f. ]jo;ir(l (if Kk'ctioiis C'oni- uiissiouers of Detroit, 07 Mich., 1H8. 'o Tlio proposed conslitutioii of Utah (loos llid saiiic. Sec also tli(! ('(institution of North Dakota. § 12'2. 11 Miiiorf.Hupp(TS(>tt. 21 Wall.. 1(12. " Wh(>ckM-r. liraily, ir, Kaii.sas. 2(;; Brown 1'. Phillips, 71 WLs., 2'M); Slad' V. Cones, l.l Neb., 4-44: Hcllcs r. 15iir, 7fi Midi., 1; Slate v. Cr.isl.y, l.-> Nel,,, 144; (Ipiiiioii of thejuilf,'es, ll."> Mass., (W2. Bill sec Comn r. Boanl of F.lec- lioii Coninussioners, 07 Mich.. IHS; Matlerof r.a«.>. 141 N. Y..112; Winaus V. WilUniiis, 5 Kansas, 2'27. MR Tin; iMiiiiT iiK SI I'FUAdi;. [CIIAI'. Vl. tliat tliii riglit (if woiiu'ii lo vi>tt> must (Icpt'iid u|)()ii tlicHiinic tcmis iiml C'diiilitioiis its ii|i|ili(''i>., 221. '» BradwcU ti. The Slate, 10 Wall., i;)0. '" 111 MisslsBippl the dlroctloii is that, tlm voter must lie alilo eilhiT to rcail (ir to iimli'i>tiiii(l llio part of the Constitution eIiuwu ! 340 THK KKillT OF Sri'KllA(;K. [cHAi-. vr. education,^ or asyluin,29 they might voto there. The New York courts construe the provision more strictly against tlie voter.*' § 50. Constitutionality <>f IJoK-istration Laws. Although a Stat(! legislature cannot add to tin; constitutional qualifications of electors, it may estahlish such reasonable n^gulii- tioiis for the conduct of tiie elections and for the determination of the right to vote at tlie same iis do not impair the constilutional right of sutTrage.' It is the better opinion that wlieie tiie con- stitution is silent upon the subject, a State legishituri; has still tiie power to make a reasonable law compelling the registration of all voters before an election.^ A few State courts, however, have held registration laws unconstitutional unless expressly auihorized.^ In consequence, express provisions authoriznig registration laws are now usually inserted in the modern State constitutions.* Registration laws, and all other laws providing for tin; coiuluet of elections, must not unreasonably r^ strict the right of (pialilied Cal., 48 ; Pcoplo cr rel. Hiiild t'. Holdon, 28 Cnl., Tilt; Wood v. FitZK'cnild, 3 Oregon, 5('iM; DarriiHli v. liird, H Oro- gon, 2'2!) ; Hunt r, llichards, 4 Kansas, 549. "' Putnniii r. .Johnson, 10 Mass.. ;d8; Opinion of JukUcos, 5 SInt. (MuKS. 1, .587; Sandi'i-s V. Gi ., I'oU, 7(i Mo., 1,')8 ; I'l'ilino V. (Jrinios, 11:1 Ind., 118; licrrv I'. \Vilio.\, N('l)riiKka, (!2 N. W. Kop., 249. "Stewart v. Kymn- (Cai.forula), 30 Pac. lli>p.. I'.t. ■wsilvcy r. Lindsay, 107 N. Y., HG; P.'oplf r. Cady, 143 N. Y., 100; te (liKidniaii, 84 Hun., 53; s. c. 14(i N. y.. 2.".(l, li,' (iai'voy, 84 Hun., 611. § .')G. ' Coolcy's Constitutional Llml- lation.". Citli I'd., pp. 7.")(i 7(10; MiCiiiiy oil Klcctioiis, 3il (v|., § 1)1. M'apcn I'. PostiT, 12 Piik. (Mas.s.), 485; H. c. 23 Alii-riiMin Decisions, 032; IJavlst'. 8.1io(d Disirh'l, 4.'i N. H., ;t!)8; I'ooplo 1'. Koppli'Uoni, to XIIcli., 342; Slalov. Uond, ;!•< llo., 42ri ; Enswortli r. Albin, Hi Mo., 450; btati; v. Hil- niantcl, 21 Wis., .')(;('; State .. liiiki>r, 38 Wi.'^-.., 71 ; Bylor v. Ash.-i-, 47 111., 101; Pooplo t). Hoffman, 11(1 111., 587; Mouroo f. Collins, 17 Ohio Si., (')(i5; Edmonds v. Banliury, 28 Towa, 207. Si'i) also In re VoUiiiK L'sU., 13 K. I., 721); StatcM'. liutts, 31 Kan., .'■)37 ; Itaw- liins V. Carroll Co., 50 Miss., 7:io; McMalion r. Mayor, I'.Ci Ga., 21". Paltoi'son 1'. Harlow, CO Pa. SI., .'it; Coinmonwi'altli r. Mi'Ch'Uiind, 83 Ky,. ()8(1. Cooli-y's Const 11 utional Tjiiiiita- tions, Glh ed., p. 757, and McCr.iry nii Elections, 3d cd., § 1)2. An excoll.Mil note on this subject in 21) Am. Iji» Rep., N. S., 872. 3 Dell r. Kenn(Mly • !) Wis., .W); s ('. 35 Am. Hop-. ''SO; .Vliito r. County of MuUnoiuah, 13 Oregon, 317. Siv DaitKctt V. Hudson, 43 Ohio St., ."ilH; State «. Corner, 22 Neb., 2i;."i ; I'l*' r. Allen, .ns Pa. St., 338; Coeieys Conslltutionai Llniilallons, titli I'd., 7,57. * The Constitutions of Arknn8ii> (Art . HI, Sec. 2) and of West Vii'KlDiii ..;.] REOISTKATION LAWS. 341 ch'ctor.s to vote.^ TliO only lawfiu ol)ject of a registration law is ilic pruvuntion of frauds at an eloct on. ('onsL'ijuuntly, wlien onu i.s so drawn as to praclieally disqna ifv a class of cilizcns ;uid resi- (li'iit^ of tlie State, autlioiized by tiie constitiifion to vote, wlio tlii(iUL;li their want of permanent homes or migrator}- liabitfulo not remain in any loealitj' a long period of time, it is void.^ It lias been held that a law wliieh closes the registration Uiree weeks l)efore the election, and allows no one not then registered to vote, is reasonable and constitutional.'^ An act \^ Inch provided that " no person hereafter naturalized in any court shall be entitled to be registered as a voter within tliirly days of such naturalization," was held unconstitutional, as iiniiDsing a new (lualification upon voters not autlioi'ized by the State c:onbtitution.' Where the Illinois Constitution provided that "all elections shall be f: 3 and ecjual," it was held that this did not require a luiiformity of regulation in regard to elections in all portions of the State ; and that a registration law which operated only in such cities, villages and (owns as adopted it was not a local or a special law.® Hut in Indiana it was lield, that the (Art. VI, Sec. 43) expressly forbid a ii'^'isirutiou liiw. That of Missouri (Art. V, Sec. 5) only iiulliorlzes them III cillcs and counties with a iiopu- liitioii of over KIO.OOO; and in cities witli a |io)Hdation of over 25,000. " ('Mjien f. rosier, 12 Pick. (Mass.), Wr. s. c. liiifilitly's Election Cases, 51; s. c. 23 Am. Decisions, (!32; Daj;- (,"'lt V. Hudson, 43 Ohio St., 548 ; Slate r. Corner, 22 Nc ., 2li>") ; Kinuoeu v. ■ft'i'lls, 144 Mass 497; Monroe v. Ciilllns, 17 Ohio St., 7(1,'); (>)oley's Const Hutional Limitations, fith ed., THH; Morris r. Powell, 125 Ind., 281; K. c. 25 N'. E. Hep., 221; McCrary on Klections, 3d cd., § ^U. "Morris v. Powell, 125 Ind., 281; In ri' A|ipoliitmeiit of Supervisors, 52 Fed. K., 254. n'.ople r. HolTman, llfi 111., 587. In Neliraska, it was liel, a sindlar provision was inserted. •People r. Hoffman, ;:'i 111.. 587. 342 TIIK UKIIIT OK SUFKUAGE. [CHAI-. VI, provision in the State Constitution wiiich required the geiicnil assembly to provide for the registration of all persons entitled to vote impliedly forbade a law for the registration of a spe(ji;il class of voters.'" Seo also Mi'Malum v. Mayor of Savan- nah, fiG (iii., '217; Coninionwcallh v. Mi-Cli'llaiid, 83 Ky., ('.8fl ; Pnttorson r. Bailow, (lOl'a. St., 54, 77. 1' Morris r. Powell, Vir, Inil., 281 ; s. c. 25 N. E. Ri'i>., 221. Jiiilyo Speer of lliii District Court of tlio United Stat(!s has said that ttio onactmont of local registration-laws which dif- fered in different parts of tho Stato tv.jt a violation of a Static oonstitn- lional roiiuireiiient that "laws of a general natun? shall have uniform operation througliout llio State, and no spneial hiw shall Ixf enacted in any case for which provision has been maiirt by an existing jjeneral law." He said furtlier: "But if this wore not true, it would be none I he less our duty to disrej^ard tlieni. They uri' plainly in eonllict with section 2,00,') of tlio Itevlsed Statules, which pro- vides: ' Wiien, under the aulhoilly of the constitution or law.s of any Stale, any act is recpiircd to be done as a prerei|nisite or qualilleatinn for vot- ing, and by such constituiion or laws peiviins or olllcers are charged with tlied;iiyof furnishing to citizens an <)|)piiriunity to i)erforni such prere- and eipiai opportunity to perform such prere(|viisilo and to become (|uali(led to vote.' "Now, It is not enough tliat ail the citizens of the same county shall have an ei|ual opportunity, but all tlie electors of tlio Slate, voting, or desiring to volo, at tho same general (dection, must have the eipial oppor- tunity to i)erform the prereciuisltes. and to become qualified to vote. And It is a necessary imiilicatioii of tho language of this statute of tlie Uiiilod States, that tlio preri'i|ulsite8 for voting at tho same general election must bo equal to each el(>ctor. In- deed, it is true, if a Stato of tho American Union prescril)es for a por- tion of its citizens, otherwise entitlod to vote, prerequisites for voting from which other citizens are relieved. In that extent the State ceases to main- tain a republican form of government, annstilution of tlid common country. It will lie easy tii understand how, witli sucliasystcmor want of system of registration laws, os hereinbefori^ descritied, the most inju- rious and unfair iiolitleal r(>sullf might lie attained. If a congri!.s8ioiial dis- trict be' gerrymandered ' with uneipiai registration laws, according to tlie lioliticai complexion of certain iocall- tios, tlio fundamental laws of thfi United Stales, guarantceiiip eriimi political riglits, could bo set at iiaiiptht. Tlie power of Congress over natiuiml eleclioiis is nil longer in question. Tills lieing a national election ot general character, it will lie well l'> remember that it is clearly within lln' :icopo of the national laws." "It follows, tliercfore, lliat .•-iiii'i' tho federal law requires unirorniityln tlie prerequisites of tlie i-iglit to voti' as alTocting the citizen, otherwise mi- titled to vote, at tlie national olcclion, and further n'quires that each citizen shall have an equal opport'.mily to do the act made a prerequisiie lo Ihi' right of voting, varying and iicon- sistent rogistratiun ouactmonts nial- §<'■'"•] MINORITY KErilESENTATK )X. 848 Where under the Ohio Constitution, wliich giive the right of •sulTrage to " white male citizens," it was Mettled by a judieiul in- ti Tiircialion that pereons having a prejuinderanee of wliito blood \\v\v " white " within the meaning of the (Jonstitulion ; an aet was held uncouHtitutional, whici>, wiiile prescriljing penalties af,'ainst judges of eh.iction who rejeeteil the ballot of any person, «ilh knowledge that he had the qnalifieations of a voter, contained a proviso that tlie act and its penalties "sjiall not apply to clerks (ir jmlges of election for refusing to receive the votes of persons liaviiig a distinct and visible admixture of African blood, nor shall ilicv be liable to damagi'S by reason of such rejection."'' It was held that a statute was void wliich authorized the gov- ernor to Set aside the registration in a county ujion j)roof satis- factory to him of fraud or irregularity in its conduct.'^ 5^ m. Minority Itcprosentatioii. A favorite remedy for misgovernment ])roposeil 1)V theoretical re- formers consists of provisions for tlie representation of miiu)rities, althnugli in practice the result has usually been to give the control til the managers of tlie political machines in tlie two leading ])aities liy ineaiisof a mutual arrangement. I'lider the Ohio Con- .'^tilulilln. wliich proviileil that each eltjctor should be entitled to vole al all clei'tioiis, it was held that a statute, denying an elector the right to vote for mcu'e tiian two out of four members of the ptilice board at the same election, was unconstitutional.' It was the iipinion of .liidgc McCrary, that an act, [lei'mitting but not re- (|iiiiiiig a voter to concentrate more than one vote upon a less ininilH^r of candidates than the whole number, would be similarly uiuoustitutional, unless expressly authorized.''^ It is safer, conse- InR iliffcrc'iil |iroi'e(HiiBitoH, anil dony- iiiK I'liuiil ()|i|i(iruiMllies to jicrfonii tlii'iii, aro conlniry to llie fi'doral fliilutc, anil ini^'iiloiy." (In rr iip- |>iiiiitnii'nl o' Siipei'virtor-, h'i Fed. lii'l'.. 'l^.l, 'iCl, 'iC.'J.) S.'o liiilliM- r. E1Ii.|1m- (S. C), 2-2 H. K. Ki>|>., -fir,. " Mouriio V. Collins, 17 Oliio St., 6fir,. '■■Sl.ilo V. Stalon, CulU. (,Toim. ), 2a;!; Slioiifo V. Tilliiinn, 2 Itiirt., 907; McCrai-y on F.IimM inns, :)il oil., § 22. § .'>7. ' Statu f. ('.viiHtiiiiliiii'. 42 Ohio St., VM ; H. c. i) .\nicrii'an iml Ivi.nllsli Coriiuralinn Casos, I!'.) •12. Iiiliiiiatioiis to a similar I'lTcct are containeil in tlio o]iiiiiiiiis ill I'odplii V. Koiini'y, !Ui N. Y., !2',tl; I'.'oplo r. Cris.-foy, HI N. Y., (>16, 624. '' McCiury on Elections, tld ed.. ;544 THK lUCHT 01<' SUt'KKAttE, [CHAI'. VI. ive)i in this foi'ni each of the eleeUirs in person deposits surii a vote i)i the box. or other receptacle provided for tlus purpose, and Iccjit liy the proper otHcers."^ The object of the re([uirenient of a vote by § 177, cKitig the noti^ t.i tho case of Slate V. Coiifiliinliiii', 1) .\mericaii and EnRlish Corporal ion Cases, .S!)-42 ; I'ooph^ r. IVrley, 80 N. Y., 021. " Illinois Constitution, .\rt. IV, Sees. 7, 8. § r>H. 1 Cooley'sCoiiKtiliitional Limi- tations, Cth 6d., p. 7(10. '' Cusliiiig's Law and I'nictico ot Lc}5isiativ(! Aartcmlilirs, J lOlt, (iiiolcd Willi aii|)n>'!il liy .Judne CooU-y in his Constilulionai Liniilutions, (ith od., p. 7(iO: " In tliis cDimlry, mill iii(li'(>d in every cuMntiy whore oillccrs are cloi'- tivo, ililTeront nuidcs havo been adopted for tbo oluetors to signify their clioice. Tho niosl eonimoii ino of whose iiaiuos w.m written upon every taldot. The \o|or put into a chest prop.irod for that purpose wliicli of those tabh^ts ho pleased, and they were aflerwiirils taken out and I'lmntod. Cicero dollnos taldi'ls to be litlle liiKcln in wliieli llio people brought their sufTragos. Tho clause in the eonslituiion dirootiiiB the election of tiio several rtlateolUcers was uiiiloulitodly Intended to providii that llie eloi'tioii sliould bo made by tills modeof voliiig to (lie ex■■] THE liALLOT. 345 lialiot is concealment of the choice of each particular elector.'^ '• 'riie li.illiit is iii, ;iS In.i., IK); Bi'ishin V. Cli-aiy, 2(1 Minn., 107: ap- proved in McC'raiy on Kli'ctionK, 'M I'd., fj 5i;t. Hi'c, hnwi'vi'i', Hoii^,'o v. Lynmn, 10(1 lil., ;i:)7. " Ti'inplo V. Moad, 4 Vt., K\r,, 541; lli'iisliaw r. Fo.slor, 'J I'ii'k. (Mabs.), •.n'l. * I'oi' a ili'laili'd account, soe Wig- inori''8 Australian Hallot Sy.stom. '■• For a collection of cases afl'ocliQg the conslitutionallty of such laws, SCI" liallot Uoforni : Its Ojiistllu- Fuisytli's Clcoro, vol. 1, ]>. 3;)9, qiiot- tionality, liy Wigmore, 23 Am. Law llcviow, 719. 84('. THK IJALLOT. [CIIAl-. VI. of ii constitutional provision tliat all elections shall be "freu and open tliat the linutation of a voter to two and one-lialf minutes for the preparation of his ballot is not unreasonable nor invalid : " that a [irovisiou permitting the attendance of a sworn spcciiil constable to assist blind voters or those who were othurwist' " physically or educationally " unable to mark their ballots dnes not deprive such voters of the equal protection of the laws, nor establish inequality of civil or i)olitical rights, nor estalilish new educational and physical qualifications for voters ; '- that the recpiireinent that no names be printed on the ballot, ex- cept those of the candidates of political parties, is not an mi- reasonable restriction of the rights of an independent voter, provided lie be allowed to write on the ballot the name of any other candidate ; '^ that a prohibition against electioneering witliin a reasonable distan(H) of the polls is not an infringement ef any rights protected by either a State or the Federal Constitu- tion;!* ^,]j^t; ji statute may forbid the printing of a candidate's name in the column of more than one party, although he has been nominated by two or more ; '* but tliat one is A'oid which forbids an elector to vote for a peraoii whose name is not jirinted in tlie ollicial ballot, unless expressly authorized by the constitution."' Every ballot law, however, must contain due protection for tlie rights of all voters ([ualitied by the State constitution. Conse- queiitly, in the abseni;(! of express authority, a law would lie un- constitutional, wliich prevented from the expression of his clioice a voter who, through a physical defect or lack of education, was un- able intelligently to select or mark a ballot.'" A recent case liolds I" Stato r. McMillan, Missouri 811- prenie Court, 18 S. W. Rep,, 784. " Poarson v. Hoard of SiipcrvlsorH of Brunswlek County iVii. ) Court of Ai)|)oals, 21 S. E. llep., 4S:). " Il.id. "Stnto V. niaek, .5-1 N. ,T. Liiw, 44(; ; s. c. 24 .\tl. Hep., 4Hn ; Do Walt v. Hartley (Vi\. a. c), 24 Atl. llep., IS.-i. See nlHO Miner r. Olin, 151) Mass., 487 ; B. rn Rop., 383. " This point has lieeu the sulijwt of much diHciission in recent peliti- eal eontosta in New York over tlio proposed change in the system o( election by ballot. The folloning opinion, signed by soma of tlin most eminent luonibers at the Xc«' Vurk ■'•'■] GENEIiAL OnSKItVATIUXS. 847 loridn, ■ii">; 3. I ■111 piilitl- tliiit :i liiw ■wliii.'h iiUowod ii voto for all the nominal ioin of a jioliti- ciLJ pai'tv liy s'anipiiitf a cross oi)[)osite tin; name of sneli parlv at the head of the ballot was uneonstitutional, as a discrimiiiaiion ;ii,f;iinst classes of voters who did not adhere to any paity and li;id made nominations for only a part of the ofKiees to be tilled at the election.'* The soundness of this decision may well be (l(mlit('(l. t; "»!». Ooneral 01»sorvatl«ms upon the Itii^lit of Suffrnjrc. A survey of the laws and constitutions established in the Tnited Sditcs durinsjf the nineteenth century, shows a steady extension of till' riifht of suffraf^e, with no reaction except recently in the South til reiluce the negro vote by inconvenient regfulations for registra- tion lis to ])revious residence, educational and tax-fjaying qualifi- ratiiiiis.i Universal manhood suffrage is now the rule in nearly all the States of the Union, and there is at least a tem^iorary ti'iiilency toward the further extension of the right to women. I'liililieeies of resultant evil have been frequent, and opposition to Din: Hasfuriiislii'd to Governor Flower aiid tninsniitted liy hliii to tlio legis- liitwreiii April, 1H',)4: — ■' First— Any iliily qualified elector Ims a rii,'lit to vote for any competent person to fill iiii iillice for widoli a person is to 1)0 c'li'c'ti'd lit the election at wliieli he de- sin.'s to vote, wlietlier or not siu'li person for whom he desires to vote lias been so 11 •iiiiiiiili'd that his name is |iriiiteil upon til iilhrial liallot. Any ballot act which ilo.s mil afford all voters, wliether illiter- :;:■■ or not, an opportunity and rcason- iiIp!i' fiiiilities for voting tor such a person is micoii-^titutional. "Second — If a secret iiallot act pre- si'ribiii;; an ollicial ballot does not jier- niil the voter to write upon the liallol tho name oi the person for whom he desires to vote, whose name is not Imrno upon the ollicial ballot, or to vole for such pLTMiiibyaiiaster placed ujion such ballot, or by some other method, the act is un- eoiistitutioual. " Third — Such a ballot act must enalile voters wlio, by reaaou of iijnoraiice or pliysical disaliility, cannot write, to have the assistance of u conipotent person to write upon, or to attix to the ollicial ballot the name of a person not borne upon it, iitit for whom tlicy desire to vote, and that assistance iiiiist be allowed to such an extent, and in such a manner, that tho illiterate or disalded person may 1)6 certain that the name of the pi.-rson he desires to vote for has been placed upon the ballot, otherwise it isunconstiiational. .IaMKS I'. t'AKTElt, .ToiIX V. DlI.I.ON, (iKOIlllR DLISS, .TdllX K, I'.VUSONS, W. 11. HonMII.OWER, W. If. ri'.i K11.\M, Hi'oii Ii. Coi-K. Elihu KoilT, Franci.s L.Stktson, JosKrii K.Cho.vtb." Ill Cook 1'. state, 90 Teiiii., 407; 8. c. 10 S. W. Rep., 471, it was held that n law wuh coiis'Jtulioiial which ooinpelled eni'li voter without assi.'st- anco to marli tho names of tlii< can- didates whom he selpetcd. But Boe State 1'. Dillon, S'2 Florida, !H7); s. c. 14 Southern Rep., 38.!; xupra. 1" Easton v. Brown, !W Cal., 371, ,'!73. § 5fl. 1 Soe the Constitution of Mis- siBsippi. 31« TiiK itioiiT OK sri-i'i;A(;i':. [l.'IIAP. VI. tniili extension luis Ix'ou made from lliosu of tliu community witli the liirg^'st woallli iiiul tlii! (U'l'IicsL learning.^ IJiit tliey liave not lu'cu jiHtifieil. History i)rovcs tliat, in all ages, wherever jkiwit lias liuen vested in a elass, no matter how intelligent, tliey iiave exercised it hy legislation oppressive to those who were disfrau- chised, and that even if selfishness can he eliminated, ignorance of the wants of the disfranchised j)i()duees a similar result. For proof of this we need not go hack to the repuhlics of (i recce and Rome, to the Italian cities of the; middle ages, or even to Kngland and France during the eighteenth century. It is evident in the unfair treatment of the Hindoos hy (ireat Britain at tlie present time, in the legislation against tiie colored freedmeu in tlic South before the adoption of the I-'oiirteenth and Fiftn nth AniciKhiuiits, in the li(]Uor and Sunday laws, with which the inliahitants of the country districts still ()i)pre -s the poor>'r classes in New York city.' All of these M'e re and are supported hy a large niajoiity of lliosc with the greatest amount of pro[)erty iind the most scholastic c(hi- cation, aiul in the latter case, undouhtedly. in the hcnevolciit helief that tht; jioor will he hcnelited hy the denial of privileges which they themselves can exercise. The possession of wc.ilt'.i (hies not destroy sehishness. nor thi; study of Imolis give a kimwl- edge of tlie wants of Jniinan natnr,;.' 'Die instinct of the pe|icisi'(l the reindviil of pioiiinMy (lUullJii-.-itldiis. See (lie (Jobiiti) ill tin' New Vnik Con- Htiliitliinnl Coiivcniioii of IS'JI, uikI that (it Jlassiichusclls in I't-M. ' Iq August, Isori, ii III ill WHS ar- rostiMl ill New York City for Kclliu;^ ico oil Sunchiy to tho iiiuiat"s of t<',i(>- mont hou.scs. Hce tlio Now York Woild for that luoiilh. * "It is a fact, till' full sigiiillcMnoc of which has not yi't liecii pcrccivcil liy tlio iiiassi'H, that the coiiililioii of society which rcinlcrrt the right of entry to tlui institutions for higher edueatiou tho «luio~l oxclielve jiiivl- logo of wealth, Iciiils, from tlie closo eoniieelion of tliese institutions with the intellect unl life of society, to ren- der them (however much tiiey may, anil ill), fnuii the highesl miilives eiidcavor (o resist such leiidciicy, inlluciiccs retanllug to a. coiisidenihlc di'gree tlin progro.ss of tlie devclcii- nieiit whicli society is undergoing. " We have, cl)1l^e(luenlly, at till' pris sent day, in most of our advauccd societies the remarkaldo iiher.onienon of the intellectual and educal I'd classes at lirst almost iuvariahly cuiideiniiiiiL! and resisting Ihi! successive steps in our social di'vclopiuent, uttering the most glomiiy warnings mid fore'iod- ing i .".H these sli p.s havi' heen t:i!;eri and I lien tardily ,i list il'y lag them when they liave heciinie imitteisol' hisloiy; that is to say, wlieii approval or ilis- appnival has long ceased to i»' ef luaetical importance. It has to be confessed that in England during the §:,it.] (iKNK.ISAI, OliSKltVATlllNS. 849 i.s iisir.illy wiser tliau l\w tlu'ory I'volvcil in liis lilirarv liy a jiliilos- oiilicr. Ill a state of civilization, wlicic^ soim; of tlie riulii'st do not own a rood of land, the limitation of the suifrarfc to freuhohhii-s is manifestly ahsurd, as well as iirj)raetieal)l('. No lojij^ieal line of liuinaieation can he drawn hetween the owners of personal j)ro[)- t'ltv, wliich shfuild divide a governiiifr from a snl)jei't class, unless all tiix-paycrs are included in the first. 'I'lie liinilaiion of the rigiit to Vote to tax-payers is still tried in soir.e States, hut has heeoine an expensive farce, since it only results in an iiieicas(! of tlii^ cost of the campaign, Avithout raising the intelligence of the voters. For the poll-taxes of the pool' are paid hy tlie politi- cal [lartics who expect to receive their votes. More plausihle are the aigiinients in favor of an educational qualification ; hut this reiiuircs a degree of impaitiality in the examiners such as is I'urcly found among politicians or pid)lic servants. The section of the Constitution shown to the voter is first taught him hy heart, as was the neck-verse to the malefactors wlio wished to plead hencllt of tlu' clerg}'.'' Moreover, the uncducatecl need pro- tection from opiiression even more than those who have hecii to SClllHll. But the opponents of universal suffrage contend that, altliough there may he danger of class tyranny in an oliganliy, there is far more in a democracy ; and that tyranny hy the lowest class, which is without i)roperty and education, is the mr)st oppressive of all. The history of the United States docs not sujjport the claim. A cari'fnl student of the dift'eient periods since the declaration of nini'l"(ntli coulury tins oduciitt-il scciiri' rcliiiiousfrcodomjuul tmil'olisli c'liis^i's, ill nliiiost nil till' (^n>iLt, politi- Hiavory. Tlio niotivo ferco behind I'nl clums-ri'S that linvn lieoii elTcc-tcd, tli(! loiiK liwt of progrosBivo inoasiires liiivi' talic'ii tho sidi^ of till! iiarty after- inrriod during this jioriod lias in waul adiiiittril to havo boen iu tlio srarci'Iy any n[iiii'eclablt) iiioiisiire wroiit; — they have almost invarialily roirio from tho ediieiili'd rlassi's; it opposi'd at tho timo tho nieasiiros has coiiio almost cxeliislvoly froin tho tlu'y liavn subspqiumtly oomo to do- iiiiddlo and lowc'r classes, who liavo fond and justify. This is to be in turn aeO-d not undi>r tho stimulus noUci'il alike of measures which have exti'iidi'diMlucalion, wliirh have enuiii- I'ipiited trade, which have exlinded the francliise. Tho eduealed eliisses have even, it must be confessed, op- posed incasui-ea which have tended to of intelleclual motives, but under tho inllueneeof their altruistic feeiinj^s." (Kidd, Social Evolution, American eil., pii. 2r.'>-3r)3.) <> beo Giay's notes to Iludlbias. ano TlIK KKiHT Ob' SllM'IiACK. [•■IIAIV VI. iiidrpi'iKk'nco iiiiist he couvinucd lluit tin; clMriU'tcr of pulilic nun is (juiti' iis liij^li now as it was bcton! tiio Hiil't'iafro was ciilarj,'!;!!. Anil wiifn we cimiiiaiu the forniptioii in I'lanii;, umU'r XaiMilioii III, witii tlio conililidu of all'aiis nndur ilu- jiiesi'Mt I'lendi i('|mli- lic, tlii'ii! can bi' no iloal)t as to tiio supurioiity of the latter. Tiie approval of tlu; two Napoleons l)y plebiscites was, in so far iis it was voluntary,'' due to a preference for the will of one stront,' man, who eoiilil preserve order and .save property from pillage, over an olif^arehy snbjrri inly to the ihn^ats of the mob at Paris, who not only diuiied loi.i, ,^elf-governnient to the provinees, but were pow- erless to eiiforee their own orders, and tlu'eatened legislation of the most eoniniunistie character. In the Spanish-American so-iiiiti> in IH'.lt, fmiiislies aljuu- ' Till) ti>8tiiiioiiy liefon? tlio Li'xow danl proof of lliis. In tlio easii of §^''-] (IKNUll.Vt. OltSKltVATlONS. 861 Tilt' only facta in the United Stiites tliiit .support tho ojiiioncntH (jf iiiiivrrsiil HutTianii'l<'J''"n plnnibcr In Anu'i-icaii Reviow, vol. 128. The Xi'w York City. South Carolina Couvcutioii, now in " Si>o th(! Afro-Ainorii'an NolOH, and session, si'cins resolved to follow tho i'flrra.--|ioiid(>iii'i', ('sp<(iially that ot cxaiiipli' of Mississippi. T. Thomas Fortune, in the Now York ' So« tho illuetratlons in Ham- ;if)2 THK lUUIlT OK HUFFUAflE. [CIIAI'. VI. sujioiior to the parliaments elected by the rotten lK)roui,'hs of iMighmd. Upon uhise exaniiiuvtioti, it will be found thiit ilu; lar<,'er number of their members, in matters which imniediiitilv all'eet their constituents, and those which relate to tiie Sliilc al lartcc follow the wisiies, and usually the interests, of those who elcctt'il them: ai:d that their misdeeds, blackmail and bribes, iiro conliiied to bills which relate to other constituencies, tlie lenicily foi' wiiich will eventually be founil in new provisions in Staliu'on- slitutiuiis to sccuri^ iiome-rnle for cities, and estal)lisli local sclf- jjfoverninent, free from interference by the State as well as tlit' national li.'gislatiire. 'I'hcy can no more properly be ehariieil to the account of self-government by universal suffrage than can tliu itastle rule and des[)otic acts of the magistrates appointed from tliu class of laud-owners be treated as su[>ported by the public senti- ment of Ireland. In every struggle for control, property and education will in the end outweigh poverty and illiteracy, althongh the latter iiave the nnmerical advantage. The leaders of the I''rench revolution were outcast nol)lenn'n. such as Mirabeau, Talleyrand and lianas, and elientlcss members of the; learned i)r,)fessions, such as KoIhs- piern> and Marat. The reconstructed governments in the South were headed, and the greater part of the spoils retained, by eiiu- cated white adventurers, who cajoled the colored vote, and were snjiported by Northern bayonets. .\n(l as soon as the army \v;i.s removed, the tax-payers had no dillictdty in assuming and reliiiii- ii!g j.olitie.d power. The absolute control of pi'iv.ile credit, and tlit^ power to give eni|iloynu'nt to labor, will always, in the eiiil, iift'ord lo the owners of capital anijjle [)rotection foi' the legitimale use of property whieii they have legitimately accpurcd. The great danger of universal suffrage, of mob-rule as it is called by its enenues, consists in its liability to sudden gusts of passion, whiidi cause ill-considered acts for the destruction of proj)erty and for repudiation, intended to injure the fortunate few, which ulti- mately react against all. Sectional differences in the loi'ation of creditors and wealth make these more likely to occur and hanlcr moud's Political Ilistoiy of Now York Fathors, by Jolin Hncli MillMstcr, and The rolitical Depriivily of the Alluntic Moutlily, vol. Ixxv, p. 020. §;ii..] OKNEUAr- OIISKIIVATIDNS. ar.:] til control."' Aniplo ])roti'i'tinii iij^iiiiist lliciii liiis liecii iiiTonlid liitlifrti) liy tlio l)ii'''U'rs of written coiistitiitions I'liforcud Ijy iliu courts, ill wliidi the coiiscrvativt) eleiiieiits of tlin coniiimiiity Inivi' ;il\vii>-s fouml ii(lf(iii;it(! rcprt'sciitiitioii ; and tlic l)i'eailiiiij^ s]i;iii' wliicli tliL'ir reHoliile action has conipt'lhMl lias heen to the 1 'csi'iit enotiji;h to jifive time for tlie jiassion to subside, and coni- iiKi I sense ajjain to resume ita sway. i'iii'si! words, iiowever, are not intended as an argninent in fiivor (it niiivi'i'sal snil'raijfo for all times and [leojiles. That many of the Imiiiiii race are, in their present condition, ineapahle of self-t,M)V- fiiiiiu'iit, and need despotic, rule to j ivscrve order ami save from tlii'I't tlie fruit.s of toil and self-denial, eaiinot he doubted. 'J'liat wliiTc the land is in the hands of a small class, of a race different liiiiii the majority, it will be Iwtter for their interests to keep tiie nilr ill their own hands, is as clear as that it is foolish to drive a iidiNi' witiiout a bridle. Altliouj,di a small property t(!st has been 1 idved to l)e impraetieable, except as a transitional expedient, and '" "If we should extend ourcnudor w) fur MS to own Hint tlie nmjoiily of iiiuiikinil are genenilly iiiidei- tlie do- iiiiiiiiJli (if lielievdleiiee and fXimil ill- li'iilions, y(>t it miiHt bo eonfeHwed that a viisi iiiHJority fipi|iieiitly trniisuress, mill, HJmt in more decidedly in point, mil only (I iimjorlly, but almost all, I'lMilliie tlielr benevoleueo to thoir fiiiiiilies, relations, |iersoiinl friends, I'iuisli, vllliifje, city, eoiinty, province, mill tliiit very f(nv indeed extend it iiii|iiiriiiilly to till! wliide coniiimnity. N"w, Kiiint but this truth and tlie i|iii'Stiiiii is deel(l(!d. If a nmjority an' laiiablo of prefer 'inn their own priv.'iie iiiirrcsts or that of th.'ir fiiiiiilii's, lountieH, and party, to that (if till' iialiou eolleetively, some pro- vision niust lie made in tho Oinsiiiii- tieu in favor of juatiee, to eonipd nil til respect tlie common rlKht, the IMililic «(i(k1. the universal law in pre- fcreiiic to all private and partial con- siiliTiitiuns." "U£ all poasiblo forms of govern- ment a Hovorelgnty in one assembly, fiuccesHively cliosi'ii by the pe(i|ile, is, lierhaps, the best calculateil to facili- tate thi! unitilleallon of self love, and tho pursuit of the private interest of a few individuals. A few eminent, conspicuous characters will bo con- tinued in their seats in tlio sovereijiii assembly from one election to anot her, whatever cliunncs are iiiado in tlie S(»ats around them. Uy superior art, address, and opulence, by more splen- did bir'uli, repiiti.tions, and connec- tions thoy will lie able to intripiiii' with their people ;iiid their leaders out of iliiors, until they wormout iiiosl (if their oi>poscrs and introduce tlieir friends. To this end they will bestow all olll.'i's, contracts, privileges in ( oni- nierco and ollior emoluments on the latter, and thoir conuectioiis." Ad- ams, DefiMico of Amci^c;'! Constitu- tions, vol, ill. Letter 0, pp. 21."i :2l(i. See North Allie lean lleview, Oct., 1H27, p. '2 Iiavo boc^n llr.st ostalili^liivl by tho Vermont Con.stitntiou of 1777. It was llr^t introdnccil iu Eumpi; liy the National Convention. (Oiiistiiu. tion (hi 21 .Tniii 1703; Hello, Cousii- tution.s do la France.) CHAPTER VTT. NECESSARY QUALIFICATIONS FOR SEXATORS AND REP- RESENT ATI Vi;s. !< <>(), ('oiistitiitioiiiil I'l'ovisuMis coiii-criiiii^'' (jiiiilit'ic'iitioiis of !>I('rs of C'<»iiiri'<'',s liekl that the election to the House or Senate of a [)ersou laborinjjf under a disability imposed by the Fourteenth Amendment was voidable, not void, and tiiat a sulHeiinent icmoval of the disability cutitkd him to his seat.*^ i? <»1. History of Provisions coMccriiiii^ Qiialifleatioiis ol ^rcin- Ix'rs of Coiitfri'ss. In 1787, the law nf I".ni,dand required, as it does still, that no jht- son should sit in either house of Parliament until he luiil attaiiieil lis maj(U'ily but t\ wo of the trn'alest leaders tiie House of (' one -Siiaftesburvand Fox - took theii' scats when under twenty- id in earlier linu's tlic lustoni w.is as common as the appoint- ment of minors to high military ollice.' The other (]ualitiiatioiiN for membership in tlie 1 louse ot ( '(unmous, at that time, were, besides citizfiisiiip and certain negative dis([iialilications imposed liy law. tiie owuerslnii o .f frecdiold with an estate worth at least tiiiec dtl hundi'cd pounds a year, with exceptions in favor of the eldest sons le unixersitics.- of . TIN and intiubers of tl c'UHtont b» c ircunivent tiic liw bv the t It was. however, tlie ransfci' of a small piece cf pfiipertj' fniui one mendu'r to another, so as to (|ualify each to take tlic neeesH... . ■ itl./' 'I"hc requisite (pialitications for memlierslnp in ilir tlifferent coioniitl and early Stati' assemblies were vaiiotis. ;il- thousfh usually tlie right of meiiiberslii[i wius eouliiu'd to frcchnhl- ers or the owners of a specified amount of property, or taxiiiiyers; and JM-.fijadonally higlifr (lualilications weie rcrpiired for meiiibei- ■■' FourtoiMrtiH. AiiiiMiilR«'nt , Spctioii H. » H. B. ItiillerVi las.', Hmi-' Cou- ii'sti'il EIiM'tloii Ca« Hhaftwliiirv «at in I'lii'liH- iiietit when imly iiiiiett'Hn Traill's Shaft ""liiiry. !<• IM.) Fox ot llic Hanio iige. Ill onw of tho Parliaments of Jain.»» I tli«r<' »-io forty ini'iiitn'i''- who wi'i-i" iindt'f uiii\ soni'> not men' than sixtf.t Traiil's Shnfteslmry. p- IH, noti' . iSvi- infri. note (>. '^ Uliick.stoue'H C'.iiiimoutarli's, vol. i, p. 17il. » May, Ciiustilutional Hisloiy.vol.i. 2;j. o Tlif fdlliiwiiiK incident i.s dc- •■^I'lilii'd in Waclicld's Kcudirljy Rc'- soliitiims (if 1798, pp. .')2-.'):t : Jolin linckcnridKi' "was aliout to set out fniiii Imnip fur liis tlilrd yd an inlliiciitial position there before he was thirty. iShurz, Clay, vol. I, (ip. 38-39.) 358 QrALIFICATIONS f)K CONGRESSMEN. [CHAP. VII. imposcil ill ODuntrics tliiit luive adopted the system of jiiri.s[>rii- di'Mce founded on the civil law. which is less lihcral than tiie ceiii- iiiDU law to youth." Some dehate took place upon the (incstioii us to till! Icnufth of citizenship wiiich siumld he ie([uisite. In the report of the conunittee of detail, a citizeiisliip of four years for the Senate and three years for the House was all tliat was re- quired." Su1)sequent ehauffes were made after some dehate, a minority fearintr lest the enlarj^ed restriction mit^ht disconra<;i' im- migration.^ Before the reference of the original resolutions to the committee of detail, attempts were made to distiualify pcii- sionei's and "persons having unsettled accounts with, or heing iii- dehted to, the United States;" hut Gouverneur Morris slioucil that this clause would empower the oflicers of the treasury, 1)V delaying settlements, to disciualify all wiio ha oldlj^ed to declare that his politieal opinions at the asj(! of tweiity-oue were too crude and errone- ous to merit an inlluence on puhlie nii'asires. It had been said, that CoiinresH had proved a Kood school for our yoiinti men. It niinht, be so, for anylhin;; he knew; but if it were, he chose ihat they should lieur the expi nse of tlieir own education." "Mr. Wilson was against abr'IdKitit? the rights of election in any shape. It was the same thing whether this were done by di'^qiialifyinti theohjcots of choice, or the persons choosing. Tlio motion tended to damp the cIToils of genius and of laudable aniliilion. Tlicre was 710 more reason for iuca- pacilaliof^ youth than (u/r. where the requisite f|ualillcations were fouiul. Many instances miHlit be nientidied of slj,'nal services, rendered In hij;h slation.s to the puliiie, before tlio atto of twent,v-li\e. The present Mr. P"t and Lord BoliiiKbroke were slriiiiiig instances. t)n the question fi r i..- serllufj 'twenty-llvo y-irs of n;'c.' C iniiectii'Ut, New Jersey, Deiawi ro, Maryland, Virginia, NortI "iia, South Carolina, ay, 7 ; >r seus, Pennsylvania, Georgia, . i); N'-'V Y(U-k, dividi'd." iM:io.son I'ap rs Elliot's Deb.'vtes, 2d od., \oi. v, pp. '228 'Jan. ■) « Madison I'apers, Elliot's DebaKis, 2d ed., vol. v, p. ;t77. 9 Ibid., pp. :ts;), :!;is-ioi. 1" Ibid., pp. 370-371. §G1.] PROCEEDINGS IN CONVENTION. 359 III the report by tlie coininittt'e of dftnil, it was required that a nicmliiT of oiR'h house liould lu' a resident of tiie State wliich he i([. resented." The ehaii^e from I'esideut to iiihahitaut was made liv uiiiuiinuius consent at the motion of Roger Slierman, seconded liv Madison, upon tlie ground tiiat inliabitaney was nuire easily (litcrmined than residence. ^^ The last resolution referred to this coiamittee of detail was : — " IJesolvcd, That it be an instruetion to the commitliH' to wlioin were nfcnt'd llie proceedinpfs of the Convention for the estiiMisliineiit of a iiiiliiiiial jiovernmeiit, to receive a clause, or ehuises, rt'iiiiiriiej; certain i|ii;ilil;<'Mli()ns of property .'uid citizeiisiiip in the I'nited Slates for execu- livr till' jmlieiary, and tiie membera of hoth hranches of the leiiisla- Ui!" nf the I'.Mted States." The report ot this committee pro\ideil that " the IcLrislature of the I'nited States shall have authority to establish such niiiform i|iialilications of ti.e members of each House, with legard to ,'in|ierty, as to the legislature shall seem expedient."''' 'l"be cxiilanation of this part of the rejiort, as given by a memlu'r of the committee, is the best statement of the objections to such a iiualilication : — " The coMunittee had reported no qualifications, liceaiise they could imt a^'iee among themselves, lieinii; einhiirrassed liy tlio danger, on one siilo, of dis()leasing the people liy making tliem too liiiili, aiionrii|M.|-s, Klliol's Di'batos, '2'l.'.|.. vol. V, p. ;i77. '-"Mr. Slii'riiic'iii movcil to siriUo "lit till' woril ' ri'siili'iil ' and insert till' word ' liilialiilMiil,' ns li'ss li.iMn III inisi-oii.striH'tioii. Mr. Madison ^I'lniiilod llie inoiion. Bolli were viiu'iii', tint till' latter least so in eoni- iiiHii aeeeptation. iiiid wonld not e.\- clmle persons absent oeeasionally, for n ciiiiBldi'rablo tinio. on publie or inivalebusini'ss. tlrent lU-puUs had been raised in Virt;liila eoneerning tlie nieiinini; ot resiilenee as a i|nnlill- cationof reprrsenlalives, which were detei'iniiieil mure a ii'illnn to tlio affeetiiMi or ilisliki. lo the man in question than lo any lixed interprp- lation of th" word." Madi.son Pajiers, Elliot's Debates, ad ed., vol. v, p. 3H0; .see also pp. IWO anil 101. 11 Ibid., pp. :t7<; 378. " Kuliodb'o ; Ibid., p. 403. ;{t;o QUALIFICATION" OF CONOUESSMKN. [cilA 1'. \ U. •' Were he to tix the (iiianlity of property which should bo re the views of political iunl religious parties." " 'l"lu' whole Sfctidu was tlirowu out liy the vote of seven Stales to tliree,"* Mild the Convention [iro( I'cdcd to fix liie leiiglii ol riti- zenship as previously suited. I iiiii3 lias provt'd the wisdom id tiiis proceeding. It lias lieeii i'oiiiid thai the [leopli' ( 111 pKiteel tliemselvcs, iiiul tluit there is ini heliidit ill inipo-^ing ollS^ilel(^s tn llieii cluiice. I'ropt'lty ilt'iili- lieatioiis lor ineniliership in their legislatures have now liccn idml- islicd ill all the I'Mted St; 'os,aiHl ii.su. rcHldi'iice foni H|UMilieil 15 M.'i.lls,,iiriilieis, Klljoi' D.'biili's, Sit i|iioHtlou was whnthor llioy nfcoiilil iigroo to the soctiiiii : New Haiiipsliiio, Muss 11 ||l|^eH'*. (li'umin. ii.v. ;i; riiniineili 111, Ntiwilmwiy, IViiii- bvImiiiiii, Miir.vliind, VlrRiiiiii, Ni'iUi Ciirolinu, South CiiroUua, no, T. {IM., p. 1(11. J il.] l'I»)(,"EEI)IN(;S IN C'ONVKNTION. 861 liiiii' witliin the Statu or distiict, and tlio age of twciity-ono ycai-s, aiv llu' solo (|iialilicatioi'H i'e([uiit>il for iiu'iiiheisliip in eitlicr llniisr. Ill oiiu State a inuniliLT of tliu iijipcr lioiise iimst Ik; tlnri\,'''aii(l in two tweiity-fivu yuais of agi!.'-*" In Delaware a rej)- iistiaative must be twenty-four years of ajre.'^' Some Statoa iiiiike ollieers of the I'nited States and judicial or inunicipal (illiicrs ineligible,^ but in most the jieoj)le have wisely allowed till' vdUis of eaeh distriet to choose their reprt'sentatives in the Ifijishiiure with few restrictions. It is the constant jiractiei^ in (iivat Britain and France for the constituents to choose represen- t.ilivcs irrespective of their phices of residence. In the I'nited States local prejudice rarely [lermits tin- in the laso of memlwrs (if Coiigre.ss whore it is allowed, and it is usual in State constitu- tidiis to forbid it in the election of membeis of the State legis- laiiiiv. The former practice, bj' the broader choice which it aflonls, is apt to secure the election of abler men; but by the latter the representative is more apt to be a( ijuainted with the \vi>lies of his constituents and to obey them.-' ''■> New Jersey Coustitulion, Artli'lo IV, S.'i'lioii 2. -■' Illinois Constitution, Article V, Sccliou ;t, iind Noi'lh Uakola Cousti- luUori, Aiticlo II, Section '2S. ■' Koliiwaro t'oiistilulion. Article II. '-- Xow Yorlc, Article III, SeclioM H; Floriila, Article III, Kecliou 7, Illi- ii'ii.-, Article V, heetion ;) ; Iowa, Arli- li.' Ill, Section (!. In the KcpiiliUc of Hawaii, "In order to lio cli- gilli' 10 election as a senator, a I'l'isnu hliall bo a male cltUen of the Iti'|.iililie; have attained the a^i' of tliirty years; h\\ alilo inideislaiidlni.'ly iiiHiM>nK, v\*«d, nud wilto the Kujillsh e\ \Kn lliiwaiiau language; have n"»i.led Id \\w Hawaiian Islands uot I'' Hum llireo years; bo tho owner, in Ills own rlnht, of proiierty in tho K>'| iii'lie of the xnhie ol' not less than I liree thousand dollars over uud above nil liii'iiinlininces; or have been in tile receipt of a money incomi' of not less than twelve hundied dollars during I ho year iinmedintelypriH-ediug tiie (late of tho election, for the proof of which li(! may bo re(|uir( (I to pro- dui'c original aecounts of the receipt of such ini'ome" ( Article Otjl. Similiar H). '•'■' Il is hard to bellcvo that a s^HHS-h like ihal of Burke to the oloctora of Bristol could have lioen made by a candidate for Congress in the United State---, 8i;2 QI'ALU'ICATIDN'S l)V COXORESSMKN. [('MAP. VII. v, i'l'-i. Congressional Decisions on Qualifientions of Senators and l{<'l>ros<>ntativ4>s. Tlie wf)i(l •' iiiliahitiuit" has a different meaning from "resi- dent." IJesidciu'o implies permanency, or at least an intention to remain. Hahitancy may bo temporary. A man's resid'.iii'u is often a l(^gal conclusion from statements showing his inloiilidii. J lahitancy is a pliysical fact ■which may be proved by eye-witm.sses.' It was held by the Senate tliat an army oilicer stationed in .Missis- sippi might be elected senator from that State if he had announctil Ills intention to permanently reside there, although he was iiiii,'i- nally aiipointed from another State.^ It was held by the ilousi; (if Ilepresentatives that a citizen of Massachusetts who was a clerk in the Department of State at Washington, was not an inhabitant of any State, and was consequently ineligible to a seat in Congress;^ but that a minister of the United States, while diseliarging his oUicial functions at a foreign court, did not cease to be an in- habitant of the State from which he was ajipointed, and miglil be elected to Congress.'' In the cases of Albert (iallatin, aftcrwuid Secretary of the Treasury,'' and .lames Shields," of Illinois, the Sen- ate refused adnussioii to the persons elected, upon the ground tiwt *; 02. ' See the remiirks of lliuiison inthe Feileriil Convention, «»;»n(, §f!l, note 12. McCrary wiy.s, in McCrary oil 'E!.,tious (3ril ed.), § 2S!t : "It would s("eni tluit tlii) frnniers of tlio Conslilutioii wore impresseil wltti a tleep sense of llie iinporlanco of an ai'tual buna fide ii>siilenceot tlio repre- sentative ainoiijj tlie constituency, — a resl(len('0 in tlio son.so of actual living among tlieni and cominiiigliuB witli tlioMi, — and therefore employed tlie term inhabitant in the seiiH(> of living or ahidiiiH, anil not in the sense of technical residence." '■^ ('nso of Adelhort Ames, Tafi's Senate Elei-tion Ca.ses, continued by Furber, p. 27!». » Eleelor.s v. Hniley, t'l. A Hall, 411. * Case of .John Forsyth of Georgia, CI. &. Hall, 497. McCrary says of this case, in MoCrary on Elections (3d ed.), § 200: "The foriMRn representalivo carrii.'s with him the Bovcrei^july ot the Kovcrumeut to wliich he beloii;;s; his righlsasa citizen arc not imimlicil by his absence ; ciiildrcn born in tln' house he oceupies art? considered ne Ijorii within tlie territory and juris- dlclion of the {•overnmont in whose service he is; he does not po.'isoss the capacity, by resilience in the for- eign country, to become one of Its citizens, or to lose ids allefjiaii^'O to thi> <'ouiitry from which he conioa. None of these things attadi to those perdons who are crajiloyed in the home service of the government." ' Taft's Senate Klc.-lion Ca.^'es. ron- tinucd liy Fnrbcr, \t. r,l ; see also bit' of Albert (Iallatin, by Henry Adnnis, pp. li:», 120. « Taft's Senate Election Cases, con- tinued l)y Furber, ii. 122. iu^.] CONOKKSSKINAL DKCISK INS. 868 tiny li;i(l not 1)iu!ii citizens of tlie United Status for tliu re(iiiisilo t( Mil (if yi'iirs. Tliu L'ertiticatu of tlie jjoviTiior of a Statu tliat tlio IKi'siin ek'ctufl a senator is a citi/un tliuiuof is sulliciunt y>r/«('(.^'(/rt(! cviiicncu of tliu fact.' Notwitlistandiii^' tliu du ision in tliu I)re(l Sciitt oasi!,'* it wiw lield tliat a jiurson of African lilood nii!,dit ho clcitcd to the Senate witliin less than nine yeais after tlie aihiiilioii cf tlie i'diu'teentli Aniendnient.'* The States have no imwer to add to the (lualifieations wliiidi are reiinired for a senator or re|ii-esenta- li\t': and all provisions in their slatnte-s orconstitntions which for- liid a inenihur of the legislatnru or other Statu oflieer from huing cliiisen senator have ))een rejected by the Senate as void.'" A seu- ■<'ii8('of Stnnloy Oriswdld. Tafl's Si iiMlc Election Cases, coutiiiui'd liy I-iiiImm-, p. 7H. ► Prod Scott V. Sandford, 19 How., 3!i:i. ■' lievols' Caso, Tnft'a Senate Eloc- tiiin Cases, coutliiuml l)y Furber, ]). •274. 1 ('iisoH of Lyman TrunilmU, Taft's SiMiiitP EloL'tiou Cases, <'oiitiiiiiud liy I'lHliii', p. i;)2, and Lucas V. I''aiilkucr, il'iil., ('i'2fi. ,IuiIkc Story's cniaineMta (111 tliis point are iiistnictivi' : "A qiii'stioii, however, lias lieeii su^tf^ested iipnii tills siiljjeet which ounht nol t'> lie passed over without noUce. And that is, wlietlier tlie States can tiiipcradd any iiualllleatious to tliose I'l.-^iiilied liy the Constitution of the liiited Slates. Tlie hiws of some of till' Stales have already rivjuired that tl,> representative should be a free- li'iMiT, and lio resident within the ilistriet for which ho Is chosen. If a Slate iefjialatiire has authority to |Ni.-> laws to this effect, they may ini] iiisi! any ot her (luaUllcat ions beyond th'-ie jirovided by the Owistitution, Imwever inconvenient, restrictive, or evi n luiscliievoils they may be to the iiiiii-ests of tlio Union. Tlie lettisla- tiiie :: "laltoriiiy under mental and pliysical debility, but not of un- llrdiioiis would Hi'ciii In imply ii noK"- tivo ef all otliert^. Anil a ilcmlil of this H(irt rtooiMs to have' pci-vadiMl tho mind of a It'uriiod comiiieiitatoT'. A power to aild new iiualincalions in c'lTlaltdy cipilvali'iit to a powi'r to vary thoiii. It adda to llie ai^grc^ato what changi'H till' natiiri' of the formiT rciiiiisilos. Tli(3 HuiiBO of Ui'prrscn- talivo» HcnniB to have act I npon this intcrpri'tatlon, and to havo lu'ld that the Statu lof^i.-latiircs have no power to prescrllpc new <|iialille,itioMs, un- known to the Const Itut ion of the UnitCMl Stales. Aeelelirateil Amei lean stiilesmaii, however, with liis avowed devotion to State power, has intiinaled a contrary doetriin'. 'If,' says ho, 'whenever the t'oiistilution assumes a hIiikIo power out of many which belong to the winie Hiiliject, we should consider it as assumlnK the whole, it would vest the Koneral Koverninenl with u mass of powi'rs never contem- plated. On the contrary, the assiimp- tlou of iiarticiilar powers seems an exclusion of all not asstimed. 'I'his roasoninK appears to me (o he sound, hut on so recent a change of view, caution ri'iiuires us not to be over- eotilldent.' He intlniates, however, that unless the case he either clear or urgent, It would he hetler to let it Ho undlslurl)ed. It does not seem to have occurred to this celelirated statesman, that thi- wliole of this reasoiiiuK. which isavovvedly foiinde I upon tiie amenilmi'nt to the (!onstilu- tion which pro\ ides that 'the powers not delegated nor pnildtiiled to the Stat(>fl are reserved to the Stale > re- spectively, orlo the people,' ])rocee(la upon a hasis which is iniipplicahle t'> the ease. In the llrs; place, no powers eoulil he reserved to tho Stales, ex- cept those which existed In tho States before the Constitutlou was adopted. The ainondmeiit does not prnfeHa, and, indeed, did not intend, lucoiifur on the Slales any new powers, liiil merely lo reserve to them what wcro not ciiMceded to tho noveriiiTiiiit of the t'nion. Now, it may piopcrly he asked, whoro did Iho Slates gel tho power to appoint represenlatives In the national government V" Clliiig Tucker's lllack Comm., App., vol. I, p. '213 ; JelTerson'sCorresponilence, vol. iv, pp. '2;)H,2')',I. " Was it a power tliut existed at all before the ('imslltiiiion was adopted' If derived from ilieC.ii. stitulion, must it not be derived ex- actly imder the i|ualilicalioiis estali- lislicd by the {'onstii ulioii, and iiniie others? If theCotislilutjon hasili'le. galcil no powerto IheStalesloailil new (liuUilic-alions, how can tlii'y claim any sucli power by the mere adoption of that instrument, which they did not before possess? Tho truth is, thiit the Slates can e.xercise uo powers whatsoever which exclusively spriajj out of the existence of the naliouiil government, whii'h the ('onslilulinu does not delegate lo them. Tliey have just as miu'h right, and no mure, to prescribe new qualilications fur ft representative, as they have fur a President. Each is nn oHlcer of the Union, deriving his powers and quiiU- flcalions from the (.'(mstltution, and neither created by, dependent iilKin, nor controllatile by tho States. It is no original prerogativo of tho Stale power to appoint a ri'presenlalive. a senator, or President for the I'liioji. Those olllcers owe their existence anil functions lo the united voice of the wliole, not of a portion of the in'ople. Ui'fiire a Stale can ns.serl the rij;lit, it must show that the Conslitmion lias delegated and recognized it. No State can say that it has reserved what it never possessed. Besiilos, §.12. CONORKSSIONAL DECISIONS. 8(iii!i.l iiiiiul," wiiH mlnutted." It woiilii i)rol)iil)ly Ix' licld lliat ii liiiialit' WHS (li.s<]iiiilili('(l iis iiii exi'u|)tiiiii iccdLriiizod hy llic cotiiiiinii l,m iiiid included in tlic Coii.stitiitioii liy iiii|)li(';iti()n.''- 'I'liu i!is- (]iiidilii;ation i)f the uaiididati' witli tlic iii<,dicst iiuinliiT of volcx (idcs not iMititlc liis (Miinprtitor to ii scut in ( 'onj^Tcss.''' During tlio Civil War, and liuforc the adoption of the Fouitocntli Aincnd- Inili'i'inili'iit of ttiin, tlicro in niiotlier tuiiilaiiii'iiliil Dlijoi'lion to the rciisou- Inu. Tim wliolc scope of till' arnuiiK'Ut is, to show tliiit tho IcglHlnturo of tliu Slalc liiis 11 rlnlit to [ircrtcribo new (|iiiillliciilloiis. Now, if the Stiilo In its |«ilitiiiil eiipacit.y tmd it, it woul'l iiol follow that the le^'lslature jioh- W'sseil it. Tliiit Illiist depend upon till' innvers eoiillded to the Slate le^;ls- liilure liy its own eoiistiliitioii. A Sl:ite. liiid the le^^JHlatiire of a State, are ipiite dilTereiit political lii'innH. New it would bo vory desinilile to kunw in whl<'h jiart of iiny Slat"' con- Kliliition this authority, exclusively of a iialloiial character. Is found del(>- (!iileil to any Slato h'^islalurc. -Hut this is not all. The ninendnient docH not riserve the powers to the Slates <'X( hi>ively, as political liodies, for the liMiHuiifjo of tlin aiiiendnient is, thill tlin powers not deleKiiled, etc., lire reserved to the Slati's or to the jiiiiplv. To justify, then, tlie cxereiso el' I lie power tiy a Stale, it is indls- IM'iisiiliio to tihow that II has not beini re.aprved by the people of tho Htatc Tlio peojihi of tlui Slate, by adoptiiiR till' Coiis'iiiitiou, have declared what their will la, a'l to the qualllications for o.lii'O. Ami here the niaxim if ever, .'Mist upi ly, exprmnio niiiim chI ejrrluHio 'iltrriiif. It niinlil fiirlher he "iWd, that tno Const it 111 ion, bein;? the 11, -I of the wliole ])eiiple of the riiileil Slates, formed and fashioned accdiiliiig to tlioir own views, it is Del to lie assumed, as the basis of any reasoning, that they liavo (,'iven any control over tho functionaries createil by it to any Stale, lieyoiid what is found in tiie te.xt of I hi' in- Btrunient. When sucli a control i.s nsserled, it is matter of proof, imt of iis.suniplii>ii ; it is matter to be cstab- lislied, as of ritjhl, and not lo be exer- rised by usurpation, uiilll it is liis- placod. Tile burl lien of (iroof is on the State, and not on the t,'iiverniiient of llie t'nioii. The iinirniatix e is lo bo cslabllshed ; the nenaiive is not to be denied, and the denial taken fur a concession. "Ill rcRiird to the power of a Statu to prescribe the ([unllficalion of in- habitancy or rcsldenco in a distrii't, as an additional qiialillcation, there is this forcible reason for denying! it, that it is undertaiviiiK lo act upon tlie very (piMlilliation prescribed by the Constitution, as to iiiliiibltaney in the State, and abi-idnin;? its operation. It is preiisely till) same oxerejse uf power on the part of the Suites, as if they should iircscribe that a reprc- sontativo should be forty years or age, and a citizen for ten years. In each case, the very (|ualillcation fixed by the Ccinstitution is completely eviided and indirei'tly abolislied." (Story on the ("onslilulion. ."itii eil., §§ IVil-C.'J'.l. pp. ICII- ((•.:!.) iiCa,-!' of John M. Xiles, Taft's Senate Kleclion Cases, contiiiueil by Fiiriier, p. I'iO. '■- See iH/ini, S ">.">. note '21, Burgess expresses this opinion in his Poiitioal Sciem-e, vol. ii, p. ,')2. '•' Infra, Cli. XYI. ■if V] <^ /a % 7 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 B^l^ 12.5 Bi 12.2 1.1 1.25 Ir 140 2.0 1.8 U 11 1.6 Photographic Sdences Corporation sS •^ % f\^ ^ >^ \\ W' <^' 6^ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 sot; QUAMKICATIONS Ol'' CONOUKSSMKN. [cilAI'. \ i!. nieiit, the House of Hejm'seiitiitivts refusi-d iulmission to iuciiiIkiv iilvvl ulio had been disloyal to the riiion." The Senate at tiivt refused to pursue this practice,'" allhoujjh they exiielled M'vcnil inend)ei's for dislo^-aUy.'" Finally, after the Fourteenth Aiiicid- nient had passed hotli houses of Congress, and been ratilied I.y three-fourths of the States there represented, but not by tliive- fourths of the entire nund)er, the Senate refused to allow a Sm- ator-eleet to take the oath, or to hold a seat, upon the jrrouiul that he had " voluntarily given aid, counteniinee and encounii,'!!- nient tt) i)ersons engaged in armed hostility to the United States." '" " Kontucky Election Cttsos, 2 Hart., 327, ;!i;h; lluCriu-y on ';iccliiins, S 2Hi. '■' III tlio oiiso of lionjiimin StiirU of Orcn'iii, ngiiinsl whom oliaigos of di«l.iyriliy were made, llio Scnati', Jan. Ill, l!Sfi2, resolved that tlie oath bo uol adnilniKtered to him until utter Iho re|K)rt of the eoriimitlee ou the judiciary U|ioii his credentials ami the rliart?e.s, whieli were referred to lliem. On Feb. 7, 1S(!2, the followinK Toport \\a» niado : — "Tlio Committee on tle> .ludieiary, to wlmm were referred the credenllnls of lii'MJanun Starli, as Senator from the Sial(M)f Orej^on, with tlio accom- panying papers, have liad tlie same undi r eofisideratlon, and, without I'xpres-in.g any opiiddn as to 2. Lyman Trumbull niado a stroiiK minority report in wliich ho argued that disloyalty was u diwiuali- (Ication (.see infra, note 20). After tlio oath had been administered te St.uk the papers were referred Id a sel.rl eominittee who after invi-stigation iv. portcil, April 2, lHti2, in favor of IiIh o.\pulsion. On June 0, ISiIi, a inntiDn for his expulsion was negatived ; tlii'ic beln;.; sixleen yeas and tweaty-oiiu nays. (Tafl's Senate Kleetion Cases, continued liy I'lirber, pp. ISC, 20'..i 1" Cases of James M. JIiisoii, Jolin C. IJreckiiiridge, Trusten Tolk, Waldo r. Jolmson, Jesso 1). Hriglitaml olliers. (Ibid., pp. 711, 71;), 714, 74ii, 71M. i " In the case uf I'liilip F. Tlioiaas of Maryland, Feb. 19, IHtW, thefeilow- ing resolution w,as adopted after a:. InvostiKation by the Committeo on tho Judiciary: Iiej oath of olUeo as a Si'natei' of the Uuiti'd States fro:ii the St.d'' ef Maryland, or to hold u seat in tliirt body as such Senator; and that t'o president pro Ipmpurr of the Scnale inform the noveriiDr of the Stale et Maryland of the action of the SeniUe In tho promises." It was art,'ueii in thedeliale that the Fourl cent h .Viaeni- ment had boon elTectively ratilied and that tlie exclndod States should not be taken into consideration in that conn<'ctlon. (,Ibld., pp., 237-213.) CONCiUESSIUNAr- KKCISIONS. 3(57 It li;is since been held l)y the House of Hi'i)r('sent11 t^ol forlli in th(^ iiiliKiiiiy rcpint of Lvnian Tninilmll ill Siaili's Oisn (iiiiii., jip. lllO-l'Jl): •II in aclniilU'd tliat neitlicr tlic Si'iialc, ("onKi'i'ss, nor a Slate oaii sii|ieniil(l olJHM' (inalilleatioim for a Si'iiiitor to llioKO prewrilieil liy llio Constit.iitlrtn, and yet eltlier may pre- vent a peiwin po^^sesslnt? all those i|iiidllic'atioii.'<, and duly (fleeted, from liikiiii; Ills sent in tlie Senate. Does liny one i|iiestlon the rinht of a Stale tniirie.-.t for eriiiio a person duly ([nall- li'il for and appoinle' Senalor, liold liiiii In ronllni>inont, an I lliereliy pre- vent Ills appearing in tlm Senate to iiniilify? Supposed St-nalor, after hi« iippiiintnient and liefore (pnillfyintj, tiii'oMiniit the crime of mnrder, would anyone ([nostlon the right of the Stato iiiilliorlties where th(? crime was com- luiiteil to arrest, eontluo, aud if found guilty execute the murderer, and lliei<>liy prevent his talilriK lii^ si'al? (1r if the punishment for the oflemo was imprlsonmeiil, would any one (|Uestioii llie ri^;llt to hold theSeiuilor In prison and theretij' prevent his appeariiii; in the Senate? Could the Senate iu sinli a i iis(> < xpid hlin lietoro h, liy a majority vote to dcelaro thecouvict ImMimpelent to hold a seat in the liody, and then^liy o[H'n the way for the appointment of a succes- sor? It is manifest that the prescrili- ing of tlie ((ualillcatioUH for a Senator in tlie Constitution was not Intended to prevent his being amenable for his crimes. The fact that the Con- st It ulion declares that Senators and Kepresentativus ■ shall iu all eases, ex- 368 QITALIF [CAT IONS OF CONORESSMEN. [('MAI'. Vll. cnpt for felony and breach of the peace, be privllonoii from arrest during! th<'lr attondaiico at tlio sessions of tlitir re- spm'tivo liouscs, nud in going to and retuininjilroiii tlic!Hiuiii',' Ih i oncliinivo that for tliosi' olTcnci'S tliey may b(' arr8ses^iMf^iillllieC!oiistitiiti(>nal<|iinli- lleatioiis of a^e, eitizeimliip and iii- haliiliiney, may Iks prevented from talcing tlie outli of olllee. (loiign^sa lias repeatedly neted upon Iho pre- snmplion thiil it wa.s entirely com- petent for it to prescrilie, us a piiniHli- mcnt for crime, an inaliility forever aftorwardti to liold any olflei-of lioiior, prollt or trnst, under tlio Hinted States." " If li bo eoinpntent for ConnreHs to make dls(|iialillealion to hold olllee as punisli men t for an olTi'nco against tli(3 Unitetl States, then it is clearly eompcienl for tlio Si'iwito, whieli liy the Constitution is nnide ♦tlio judge of tlio elections, returns, and (lualillcationsol'itsown members,' to do the samo thing, so far as the righi to talio a seat in that body is eoiu'eriied. Doulilloss a law of Om- gre^sdoidariiigtliat a poison convii'ted of a |iarllculiir olTence should n(- hold o(1i(!0 under the tlnited States, and the decision of the courts snstiniiing Hiieli a law, would not preclndo the '.o.'iiito from admitting such a person toasi'!il. should it think proper, be- cause the Senate is the exclusive jndgi' of tlie elections, returns, and rnintf Apportionment of KepresentatlvcM and Direct Taxes. TiiK next clause of the Constitution ord.aiiia: — " IJcpresentatives and direct Taxes shall be apportioned among the scvcnil States which may be included within this L'uion, accominj^ to thi'ir ii'spoctive Jsiinibers, which shall be determined by adding to the wlidli' Number of Free Persons, including those bound to service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and nilliin every sul)sequent Term of ten Years, and in such manner as they hIimH by Law direct. The Number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one lte])r('sentative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts ci^ht, Hliode Island and Providence Plantations one, Connecticut five, New York six. New Jersey foin-, Pennsylvania eight, Delaware one, Maryliiiiil six, Virginia ten. North Carolina five, South Carolina five, ami (ieorgia three." ' 'i'lie I'oiirteenth Amendment: — " Representatives shall be apportioned among the several States ac- cording; to their respective nmnbers, counting the whole number of per- sons in each State, excluding Indians not taxed. Hut v hen the right to v (.■onconiiiiK' t\\o Appoi'tioiiineiit of Iti'iirvMi'iitativcs iiikI Diri-ct Taxes. The clause concerning the apjiortionnicnt of representatives mul direct taxes was the second of the three great eoniiironiisus This system proved absolutely impracticable. Four States piiid ii'ithing toward the requisitions which Congress levied; and all but two, less than the amount required of them." Tlic unfairness of the as-sessment, which must always be a grouml of controversy wherev(U' the value of land is an element in the (M)m[iutatinii. Wivs an cycusc set U]) by some of the didin(]ueiit States; bin tlie feeling against them ran high in Congress, and more than once it was proposed to use force to collect the balances."* The bank- Huniciciit |)ayinent of all arrears dm' from thi'iii to the Uiiltod Stiites. Oin- gresH natiually protfstod. .Jounials XI, |>. iU ; Curtis, Coastitutioiial His- tory, vol. i, p. Kill. " fUllol's Debutes, 2d od., vol. Hi, p. 243. » Ibid., vol. I. p. 72; vol. v, p. 71). » Augiisl 1. 1777. Ibid., vol. I, pp. 7H-74. "> Articlo VIII. " Soo § 3, note 1, Hiiimi. In 1786, Rhode Island and New .lorsey passed laws to make their own paper money ,M)4.] III8TOKY. 878 rii|it(\v (if the treasury anil tlio depreciation of the continental currency at the close of the war, when foreiffn sovereigns had III) liiiifjcr any incentive to (ontiniie loans originally made for use in crij)j)ling Kngland, made some new measure of finance iu- ilisiicnsalile. On March (ith, ITMo, the ('omniittet- on Revenue re- |i(irtcd to Congress a series of resolutions which proposed that the Slates grant to Congress for the period of twenty-live years and fur the purpose of paying "the dehts which shall have heen con- tracted on the faith of the United States for supporting the present win." the power to levy an impost or t^irifT f)f live per cent, upon 111! iTii])ortations, with special rates on salt. li((nors, tea and sugar. Tiiey further reconunended : — "11. That, ns a more conveuient and certain rule of ascertaining the ])io|>ortion8 to he supplied by the states, respectively, to the conunon tiiiisiirv, the foliowiu<; alteration, iu the Articles of Coufederatiou and pi'ipi'tiial I'nion between these states, be, and the siune is, hereby ajirci'd to in C'ongrcss ; and the several states arc advised to aiithorizn tlicir respective delegates to subscribe and ratify the same, as part of till' said instnuiient of union, in the words following, to wit : — " ' So nuich of the eighth of the Articles of Confederation and Per- petual I'nion between the thirteen states of America as is contained in the words fol owing, to wit: "All charges of war, and all other ex- penses that shall be incurred for the conunon defence or general welfare, and allowed by the I'nited States in Congress assembled, shall be de- fniyed out of a conunon treasury, which shall be supplied by tiie several stiites, in proportion to the value of all land within each state granted to. or surveyed for, any person, and such land, and the buildings and iiiiprovenients thereon, shall be estimated according to such mode as the I'liited States in Congress assenibleil shall, from time to time, direct anil appoint," is hereby revoked and made void, and in place thereof it is declared and concluded, the same having been agreed to in a Con- gress of the I'nited States, that all charges of war, and all other ex- penses that shall be incurred for the common defence or general welfare, iuid allowed by the United States in Congress assembled, shall be de- frayed out of a common treasury, which shall be supi)lied by the several Htates in proportion to the number of inhabitants, of every age, sex, and condition, except Indians not paying taxes iu each state; which nninlier shall be triennially taken and transmitted to the Cnited States, in Congress assembled, in such mode as they shall direct and appoint; provided, always, that in such numeration no persons shall be included 1174 AIM-OKTIDN'MKNT AM> DIKKCT TAXKS. [('MAI'. Vlll. who nrc bound to servitmlo fi'anc« tu oucicty, iuHteiid of inoiTnaiuK its nliiliiY I" pay taxes. '• Mr. Iliji^inson as four to three. " .Mr. Uiitledgo said, for the saite of tiie object, ho would agree to r.ile slaves as two to one, l)iit hu sincerely thought three to one would !«' II jimter proportion. " Mr. Ilolten ns four to three. " ,Mr. Osgood Huid, he did not go beyond four to tiiree. "i)\\ a i|ueHtion for rating theni as three to two, tlie votes were, New Ilaiiipshirc, ay; Alassachiisetts, no; Uhodu l.sland, ilivided ; Connccti- IUKFX'T TAXKS. [ciIAl'. Vlll. Mi(lt>, it wuM Biiid tliiit bIiivch were not put to lubor uh yoinij; as ttic cliil- iliea of liilioriiig fiimiliosi that, Imvinj^ no inteipst in their lat)oi, thiy dill an litlli' an |)OMsil(lt>, iiml omitU-d cviM-y uxiTlion of thought ii ,iii8ite to fiu'ilitnlc mid cxpoditu it; tliiit it the exports of the Btatca huvinjr shivei) oxcfcch'd those of the otliera, their iuiports were in projiortioii, sliivcs iK'iii;^ c'uipliiyed wiiolly in n(i;riculture, not in inunufaetures, iiiul tiiiit, in fiict, tilt! Iiuliince of tnide formerly wu» much more against liie SoulliiMii Stall's than the others. "On the main (pieHtion, New Hampshire, ay; Massachusetts, no; Khode Island, no; Cunni't'ticut, no ; New York (Mr. Floyd), ay; New ■lersey, ay ; Delaware, no; Maryland, ay; Virjjir'a, ny ; North Caro- lina, uy ; South Carolina, no."" On April 18th, 17H8, Conpfres )y the vote of ten States, New York heiiijj divided, (iuorj^iii absent, and Riiodo Ishind ahine oji- posiiitj, sent to the Heveral Statis the reeoniniendatioii of a jjranl of tlu! power to lev\- tlie impost and of an amendment of tiiu Eightli Artiide of Confederatiou so tliat the treasury should — "be supplied l)y the several States in proportion to the whole niniilicr of white and otlior free citi/.i>ns and inhabitants, of every ajie, sex, ami condition, includini; those bound to servitude for a, term of years, and three-fifths of all other j)ersons not eomprehiMided in the foreJI> DIRECT TAXES. [CMAl*. Vllf. the rule in the tict of Congress agreed to by eleven states, for appor- tioning nuota.s of revenue on the states, and requiring a census only every live, seven, or ten years. '* !Mr. (ierry tliougiit property not the rule of representation. Wiiy then should the Itlacivs who were property in the South, be, in the rule of representation, more than the cattle and horses of the North? " On tlie question — Massachusetts, Connecticut, New York, IViiii- eylvania, Maryland, Virginia, North Carolina, Scutb Carolina, Georifia, ay, i) ; New Jersey, Delaware, no, 2."" It was undenstood that these resolutions were provisional, and many wlio voted for the measure did so in the liope that it \\oul(l faiillitate the settlement which gave to the smaller States an equality in the Senate. The larger States, how-ver, immediately, by a vote of six to five, adopted a resolution making the ratio of rupre.sentiition in both houses the same.^ The small States thereupon combined for mutual protection ai\d were aided by tlie support of a majority of the delegation of New York and Lutlier Martin of Maryland, who became convinced that the system which was in the course of construction was too much of a consolidation. The •' propositions from New Jersey " were moved as a sulistitute for the report of the conunittee of the whole. These resolved for an amendment of the Arti<;les of Confederation so as to give Congress the pcnver to raise a revenue by means of a tariil on imports, stamps on paper, vellum and parchment and postage, be- ^ides other powers ; but no otlier power of tivxation except by re- quisitions in proportion to the ratio finally adopted, which Con- gress could not collect until after refusal by the States to jay Avithin a time therein specified.^'' Although tliese proposiiioiis were defeated, their supporters rallied upon a motion to strike out the word " not " from the resolution as to the rule of suffrage 80 that it should read : — «' that the rule of suffrage in the first branch oujuit to be according to that establislied by the Articles of the Cou federation," but they were defeated by six votes to four. Massachusetts, 21 MadiHon Papers, Elliot's Debates, *i<)d., vol. V, p. 181. ^' MasHachusctts, Pennsylvania, Virginia, North Carolina, South Caro- lina, Oi'orRia, ay, fi; Connoctloiit. N'l'W York, New 3i\Tsvy, Delaware, Miiry- land, no, 5 (ibid., p. 182). 2' Ibid., p. 192. Sfo Hupru, § 17. ^ (;■!.] HISTOIiV. ;79 IV;;i.sylviinia, Virginia, Nortli Carolina, South Carolina, Gcorj^na, ;\\. li ; Conneclicnt, New York, Nuw Jersey, I)ela\v;ire, no; Mary- luid being divided, and New Hampsliire, wl' 'h would Iiave aided tlie otiier small States, being not represented.'" Tln-ough the division of Georgia, the vote was a tie on the iiroposition that the Stilts should have an equal voiee in tlie Senat(! ; and tlie sul)- jci t was tiien referred to a eoinniitt(!e of one for each State in the linpe that a eoniproniise might l)e arranged.^ Franklin left til.' side of the larger States, and at tlie end of tliree days the fdlliiwing report was made : — '•Tlie C'oiniiiittee to wiioni was referred the eiy;htli resohition of the rp|«iit from the C'oiniiiittee of the wliole House, and so much of the si'vi'iitli as has not l)ceu decided on, submit tlie followinf? report: — 'I'liMt the sul)se(iueiit propositions be recommended to the C )Uvention on eoiulition tliat botii shall be generally adojitcd. 1 . That, in the first linuich of the legislature, v;aeh of the States now in the Union shall be iillowi'il one member for every forty thousand inhabitants, of the de- scri|ition reported in the seventh resolution of the Committee of the ivliiile House; that each State not eontaiuing that uumlier shall be alliiwi'd one member; that all bills for raising or appropriating money, ami for lixing the salaries of the ollieers of the government of the Initi'd States, shall originate in the first branch of the legislature, and shiill not be altered or amended by the seeond branch ; and that no iiioiicy shall be drawn from the public treasury but in pursuance of ap- ]ii(ipriations to be oriixinated in the first branch. 2. That, in the sec- end linineh, each state shall have an equal vote." '■"" In tlie sulisetjuent debate, Ciouveinenr Morris said : — '• lie i(v'-<- ' forward, also, to that range of new states which ■would Kdiiii 111! f>.. .ned in the West. He thought the nde of representation Ibid., p. 273. « Ibid. 380 Al'POIJTlONMEXT AND DIUIX'T TAXES. [CHAP. VIII. seiitatives which the Athiutic States Bhould respectively have, and the number which each new state will have. This would not be unjust, sis the western settlers would previously kuow the conditions on which tlioy were to possess tiieir lands. It would be politic, as it would recoinineud the plan to the present, as well as future, interest of the states which must decide the fate of it." " Col. Mason said : — "The case of new states was not unnoticed in the committee; but it was thought, and he was himself deciiledly of opinion, that if tliey made a part of the Union, they ought to be subject to no uufsivorable discriminations. Obvious considerations required it."''" The subject of tlie apportioinnent of lepresentation was re- ferred to a new coinniittee, who siiUse([Uently reconnncnded : — "That, in the first meeting of the legislature, the first briinch lliereof consistof fiftj'-six niemliersof which number New Hampshire slinll iiave 2, Massachusetts, 7, Rhode Island, 1, Connecticut, 4, Now York, .'i. New Jersey, ;t, Peinisylvania, S, Delaware, I , JIaryland, 4, Virgiiiin. 1), North Carolina, 5, Soutli Caroiiiiji, a, (ieorgia, 2. Hut as tlie presi-iit situation of tlie stales may |)r()liabiy alter, as well in point of weiiltli ii» in the number of their iniinbilaiits, timt the legislature be authoi'i/.i'd from time to time to augment the iiiinil)i'r of representatives. And in case any of tiie states simll lu'ri'aflcr be divided, or any two or iiioic states united, or any new states created within the limits of the I'nited .States, the legislature shall possess authority to regulate the number of representatives, in any of the foregoing cases, upon the principles of tlieir wealth and number of inhabitants." " Mr. Sherman wished to know on what principles or calculations the report was founded. It did not appear to correspond with any rule of numbers, or of any requisition hitherto adopted by Congress." Mr. Gorliani : — " Some provision of this sort was necessary in the outset. The number of libicks and whites, with some regMrd to supposed wealth, was the general guide. I''ractions could not be observed. The legisla- ture is to make alterations from time to time, as justice and propriety may require. Two objections prevailed against the rule of one me iiiber for every forty thousand inhabitants. The first was, that the representa- tion would soon be too numerous ; the second, that the Western States, ■who may have a different interest, might, if admitted on that principle, ■" Il>ld.. p. 279. " Ibid. §i;4.] I'UOCEEDINCiS IX (.'ONVKNTION. 381 liy (U'.urri'cs oiitvntc the AtliMitic. IJotli tliL'sc ohjcctions arc removed. I'lu' miiiiber will be smuU in the first instance, iiiid may be eontiniied so. And tiie Atlmitic States, havin cliange tlic niinibers al- lotted to different States, the report was adopted hy nine States against two.^' "Mr. Randolph moved as an amendment to the report of the com- mittee of five ' that, in order to ascertain the alterations in the popula- tion and wealth of tiie several states, tlie legislature should be required to cause a census and estimate to be taken within one year after its first iiu'cting'; and every- years thereafter; and that the legislature ar- tanac the representation acoorilingly." ".Mr. (Jouverncur Morris opjiosed it, as fettering the legislature too iiiiicli. Advantage may be taken of it in time of war or the apprehen- siiiii of it, by new states, to ext(jrt ])articiihu' favors. If the nioilc was to be fixed for taking a census, it might certainly bo extremely iiicoii- vcnienl ; if unfixed, the legislature may use such a mode as will defeat tliodliject, and peqietuate the inequality. He was always against such sliiickles on the legislature. They had been fouii Ibid., p. '2>.)H ; «!r;ii-u, nolo 29. 384 APPOItTIONMKNT. [chap. VIII. The general sentiment was, however, opposed to him. ♦' On the question of the first chiuse of Mr. AVillianison's motion, as to talviiig a cenaiis of tlie free iiiliabitnnts, it passivl in the (idiriiiii- tive, — Massacinisotts, Connecticut, New .lerscy, I'oupHj'lvaMia, Vir- jjinia, North Carolina, ay, G; Delaware, Maryland, South Carolina, (ieorftia, no, 4." '' "On the (pipstion for Jisreeiug to include thrcc-flfths of the hlacks — Conni'cticut, Vir<;inia, North Carolina, (ieor;iia, ay, 4 ; Massaclmsetts, New .Iprsey, Pennsylvania, Delaware, Maryland, South Carolina, no, (•)." " In tlie couise of the debate, delegates from Mfissacliusetts ami Pennsj-lvauia had expressed a fear lest their eoiistitueiits niiglit not snhniit to the rule that slave-owners should have increased representation for tlieir slaves.''® At the end of tlio day, Williamson's motion was rejected unan- imously. On the next ; Pennsylvania, Virginia, South C'arolina, (Icorgia, no, 1 ; Massachusetts, divided (Mr. (ierry, Mr. Strong, ay; Mr. King, Mr. (Jorham, no). "The whole, thus passed, is in the words following, viz. : '• I'i'.-idh'i'd, That, in the original formation of the legislature of the Triilfd Slates, the first branch thereof shall consist of sixty-tive iiii'in- bi'is. of wiiicii iiiiinber New Hampshire siiall send 'if every ten years afterwards, of all the inhabitants of the United Stales, in the manner and according to the ratio recommended by Cou- friiss in their resolution of the 18th day of April, 17k;5; and that the li'iii-ilalure of the United States shall proportion the direct taxation ac- coniingly. " Rrmlved, That all bills for raising or appropriating money, and for fixiii:: liie salaries of ollicers of the (iovernmeiit of the United .States, Bliall iiriginate in the first branch of the legislature of the United States, " Madison Papers, Elliot's Debutes, vol. v, pp. 305-306. ;588 AProltTIOSMKNT. [chap, vpi. 1111(1 slmll not be filtered or aineiidiMl in the sppoiiil branch ; niul tli;;i no iiioiioy shall bo drawn from tho piiidif tri'iisury but in purBuanco of iip- liropriiitions to be <)ri.v Mr. Worlhington C. Ford (51 A. L. J.,29'2), 325, 326, 329, 335. §'•'■*•] I'UOCKKDIMiS IN CONVKNTION. 891 ami s|iecific artii'li.'s of persoiisil piojicrty, luid some imposed a tax on ociiipations, inuiisuied by tliuir piolits.''*' A survey of these proueediiijjH Loiiseiiiieiilly shows the accuracy of thii recent Htatemeiit by ('liief-JusU(^e Fuller: — "Tlie men who framed nnd ndoptcd that iiiHtniin(>nt Imd junt cnierf^ed fnnn the Btnig{{le for iudepuiideiife whoso rallyiiirWoleott, Secretary of the Trens- in tlio Aniericnu Colonics mid States, ury, Dee. 14, 1796 (Annuls of Cou- Pol. 8o. Q., vol. x, p. 221. Foster and grcss, 1795-1797, pp. 2(i;J5-2713. Prof. Abbot on tho Ineome Tax, pp. 1-2. 392 AIM'OKTIONMENT. [chap. VIII. lation, ill wealth, in the character of property, and of business interests. Moreover, thej' looked forward to tlie coiniiiij of new States from the great West into tiie vast empire of tlieir anticipations. So when tlie wealthier States as between themselves and their less favored asso- eiiites, and all as between themselves and those who were to come, gave up for the commou gooil the great sources of revenue derived through commerce, they did so in reliance on the protection afforded by restrictions on the grant of power." *" " In the light of the struggle in the convention as to whether or not the new Nation shoidd be empowered to levy taxes directly on the indi- vidual until after the States had failed to respond to refiuisitions — a struggle which did not terminate until the amendment to that effect, proposed by Jlassachusetts and concurred in by South Carolina, Now Hampshire, New York, and Uhode Island, had been rejected — itwoiikl seem beyond reasonable (piestion that direct taxation, taking the place as it did of re(iuisitious, was purposely restrained to apportionment ac- cording to representation, in order that the former system as to ratio,'' which had been proposed by Congress as an amendment to the Articles of Confederation, and ratitied by eleven States, "might be retained while the mode of collection was changed." °' ' ' The reasons for the clauses of the Constitution in respect of direct taxation are not far to seek. The States respecti"ely possessed ple- nary [lowers of taxation. They could tax the property of their citizens in such manner and to such extent as tl :'y saw lit ; tliey had nnre- stricted powers to impose duties or imi)()st, on imports from aliroiid and excises on manufactures, consunialde connnodilii's, or otherwise. They gave up the great sources of revenue derived from commerce ; they retained the concurrent power of levying excises and duties if covering anything otiier than excises; but in respect of tiiem the rantre of taxation was narrowed by the power granteil over interstate eoii- nierce, and by the danger of being put at disadvanttigc in dealing witli excises on manufactures. They retained the power of direct taxation, and to that they looked as their chief resource ; but even in respect of that, they granted the concurrent power, and if the tax were placed liy both governments on the same subject, the claim of the United States had preference. Therefore, they did not grant the power of direct tax- ation, without regard to t' e '■ own condition and resources rs Stales; but they granted the power of apportioni'd direct taxation, a prnver just as ctlicacious to serve the needs of the general govcrinnent, but o" Polloclv r. Farmers' Loan and Trust Co., 158 U. S., 4'2U, 550-557. 01 Ibid., not, (113-020. § ''•'•] MANNER OF APPORTIONMENT. mi sicuiiiig to the States the opportunity to pay the amount apportioneil, ami to recoup from their own citizens in tlie most feasible way, and m liiiiiiiony with their systems of local self-jrovernment. If, in the chiinges of wt'iilth tind jjopulation in particular States, ai)portionment produced iinM|M!ility, it was an ineqtmlity stipulated for, just as the equal repre- soiitiition of tiie States, however small, in the Senate, was stipulated for. The Constitution ordains adirmatively that each State shall have two iiu'inhcrs of that body, and negatively that no State siuUl by amend- inciil lie deprived of its equal suffratte in the Senate without its consent. 'I'lio Constitution ordains atlirmativcly that representatives and direct taxes shall be apportioned among the several States according to mnn- liiTs, and negatively that no direct tax shall be laid unless in proportion to till" enumeration. " The founders anticipated that the expenditures of the States, their counties, cities and towns, would chietly be met by direct taxation on iU'ciiuMiluted property, while they exi)ected that tiiose of the Federal government would be for the most part met by indirect taxes. And iu order that the power of direct taxation by the general government should not be exercised except on necessity; and, when the necessity aio.se, should lie so exercised as to leave the States at liberty to dis- cliaifre their respective obligations, and should not be so exercised, un- fairly and discriminatingly, as to particular States or otherwise, by a mere Tuajority vote, jjossibly of those whose constituents were inten- tionally not subjected to any part of tlie burden, the (lualilied grant was made."" § ]mlatioii iu each State to that of the whole, and then dividing tiie gross amount of tlie tax by tiie ratios thus ohtuiiied. Since a sum of money is capable oi division down to a fraction of II lent \vhi(di is too small for cousidcratiou, there is no dilliculty ill the process. A man, liowever, cannot he subdivided. Conse- ^'' Polloek r. Fanners' Loan any oiilarj^infi; the nuinher of ropri'senlntiv'es. Tlie ( oiisiitiitioii of the riiitfd Stsites declares thiit ' represeutalives ami dirt'cl taxi'8 shall be apportioned aiiiong the several itates which may lie included within this union accorditij? to tlieir resptntive niiinliers;' ami tiiat ' the number of representatives shall not exceed one for every thirly thousand, but each state shall have at least one representative.' (diistruing the constitution to authorize a process by which the whole miiiilierof representatives should be ascertained on the whole population of tlie United States, and afterwards ' ai)portioned amoiii!; the several states accoriling to their respective numbers,' the senate applied the lunnlicr tiiirty thousand as a ilirinor to tlie total population, and taking tlic ijiiotii'iil which was one hundred and twenty, as the number of rep- nsi'iitatives given bj' the ratio which had been adoi)ted in the house where the bill had originated, they apportioned that uundier among the several states by that ratio, until as many representatives as it would give were allotted to each. The residuary members were then distri- IhiIimI among the states having the highest fractious. AVithout profess- iiiir the principle on which this apportionment was jn.ade, the amendment of the senate merely allotted to the states resi)eetively, the number of nn'riiliers which the process just mentioned would give. I'he residt was a more equitable apportionment of representatives to population, and a still luore exact accordance, than was found in the original bill, with tlie prevailing sentiment, which, both within and without doors, seemed to rei|iiire that the popular branch of the legislature should consist of as many members as the fundamental laws of the government would ailiiiit. If the rule of construing that instrument was correct, the luiiriidiiient removed objections which were certainly well founded, and was not easily assailable by the advocates for a numerous representative iiiidy. lint the rule was novel, and overturned opinions which had been jiciierally assumed, and were supposed to be settled. In one branch of the legislature it had already been rejected; and in the other, the nia- jniity ill its favour was only one. In the house of representatives, the aiii'.'iidiiieiit was supported with considerable ingenuity. After au earnest debate, however, it was disagreed to. and a conference took lihire without producing an accommodation among the members com- li'i-irig the committee. Hut finally, the house of representatives re- (rilnl from their disagreement; and. by a majority of two voices, the hill passed as amended in the si'iiate."' Tlie division in Congress mi tlie suhjcct was geograpliiciil. 'J'lie Southern States voted against it, and the Kortliern in its favor.* '' MiirHluill's Life u( AVushlugtuii, * Story on the Constitutlou, 5lh ed., vol. V, pp. 320-323. § 081. 39G ai'1'oi!th)N'.mi:nt. [chap. viir. Tlif cabinet dividi'd upon tlie propriety of tlie approval of tiiu bill. This division also was upon geographical lines. Tlie Sec- retary of State, Jefferson, and Attoruey-(ieueral Randolph, both of whom were from \'irginia, exjjressed their I'' Ari'OKTIONMKNT. auT arjriiiiijj; uh inronretiii'iiti, tiieii it is clearly just !is open to otlii-rs to reiison on the other side from opposing inconvenience and injustice." ' 'rwd-thirds of the House failed to pass the bill over the Presi- dent's veto, and it was consequently lost. It was then believed that the rule of ai)portionnu'nt had been tiinilly ilcterniined.'' Until 1842, this rule still prevailed, and on eucli apiiortionment fractions were left unre{)resented. It was, liiiWL'VLi', attacked in the Senate in 18;!2 in an able report by l)an- ii'l Webster, with whom Edward Everett, tiien in the House, concurred.'* This rei)orh did not become a basis of apportionment at that time, but it convinced the peo[)le ; and the rule which it approved WMs actually adopted as the basis of tlie Cougrcssioiial apportion- mentof 1842. Since then it has been the practice of the conunittees (if Coufrrcss, when preparin» Kent's Comm., vol. 1, p. 230. Tills niellioi! of appordonniiMit was approvoil by the .Supreme Court of Mirhinan In frldilinKs r. Ulaeker, See- ri'tary of Slate, !)3 Michlf^an, 1; s. o. 52 N. W. Kep., !t44, qnoliMl infra. S, (W. It Is adopted In the New York Con- silt ulion of IHiM, Art. Ill, See. 4. " rnfra, ChaptiT XIV. li Piigg r. Pennsylvania, 10 I'olors, 308 Al'l'UUTlONMKNT. [cilAl'. VIII. ^ OO. Kcvisioii of ApiiortioiiinciitH by the Courts. No attempt has been made by llie courts to interfere witli miv conLfn'Ssioiiiil apportionment. Sinee a Fecleral couit will gnut no injunction to enforce a political right,' and has ordinurily no power to grant the writ of mandamus, except as incidentid to lliu exercise of its jurisdiction in another matter,- and a State couit lias no j)ower to grant a mandamus against an ollicer of llie IJinted States,^ it would be dinicult to o])tain a ground for the as- su.mption of jurisdiction for that jjurpose. Apart from tccluiiiiil ditlicidties, it might be (dainied that such a jjioct'tding would Iv an unwarrantable invasion by one branch of tiie government inio the province of anotiier, and a violation of the indejiendcuce of the three departments, which should not l)e undertaken, unless ck'aily authorized by the language of the Constitution.'* 'Die only ap- parent remedy is subsecpient legislation.'' In the different States, however, since the famous gerrymander in .Massacluisetts in \i<\-.''' so many grossly unjust api)ortionnieuts have been made by ]iarti- saii majorities, that of late years the power of the courts to ix- amine and hold invalid apportioiuuents of mendicrs of State legislatures.'which are clearly in violation of tlie eipiality enjoined § CiCt. 1 Mississipiii 1'. .Tdhnsiiii, 4 Wall., 17."); (liMii-Kia V. Stanton, (1 Wall., 50; ro.st<'r's Federal rractico, 2<1 oil., §§ I'-i. 2.'!. - Mc't'luiiK II. SilliiiLan, (i Wlioaton, 598; Foal(T'.s Fcilcnil rracUo(>,'2il cd., §303. 8 McCliinf' r. SllUman, fi Whonton, Bits ; Stall' e.crcl. Ci'iiinclicn r. lioyil, 30 Nol.i-aska, ISl ; k. c. r, I N. W. ll(.p., 2.-,2. ■* I'l'opli^ ex rrl. Cloiigh r. Curtis, 134 U. 8., 301; Kuprii. §42. ' 111 Slalo i:r ril. Cnmiolicn v. lioyd, 30 Ncliiaslin, ISl ; r,\ N. W. Ki-|i.. 2.V2 ; an attcmpl, wni* iiiailc to cure an irijiis- llne in tlio (Joni^'rcs.sinnal apiioition- ment, liyanapplicaliontotlioSapronio Court (it Nobinska to compel tlio Govpiuor of that Stale to call an elec- tion for three representatives in ad- dition to those allowed the State in tlie act. The Court iiiliiuaieil that in their opinion the State was entitiiil to the nuiiiher elainieil ; luit ileiiird the aiiplicatiou, sayiiiK that Coii(,'rt'i-s alone eoiild remedy the delieiency. !■ So named beeauso the K.ssex sena- torial (lislrlet waa so irreKiiliirly shaped as to rosenihle a salamaiiclei'; anil Elliriilfie (terry was the (,'iiii'riioi- who signed the bill. ('I'he rolilii.il Dejiravily of I lie Fathers, by .Joliii IhiiOi Mi'M;isier, Atlantie .Monthly, vol. I.\xv, p. 031.) ' Slate cr ri'l. Attorney-fTeneriil r. Cuiiiiin(.'ham, SI Wlseonsin, 410; s. c. .■■il N. W. Rep., 724; Board of Sii|"i-- visors of the County of Hoii^rhlim, r. Blacker, ir2 Mieh.,03H; H. o. 52 N. W. Rep., !».-)!; Oiddlng.s v. Blacker, S''i- retary of Slate, 93 Mich., 1 ; B. c. 52 N. W. Re])., 944. : (Hi ] JMCVISION IIY TIIK CUUIITS. 399 liy tlit'ii- respective constitutions, lius been snooessfuUy a-isertcd, ami siM.'iiis now to lio generally eonueded. The ^u of 1894 expressly i)rovides: — "lliiil :iii apportionment liy tlie legislature, or other body, shall be sub- ji^cl Id review by the Supreme Court, at the suit of any citizen, under siicli ri'iisonalile regulations as the legislature may prescribe."' Till' established rule seems to be as follows : The legislature must necessarily have some discretion in the nuitter, since absolute (■([Uiility is impossible." The courts will not interfere, unless there is surli a I'ase of glaring inequality as makes it manifest that the ilisii'i'tion has ))een abused for the purjjoso of obtainir.g a partisan adviiiilage or of unjustly dimiriisbing the infb.ience of iiarticular Imalities ; "^ but wlicn such a ease e.vists the courts will de- iliui' till! apportioiunent void." It was held that the fact that ' A 1-1. tit, Si'c. ,5. '•' I'lMiplo cr ri'l. Carter v. Rice, K15 N. v., 17!, I'.i'.), r>ll,r)21; Stalof.rri'/. Gard- III I I , Xi'wiirk, 40 X. J. Law, '207. ' l'i'.i|il<' r.r it(. Carli-r r. llici', 135 X. v.. I7:i. Si,\li> C.C ril. Attnrricy- ili'ii'ial V. CiiiiniiiHliaiii, si Wisconsin, nil. IS I ; I'lirki'r i'. State rrn/. I'owell, l:i:l Indiana, 17s ; s. c. ;)2 N. E. Rep., 8;ii;. " III People c.r ri'L Carter v. Rii-e, Kl"i N. Y., 47:1, an appHcation was of this State, liy tlie lej^islatnro, as nearly as may be, aeoonling to the number oft heir respoctiveinhaliitants, exeliidinn aliens, am] persons of color not taxed, ami shall be eliosen by single (listriels "(ibiii., Arl . Ill, Sec. 5). It was held by a majority of tho Court of .\ppeals, which divided upon party lines, tliat the words "as nearly as may be" llxed a certain nnKUint of discretion in tlie Icf^islaturo ; but that tho courts could not review tlio ex- iiiadc for a mandamus, and an Injune- oreiso of kucIi discretion, unless it tieii to test tliii oonstitulionality of were manifestly a press ami Inlen- iin apporlioument law under a Slate lional violation ; and that in thatcase, leastitiilion which provided that tho court would not interfere, as tho "each Senate District shall contain as iicaiiy as may be an eijiial number of inliiihitants, exclndiiif^ aliens, and per- snns of color not taxed ; and shall niaaiii imaltered until the return of aiiniliiM- enumeration, ami sh.all at all ti s consist of contiguous territory; iirnl no eoimty sluill be divided in tho only claim of iiie<|iiality consisted in the apporlioument of representatives to the fractions of the ratio adopted. .Tiid^'e Pcdcham said, wlien doliverin(5 the opinion of tho majority (at jip. 4US-.''>I)1 : — "From tho formation of (jovorn- meut under written const it luions in feiMiation of a sonato district, except this country tho (iuesti(ui of tho basis siiiliconnty shall beei|uitahly entitled of represontatiou in tho Ict^islativo to tHi) or more Bcnalors " (Now York braiu'li of tho government has been t'onstitutiou. Art. Ill, Hoc. 4". "Tho ono of the most important and most nieiabers of assembly shall bo ap- fre(|uently debated. It is not true Iiertioned among the sovoral counties that eiiualit.y of numbers in repro- 400 APPORTIONMENT. [chap. VIII. the people had acquiesced in an unjust and unconstitutional appor- BcntJition hns bocn tho loading idoa lit all limes in ipgnrd to rppublicuii Instiliitiona. roliliciil dlviMlDiis of tli(i8liit(? have in N(>\v England been tho boliort wliicli worn outillcd to ropnsi'ntalion, and the town as a town and irrc spcctivo of tho number of inhabitaiiirt linH had its n-iircsonta- tivc in tlie leni-*latiMe, s^o that a large town Ml rcfsarily hud no more rep- rewentalioM tlian a much smaller one. Ti'.is i-i the case to-day in some of tho New r.!iglaiiil Slates. '• Tlie jiower to readjust the politi- cal divisions of a sovereignty with tho view of represi'ntiition of those divisions or of the iidialdtants thereof, In the legislature, resid(>8 of course iu tho llrsl iiislanee with the |>eoi>le, who in this oountry are the souree of all Iiolllieal |io\ver. The essential nature of the power itself is not, however, allored by that fact. In its nature it is political as dislhiijuished from lej^islative or judieitil. In intrusting Rueh power lo any particular body, tlie iieojile could by their Constitution gi\e written instructions as to liow it should be carried out, yet the essential nature of tho power still remains. If a portion of it bo intrusted to a body of men acting as a lioard for the mere j)ui'pose of making a mathematical calfuliition and with Instructions to disdiar;,-'' its dutii's in a way whidi is solely malhemalleal, it is clear that the biiard has no discretion whatever, uhil it is bound strictly by the terms of tlie t-'raut of power. In siicli case the people have not in reality parted with the whole power. There may then bo a power in tlie court to correct tho very slightest deviation from what can be clearly seen to bi^ a mere niiuislerial duty. There being no possibility for the e.xcrciso of tho slightest discretion, a violation of tho arithmetical rule of proportion would become a violation of tho Constitu- tion, and as such ndglit bo the subject of review by the courts. The power to review would exist because of Ihn fact that tho pco|)le had so bound ami limited the exercise of tho power lo readjust the political divisions of thu state th.at the jiowor itself thus limilcil had become In its o.xeriiso by tha body to which it was Intnisteil, uno of a niiuislerial naluro only. Its uii- ture as a iiolitlcal [lowor In the boiiid itself would In such case have been ilian^ed by the refusal of the people to permit of its exercise upon any other than a mathematical basis. Hence a direction to n body created by the people for such a purpose, which permitted no discretion in its exercise under any circumstances, might properly form tho sutijeit of enforcement by the courts. This, however, is not tho case under our constitution. The power lo alter these political divisions bus been de- posited by the people wltli the legisla- ture and under such circumstances iis to compel the oxeroiso of legislative discretion, in carrying out tlie power granted. Tho political nature of the power is thus retained. The iearneil judge who delivered the opinion at Special Term in tlio Pond case himself admits that some discretion is vested in the legislature and that in tho nature of things it must be so left. Ho was of opinion tliat the discrclion thus vested In the legisliiture hail been overstejiped and that the consti- tution had been tliercby violated, ami that tho courts could review and re- verse this action of tho legislature. Discretion Is necessarily reposed in tlie legislature because of the direc- tion of tho constitution that In maldng u|) tho senate districts they must at all times consist of contiguous terii- tory and that no county shall bo §iit;.] REVISION BY TIIK COIIITS. 401 eiit and elected legLslatiires under it for a jierind of six years tiiiiiin divided In the fDriiintion of a Hcimtc dislriil, I'xi'cjit Riicli ecmnly simll Ik? (■i|iiiiiildy ciititlod to two or mon? si'iiatnrs. It ia nlMO providcil thiit In ii|iporlioiiinK incmbors of asscinldy oviTV county slmll 1»> entitled to ono •■ riiis I'lMidors tlio niatlinnmticnl ]ir s>< iiii]iossilil(>, hotli «« roganis si'iiair district rt and t lie apporlioiinii'Ml (if rii'iiilicrs of assciiiliiy. Wo Ktart liicii witli llio i)rop(Jsitioii timt to tlio ic;.:ls!iit iM" Is lilt rusted somi' discrct Ion in !lii^ matter of npportioMini'nt. Ib tlio court loliitiM'fei-e with siiidi power whenever It thinliH that the legisla- ture niisht In lis exercise possibly havi' 1(11110 nearer tonn ofiunlity, after' i(iiii|i|yiii',' with tlii> special eoMditions Ml. lilidiicd In tlie Constitution? This would lie to assort a power In the court to superviso the use of the (li.^cietion grunted to the lei^islature, if siicli discretion were exereised In tlii> slii;litcst di'gree after tlie eoiisli- tulidiiiii mandate in re^;ard to county liiii-rt and county nienitiers had lieen (•(iMipiicd with. We do not believe in the propriety or necessity of any such rule. On the <'ontrary, we think that the ( oiirts liavo no power in such ease In revic'.v the exereise of a discretion inlnisteil to the legislature by the roiistitiitlon, unless it Is plainly and crossly abused. The expression 'as iic.irly ns may bi',' when used In the Const it iition with reference to this sulijiict. does not mean as nearly as a nmlliciiiaticnl process can be followed. It is a dli'eotion addressed to the I'Cislaliue In the way of a general Mateineut of the principles upon wliieh the apportionment shall In good faith lie made. The legislative purjioso i-hoiild be to make a district of an "iual number of inhaldtants as nearly ns may lie, and how far that maybe carried out iu actual practice must depend generally upon the integrity of ilie li'gislatiire. We do not iu- tlinate that In no ease could the action of the legislature be reviewed by the courts. Cases may easily bo Imagined where the action of tlwit body would be so gross a vloialioti of the Consti- tution that It could be seen that It had been (>iitirely lost sight of and an intentional disregard of its commands both In the letter and in the sfdrit had been Indulged in. " Judge Gray .said at pp. ull-SlS): " It was apparent that, greater or less Ineiiuaiiti'S must arise in an appor- tionment nnpiirli(iniiii'iil slumlcl lio 'us iii'iirlv us may be ' ai'fonliu^' to llic iiiiniljoi' o( cili/.iMiH, tilt' I'liiirU ini^;lil fi'cl jiislilii'il ill (IccliiiiiiH tlio act void tor uiii'iiiislilulioiiulily. Hut wo liavd no reason to liii|iiito niiy IniiKliiloiit luolivis, and tlio nlio\viiiK of tliioo li:.-»luin Tso;' ili'iiiiiliirr I'nuii a ini'lliuil- icul a|i|H)i'lioiimriil is not ciuiiinh ti> I'viili'iiio any ilc'lilirrale vlnlalioii of till' (MiiistiliiUoiial i-i'iiiiircnii'iil. Tlio li'g.il |irrsuiiipiioii is ill fa\or of tlm toMftilutioiKilily of rvt.'i'y art oi llio IrLiisliilurc, ami lliat prcsiiiiiplioii in 111)1. 1I-, ercomc ill tliis iiis'iaiici', wlicn- lliL' li'ijislutivo net simply eviili'iiiTS tho ex 'ivisDof disi'ii'tioii in prrform- liiK a poiitli'iil duly. Wo may coiu'cdi' that adliiMciiii' to a simply matli<'- iuatl''al sysiciii of diurilnitloii of nioii.iii'i'H amonn tlio couiiliis, in llio onji Tof tlii'ir cxcossos, of ]iopuliitloii over till' nuio, Is till! Iictti-r niU;; but dcviatioiis may bo di'iiiandi'd by piiblio oxis-I'Micii's, Snmui'oiisidi'ralioii must bo li.id of till' dil'lciil'ics which en- viron llio piissa^ro of au ac! of appor- lioiimciil, ill till- (■iiiillii'liii)j; claims and dc'iiiaiulsof reprcsriiiativps; Bomo latiliido of action must bo poriiiiltcd in considcnilioim wliirh pertain to llio t;i'0(,'raphiiaUltualion and ncccs- eitii 8 of (ountios, and siuiio iiUouaiici' must be made tor uclivo opposition (>M,:.;oiiil'Miil by poliiii'ul fo.'lii;;;. As till! bill was reported, an exact and niallieiiialiciil iipporiioiinieiit uj)- peiired, but to secure tlio passage of the act some ohantfcs worn made by the IcKislaturo. I do not think that t'lo lofiii-hituro Is to act as a niecliani- cal coiililvanco for tlio inathemalieal distribution of niombers of assembly. The ('onslilulion does not sny so In uiimislaUablo terms, and, if it iIuib not, eourlH slimiUI hesitate to assci'l it. KoiiieiliiiiK is i'onlided to Ihu wisdom anil juilnnieiit of Iho lejjis- lativo body in performing Ihis ci.iisd- tutloiiul duty, iiiid if in tho cxi'iMiiimi of the duly tho result is not |-.iifii|, tho courts should presume tli.il llio let;islalur() endeavored lo aecniiinll-li it as n. arly as niif^ht be. 1 lliirili, aecordiiiK lo a lo^'ieal and eaiidid v i. w of Iho cDiislilulional requireineiit, ii, iiiiKhl be impracticable, unless tluni was some discretion \ostcd in l!;c Icfjislaturo v>ilh n-spect to earryiiiu it into elTiel. Tlii.'ro lias been no abuse of this discretion and fur is lo adjudge the act iinconstiliilioiiiil iiiid to declare it void, would be. In ii y jiiilt;nient, a most unwise coiisii-iic- tioii, an. I would lie to arrogate a power of interference, as dangi rmis in llw precedent us it seems nnwarranli li in the law." lintli of these judges biliim!ei| t'l the same party as the nirijorily of llio lej^islaturo wiiieli li.'ul passed the not ill question. In tliiMllssentiniropiiiion Jiids;!' Andi'ews (with whopi (onciirretl tho only other jlld^;o of the p;u;y In the minority in liolli the Coail irni the Le[^islature) said (at pp. .llT-.'il:'): "Tlio art^umeut ur.:;ed upon n^ tli.it the words 'as nearly as m:iy be' k'^'' a discretion to the legislature, if it means anything, lis applied to tin) circiimstanei'S of Ihis ease, means that the legislature may diaregiird tin) lilain nieaning and mandate ot tl'O t'onstltution. I deny that the n:lc t hat apporl ioniuont must be ' as pe:i::y as may be' according to pnpuliitlci is, or under any eireuuislanrcs i:i'! be discrelionury. I can conceive lliiit an appoi tioumoul act should not be gr.,i.] HKVISION !;V TlIK CorKTS 4();} iliiiiti'd in tliG New V(irk iiiid ii few otliiT Stiite cniistitution-i, wliicli nnlaiii for tin' Fieiiclit of tliu countrv districts, tli;it cfrtiiiii lu |i! 10 In- iincoiiHtitulloiml for cvi'ry tiiviiil ili'iuir'.uro from Iho nilo of iiiuiilily. SoiiH" iiiiHtiikfs will liiovl- liilil.v l><: iiiiulo in tli« I'liunicnitiiin in till' ilist iiistiinco, and iiflcrwiiidrt by till' li'^i.-laliiri' in nialvinn lln" a|i|H)i-- tiiiriiiK-iil, aUli()iii;U it nuiy act iiiidcr till' iii'ist >*iMc<'rii di'Miro Id api'ly tlio nili'iif tlii>('i)nstitiiti(in. lint lii'canse till' anporliDunn'nt rantiot In) exact iii'cordlnj,' to |")|Hilaiii>n, and sonio ini'ijnality is nnavoidahli', this does nol alisulvo the IcgislalurD from apply- lii(,' t!ii> rnli) in every cni:e, and it can- nut under till! cover of tlio words 'as nearly n-i nniy lie' disrcfjard llio rnlo and relepiio tlio proceeding to tlio ildjiialn of discretlor.ary powers mid I'-^cape ilri binding obligation. When the court can nee that the r;ile (if the t'diiwtiiniion v.as not in fact iiliplied and the I'iiiunislances for Its iipl lii-alion wero clear and iincquivo- c.il, tin ri there is nothing left to Iho cimrt but to dechiro the apportion- ment void. Tho sugiJtestion that the 1 Ircunistancos tinder which b'jjisla- turi B a<'t in such inatlerH t;ive 0| por- tunily for tho play of passion and Jircjadiee, and llieref(>re this nin-^t be ciiii-idered in deterniinin;! the vali.Iily efan apportionment ael, seems to mo '"> have no [daco in this discus-ion. The very object of const itmional re- Bli'iilions is to eslablisli a rule of lundnct which cannot be varied ae- ciiriliii:,' to Iho ]iassion or caprice of a 111 i,iiirii.v, and to llx an immulabio >^i;i!iilnri| applieabli' under all elrcum- !la:ii-i;,. Ii' a departure from the fiiiiilamenlal law by lej;islatnres can iaone ease be jiistilied by the frailties 'if lia'aau nature, and tho I'oiislitu- lienaliiy of an net may bo made to 'ii'l'i III in one eas(^ upon such a coii- Biileratiou, tlio coustitutionalily of all IPKi'-'Int.lon may bo governed by tho .samo rule. I havo said tho very object in inipo»in>» r<>straiiits iu tho Constilution is to jirotect ^reat prin- ciples an to show that tho (|Uestii)u presented i.-i of jinliclal cognizance. That it is a judicial (|iiesilon cannot, under the aiilliori- ti(>s, bo ili-nii'd. Tho le^'islatnre nr.d tho courts aro nllUi' bound to ob"}- the ConstiUitimi, and if tho le,,'ishi- tiiro tr.'insKri'Sses the fiiiidaiiiental law and oversteps in lofjislation tho barriers of llio Constitution, it is a ])art of the liberties of tho pi'ople that tlio judicial department shall liavo and e.xercise tho power of protnetinn till) Constliiition itself against In- frinttenient." To a sindlar i>IVeel\vllh the opinion of tiio majority in the above case nrt» I'roiity V. Stover, 11 Kansas, 'j:!"); Stato V. Campbell, 48 Ohio St., 435. Iu tho •1U4 AI'I'dllTKPNMKNT. [CIIAP. vi:i. l;ll';,'(' citic.-* sliilll receive less replt wliieli llieil' ji(>|illlali(in elltille;i tlie I lUi'i' ciii^i', wliicli was (111 /i|i|pliiiilioii r >!' a iii:uiiiiiiiiiis to i'oiii|ii'l nil iilii'i'u- lioii (if (III apiKirtliiiiiiii'Mt (if ri'jirc- Nciiliilivi's 11111(1(1 \i\ II S:al(! 'iiir , M cdiirt said : •• II is nut siilllciciu, in this liriici'cdiiiK tliat, we nii|,'lil lie (if tlui <)|iiiil(Mi llial »•(> cdiild iiiiilio a lii'tter apiMHiliiniiicnt tliau lins been niiidd by tile Uoiiril. To niitlKuizc tills court t(i liitiM'fero and coiiiiniind the Doiird to iiialic anotlicr apiiortioiiiiiciit, tlic iili|iorlloiiiiiciit made niiist so fur vio- late tlie rules jirescrilied by tlie Coii- stltiitioii as to enable us to say, that what hiiH been ddic is no a|i|i(irtloii- nicnt at aii and slioiild be wholly dlsrcKardeil. If by any fair (■onslnii- tion of tlie prini-i|iles prescribed by I lie Const i tut Ion for nialiiiiK an appor- tioiinienl tho one iiiudo may bo siis- tniiii^l, then It cannot bo dlKroj^nrded and a new one ordorod." In liaird r. Supervisors, VM N. Y., "■)!), Ill, tho court held void an iijipor- tloninciit of H'^scniblynicn that t;avo the same rcpi('s(>ntntl(m to districts in a city witli lU.dllO and l(l'2,0i)0 in- 1 iiibi Inn ts respectively, willi yreat vari- ations b(>twcen those two extrenies. Hut III the iiiiitterof Haird. 112 N. Y., 'ti.\, liie same court rcfuseil to inler- liTc uiili an apportionmont in tin! same city which created assembly districts varyliiK from 01,2(',3 to 48,1)44, the number (Mitltlc(l to an assembly- man if the city were ei|ualiy divided being ni.ST'. Ill matter of AVhitin\v 1I2K. v., nitl, tlicy held tliat 1 ho fact that tlieiipportioiiment was made with referenco to the (Mil i;e population in- clusive of aliens who wcni not A'otors was no ground for setting It aside when it wds not shown tliat tho In- clusion of the aliens materially affected the result. In State m rcl. AttorneyGcuoral i). Cunningham, 81 Wis. 440; s. c. 51 N. scut itivcs lli;iii the ntiiuli ;• 1 1 'III. 'I'lie iistbil iiii'iilis (if Ic.^liiii^f \V. i;cp. 7'Jl; I lie Siipiviiiu ('null iif Wiscuii.siii liclil iiiiaiiiinoUMly tliai, uMiliT the iiriivisioi, of ilic C iiistitutinn i^f lliat State (article iv, § ■!), that assciiibly ilis- tricls «iiail be ' biailided by eiiiiiiiy, [iiv. cinci, town or ward lines," an act civiii. Ing nsseiiibly di.-itrictrt wliich cnntiiin one county and a fraction of lumilier county, or wliiuli ccint.iiii (niclionsnf Hvo or luorc cimiiticM is void ; that iiiulirtlio ciinstilutienal pnivisiiin tliat an apper tionmciit hIiiiU bo "according to tiio numlicr of inliabilaniK," an apportion- ment act wliicli created scniite ilislriiMH varying in pupulation from ;)S,i;iiO to 08,iiul, and assembly districts varying 111 iiopulati'in from l),S'j;l to .'18,801 was void ; and llial a bill by the SIiilo utter- ney-geneial on lu half of tlie .State to en- join tlio Sccrelary of Slate fnnii pul)- lisliing notices of eici'tion in accuiilance with the aut should bo sustained. .Tudgc Ortou said (at ]i. 4^1): "It la proper to Hay that perfect exneliiess in the api>ortioniiicnt acc^ordiiig to the number of inhabitants is neitlicr re- (juired nor possible. Hut there slimilil be as close an approximation to cxaet- iiess as po.ssible, and this is the utmost limit for the exercise of legisiativu di.s- cretion. If, as in this case, there is such II wide and bold departure from tliia constitutional rule that it cannot jios.ii- bly be jiistilied by the exercise of any judgment or discn'lion.and that evinces an intention on the part of tliclei;islatniv to utterly ignore and dlsrcgaril I lie rule of the ("onstitution in order to pninioti' Bomo other object than a coiistiiiitinnnl apporlionineiit, tiicn the coiiclusien i.s inevitable that the legislature did not use any judgment or discretion wliat- ever. The above disparity in tlio num- ber of inhabitants in the legi.slative dis- tricts is so great that It cannot be over- looked as mere careless discrepancies or slight errors in calculation. The differ- ences arc too material, great and glarins, § '''''•! nr.vrstiiN i«v tiii: ('(iriirs. 40") llif (oiisiitutioiiiilitv III' iiM a))ii()rti()iiiiifiit lioTort' tlie coiiiL-i is liviiii ;iiiil ili|irivt! Uio many ol lliii pcdpli' of •,lii' Slalo (if all rcprc'Kc'iiUlkm in llio I'^Uisliiliiiv to I* allowt'd to iHiHH lis mere iriMis of jiiilgiiiPiit. Tlicy liiur upon their facf liiu iiitiiiisic evidtiii'u that no ju(l:,'nii'nt or iliscri'tloii waH exercised, Bii'l llial liny wiTo inuilo intt iitioniiUy aiiil wilfully for Homo Improper purpose iirforsiimc^ privalu end forciyti to tun- stiiuiiomil duly iinil olili(;ivlion. It is ruil an ' apportinnnieiit ' in any senne of tilt' wnrd." Till' Constitution of Michigan provides tliiii " every county except Mackinaw nml Chippewa, eiUitled to n, rciireseuta- tive in the leHislamre at the time of the adiiptiiin of this Ciiusliintion, shall cou- tiiiiie 111 1)0 so entiilid under this Consli- tuiien." " Kaeh county liaving a ratio of representation and ft fiaclioii over (■i|Uiil to a moiety of Baid ratio, shall be eiililled to two representatives, and bo on ahovo that numher, giving one ad- ilitiiiiial niondier lor each al"', out of which to carvo three districts^, jacli with a poimlallon of over 45,000 — more than double the ratio ; so that two men would not liave the renrosenttitlon in these districts that 400 APl'OUTIONMENT. [f'lIAl-. VIII. iipplicatioii foi'ii iimndaiiiuM to rctiuiru a jmhllc oiTicerto issue eii'L'- oiU! would liiivc ill I lie crtliiTs. So far as I luivi' ('x:iminicl, there lias never been an !iii|iortionirii'iillmt tliisdlRiriilty liiia been encmiiitereil ; ami it lias been a, subject of iiiucli perplexity and vexa- tion ill tlie liCjj'itlature. It lias resulted always in the neeessary denial to soiiio county or counties of their full repre- sentation under the moiety sysieiu. This Court could not bf called upon to en- force a eoristitutional provision incapa- ble of enforci'iiient. In ciisu of uiaUing astiiuitabie a division as possible under tlin Constitution,— and that is all that can be reiiuired, — it imist be within the discretion of the lA'gislaturo to deprive Boiiio of the counties of their representa- tion or additimial representation upon the moiety plan ; for two ratios cannot always be given three Ucpresenlalives, and at the same time liinil the niiniber of till' whol" lo one for eiicli ratio. lint ill s u:h di-crelion thr eonnlics bavin.!,' the least number oi' inlialiitants above the ratio or the nioii ly of the ratio Hhould be tlie one.-i to lailfer this depri- vation. For instance, In the present apportionment Ibmghton Coiinly, with a populatiiMl of 3r),:5HO, was entilleil, un- der the moiety plan, to two Hepre^enla- tlve.s, as were al.so Sanilac, Tii.-^cola, Menominee, Macomb, and Montcalm. These counties, in population, under the eiMisiis of 18(10, were as follows : Me- iiomiiiee, IVi.t'i:!'.!, Motitcalm, .'!2,(':'i7, San- ilac, 32,ri8',», Tuscola, ;!-2,6il8, Macomb, ;il,Sl:!. Of these six counties, if Itiive were lo be left out, Houghton, Meiiomi- noe, and Montcalm were entilled to two mi'iubers eacli.and Sanilac, Tuscola, a id Macomb to one each. Hut the Legisla- ture gives two each to th(' last three, and only one to each of the first three abovo named, thus reversing the consti- tutioiiiil oiderof jirefeniice. ruder the Con.-,litution all of them are entitled to two, if the various provisions of the Constitution can be so worked out as to give each of them two. If they cannot, then the one or more left out should Im tlio.se liavinf; the least po|Hilati"n. Tliero can be no legislative discretion, iinilcr the Constilulion, tog!v(^ a county of le.ss population than another a greater repre- sentation. Such action would be arbi- trary ami I'apricious, and .igiuiist tlio vital priuciiilc of eipiality in our govern- ment, and it is not intended or penniltiil by the Constitution; nor could such action lead to my good result. Tlierc can bo found no excu.se for it. The re- lator prays that the Secretary of State deliver a notice to the sheriff of l!iiii;;li- ton County that two Kepre.N iiv Tin: coikts. 407 li;iK luitices luidcr llio furiiicr, or for an iiijiiiiclioii to jjrovuut liini clause, Hay, Lonawee, and St. Clair wer.' I'lilitli'd, in lHti(iM tliat Iho leijislature Rhstild after cull iiensus rearrunj;e the Senate ilia- tricls according to the number of wliilc inhabitaiitH, and civilized per.sons of liiiliim descent not nieinber.s of any liihe (Micldi;an (^onhlilutioii. Art. IV', Sec, ;!) ; and that "no county shall h" divided in the forinatioii of Senate "i,4:;i created senatorial districts of null diverse population that the laii;e.sl li;id ',I7,.T?0 and the smallest .'!!l,7:.'7 iiili.'d)ii:uits, tliat cifjlit senaturs would reprcsmt di.striels with a population of li'.i'i.VlT, and ei;,'lit other sen.'itoin dis- tii'ts with a ))opulalion of ;!l!»,irj(!, was voiil ; that tlio Apportiniiinent Act of I''"."!, wliich gave ('iglit districts contain- iii^; .'i population of ;il('i,778 the same imiiilier ot sena'or.s as ci^ilit other dis- tricts with a popiil.'ilion of {J.iJ,'J'J2 was also void; that thn iicipi!i';ieence ill and ii-ie liy the jieople of the system oreateil by the Act of l.S.S.'> did not cure its niieo!!slitmionalily ; and that a private citizen was entitled to a iiiiin- iliiinus com))elling tlie issue of election noUccs under the Act of l&Sl. The court intimated in its opii;ion tli.'it the rulo rinu'^-'csled liy Webster was Chief ■It tl le oii'y coric't one Ipp. 7- .Iii-liee Miii.-iO baid (at. pp. lll-1.3i is ovid'iitiv stitutlon that the iteniplaled by tlio Con- :ty hliall he the essential factor in the fortiiatioii of senatorial districts. 'No county thall l)o diviiled in the fornnition of Senato di-^triets, except such county .^liali be equitably enlllled lo two or more senators,' id the prevailing idea of the organic jirovihion. "It 's further con- tetni)iated that such districts shall lie arranged according to the 'ninidier of white inhabitants, and civilized persons of Imlian (b\scent not members of any tribe.' 'J'his ('(pi.ility of representation, liowever, is .sccmdaiy to and hainpeied by the fact that no coiinly can bo divided, and a part of it attaclied to another county, or the ]iart of aiKuher county, in ordi'r to inako tlie. di.-triets ecjual, or nearly so, i:i populaiion. This express inhibition agiunst the ilixision of a county gives, necessarily, great latitude to the le^islitive diricretion, and tlic senatorial districts mu' I ot necc-sity not Ih) as cpnilly dividid aa to population as might be doio" if county lines could be disregarded. The I.egis- laturo undoubtedly could tnko a ])ar- tisan advantage by making ol'un done, but the new majorh at once to make iin a. ■' • i • ni . in iho interest of its parly, lis ..n ei| ..iland politically vicious as the one th.u It repeals. Tlier- is not an in- telligent schoid boy but knows what is the motive of t'.iese legislativi^ a[)portion- nicnts, and it is idle for the courts to excuse the action upon other groinids, or to keep silent as to the real reason, which is nothing more nor less than partisan advanliiie taken in ilcliance of Ihe ('i^nsliiution, and in iitler disregard of the rignts of the citizen, ''"ako our own Static lor example. In '■!•<• ■ 'ection of ISSl, the Uepuhlican C'.:,.diu'>'.>> for Secretary of .Stale had a pl.n •• of i.'.ia.) (Hit of a total vote of In, '103. The Itepublicae majority in the Legisla- ture of 1885 arrarged the senatorial districts HO that, upon the vote of lfj84, 21 were Kepublican and 11 were Deino- cratic. In eight districts a populatloa of 310,578 are given the same representa- tion in the Senate as are 0.'i2,-2i'2 peoiiln in eight other districts. The L'pptr reninsula, with Knnnct and Mackinac Counties added, is given three Senators, when it is only oiuilled to two; the [lopulation of the three districts — thirtieth, thirly-lirst and tliirty-.secoiul — combined being 124,ij8t), and the ratio 01,125. In ISiH), the Deniocralic can- didate for Secretary of Slati^ rceived a |>lurality of 2,7liO over the lli'imhlicim candidate in a total vote of IIDS.GU, ai;d the Democratic majority in the Legis- lature of 1891 apportioned the .senatorial districts so that, on the basis of tli" vote of 18i)0, 21 were Democratic ami 11 llepublicaii. As sliown by Mr. .Inslin- Grant, three districts were so diviiiiil that ill eight of them a populalinii of ;!4!i,ir>'i liavc the same representation ,is (105,717 in eight other districts, ami, in order to 'lid tin-* ineiiualitv, the county 'it Saginaiv is divided into two dislrii'ls, when it lis only entitled to one under i e Constiiutlon. It will thus be si I'li h:il, upon a plurality of le.ss than fi.ditO ii ■ total vole of about 4(10,000, ea-li of ,^^■e political p.arlies has so gcny- niii'lercd these senatorial districts ili:it •,i. o has 21 senatorial districts to II of the other, if periiiilted to coiitiiiue in this kind of business, tlie next Legis- lature to nnportion Senators, if itspiiliii- calcomi I'll should be ilil'fereiil fniiii the last, following in the footsti'ps of its jiredecessors, will easily change ilio tigures about again, and give its p.iriy the 21 .senators and the idlier Ihe 11. It is time to stop it. And the citizen has the riglit to appeal to the Court in defense of his most sacred rights uiidiT the (^onstitiiiioii. He cannot be ohli^'ed to wait for prosecuting attorneys or the Attorney ticneral. It Is as well a pri- § '■''■'•] UEVISION BY THE COUUTS. 409 law.''' It has been held that a i)rivate citizen, who is a resident (if a locality nneonstitutionally deprived of its due proportion of npiLsentation by the apportionment, can obtain sueli a nianda- lUU: 14 \\'liore HO much of the apportionment act as legally passed the vail' IIS a public f-'iiuviinci' ; and tlie iii- (liviiluiU oli'cMir can invoke tlio aid of tlic Court ill Ills (iwii Id'lialf, and (!all allciiiion also to Uit existence of a great pul.lio wrnn;;. " riiere is no liiKlierpri^ileKe granted to tlie citizen of a tree country tliaii tlie riulil of e(|iial suffrage, and tliereby to un e(|iial reiireseniatitui in tlie luukiiig ami ailininistralion of the laws of the laiiil. IJiiiler our Stale Constitution e right of the elector is fixed. To liini ic|ual re|ire»entaliim is a right as \vi 11 as a iirivllege, of whieli the IjCgis- lalure cannot deprive liini. 'I'hese wniii^'s have Ijeen eoniniitted for parti- san iiiirpo.sea. Their object and effect have been to deprive tlie majority of the ]«ople of their will in the adniiiiis- tiati.ii of the government. The greatest (laiigir to our free instiiution.s lies to- day ill this direction. J5y this system of girryiiianderiiig, if permitted, a politi- cal p.iriy may control for years tlie goviriiiiient, against the wl.-.lies,iirote.--ls, and voles of a majority of the people of tlio Slate, oacli Legislature, chosen liy uiii'li means, perpeiiiaiiiig its political power by the liUe h'gislatioii from one appiiriionnient to another. "We have lieen ohilged, under the issue lure made, to investigate hiil two apportionments, — those of 18!l| and Iss,']. Holh are tarred wilh the same slick. We do not care to go further, rIm'O there is a remedy in the liiinds of the I'xeeutiveand I.egislaliiie. The con- scqiiiMices of this decision are not for us. It is our duly to declare the law, to point out the invasion of the Constitu- tion, anil to forbid it." In Norili Carolina v. Van liokelen, li) N. ('., litH; ,aii act amending a city charier was held invalid becaiisoot a-i unfair apportionment of aldermen there- in contained. The court said: "So much of said act as gives to each of the liist and second wards, with 4(10 votes each a representali. .> of three aldermen, and to the third w.ird with -J, TOO votes, also a likn representative of three aldernieii, violates the fiindaineiital principles of onr Constitution and is therefore void." In Parker v. State, cj- rd. I'owell, 1.33 Indiana, 17;s ; ?. c. J N. K. Hep.. SSC; s. c.,oii motion for rehearing 13:'. Indiana, 212; Z] N. K. Kep., lU);"the Indiana upportioiiinems of 1870, 1885 nnd 18!U were held iinconslilulional ; but since the relator .sought on aci'ount of the un- constiuithmality of the last two to have the eleclioii held under the first, which was also void, his a|iplicalion was de- ne il. The Act of I81I1 provided for HO senators. As the voters wore .loUO-lS, an eipial a|iporiioiiim'iit gave one sena- tor to each ll,()2l) voters. 40 eountics were formed into 22 seiialorial dislricts. 11 of those dislriels contained 2;i comi- ties and l-t8,.HI(l voters. The other 11 conlained 20 countieH and ('il.dOn voters. Each of tlieni had ilin same nnni'er of senators, one ti) each district. i he ap- porl ioiinient was held niieiinsiliniioiial. i^Hlalo ex re'. Altorney-fbneriil v. Cumiinghiiin, 81 Wis., -MO: l!o.:rd of Supervisors of the Coniily of Ilougli- lon. 1)2 Mieh., (1;18 ; h. c. hi N. W. llep., nril ; (iiildings V. lilaeker, Seiretary of Stale, Silt Mieli., 1 ; s. c. .-)2 N'. W. Uep., 'Mi; People ex rel. Carter ii. Itiie, l;i.-) N. Y., 47;t. "(iiddings r. Ulaeker, Secretary of Stiile, !Ki Mieh., 1; Nebraska v. Singleton, 21 Neliraska, 5811; seo also People ex rel. Daley r. Rico, 12U N. Y., 44'J. 410 AIM'OUTIONMENT. [CIIAP, VMI, li'j^islature oniittt'd iinj- grant of reprfisentation to the inlia])ii;int.s of ii piiiiinilar county, the court lieltl that that county slioiild n'- tain tlic representation wliich it liehl under tlie precedini,' appor- tionment; and that so nuicli of the act as had legally [jasscd and provided for representation to the remainder of the Statj, slioiild he enforced.'" As a general rule, the State constitutions ])rovi(li' for a i)eriodical apportionment after each new enumeration of tiicir respective iidiahitants. It has been held that in the interveiiiiii,' time no new apportionment can be made, either directly or ]>y sui h a change in the lioundaries of a political stibdivisiou of the State as to change the different assembly or senatorial districts;"' or to deprive part of the State of representation;'' Imt in one case an act was sustained, which, after tlie new enumeration, but before tlie new apportionment, enlarged the boundaries of a city so as to include territory in one district which formerly Ijelonged tn another."* Whetlier the courts should resi)ect the acts passed by the votes of representatives from distri(;ts not entitled to tlieni by a constitutional apportioinnent, is a doubtful ijuestioa.'" S (J7. Tlie CeiisiiH. The Constitution directs that — " the actual KmniK'ratiou shall be made within three Years after tiio first ]\Ioetiii;j: of tlio (oiiiircss of tlie I'nited States, and within every siiliso- qiient Tenn of ten Years, in sneh Manner as they shall by l/iwdiiccl."' Tlie lirst reported census was tliat by the emperor Yee in (liiiia. liOb") I). ('.:'- unless that of the Hebrews made by Afoses in tlie wiMerness and described in the l)ook of Numbers was earlier. In liiiiiie, for the purpose of the division of tlie citizens into ('lassea and centuries, an enumeration was taken every five years and ful- lowed by a sacrilice of i)urificatiou or lustration, from which the '5 Nebraska 11. Siiif;U'l(in, 2i Neb., i")»i. liiil, see liiilliiiliiu' I!. Willcy, 2 Iiliiho, lliOS; s. e. ;!I rue. liep., IM4. '8 Kinney i). Synioiise, ;!0 fiiirbour {N. Y.), :)4a; (ipinioii of Judge.s, 3;i Miiino, fiW. " Warren v. Miiyor, 2 Gray (Mass.), m. Mutiiliyi) Kliey (Miirylaml), 2 At). Hep., 01(3; Mcl'hersoii v. Bartlett, 05 Cat., f)7r; s. c. t I'ac. I!ei.., .".SJ. liut see I'eopli^ v. I'endcgast, !)fl (;al.,289; 8. c. ;!1 I'ac. Hep., W.i; I'eoplo r. .Mark- bam, Pfl Cal., 2(i2; .s. c. .Tl I'ao, liep. !"-■ '* Allorney-General i). Uruilley, ;16 Mich., •147. '^ Conipiiro Sliilo v. Fi'am-i-^, 25 Kansa.«, 721; and 10 (Iniy, i;;:i ; with baird r. Siipervisois, I'M N.Y.,'Jo, 111. § (57. ' Artielo I, Seelion 2. ■■^ Applotou's Kuoyelopa'diu. •] Tin; CK.N'srs. 411 pi rii)(l (Iciived llui ii.inio of ii lustnim. Tin- iiiune of ('eiisus w;i!i (li'iiwil from tlio oIlictT in i;liurj,re, an csthnator oi' toiisor. In I iiiiliiieiit^il Hiiropc, for llie jiiirj)ose of iidmi:u-;ti'ii;io!i :ui(l poliuci, suih uiiiuiioralioiis wcro taken in-i'L,nilarly or at stati'd intervals, l)uiin!;' the eij^lileentli centnr}''' none was taken in Ilii^laiul, liow- cvcr ; and the fu-st Eiicrlish census seems to liave lieen tiiat of 1 SOI .' The coniniittee on revenue under llie Arti(des of Cor.federalion rccMininended an amendment to provide for a triennial numbering (i| llie inhabitants for the purpose of tlic apportionment of taxa- tion.'' In llie Federal Convention various propositions concern- in:'; the finio of the census were submitted. That of fifteen years w.is liist adopted." A term of twenty years was then sugLa'sted. liiil the prf)i)osition was rejected; and ten years chosen by tlie vcit s of ciLrht States to two.' Tlic direct and deidared object of the census is to furiiish a si iiiilird by whiili representatives and direct taxes may be ajjpor- lidiied among the several Slates which may be included in the I'liion;* but its functions have been extended so that the govern- liuiit now collects at the same time statistics of all kinds, [^nder .>;iniilar jn'ovisions in different State constitutions general statistics liivi' also been usually collected. Governor David 15. Hill of New York in iS.So vetoed a bill for a State census upon the L,'iii;nid that it provided for the collection of other stitistics besides ■du luunuM'ation of tht; inhabitants of the State.'' A I'"e(lcral district judge dismissed as not sui)portcd by the acts of ( 'oiign.'ss, an iiulicttment against an officer of a Inniber company' fur his refusal to answer ipuvslions concerning its capital and busi- iu:-s asked by oOicers taking the census of ISitH. He said: — "It may not he amiss to sufjgest tiiat there may be a liaiit to the power of congress to compel a citizen to ilisclose inforinalion concern- iiiL.' Ills l)iisincss uiHterlakiiiiis, anil tlio luaiiiicr in wliicli tiiey ai'c carried nil. Tills limit must relate, not only to the kind of iiifoniiatiun lie may properly refuse to disclose, because it may he eqiiivalei.i lo tlie appro- ■1 Ibid. * Encycloproilia Britaiiniea. ■'■ IClliot's Doliaton, 2ii cd., vol. v, p. Oi. S.'o siiprn, ij (11, ovi'i' iioto 13. '■■ Ibid., p. ;)(II. ' Ibid., p. y05. ' Cliict JuHlico Maisliall in Louj^h- boroutjli V. Ulakc, 5 WIuniIom, Iil7, 1)21. » Veto iiu'BSuK<' of May 27, 1885. Stato I'lipers of Crovcriior Hill for 1885, p. 154. 41:2 AI'rolITlONMKNT. [<'II.\I>. VIII. ])ii:iti()ti of piiviito property for public use without just compensation, but silso to till! ixtcMitof tiio infornintioii required, an well us to the time within wliicii it Hli.'iil be ^iven. Certnin kinds of informatitiu vahiahle to the public iitid useful to the legislative branches of the governiui'iit as the basis for proper laws have heretofore been vohnitarily j;ivcii, iiiul may properly be required from the citizen, when it is not of prdporly value, or when the collection, compilation, and prepaiation thereof does not impose great expense and labor for wliich compensation is not \n-o- vided. It is not infr('(|uent, however, tiiat answers to (pieslioiis pro- pounded in some sciiedules, if fully and properly prei)ared, involve the collection and compilation of f:icts tluit require the labor of a huf;c force of clerks for days and weeks, entailing great expeib;e and e;n- barrassmeut to the ordiiiai-y business of the citizen. Is it within the power of congress to make such answers conipnl.-'ory, and ri'ipiii;' the citizen to neglect his usual bii.-iiiess, with loss, and to i)rrpaie this in- formation at !i great jjersonal expense, without jiroper couiijensation? Or if a citizen, by his long experience in a special line of business, ami by his superior organizing and adniinslrative ability, has so syslenializud it that be can cany it on at a mu<'h less expense and with greater faeil- ity than others, is it right to compel him to disclose the information so acquired, and thereby open to his rivals in trade the methods by which he has been able to outstri|) them in the sharp comix'tition for busini'ss? Is not the sj-stem fo established, and the knowledge so acipiind, as much a propei'ly right (o him r.s the laud and shop in which he conducts his business? and can he be ro;;ipelled to part with the former withdiil due compensation more justly than with the latter? The zeal with which such information is somelimcs solicited to maintain favorite tlno- ries of public oilicials, or to aiTonl the basis for discussing economical questions, oflen leads to excesses, and inqioses upon the citizen diitiea for which no just compensalion is atlorded, either in money, or in his proportion of the reward of the good results to follow to the ])ul)lic. As before stat<'d, when such int'ornnition is re([uii'ed as the basis for pro[)er legislation or the just enforcement of the ixililic laws, the power to compel its disclosui,; may exist, and, if unusual expense attends its preparation, [iroper remuneration to the citizen can be nuide ; hut the suggestion that information having a |)ro[)erly value nuiy be demandi'd, which the citizen may not be obliged to impart without due compensa- tion, so earnestly impressed by the learned counsel in this case, still renuuns undisiposed of, and a i)roper subject for consideration by con- gress in the future legislation that may be needed to enforce such de- mands by the census bureau. Of course, these suggestions are not in- ^ ''■^•] iiisToitv or imnccT taxks. 413 ti'iiili'il til apply to tlio power of coiiirross to coinpi'l iinswers In riucstioiin, priipiiiiiiik'd to tlip ollicers of niilroads, ti'lofiiapli, and iiisniaiice c 'nipa- iiiis, corporations of a piililic character, over tlii> Imsinpss inc'lii'ds of which tli(^ K')^iHlativi' ])owcr may lie assorted. As to such coiporntions, the piil>li(' good rerson assessed for two year.s from the Dunbar on The Direct Tax cf 1801, Quarteily Journal of Econoriiics, vol. iii, 4:)(; 444. u Ai't of Au^'ust n, eh. 4.'), 12 Si. iit L., 2!U, tlic Aet of Juno 7, l.S(i2, di. !i8, 12 St. at L., 422, anil llio .\.l "t February fi, ]S(;:i, eh. 21, 12 Si. ir L., ('i40, pioviilcd for the eolleelion of (his tax in tho iusurructiouury ilia- tricls. j; ii'.i.] DIUECT TAXKS. 415 Dilawarc and Colorado, the (ax was collooted with other iiitciiial iivcihk! of tlie United States after some delay. In tlie cli'vcn iiisuncctionary States and the Territory of Utah, the (iovoinineiit was iirahle to collect more than a small {lortioii of tin; tax, which was (liiiie thr()U5,^h sales of lands.''' The attempt to coUeiJt the Imlaiice was linally abandoned; and in 18!>l,an act was pas-sed ulii( ii provided for the repayment to the different States of tlio aiiKiuiit thus advanced by them, with a provision that when any paitof the tax had l)een collected from an individual tax-payer, the State of which lie was a citizen should hold in trust for his iii'iictit the same amount of the mone\' ri'turiied.'^ '11,1' United States has the p-^wer to impose a direct tax upim tin; iidiabitants of the District of Coluinl)ia or the territories, or to relieve the inhabitants thereof, oi' a part of the same, from direct tiixation without legard to their population." The direct tax has never l)een a tax upon a State, hut merely a tax upon the individuals in a State, which in certain cases the State had the right to assume.'^ Congress has no power to im- jMJMe a direct Uix upon a State. g G». Direct Taxes. 'I'lie term, direct taxes, when used by modern coon • 'sts, usu- ally denotes taxes of which the b»u(len falls solely upon the tax- l)ayer, such as a i)oll-tax or a siiiuptuaiy tax. All taxes, the Imrileii of which may be shifted by the tax-[>ayer upon another, lire called by them indirect.' 'I'hey dilT(,'r, however, in the ajiiili- '- Diiiiliar on Tlin Dlr.'ct, Tax of IW'il, (^liiii'lerly JotinialiU' EcoMoiiiics, vol. iii, 441-401. '■"2«St. ntL.,ch. 40(;, p. 822. '* Lim},'lil)oroiigh r. Hhilio, 5 V.'liea- lon, :!17. '• V. a. u. LoiiiHiaiia, 12:1 V. S., ;!2, ;t3. S iV.i. 1 Tlio Brilish Norlli AMierk-ii Alt ciO luiil ;!1 Vic, eh. ;t, ij !»2| pro- viilos that "ill cacli province llio l<'Hislatiir(5 niny I'xclusively iiuiUc; laws in ii'lalion (o iii.-itl.orH coming witliiii tli<' i-lasKcs of Biilijcels iioxt iiei'i'in- aflor enumerated, thut is to eay : " . . . "2(1. Diri'ct, Tuxaliiiii witliiii Hit) rnivi.'iee iu order to tlio raising of a rLcveiiiii' for I'rovineial parposes." It liari Im'ou licid that tlu? term is used Willi tlu'wnso given to it by modern economists such as Mill. (Banl; of ToroMloi'. Lanihe, L. R. « P. ('. 272; 12 .Vppi'ul Cases, 51."); Attorney-dcn- oral , Quebec) v. Hood, 10 Apiieal Case-i^, 141); that a stamp aei on policies of iiisuraueo coin|ianics was an iiiilircct lax (Attoniey-Geiieral v. Qiii'cu Iiisiiraneo Co., 3 A|i|ieal Case-s, lO'JO ; Atloniey-deueral (Quebec) v. lleod, 10 Appeal Cases, 141) i but that 41C APPOUTION.MKNT. [CIIAI-. VIII. cation of tliis classification, and the subject is between tiiuni in great confusion.^ Tliis is not the (listiiiction iiiti'iided by tlu! Constitution. 'Hie subject in our constitutional law is oiio ''lx- cliisively in American jiiri-iprudciicc."" In the l-'cderal ('(iiivni- (ion, wiien " Mr. Kiiij,' askcil wiiat was tlie invcisc! nieaiiiiiL,' of o Clemnnt'B Cina- diaii ronstitution, pp. 421 411.") ; Don- lie's Hiitlsh North Aiiieriea Act. -Sec an nrliclc hy Prof. E. R. A. Sellt,'ina!i on the Iiicomo Tax in ttio Forma for March .I, 1891, vol. xlx, p. 48. 8 Mr. Justice Swayno In Springer v. V. S., 102 U. 8., 586, 602. * Madison Papers. Elliot's Debates, 2d (>il., vol. V, p. 4.")]. ' Chief Justice Chase in Vcazic Bank r. Fenno, 8 Wall., 5'J3, 541-542. I' Supra, § fi, note 1. Si>c, however, Gallatln'H supsestion, that tlie tenn, "cai)ilatlon tax," was taken frem Adam Smith, In Callatin's W'iitin>;-f, AdaiiLs' ed., vol. iii, pp. 74, 75. ' Dowt-U's History of Taxation, vol. 11, p. 124. « L'Ordro Naturel des Sool6t6s Po- Utiques, In Dnlre's Physlocrates, 474, § '■•'■'•] DIRK<"r TANKS. 417 Tiiri{()t, however. <'lassifieil tiixca upon persons lu diicit.* Tin' iippoilioinni'nt of tuxes upon real estate liad hi'cn pievionsly apiilieil in I'ingliiiul us well as Kranee. Tlu' i'.njjjlisli land t;ix, sim r tile reif^n of William HI, liad l)een apportioned amoiinr tlie comities an- other local sulxlivisions, leaviufj the i-ite for each loi alii y to he settled at the point neeessary to jrive the I'lrapot, vol. i, pp. ir,a, 224. Cited from Thay(>r'.« Constitiilional Cases, p. i;t2(i. 12 This origin of llie |)hras.' "diieet ilii'i'ilo siir les persoiiiios, (lui dovient taxation" was first sutJKestcd in Ham- uli iiiip.it siir I'exploitution. L'inipo- iltoii's brief in tlie Carriage Tax ('use i-ilion iiiilirecte, on siir les consomnia- Cllamillon's Works, vol. vii, ji. SITi), ti"iis." See also to tlie paiiii' offeet and was denionst rated in a valuable ■tfioo. Ill, ell. 2; his " Coiiiparaisoii de paper by Professor Charles F. Dunbar, riiiipnt surleHi>vemi dps Propri.'l aires on the Diri'i't Tax of 1H(!1, Quart. .Tour- rtili'l'Inip.'.t Bur lesCon.soniniatioiis," nal Eeon., vol. Hi, p. 41)6 (A. D. 1S89). which was a memoir prepared for the Siiprn.^ G, notes 1 and 2. usi' (if Fraiililin. Daire, Pliysioernte.i, '■■• Klliot's Debates, 2d ed.,vol. ii, p. I. 304, 3!lfi, 409. Cited from Thayer's 341. Constitutioual Cases, p. 1326. " Ibid., p. 381. 41H Ari'OKTloNMKNT. [CIIAI. \UI. " 'I'lii- oliji'i'ts of (liivcl tiixcH iii(! w» II iiiidcrHtooil. 'I'licy lire Init few. Wliiit mv tlicy? I.iiiuIm, hIiivck, wlock of all k'uvlw, and ii fuw other artii'lcH ;i»s;A>;f, ns an liiiapportioncd diruct tax, and consfqucntly uiu'onHtitutioii.ii. Madison wrote to Juft'uisou, May 7tli, IT'Jl : — "Tim tax on carringps sueceedcMl in spite of tlio Constiliitiini l\ -a majority of twenty, tlio advocates of tlio principle beinf; re-enfoicni \.\ tlie adversaries tc ''ixuries." " Some of the motives wliieh liny decuvdl to their Kiippo' 'it to preiiioMisli them of the danijer. liy liii'iiKih'j; donn tlii^ lian the Constitnlioii, and ^ivinf; sanction to tlii> ;ili;i of 8iiiiiplii;iry rt'^ulations, wealth may lind a jireearious defense in tlic sliieid of justice. If luxnry, as sneh, is to be taxed, the greatest of nil hixmii's, says I'aine, is a great estate." '" Tiif dauf^ur wliicli lie foresaw, at tlie end of a iiundred years he- eaine inauilest to all. In a siibseciueiit letter, February Ttli, IT'.ni, lie said of the case wliieli uplield the tax : •' There never was a (|iiesti(iii on whieli my mind was lietter satislied, and yet I li.i\e little expectation that it will he viewed in the same lij^lit liy tliu (•oiiit tliiit it is hy me." '' (Mi the arjfiinieiit of the (inestioii lie- fore the Sii[iri me Court of the L'liited States, in what appears to have lieen a moot <'a>;e."' Alexander llamiltoii was selecited to icp- rt'seiit the j,'(iveriimeiit."' He showed the iiijustiee of th,< appm- tidiiiiieiit of a tax of this ehanieter, and sugirested that a ImuMiiiy line between direet and indirect taxes be settled by "a species nf arbitration,"' and that direc:t taxes be considered only "capilaiion or poll-taxes, and taxes on lands and buildings and geneial as- sessments, whether on the whole property of individuals, or dii tlicir whole real or personal estate. All else must, of necessity, be considered as indirect taxes." His views 2Ji'evailed. TheComt ii* Ibid., vol. iii. p. 22!). 1° llaiiison's Wiitiiiga (Ctingros- sloiial ed.), vol. ii, p. 11. " Iliid., p. 77. >" It is hard to lieliovo tlmt Hylloii, Iho defonduiil in the Circuit Court, dn'd and tweuty-llvo <'li.iriot.s, "kept ("xclusively for tlio dofendiiiit's o>™ [irlvato use and not to bo let out for liiro or for tlio couveyanco of piivonn for III re." " His brief on tho " earriiige liix" hud, us stated iu tho report, ouo huu- is still in exigtonce, aiid may be found §.;o.] DIltKCT TAXKS. 419 held that u tax on plciisiirc-i'iirriajfiis was not a direct tax.^'^ Tlio iiiiiiii iTiiiund of the judgment was llius stated l)y .Mr. .lustieu ( liase : "It appeal's to mo that a tax on carriages cannot Ijc laid liy ihe rule of apportioinncnt witliout vciy gieat inequality and iiijiistiee. l'"or example, suppose two states ccpial in census to |iiiv eighty thousanil dollars each liy a tax on caiiiages of eiglit (iiijlais on every carriage ; and in one State there arc one hun- (hvd carriages and in the other one tiiousand. The owners of cuiiiigcs in one State would pay ten times tiie tax of owncs ill the oilier. A in one State would pay for his carriage eight (Idllars: liut 15 in the otiier State would pay for his carriage eiglity dollars."^' .hid^e I'ateison said : — •• Wliftlier (lirt'cl taxes in tlie sense of the Constitution comprehend any other tax tliiin a capitation tax and a lux on land is a (Hii'stioiiidiie jKiiiil. It Coiitiress, fur instance, should tax in tiii' a^uie^iate or nia.^s. tliin;is that were pini(jii is in itself rational, and eonforn«il)le to the decision which has taUen place on the subject of the carriage tax."=' Five times has Congress imposed direct taxes which were aj> portioned among the States, and in each case hind and slaves, who by the hiws of some States were real estate, alone were ineiudeil.''" Congress acted iqion this rule, with the approval of Madison, by the imposition of taxation without apportionment upon speeilic articles of peisonal property within IIm' Uinted States, siieii as the tax on (h>niestic manufactures.-'' and iijion "all iiousehold furni- ture kept for use," and gold and silver watches.-'" The exigencies of the Civil War strained tlie resources of both parties to the utmost. The Confederate authorities had more hesitation over constitutional scruples than tlujse of the United States, and the fall of their government was hastened by their inability to raise funds thi'ough direct taxation, an api)ortionnient being imi)ossilile without danger of jealousies and consequent disruption.-" Tiie United States im[)()sed a tax upon successions to real and pcrsouiil property, taxes upon the gross receipts and profits of corijinatinns. a tax upon in)tes i.ssued by bunks, a tax uiHin unmanufactured eiitton, and a tax upon all incomes above moderate amounts,^ All of these were held constitutional;^ the cotton tax, which wus at- tacked as hotli a direct tax and a tax upon exports, by a divided court.'!" *' OfUlal ill's WritliiKS, Adams' eil., vol. ill, p. 71. ■" Sujira. § ns. '« Aet of .Iiiii. 18, 1H15, H Si. at L., p. ISO. '■» Ibid., p. 180. 2' Supra, § ;t7, iiolcBfi. ^ All of tliese lilts, except those iniposlugthesucpOBBioiiiiiid the cotton tax, ari^ reprinted in the Appeiuiix to Foster and Abbot on the Income 'I' ix of 1H!)4. ■-■' I'lieille Insuranee Co. v. Hoiile. " Wall., 4:1;); Venzie Umik v. Fenno. N Wall., 533, MO; Selioley v. Uew, 2:t Willi., .131 ; Springer r. U. S., 1()'2 U. H., r>H(i. 3" .Supra, § 3H, note 117. ^ § (jtl.] DIKECT TAXES. 421 In the case which lield that thu cfcnenil tax upon incomes was not a direct tix, Mr. Justice Swayiie said: — •• Our conchisioni? are that direct taxes within the meaning of the Constitiilion lire onlj' cai)itation taxes at* expressed in that instrument, and taxes on real estate."'' After tlie income tax liad been collected for more than six years and some of tiie decisions which sustained it had been made, tiie section of tlio Constitution I'eiating to the apportionment of representatives ;iud direct tiixes was amended by tiie Fonrteenlh Amendment so as to change the rule as to representation; init that as regards taxation was left unaltered, it lieing tiie general un- derstanding tliat it did not apply to taxes upon ineonie.''^ In 18'J4, in reliance upon this construction of the Constitution, in which all tlu'ce of the departments of the government and tlie States had ac(iuiesced, an attempt was made by its aid to accom- jilisli that wliich tlie section had been adopted to prevent. The representatives of the new States in the West against wliose action (Touverneur .Morris had warned the otiier members of the Con- viiitioii. combined witli those of the South to oppress the .States npiiii the Nortli Atlantic coast. An iiiiapportioncd income-tax was imposed upon tlie revenu-s of individuals exceeding four thousand doUari, and on corponte incomes of all amounts, with the exemption, however, of some of the richest in the country, such as mutual insurance companiea and ecclesiastical coi'porar tioiis ; of wiiich at least four-iifths,*' and probably a iiuicli larger pioportioii, was jiayable l)y four States, — New York, New .leisey, l\'niisylvania and Massachusetts, — wiiile in a number of the States th it voted for it tlie incidence of tlic tax did not al'i'ect more tli;iii a very few individuals. The constitutioii;!lity of tiiis pro- ceeili)ig, by the consent of tlie Attorney-(ieiieral. wlio waived all questions of jurisdiction, was brought before the Supreme Court hi'fore tlie tax was payable. In their first decision the court lield unaiiiinously that so inticli of the tax as ap[ilied to the income finni municipal bonds was void, since those securities could not be taxed by tlie United States; and by a majority of four to two, that " SprlnKrr v. V. 8., 102 U. 8. nsc, 602. ■'■- Si'c till' (llBHuut of Mr. JuBtlco While in I'olldik r. Fun 's Loan ami Tnisl, Co., ir)S I'. S., (iOI, Tl.^. *• Mr. t'hoatc'rt AryuiiU'Ul iu Pol- 422 APPOIJTIOXMEXT. [CHAI'. VIII. soiinicli iis a[)i)lie(l to rents was also void, as a tax upon rual r tale, and coiisiNHU'nily a diivel tax whicli must 1h! apportioned. 'I'licy divided (;(iually on tlie questions whether the invalidity of iliis part destroyed the rest; and whether tlie tax on the general iii- cotne from personal [)ropert3' was also void as a diiec^t tax.'*' A rearj^unK'nt was ordered, whieh Mr. Justiee Jackson, whose illness liad preventeil his previous presenec. left his death-hed to attiiiiil. He voted to sustain all of the act that did not apply to muniin- pal bonds; but Mr. Justiee Shiras, who on the first deeision had voted to sustain so niueh as did not ap[)ly to rents, changed his mind; and by a majority of five to four the whole ineome-tax wa ; held to be void, iis a direct tax whitdi had not been apiiortioned.* Jn consiMiuenee of this deeision the only delinition of - tions.'*' The arguments on either side of this great case are so masterly jirescnted in tlie opinions and t!ie briefs of counsel, that a sinn- inary would be not oidy inade(]uate Ijut superfluous. Is'ow tiiiit the dust has not yet gathered upon the pajjcrs, it seems impossible lock r. Fiirnii'r's Loan and Trust Co., im V. H., 129, r,X\; David A. Wells in The Foruhi for March, lHa4, vol. xvii, 1>. 1. ■' riiUiick »'. I'")irmc>r'M Loan and Trust Co., l',7 V. , 4'>'.). •"' I'liilock r. . ..niKTs Loan an gives to till' OcMi nil (,'ourl jiowcr " to iiniioso and li'vy pioixirtional and rcasonalilo assossniiMils, rales and ta.xes iipoii nil the iuhaliitants and persons real- dent and osUites lying within tho naid Commonwealth; and also to Impose and levy reawonable dnlies and excises upon any produce, goods, wares, morchandisea and eoniniodities whatever, luought Into, produowl, manufai'tured or being within the same." It has been held that taxes upon occupations fporthmd Hank r. Aplhorp, 12 JIass., 'iit'l, 'i.V!), smi'i'CS- sions of every character (SFinot r. Wintiuop, ICii Mass., 113 , and cor- porate franchises (Coinmonwe.'ilth r. Ilamilti n Manufacturing Co., 12 .Vllon ( JIass. V .".)H, HOT; H. c. as Hainillcm ('onipa'i' r. Massachusetts, i\ W:ill.. (!l!2 ; (^ominonweaUh i'. Provident la- stilution, 12 Allen, .'!12; s. o. as Provi- dent Institution v. Massachusetl-*, C Wall., till; Conniionwealth r. Lan- caster Savings Bank, 123 Mass., W, Connecticut Insurance Co. f. Oim- inonwealth, 133 Mass., IG), are "I'xcloeB upon conimoditleB." ] I)ii;k(T taxks. 423 liir ;i coiiiiiicnt'.ilor to disiiss the qiiuslion wiilioiil liias. r\ui\ wc im liL- so iMsh iis to nttem|)t to add to what was said hy the eniiiieiit iiii'ii who were engat^ed. Tliti reasons assigned by the majority were chiotly liistorieal, (li'sjnned to show that when the Coiistitulion was achipted such :i tax would have been considered as direct, and necessarily apjior- tioiicd. In this it seems that they were succfssl'ul. 'J'he cliief r.liimce of tlie minority was on tlie principle xlitrf dtciisis. They Kiiitt'iidcd that the court ought not to overturn a construction (if tlie (V)nstitution settled by re[)cated decisions of their predc- cissnrs in the juiliciary as well as iU'fs of th" other two ilcpart- iiicnts of the government, \\liich they contended liad been un- (lislurbi'd for over one hundred yeai-s. They argued, moreover, iliiit the impossibility of the just apportionment of such a tax pMivcil tliat it could not be wiUiin the intention of the Constitu- liiiii; tliat the decision crippled the United Stitcs by depriving tlii'iii of a jMiux'r wliich miglit be indispensaltle to the snccessful (■(iii(hiit of a foreign war, when their ports were blockiidcd and .s(i ■ revenue could be derived from a tariff; thit it [icrpetu- Mli > 'in of taxation unfair to the i»i r: and finally tiiat it pre\t iii.u i!ic iMiiimt'nt from ini[ii' iiu' upon the rich their just share of ll^ liilic iiurdens. One effect of the decision ]\\s l«'en salntury. It has def.'itcd im oihous scheme of class-1 -gislition. If uplield it will be n safe- il'iiiiil to property from any spoliation ni"'cr tli;' guise of I'\'(icral lixiition, give encouragement 'i a licu liodiine of State rights tliiit may be of other assist. iire in the future,'''^ and alTord a ilicciv to waste of the national treasury. I'pon the other hand it his raised an obstacle against the further r(Hluction of an oji- prcssive tariff. It lias sliorn the I"' 'ted States of a power that iiiiglit bo essential to their pre> u in case of war. And it has given a blow to settled princip. ^ uf constitutional construction which makes no decision of the past secMU any longer secure.'^ " Sco mijirn, § 11. (lin(Mrt»s llio rules for tlio uouatructioii "* ill till) lust volume the writer will of the Couslltutiou. APPENDIX TO CHAPTER VIII. JEFFERSON'S OPINION ON THE APPORTIONMENT OF 1792. " TiiK Constitution has (Icelarccl that representatives and direct taxes shall be apiiortioued among the tteveral States according to tlieir respeo- .tive numbers; that the numlier of representatives sliall not exceed one for every ;U),000, but each State shall iiave, at least, one representa- tive ; and, until sucli enumeration sliall be made, tiie State of New llampsliire shall be entitled to choose three, Massiichusefts, &c. "Tiie bill for apportioning representatives among tlie several States, without explaining any principle at all which may show its conforiiiily with the Constitution or guide future ai)portioninents, says, that New Hampshire shall have tluee members, .Massachusetts sixteei\, &.c. We are, therefore, to liiid by experiment what liaa been the principle of llio bill; to do which, it is proper to state the Federal or represenlalile numbers of each Staie, and the members allotted to them by the hill. They are as follows: — ■ " V'ermDiit M.").-):i2 ,"! New Hampshire 141,S'J.'i .") Massachusetti 47.").;|-J7 Ifi Khiide Island i;s,l44 -2 CouncclicuL 'j;i."i,!i-| 1 S New York .'i.")-J.!ll.") 11 New .Jersey 171t,'i."ili (i Pennsylvania 4;i-.'.SS{» 14 Del.iware ")."i.,"i;!,S -J Marvliind L'7S,:il;! 1) \'irginia (i:!(l,."i."iS 21 KrutucUy (iS.Ti).") 2 Norlli CaniliiKi .■!."i:i,:i-_'I 11 Smith Carolina -Jdi^Jiid 7 tieiirjxia 70,84.'i •-> ;i,(i;t(i,.ui2 iiio " It happens that this representation, whether tried as between great and small Slates, or as between North and South, yii'ids, in the presi'iit inslanec, a tolerably just result, and eousciiuently could not be objcelod to on that ground, if it were obtained by the process prescribed in the 4i!4 Al'TKNUIX.] ,IKI''FKi;SON (JN Al'l'OItTIONM IINT. 425 ( (iiistitiiUoii ; but, if obtained, by any process out of that, it becomes iiKiilinissible. '•The tii'st member of tlie clause of the Constitution above cited is px|iii'ss, — that representatives siiall be apportioned auionj; the several Sliiles according to their rfsiwclire vnnibcrs ,■ that is to say, they shall be apportioni'd by some common ratio, for prajiortum and r(tli(> are eqiiivaleMt words ; and it is the definition of j)r')/w(7('oii anwiiij ii nut hem, tlial they have a riitio common to all, or, in other words, a common di- risnr. Now, trial will show that then' is no comnioii ndio or dirisor wliicli, applied to tlie numbers of each Stale, will give to them the num- lur of representatives allotted in this bill ; for, trying the several ratios of l".i, 'M, 31, !i2, ;!;), the allottments would be as follows: — 29 30 ;ii 32 XI TiiK Dill. " \'prmi)Mt 2 2 2 2 2 :i New Iluinpshire .... 4 4 4 4 4 ."> .Miisxiicluisclis K) 1,-1 1,-) 14 n Hi Hhodc Island 2 2 2 2 2 2 ('DUMeclicul S 7 7 7 7 >< New York 12 11 11 11 10 11 New .li'i-scv ") ,-( T) .■) (') I'rinisvlvaiiia 14 14 i:i l:i l.( 14 Delaware 1 1 1 1 1 2 Maryland it \) H S S >.» \iruinia 21 21 2(1 1!) 1!) 21 KeiilueUv 2 2 2 2 2 2 Norlh Carolina .... 12 11 11 11 111 12 Sdulh Carolina .... 7 •! and of another part of it at anotlier, bo as, in tlie end, to Imliiiipp occii.siona! inoqiiiilitics. IJiit, instead of siicli a siiirjln common ratio or uniform divisor, as prcspribod by flic Constitiition, tlic liill lias a|-.plifil ticn ratios at least to tlie different States, to wit, that of 3(),()2(! to tlic seven followinfj;. iUiode Island, New York, Pennsylvania, jMaiyland, Virginia, Kentucky, and Georiiia; and that of 27,770 to the eiglit oth- ers; namely, Vermont, New llami)shire, Massacluisetts, C'onueetieuf, New Jersey, Delaware, North Carolina, and South Carolina. A.s fol- lows : — Hlioile Island, 08,444 [ 3 2 I Vermont, 8;i,r);i2i~ !3 New York, .'5ri2,!»ir) I o 11 New Hampshire, 141,S-_>;i j-" 5 IVnnsvlvania, 4;i2.8,S0 i " j, 14 Massachusetts, 47fl,:J27 '.^^ IB Miirvland, 278,.'>i:{ ! -*.j: '.) Connecticut, 23.j,il41 -^ > 8 Viriiiiiiii, (m0,r)58 j -g '" 21 New Jersey, ]7!»,r).'')(i "5 -» fl Kentucky, (18,705 2 2 .Delaware, 55,.");58 3 2 Georgia, 70,843 i .i: 2 | North Carolina, :\r,:],r,2l\.i: V.l \^ II South Carolina, 20(i,2.'iCi^ 7 "And if two ratios may be applied, than flfteen may, and (lie dis- tribution becotne arbitrary, instead of beinsj; apportioned to nuiiiliers. " Another member of the clause of the Constitution, which has hocn cited says ' the number of representatives shall not exceed one for cvi'iy ■■iO,()()0, but each State shall have at least one representative' Tliis last phrase proves that it hud in contemplation, that all fractions, or viimbcrs bi'luw the common ratio, were to be unrepresented ; and it pio- vides specially that, in the case of a State whose whole number .shall lie below the common ratio, one representative shall be (jiven to it. This is the single instance where it allows a representation to any smaller number than the commoii ratio, and by providing specially for it in this, shows it was understood that, without special provision, the smaller number would, in this case, be involved in the general principle. "The llrst phrase of the above citation, that ' the number of repre- sentatives ehall not exceed one for every 30,000,' is violated by this bill, which has given to eight States a number exceeding one for every 30,000, to \wt, one for every 27,770. " In answer to this, it is said that this phrase may mean either the thirty thousands in each Slly to it during the pendency of the first bill, Ai'i'ioNiiix.] .ir.Ki j'"-s.»r ox AProirnoNMKNT. ■a 9 1 l: ' 3 1- 5 1ft 8 2 i > i;< 7 nnil f'viu lill iin adviiticcd sfiiixo of tliis hccoiuI hill, wlicn nil iiiuoiiioiis frriilliMii:\ii foiuul out tlu, ilocliiiie of fractions, — ii (loctiiiu^ so (lillicult ami iiioliviouB ns to lie rcjcoted nt first sight by \U". very ])frsor,s who nftoiwMnls lipciune its most zomIoiis ndvociitcs? 'I'lii' phnini' stands in llio midst of a nundicr of olher.s, cvi'iy one of which rchitos to States in tlicir separate capacity. Will not plain common sense then, undor- stiuiil il, like the rest of its context, to relate to States in their separate oainicitii'S? "lint if the phrase of one for 30,000 is only meant to give the a,:)-J7 (;.s,444 2;)."..!i41 ;i.v_'.!iir) I7ii,ri5(i 4;i2,.SK0 2 4 l(i 2 H 12 1) 15 27.1S(I 2(;.:i'.U i;!,:,!i!t 1(),72S ."..(•77 (i,i;iii (),4(IS 10 .'■).-., r,:i8 1 2(i.C.S0 27S..->i:i 9 IHJDl (!,",( i,r„-iK 21 24 .-,40 CiSJO.-. 2 lo.itso .r,.i,:.2l 12 7,22", 20(i.2;!(i 7 4,2:i0 70,843 2 l;!,127 90,648 3,(i:!0,:tl2 119 202,2:!0 10.'-),.'->S2 202,2;!0 "Whatever may have been the intention, the effect of rejecting the iii'iiiest divisor (which leaves but one residuary mendier), and adopting a distant one (which leaves eiuht),is merely to take a member from New York and Pennsylvania each, and give them to Vermont and Xew lliuiipshire. I5ul it will lu' said 'This is giving more than one for 4'2H ,ii;i'-Ki:i:s()N on aim'oiitionmunt. [ciiai'. viii. Jio.OdO.' 'rnii'; Iml liiis it not, lii'i'ii just siiid, that the one for ;iii,(i(i() irt pi'cseiibc'il only to fix tlie ii^,!j;rej;:ili', nuiiibor, iiiul that wu are not to iiiiiitl it wlii'H wu conic to apportion tlieni amonfj tlie States ; that for this we nnist recur to the former rule, which distril)ute8 thoin aceoiding to the nuiiiliers in eacli State? IJesicles, doea not tlie hill itself appor- tion among seven of the Slates by the ratio of 27,770, which is much more than one for ;U),00()? " Where u phrase is snsceptible of two nicanin<;s, we ouuht eerlaiuly to adopt that which will liriiiii upon us the fewest iuconvenieuces. Let ns weijili those resiiltini!; from Ixjlli constructions. " From that fiivinj^ to each State a member for every 30,000 in that State, results the sinjiie inconvenience, that there may be lariie fractious unrepresented. But it beiufj; a mere, hazard on which States this will fall, hazard will equalize it in the loiifj rini. " From the oilier results exactly the same inconvenience. A thoiisiuul cases may l)e inianined to jjrove it. Take one : supi)ose eiiiht of tlie States had 4."),i)(IO inhabitants each, and the o'.lier seven -ll, '.»'.•!) encli, that is to say. each one less tlian I'ach of the others, the aj^irreLjatc would be (171,',1'j;!, and the nunii)er of representatives, atone for.'iUJilKl of the aggregate, would be 2l'. 'I'hen, after giving one meiulier to i;k'Ii Stale, distribute the si'ven residiiai-y iiieiuliers among the seven !il,:;iK'st fractions; and tliough the dilt'iTence of ]K)pui;ili()n lie only an unit, llio representation would be the double. Hi-re a single iiduibitant the more would count as .'!0, 000. Nor is this ease imaginable only ; it will ri'- semble the real one, whenever the fracli(Uis liai)i)en to be pretty e(|ii;il through the whole Slates. The numbers of our census happen, by iii'ii- denl, to give the fractions all very small or very great, so as to prodiiee the strongest case of inequality that could possibly have occurred, niul which may never occur again. 'l"he probability is, that the fraelioiis will generally descend gradually from ;i'.).'.)',li) to 1. The inconvenieiiee then, of large unrepresented fractious attends both constructions ; ami, while the most obvious construction is liable to no other, that of tbe bill incurs many and grievous ones. !• ItAITIOSS. 1st 4.".()no -2 ir>,()00 'Jd l.KiHHI 2 ]:.,(«)() vM -irtMwu •_' i.-i,(iiH) 4th 4."i,0(l() 2 l.-),0(H) f)ih 4."i.()(ta 'J i.j.ono fith 4."),o(i() 2 ir.,()no 7th 4.-,.(ioo 2 l."i.000 8th 4:.,(Mi0 2 l.T.OOO mh 44.'.ll»!l 1 14,!li)i) 10th 44,!)!)'J 1 14,i)9i) An'KNDlX.J .IKI'TKIiSON ON A I'l'OKTK INMKNT. 4li9 mil 44,!l!l'J 1 M.!l!t!) 1-Jlll 44,!I!MI 1 ll.il'.ll) l.llh 44,!)'.M.t I 14,!l!l!) 14lli 44,'.)!)!l 1 I4,!)!li» Iflth 44,i)i)!) 1 14,im9 074,!)!);5 "1. If yoii permit the large frdction in one State to choose a repre- sentative for one of the Huiall fractions in anotlicr State, yon tiiice from the latter its election, which eonstitntes real representation, anil Btilisti- tutc a virtual representation of the disfranchised fractions; and the tendi'iicy of the doctrine of virtual re])resentatiou has liecn too well discussed and appreciated by reasoning; and resistance, on a former groat occasion, to need development now. "•.'. 'I'iic hill does not say tliat it has fjiven the residuary representa- tives to the ijreiitcHt fnu-tioiin ; though, in fact, it has done so. It seems to have avoided establisliing that into a rule, lest it miLrht not suit on anotlier occasion. Perhaps it may he found \he next time more con- venient to distribute them (tiiioiifi the .siiiiillcr Sidirs ; at another time mniin'j Ihf bifijvr SlaU'x ; at other times acctirding to any otiicr crotchet wliieh iniienuity may invent, and the combination of tiie daj' give strengtii to carry ; or they may do it arbitrarily, by open l)arL;Min and eal)al. In short, this construction introduces into Congress a scranilile or a vendue for tiie surplus members. It generates waste of time, hot tilood, and may at some time, when the passions are high, extend a dis- agreement between the two houses, to tiie iierpetual loss of tlie tiling, as liiiiipeus now in Pennsylvania assembly; whereas tlie otlier con- stniction reduces t!ie apiiortioiiment always to an arithmetical opera- tion, alioui which no two men can possibly dilTer. " '.'<. It leaves in fidl force the violation of the precept which declares tliat r(>presentativc8 shall be apportinnod among the States acconling to tlieir niiiiiliers, that is, by some common ratio. '• \ iewing tliis bill either as a viola/ion of tin' Coiistitntian or as giv- ing an inconvenient e.rposition to ilnvorda, is it a case wherein tlie Pres- ident oiiLrlit to interpose his negative? I tliink it is. " I. The non-user of his negative begins already to excite a belief that no President will ever venture to use it; and, consequently, has begotten a desire to raise up barriers in the Slate legislatures against Congress throwing off the control of the Constitution. " ■-'. It can never lie used more pleasingly to the public than in the protection of the Constitution. "3. No invasions of tlic Constitution are so fundamentally danger- 430 ■VVUnHTKIt's UI:P((I!T on Ari'OirnoNMKNT. [CIIAI'. VIII. oil!) an the tricks pliiyi'd on tliuir own iiiiiiibors, apportiiiiuiu'iil, iiml oilier c'irciinistaiicos respi'ctiiig tboiimulvcs, atiil alt'cctiuj; their lei;;il quiilificiitioim to lei;irtl!ili^ for the riiioii. "1. The inujorities liy whicii this bill iuis heen carried (to wil. imo in tho Senate and two in the House of Uepresentatives) siiow iiow di- vided the oiMiiions were there, ".'). Tiie wholi! of both lionaes admit the Constitution will bi'ar tlio other exposition; whereas the minorities in l)oth deny it will bear that of the bill. "• I!. The iipplieation of any one ratio is intelligible to the ixoiilc. ami will, tliorefore, be approved ; whereas the complex operations of tliis bill will never be coinpi'ehended by tlu'iii ; and, tliough they may ao quiesue, they cannot approve what they do not understand." ' WIUiSTEirS RKPDirr to THK SKXATK on Till': API'OI!- 'l'-IONMI',NT OF l8;!-2. " This bill, like all laws on the same subject, must be rcu;ank'il as of an interesting and delicate nature. It respects the distribution of pulit- ical power amoni; the (States of the Union. It is to deterniiin' the uuinber of voices which, for ten years to come, each Stale is to posi^iss in the popular branch of the Icjiislature. In the opinion of the euni- niittee, there can be few or no questions which it is more desiialile should lie settled on just, f 'ir, and satisfactory priiicipli'S than this; and, availing; themselves of the benefit of the discussion whicli the liill hart already undei'iione in the Senate, they have given to it a renewed and anxious consideration. 'I'lie result is, that, in their opinion, the bill ought to be amcDded. Seeing the dilliculties which lieioiig to the whole subject, they are fully convinced that the bill has been fiaaieil and i)assed in the other house, with the sincerest desire to oveicniiie those dilliculties, and to enact a law which slionUl do as nrich justice us possible to all the States. IJut the committee are constrained to say that the object ap|)ears to them not to have been attained. 'I'lie un- equal operation of the bill on some of the States, should it becoine a law, seems to the coininilteo most manifest; and they cannot but ex- press a loubt, whether its actual apportionment of the representative power among the several States can be considered as coiifonnab''! to the spirit of tlia Constitution. The bill jiroviiles that, from ami after the J5d of March, IS;!!), the House of Uepresentatives shall be composed of members, elected agreeably to a ratio of one representative for every ' Jefferson's Works, 1st ed., vol. vii, p. 594. Al'I'KNItlX.] WKDSTKUS HKl'OIiTON AI'r(J.; "lONMENT. 431 foiiy-si'von tliousaiul ami seven Iniiulrod porsoim in each Stnte, cotn- piiti'd acconling to tlie rule prpHcrilied by tlie C'liiistitiilioii. Tlui inldilioii of tlie seven hundred to the forty-seven thonsaiul, in the ooiiipKsition of thin ratio, produces no etTect wliatever in rc};iird to the eonstitiiliou of the House. It neither adds to, nor takes from, the nunilier of nieui- biTS iissiitned to any State. Its only effect is a reduction of tlie appar- eiil amount of the fractions, as they are usually called, or residuary lui'iulicrs, after the application of the ratio. l'"or all other purpy fixing the whole number of tlie proposed House of Ueiiresentatives, yet tlie process adojited by it brings out tlu^ iimiibi r of two hundred and forty members. Of these two liiiiidred and forty members forty are assigned to the State of New Yoii;, that is to say, precisely one-sixth of the wliole. This assigininiit wiiiilil seem to recjuire that New York shouhl contain one-sixth [lart of 'lie whole iioptilation of the United States, ami would be bound to pay oih'-sixth part of all her pulation of the I'liitcd States is 1 1 ,'.I2'.I,0()."), that of New York is 1 ,1MH, (;•_'.'!, which is less than power in the Mouse of Iteine.-entiilives. "A (liMproporiion almost ci(uilly blrildu}! is nuiiiifeHted, if we e(]in- jiare New ^'ork witii Alubaiun. Tin' population of Alabama is L'iiL',L'(i,s ; for lliiH, siie is allowed live memliers. 'I'iie ruli' of pi'oportioii wliicli jlives to her but five members for her number would , beiii'j: a clear mtijority of tlie whole Iloiihe, whose airt;re};ale fractious i\llo;j;etlier amount only to lifty-three thou- sand; while \'ermoiit and New .lersoy, having tojjether but eleven members, have a joint fraction lif seventy-five thousand. " IVunsylvania by the bill will have, as it happens, just as many members as Vermont, New Hampshire, Massachusetts and New .lersey, but her iiojinlation is not crpial to theirs by a hundred and thirty thou- sand ; and the reason of this advantajje, derived to her from the pro- visions of the bill, is, that her fraction, or residuum, is twelve thousaiiil on!}', while theirs is one hundred and forty-four. " I>ut the subject is capable of beini; presented in a more exact and mathematical form. The House is to consist of two hundred and forty members. Now, the precise proportion of power, out of the whole mass represented by the numbers two hundred and forty, which New ^Ork would be entitled to according to her population, is .".H. .')',); that is to say, she would be entitled to thirty-eight members, and would have a residuum, or fraction; and, even if a member were given her for that fraction, she would still Lave but thirty-nine; but the bill gives her forty. Al'l'KNDIX.] WKnSTKIl'H UEI'OUT OX AITOKTIONMKNT. 4:]S " These are a part, and Imt a part, of tlioHe results produced liy the hill hi its prcseut form, which the coinniittee cannot lirin^ themselves to apiirove. Wiiile it is not to be deniitd that, under any rule of nppor- lioiiiiienl, some dcfjrec of rehitivc inef|uality must always exint, the L'uiiiiiiittee eannot believe that the Senate will Hanction ine(iuality jukI injustice to the extent in which they exist in this bill, if they cnn be iivoicicd. Hut recollecting the opinions which had been expressed in tin' discussions of the Senate, the committee have dilij^ently soufilil to li:irii whether there was not some other ninnber wiiich mijiht be t!d»cii f(ir a ratio, the application of which would work out more justice siihI (M|i;ality. In this pursuit the committee have not been succcssfid. 'I'luTe are, it is true, other numbers, the adopt'on of which would relieve iiiiuiy ol' the States which suffer under the present ; but this relief would 111' (ililained only by shiflinil the pressure on to the other States, thus (Teiitin;! new grounds of complaint in other quarters. The number Iciiiy-four thousand Iws been jreneral _,• spoken of as the most accei>table !iii)i.-titute for forty-seven thousand sever, hundred; but, should this 111' :id(i])led, great relative inequality wordd fall on several States, and, !Uiioii;j; theni, on some of the new au.l ;j;rowini: States, whoso relative (liniiroportion, thus already great, would be constantly iiicrcasing. The cdiiiinittee, therefore, are of opinior. that the bill should be altered ill tiie mode of apportionment. They think that the process which be- gins by assuming a ratio shouhl be abandoned, and that the bill ought to lie framed on the principle of the amendment, which han been the m.iiii subject of discussion before the Senate. The fairness of the liriiiciple of this amendment, and the general equity of its results, eom- puieil with those which How from the other process, seem jilaiii and un- ilciiiiible. The main (piestiou has been, whether the principle itself be coustitutional; and this question the committee proceeded to examine, respectfully asking of those who have doubted its constitutional pro- |iiiety, to deem the question of so much importance as to justify a Becond rellection. "The words of the Constitution are, 'representatives and direct taxes siuill be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be ilt'terniined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding lnNMKNT. [ciIAl'. VIII. exooi'il one for cvory lliiity thoiiBiind, Init caeli State bIuiII have at lujist oue ivpivseutativo.' " 'I'liere would Hcoin to lie little dilliculty \\i uiidcvstaudiug these pro- visions. The terms used are designed, iloubtlebs, to be received in no peculiar or technical sense, but according to their common and po|iulur acceptation. To aiiportion is to distril)Uto by right measure, to set off in just parts, to assign in due and proper proportion. These clausis of the Constitution respect not only the portions of power, but the portioiw of the public burden, also, which should fall to the several States; and the siuiie language is applied to both. Kepresenlatives are to be ;ip- portioMed among the States according to their respective inimbers ; an^l direct taxes iire to be ai)i)ortioned by the same nde. The end ai:n(il:.t is, that r,'|)resentation and taxation slioiiM go luiiid in hand; tli;'t (mcIi State should bo represented in the same extent to which it is iiiaile siili- jecl to the )>!;l)lio charges by direct taxation, lint between the appor- tionmentof representatives and the apportionment of taxes there neces- sarily exists one essential dilTerence. Hepresentation, foiuided on numlurs, must have some limit; and, being from its nature a thing not ca])a''le ( r indeliiiite subdivision, it cannot be made precisely e(|ual. A tax, indeed, cannot always or often be ap|)ortioned with perfect exact- ness ; as, in other matters of account, there will be fractional part^ iif the smallest coins and the smallest denomination of money of accoimt, yet, by the usual sulidivisioiis of the coin and of the denomination of money, the appiMlionmeiit of taxes is ca))alile cf being made so exact that the ineijiiality liecomes minute and invisible. lUit representation cannot be tluis divided. Of representation, there can lie nothing u.-s than one representative ; nor, liy our Constitution, nu)re re|)resentat:vi'a tlian one Utv every tiiirly thousand. It is ([uite obvious, Iherefori', diat the apportionment of ri'iiresenlalive power can never be preci.-^i^ ;uid perfect. Tliere must always exist some degree of ine(itndily Tlmsi' who fiameil and those who adopted the Constitution were. i. eonrsc, fully a('(|nainti'd willi this lU'cessary ojiei'ation of the jirovision. In Ujc Senate, the States are eiitilli'd to a lixed number of senators; ami, therefore, in regard to their representation in that body there is no loii- sequenlial or incidental ine(|uality arising. Hut, being repres' •I'cd in tlie House of Hepresenlatives according to tlieir respective iniinlieis of people, it is unavoidable that, in assigning to each State its numluTof niembers, the exact proportion of each, out of ii given number, cannot always or often be exp ,:ssed in whole numbers; that is to say, it will not often be fcnind that there belongs to a State exactly one-tenlli or oue-tweiiticth or oue-thirtieth of the whole House; and, therefore, no y^lM'r.N'DlX.] WEUSTER'S l!KI*01!T ON A1>I'()I!TI()NMKNT. 4:^." 'iin:il)i'r of rcprcsoiitatives will exf.ctly eorrospoud with the ri^hl of siicli ttatt', or the precise share of rr prosentatiou wliich belongs to it, ac- c)nliii^ to its population. •• The Constitution, therefore, must be understood, not as enjoining nil iihsoiute relative etpia.'ity, — because that would be demanding an impossibility, — but as reep'iringof Congress to make the apportionment of lepi'oseutativos among the several States according to their respective iiuniiii'is, CIS near us via;/ hi'. That wliich cannot be done perfectly iiuist be done in a manner iis near perfection as can be. If exactness Ciuiiiol, from the nature of things, bo attained, then the greatest priic- tic:il>le !i|)pioa('h to exactness ought to be made. "Congress is not absolved from all rule, merely because the ralo of pi'ifict justice cannot bo applied. In such a case, approximation be- I'liini's a rule; it takes the place of that other rule, which would be |iri fi'iiiliU!, but wliich is found iiia)>plical)le, and becomes, itself, an (iliiii;:ilioii of bintling force. The nearest approximation to exiiet truth, (ir cxMi't riglit, when that exact truth or tliat exact riiilit cannot ilsi'lf lit' rcMched, prevails in other cases, not as a matter of discretion, but as MM intelligible and detinite rule, dictated by justice, and conforming ti) the coinnion sense of mankind ; a rule of no less binding force in c;isi's to which it is iipplieable, and no more to be departed from, than iiiiy other rule or obligation. '• Thr committee understand the Constitution as they would have iiii- ilcislciod it, if it had said, in so many words, that representatives should W apportioned among the States, according to iheir respe-jlive numbers, (',< iwar us I Kill III'. If this bo not its true meaning, tli.'ii it lias either ^'ivrii, on this most di'licato and important subject, a rule which is alwMvs iuipnicticable, or e!ie it has given no rule at all ; because, if I lie luK' III' that represi'utalives shall be apportioned c.r^icfli/ according to niiiiibers, it is impracticable in every case; and if, for Jiis reason, that ciuiiiot bo the rule, then there \a no rule whatever, unless the rule be thai thry shall be apportioned an near as niin/ hi\ " I'liis coiislriicliou, indi'ed, which tlu^ committee ado))', has not, in tiirir knowledge, been denied; and they proceed in the I!T ON Ari'()|!TK)NMI-:\T. [CFIAI". V:!l. In truth, if witliout niiy jirocL'ss wlmtevcr, wlietlior eluborulc ci' v:\:\\ ( oiif^i'css could iifici'ivc tlie (wiict jiroiioitioii of rcprcxi'iitiitivi? |ici\v(>r rijj;litfully bi-lon^iug to esich Stnto, it would perfectly fulfil its duly hy conferring tluit portion on omcIi, without reference to any process \vli:it- ever. It would be enou;j;li, tliiit the proper end had been attaiiieil. And it is to be remarked further, that, whether this end be altaiued best by one process or by another, becomes, when each process has hcon carried throuiih, not matter of opinion, but matter of matheniatical certainty. If the whole population of the United States, the jjopulation of each State, and the proiwsed number of the House of Kepresentiilives be all jrivcn, then, lietwecn two bills apportioning; the memliers aiiioug the several States, it can be told, with al)solute certainty, which bill as- sifjns to any and every State the nundicr nearest to the exact proporlioa of that State; in other words, which of the two bills, if ciliier, .Tjipor- tions the re|)resematives according; to the numbers in the States, respec- tively, as vi'iir (i.t min/hi\ If, therefore, a particular process of appor- tionment be adopted, and objection be made to the injustice or inequality of its result it is, surely, no answer to such olijection to say that tlie in- equality necessarily results from the nature of the process. Before such answer could avail, it would be necessary to show, either that the Con- stitution iirescribes such process, and nuilss or numy processes; since, in the enn it is said that this obvions injustice is the neei'ssnry result of the proecss adopted by the bill? Jlay they not say ■with propriety that, since three is the nearest whole number to their exact right, to that number they arc entitle;;ar(letl as an integer; and anytiiiiiii else than tliis is, tiiercfore, called a fraction or residuum, ami cannot be entitled to a representative. Hut uothiiis; of tliis is preseiibeil by the Constitution of the United .States. That Constitution eonteiii- platcs no integer or any common number for the constituents of a nit'iii- ber of the House of IJi'presentativcs. It goes not at all into tiit'sc. subdivisions of the jjopulatiou of the State. It provides for the appor- tionment of representatives amoug the seueml Stntps, nceordinu to tlieir respective numbers, mid sto])S tiiore. It makes no pii>vision fur tlic; represenUition of ilistricts, of States, or for the re|)resenlaliou of any portion of the people of a Stale, less than tiie whole. It snys mitliini; of ratios or of constituent numbers. All these tilings it leaves to Stale legislation. The rigiit wliicli eacli State possesses to it.-* own duo por- tion of the representative [lower is a vStale rigiit, strictly; it bi^loiigs to the State, as a State, and it is to be used and exercised as tiie Slate may see (it, subject only to the coiistitntional (|ualilications of electors. In fact, the States do inako, and always liMve made, dilTerent provisions for the exercise of tliis power. In soiue, a single iiieiiiber is chosen fur a certain delined district, in others two or three members are chosen fur the same district, and in some, again, as New Hampshire, Khode Islaml, Connecticut, New .lersey, and Georgia, the entire representation of the State is a joint, undivided representation. In these last inenlioiieil States, eveiy member of the House of Hepresentatives has for his con- stituents all the peojile of the State; and all the iieople of those Stales are cousc(iuently rejirosented in that branch of Congress. If the hill before the Senate sluiuld jiass into a law, in its present form, whatever injustice it might do to any of those States, it would not be correct to Bay of them, nevertheless, that any portion of their people was unrep- resented. The well founded objection would be, as to some of them at least, that they were not ade'jiiately, competently, fairly re(iresenle 1 ; that they had not as many voices and as many voles in the House of Uepresi'iitatives as they were entitled to. This would be the objeelion. Thei-e would be no unrepresented fractions; but the State, as a State, as a whole, would be deprived of some part of its just riiihts. " On the other hand, if the bill should pass, as it is now jiroposed to be anieiideil, tlu're would be no representation of fractions in any Slate; foi- a fraction supposes a division and a ri'iiiaiiidei'. All that conM justly be said would be that some of these States, as States, possessed a portion of legislative power, a little larger than their exact right; as A I' .:::>:x.] \VKiiST::i: s uicpuirr ox aim'ohtionmknt. 441 it iimst l)C adinittod thiit, should the bill pass unamended, thoy ^vouUl |i(>~si'S8 of that iiowcr much less than that exact rijjht. The same re- ni;iil;.-i are suiistantially true, if applied to those States wliicli adopt the (lislrict system, as most of them do. In ^lissouri, for example, (here will be no traction um-epresented, should the bill become a law in its present form ; nor any member for a fraction, should the amendment |)rcv;iil ; because the mode of apportionment, which assij;ns to each Sinie that number which ia nearest to its exact right, applies no assumed ralins. makes no subdivisions, and, of course, produces no fi'actions. Ill liie one case or in the other, the State, us a State, will have some- tliiii.;' more or somethiuij; less than its exact proportion (jf representative power; but she will part out this power iimouj; her own pc^oj^e, iu either oust', in such mode as she may clioosc, or exercise it altogether as an onlire representation of the people of tlie State. " Wlietiier the subdivision of tlie representative power within any Slate, if tluM'e be a sulidivision, bi' eipial or uni'qual. or fairly or unfairly inaile, Congress cannot ]\Uow, and has no authority io inciiiire. It is ('ii(iii;:li that the State presents her own representation on the floor of (diiiiiess in tlie mode she chooses to present it. If a Slate were to give one ])<)rtiou of her territory a representative for every twenty-live thou- sand persons, and to the rest a representative only for every fifty thou- sand, it would be an act of unjusl legislation, doubtless, but it would be wliolly beyond redress by any jjower in Congress; because the C'on- Btiiiition has left all this to the State itself. . " These considerations, it is thought, may show that the t'onstitulion has not, by an}' implication or necessary construction, enjoined that which it certainly has not ordained in terms, viz., tliat every iMeniber of tin: House shall be 8upi)osed to represent the same uuiiiber of eoiisiiiu- enls; and tlu'refore, that the assuuiiition of a ratio, as representing the Cdnuiion iiuuiber of constituents, is not called fen' by the Constitution. All I hat Congress is at liberty to do, as it would seem, is to divide the wliolt' representative powerof the Union into twenty-four parts, assign- ing niic part to each Slate, as near as practicable aecoriling to its right, and having all subse(|uent arrangement and all subdivisions to the State itself. " If the view thus taken of the rights of tiie States and the duties of Congress be the correct view, then the plan proposed in the amendment is in no just sense a representation of fractions, l^ut sujipose it was otherwise; 8U|)|)ose a direct division were made for allowing a rei)re- Bentativc to every State, in whose poimlation, it being lirst divided by a common ratio, there should be found a fraction exceeding half tha 442 WEDSTKIl's IIRTOKT ON APPOUTIONMENT. [cHAP. VIII. niiioiintof that rntio, wimt constitutional objoction conld be fairly iiiLied as^ainHt siu-li a pi-ovision ? J^pt it be always remembered that the omsi- here supix)Hod provides only for a fraction exceeding tiie inoioty < f tlie ratio; for the committee admit at once that the representation of frac- tions, less than a moiety, is unconstitntional ; because, should a lucm- ber be allowed to a State for such a fraction, it would be certain that her rei)resi,'ntation would not be so near her exact right as it was Ix'foi-e. But the allowance of a member for a major fraction is a direct appiox- imation towards justice and equality. There appears to the Commit- tee to be nothing, either in the letter or in the spirit of the Constitution, o|)p().sed to such a mode of Apportionment. On the contrary it seems entirely consistent with the very object which the Constitution contom- phitod, and well calculated to accomplish it. The argument commonly urged against it is, that it is necessary to apply some one common di- visor, and to abide liy its results. " If by this it be meant that there must be some common rule, or common measure, applicable, and applied impartially to all the Stutpg, it is quite true. Ikit, if that which is intended be, that the poiiul.i- tiou of each State must be divided by a fixed ratio, and all resulting fractions, great or stiiall, disregarded, this is but to take for grantDil the very thing in controversy. The question is, whether it be uncon- stitutional to make approximation to equality by allowing representiitives for major fractions. The alHrmative of this question is indeed donierl ; but it is not disproved bysaying that we must abide by the operation of divisions, by an assumed ratio, and disregard fractions. The (pics- tion still remains as it was before ; and it is still to be shown what there is in the Constitution which rejects ajiproximation as the rule of appor- tionment. Hut suppose it be necessary to find a divisor, and to aliide its results. What is a divisor? Not necessarily a simple number. It may be composed of a whole number and a fraction; it may itself he the result of a previous process; it may be anything, in short, wliich produces accurate and uniform division; whatever does this is a com- mon rule, a common standard, or, if the word be important, a common divisor. The committee refer, on this part of the case, to some oliser- valions by Professor Dean, with a table, both of which accompany this report. "As it is not improbalilc that opinion has been a good deal intluencH on this subject by what took place on the passing of the first act niiiking an apportionment of representatives among the States, the committee have examined and considered that precedent. If it be in point to the present ctse, it is certainly entitled to very great weight; but if it ho AiricNnix.] wr.iisTKu's tikpout on Ai'i-oirnoNAniNT. -148 of (|iK'stioimlile niiplicalimi, llio text of the Constilutioii, ( vc- live nund)ers of the States, will yield tlic; numbi'r and allotment of representatives proposed by the bill.' •'This was all undoubtedly true, and was, in the judgment of llie connniltee, a di'cisive objection against the bill. It is nevertlu'less to be observed, that the other objection coiu|)letely covered the whole ground. 'I'hcre could, in that bill, be no allowance for a fraction, gii'at or small ; because t'ongress had taken for the ratio the lowest nuiiilier allowed by the Constitution, vi/.., thirty thousand. AVhatever fraction 11 State might have less than that ratio, no niendit r could be allowed for it. It is scarcely necessary to observe that no such objection applies to the amendment now proposed. No State, should the amenduuMit prevail, will have a greater number of members than one for every thirty AI'IMAhlX.] WKIiSTKU's i:r.roi;T ox ArPniJTrnXMENT. 445 lliiiii>!;ml ; nor is it likely tliiit the olijcction will ever n;;!ii" of'ur. Tlic wliolc I'oici! of till' i)ri'f(Ml(Mif, wluitrviT it lio, in its npplicatioii lo tlio pii'si'iit cMsc, i-i (Irawii from the otlu'i' olijoctioii. And wliut i.-i tin; true iin|iiii't of tliiit objection? Docs it niciiii niiytliinf; more tliiin that the !i|i|"irti(inmcnt was nc^t miiilc on a common rule or principle, applicable aiul Miiplied alike to all the Stales? •• I'resident '\S':ishin<;ton'rt words are, ' 'I'horc is no one proportion or liivisoi', which, applied to the respective nnnibers of the .Stat( s, will yiiKI the nundier and allotment of re])reHentativi's proposed by the hill.' '• If, then, he could have found a common proportion, it would have rfiiiiived this olijedion. lie required a jn'oporlion, or divisor. These words he evidently uses as explanatory of each other. He meant by ilin'snr, therefoii', no more than by proportinn. AVliat he po,iL;ht was, some common and crpiul rule by which the allottmeut hail lieen made uaiuni^ the several Stall's ; he did not lind such common rule; and on that urouud he IhoU'zht the bid objectionable. " In the ojjinion of the connnittec, \u< such objection applies to the uau'iidun'nt reconuni'uded by them. That amendment {lives a rule, |iliuM, simple, just, uniform, and of universal ap[ilicalion. 'I'he ride li:is l)e('U frequently staled. It may be clearly expressed in either of two ways. T,et the rule be, that the whole luindier of the proposed House shall be apportioned among the several States according to their respective nnnd)ers, giving to each State that number of mendiers whicli comes nearest to her exact mathematical part, or jjrojiortion ; or, let till! rule be, that the population of each State shidl lie divided by a coiiunon divisor, and that, in addition to the number of nu'inbers re- sulling fiom such division, a meudier shall be allowed to each State ttliose fraction exceeds a moiety of the divisor. •' I'.ilher of these is, it seems to the eouiudttce, a fair and ju Coiistitution. nth eil., vol. i, pp. 4!)n, tiVi. Si'i' S(!nal(! Docu- ments, 2M Coug., 1st Sesbiou, vol. ii, No. 93; ililil., No. 9t; il)i(l., vol. ill, No. 12G; ibid., vol. iv. No. 403. CHAPTER IX. VACA>X'IES IN TIIK IIOISK OK KKl'UKSENTATIVES AND liJiSlUNATlONS FROM l.ONUUESS. ^ 70. Vitcanoics in tlio lloiiso of Koiircsciitatives. Tiir, next clause is : — " When Viicaucies happen in the Representation from any State, thu Kxeenlive Anlliority thereof shall issue Writs of Election to fill suci Viu'aiieies." ' 'I'his WHS inserted by the committee of detail and adopted unini- nioiisly npon tlie considei-ation of tlieir report.^ '•Tiie jiropriety of aiiiiptiiit,'' this idiiuse does not seem to have furnislii'd anj' mutter of (liscus-;ion, either in or out of tlie convention. It was ohvious tiiiil tiie power ontrlit to lest somewliere ; and must be exereised either by tile State or national fjovernnient, or by some department tliereol'. Tiie fi'iends of Stite pt)wers would naturally rest satis- tiiil wiih leaviiiLf it witii tlie State exeeutive ; and tiie friends of till' national j^overnment would ae(|uiesee in that arranj.fement, if Dtlier eoiistitutional provisions existed suilleient to preserve its due exeeution. 'i'lie i)rovision, as it stands, has tlie strong rec- oniinendation of pul)lie convenieuee, and facile adaptation to the liaiticular local circumstances of each State. An}' general regu- Lilinn woidd liuve workt^d witli some ineijuality." ^ All interesting question arose in l.SoT. Tiie law of .Mississippi iixed tlie tinn; for the election of representatives in Novemlier. Tiie President having called a special session of Congress to nujet ill Seiitemlier, the governor of jNIissis.sippi. on the 18tli of .June, issued writs f(U' an election in .Inly for two representatives to Congress to fill the vacancies caused by the expiration of the terms §70. 1 Arlicl. I, Soction 2. ••> Story on tho Constitution, 5th ^ XtiKlisoii r .pors, Klliot's Debutes, ed., § 685, pp. 495-4"J9. 2il. '■(!., vol. V, p;). 377, 3'J5. 447 448 VACANCIES AND UKSIGNATIONS. [CIIAP. IX. of the members of the preceding TTouso until supei-seded liy il lose to bo elected at tlie next rcLruhir election in Ni iber At til .July election, (iohlson and Claibonie were elected a'wl cl ti 10 seats. Tl leir claim w as I'et'erred to a eoniniitl je. of wliicli Andi ■c\v IJucl lanau was I'nairnia n, wiu) i-epoi'ti'd in favor of tiicir riu;bt to scats for tli< ill t. riic report s:iid : ' The C oiisti- tiition authoiizcs tiie executive power of tlie States respectively to order tiic tilling of all vacancies wliieh have actually lKi])peiieii, in the mode therein pointed out, no matter how the vacancy niuv liave hi[ipcned. whether by dcatli. resignation, or cxpiratioi^ of tiie tcnri of menilii'i's previous to the elcrlion of their successor),.'' In till! del.ate, John (|)uiiiry Adams slid lie lielieved, in rclilioii to oflices, that every one hajipeiis to lie vacant wliicli is. not full; I, was the lueauin'T and .sense of tiie ("oiisli- and that, lie belicvei tution, whether tlie vaeaiic course of even ts, expiration y occurred from casualty, the regiil; of term, or other cause. The claii ir ants were admitted to their scats. In November following, I'reii- tiss and Wood were elected for tlie same term. At tlie Deceiiilicr tlie resolution deelari (ihols(ni and Claiborne elected injT was rescinded, Init a rc^soliilion was also adopted, by tlie cast vote of .Siieakcr .lames K. J'olk, tliat I'rentiss and Wood wcie not ■mlii Wh Coi iLrress sets ■si!;iiati<)iis from ('onifi'ess. A memlier of neither house of I'arliament can resign his scut. Death, an act of Parliament, and a coiiviclioii of an offense which ■• Minority roport in IScll's c(i8i\ jirc'sciiti'd liy ISoiitUor (ifori!o F. Hour of Mas.s!K!liuH<'tls ariil nil()|it('(l by the Sciiiiti- ; Tiift.'s Soiialc Kli'cllcpri Cases, conlluuccl tiy I'lirlicr, pp. ;i'2- ;13. Sen al.so 1 liart, J). !), .Tiiil i'?i'V«, §77. '> In re Tho lli'pivsciitative Vacaiicy, ir> K, I., cat; cf. In rr Tlin Cont^n-s- .slDiialKlcction, 1.5 K. I., G'J-t. §'••1 liKSKiNATlONS KKO.M CONGUKS-i. 449 opoiMtes as a corniptiDn of tlie lilofxl are tlic only means liy ^^lli^ll tlio seat of a lucnibor of tlic House of Lords can be vacated. A luendiei' of the House of ( niiuiioiis has no junver to resij^ru. Uy .sUitute, however, a seat is vacated l)y tlie aceeiitance of civil ollice.' It is the eustoni, eou.seiiuently, for a member of either ]iarty who wishes to retire to apply to the miuistiy for tlie ap- pdintnieiit to an olliee with nominal emoluments, the stewaid- ffliiji of the Chiltern Hundreds, 'vhose duty formerly was to rc- sliaiii the robluMS in tin.' beech-woods on the Chiltern Hills va riiiikiiii;hamshire. ( )n his receipt of this, his seat is vacated bv (iprration of law. 'i'iie a|)[)ointment is not, however, a matter of (iiiiisc, but lies in ti.e discretion of the ministry; and the applica- tiiiii is I'efused whenever it is considered proper to punish a mem- hi r by (jxpulsion.- .\ different rule prevails in the parliamentary law of the T'lutcd States. A ukuuIk r of either house of Consiress niav rcsitrn his M It at any time by a letter addressed to the governor of tlie Sti-tc wliich lie represents.-' Neither tlie State executive ■* nor the bouse ■' fiiiMi whi(_Oi he retires has the right to refuse to accept iiis resig- iKitien even though proceedings for his expulsion .ii'e pending.'' 'I'lie lesigTiation should be addressed to the State rxeciitivc.' It S 71. '4 Anno, r. H; (j AniiP, o. 7. - Tho rcfiLsiil ill 1H12 to a nicmlior. aK.iiii^l wlioin diiirj^i's of I'oi'i'iipl ('(jii- iliK'l in «n i>l(>('tii>n wci-o pendiuH, "'Viis siiui lo lie iiMpri'ci'dcnIcd. (Cooloy's Hole lo niiu'kKlone, vol. i, p. lH).) ■' Tli(> i-ijjhl of II Keiiiilnr to resign is ri'i(ij,'iiiziMl in till' Cdnstilutioii, .Vrticli' 1, Si'i'ijon H. Tho ri^'lil of ii ri'prescn- tijlivo to resign waasctllcci in William Piiickiioy's Case in 171)1. IJiiilon's AliiiilKiiifint, vol. i, pp. ,'128-;t;i0. See also McCrary on Jileclioiis, 2it ed., §(100; Bledsoe's Case, Tuft's Senate El"i'tiou Cases, oontimied by Fiirlier, p. "3; H. c. CI. & Hall, Kfill ; Mercers Ciise, CI. A Hall, II. M ; Edwards' Case, Ibid., p. tfi. ♦ ISIeilsoo's Case, Taffs S-nate Klec- ticm Casi's, eontiniieij hy I'lirher, p. 7'.'; Dixous Case, ibid., p. l:i. " Mereer'8 Case, CI. A Hall, p. 14 ; Kd- ward.s'CaK), ibid,, p. (iO ; Omj^ressioiial Cilobe, 2.1 Sesidon, 4;lBt Congress, p. 1547. ' rieo iratteson's Case in llie Tliiri.v- nflh Cong! "^s, 1st, .Session, House Ko- ports, No. 179; MeCraryon Kleetii'iis, :id ed., § (iOO; and aiitliorilies I'iti'd /tiipra. .Tilly 21, iscfi, notwillislanding his letter of resignation aikli'essed ti> the govoriior of his Stati'. of which he had noiilled the Ilon-e, Lovell II. ISoiisseaii of Ki'nl iici>., was repri- manded liy the Spi'aUer I'lir his ri«ig- iiation, in pursiiani-e of n reBobilion passed belore, on account of an as- sault made by him upon a fellow member, Josiah 15. CTriniiell of Iowa, (Congressional Globe, 1st Session, H7thCoiig., Tart V, pp. 41)0'.) 4017.] ' Mi'Crary on Eli'clions, lid ed.. J Diio. 450 llKSlfiN'ATIDNS TllOM CONOi; KSS. [CIIAI'. IX. is ncitlicr n(>ct'HSiirv nor proper to adthvss it to tin; lloiiso or Sen- ati!.'* It is t'ustoiniiry for a senator or rcprcjscMitativo to addrus* liis resignation to his {governor, and also to address a letter to tliu presit- ful. ' M-Cnu-y (Ml El.'clions, 3(1 cd., §R0O 9 TM.l., § .T27. 1^ .lounml, 2(1 Session, 4lBt Con- gresH, J). ,173. " llcpoi-l \o. '2r>70, House .ludieiary Coniiiiittee, 2U So.shiou.'lSLli Cougreas. 1- Opinions of Justiees, 70 Jliiiiio, 588, r,!)7. '■' .\ii'hibal(l Dixoii'h Cnso, 'I'iirt's Si'iuili! Kli'cliou CasoB, coutiuiieii by Furber, p. 13. CHAPTER X. SPEAKER AND OTHER OFFUEKS OF THE HOUSE OF K EI'KEiSEXTATI VES. S? 7-. The Spoak^M- of eaeiiinent." ' pvesenlatives s 11 Thelh Ollire Irive tiie so il ither This ( lause, whieli WIS contained in most of tho State eonstitutiops. lirst appeari'd ill tlie report of the committee of diUail to (In convention, and was a lopted without discussi.iii or dis^ent.- The subject of im- |ieai:limeiits will be examined in a subsequent ehajiter, in eonnec- tion with that pait of tho Constitution which provi. ;!77. 395. 3 Infra, Clmiiter XIII. "151 ■ir.i oi'Ki('r.i;s OF iiorsK ov i;i:ri;Ksi:NTATiVKs. [ciiai'. \. Stuarts, till' ( 'niwn's part in tlic sclcctidii w as coiilrollinir, m, | ji^ w;i.s the cusloiu uf llie kin;;' to siifiiify i-i advaiici' the pi'rsoii wIkiiii lie wisliml to have clecteil. As the .strciij^'tli of tlio ('oiuiikims j>'rew, tlifv gradually iiisistoil uiioii llic i'ri'u clioice of their spi akcr, which liiis been cohcimK-iI to tlii'iii siin'e the rci^ii ot' CliarKs II.'' A similar powur of aiiproval was ciaiiiied hy the colonial £(ovi'riioi-s appoiiUcd Ity the ('r()\\ii. It was disjuitcd hy the colo- nial a^sciiililics. hut thiir posvei' to withhold a])[)ro})riatioiis usiiallv made tln'Ui successful in auy contest u^jon the subject which ainse/' In the sham representative institutions set up by Napoleon 1 and III. the executive had the riLjht to name th(,' president of the lower legislative iiouse.'' In the absence of a rule upon tiie subject, llie speaker nnist Ijc elected by a majority vote. In two ca.ses, ho'.ever. sj)eaker.s have been elected by a plurality, after tiie iidoi)tio i by a majority ( f ii rule ])roviding that a plurality might elect.' The speaker cannvit be imjicaclied ; ** liut he may be removed and another chosen in his place at the will of the maj(U-ity of a ijuorum at any li inc.'' lie lia.s "the I'iglit to name any meudicr to perform llit; duties of the ciiair, but sntitutioii must not extend beyond an adjourn- ment ; provideil. however, that in case of his illness he nniy make such a])poinlment for a period not exceeding ten days w ith the approval of the House at the time the same is made; and in his absence and omission to make such aiipointment, the Iiouse shall pr^ rr<"cP(i('nlH, Sd ' ■ , ii, ]ip. 202, 201, 211; linro' -i i.ry of My t)wn Time, vol. i. ) n i; Black- sloni''ri Coiiinii'iilaries, vol. i. p. 181. s III 1720 tlie Massaclii sells .\^- siMiilily waH (lissolvi'd liecausc* thf clainicd Iho rislit to clioose tlieir spnaltrr williout tli(> fjovonior's ap- "f Ui(> Revolt of tlio Amcriciiii Col'i- .lios. Book VIII, cli. ii.) ' lll^Iie, Los Constitutions flc In rranco, pp. 708, HC.H, 1170. ' Journal, li5t Scss. 31st Congres.', .. I.-1O, ](!3; >Tonrn.il, 1st Se!^!i. :tlth a)i!UrPKS, {>]>. 42'.), I.IO, 441. * Fn rr SpoaUerstiip of IIoiisii of Kc- proseiitirfives, l.'i (^ilorado, .'i20 ; H. i'. 2.5 I'ac. Kep., 707; lilcHinrs Tinpi'iii'h- nient Trial, Wliarton's Htati' Trials, p. '200 ; i»/m, § 91. "2 (ii-cy, ISC; ,-) Orcy, IHI. .I.'ffi'i- proval. (Paifi-i'y, Hisloryof New Enp- son's Xliinuul. Sec. IX, ; /h re Sli''Hla'r- land, lfi89-17'27, pp. 27:) 274, .377-:!71); ship of Hoiiso of Keprescntativcs 15 Chalmers, Introduction to tho Hlatorj' Colorado, .'■)20 ; h. c. 25 Pac. Kep., 707. 10 Knle I. •] TIIK SI'KAKKU OK THK lloCSK. 453 ith tlie in liis . sl.;ill in C<.lo- » i\p Ih It is a part nl' llic sjicakcr's fiiiictidiis to autlicn titrate liy liis sit,';iatiin' all l)ills aud resolutions jiasscd In- tlm IIoiiso and all I iininniiiicalioiis ina«l (S.<'.). 2'2 S. K. Itc'p., Hi ; of Comiiioiis (Ui'oJ'a r.irliaiiii'ntary \V,v,,li r. WIkm'Um- (S.C'.j. 2'2S. E. Hop., Rules, p. ;I7, imW). lai. TIk- cfroi't of his .^l^'iuU lire will 'mnil., §:I4, pp. ;10-;18; .see also be i-oiisiilrrcil l;itor. Uoiise liiiles I anil X of Tilid Congress. '- Tliere is no aiiiiral from siK'li u " Rule X of ,")3d CVmgress. 454 ()i'K"'!;i;s OK iiorsi'; ok uhi'Kksicntativks. [ciiai-. x. to iii'l iiH the IcailiT of tlie niiijoritv, with thu iissistain if meiiilit'i' wild is clioscn hv a fiuicus or ussuhr's hv tominoii loii- it til' lu posit ioii 1)1' ii'iidi'i' oil the lloor. Ho tluis is I'L'sjJonsihle for tlie iu-tiou of the IIoiisu, aiid discharges in tliis respect many of the legislative funetioiis of the iiriinu minister under a system of cahinet government. He lias nut, however, like thu latter, any coiitidl over the executive; and his power and that of tlie majnr- ity heliiud him are suiijeet to the checks of the President and tiie couits, as well as of the ui>per house. In llie House of ( '(iiiiiiiniis. Ih ic other liaiu 1. til iker, duriniT the nast centurv, h taine luloplion of the Tw.Iflli Amindiiii'iil lolln' CoM-lllii- tiim. Niitliinilcl llacoii of ViiHinlii, wild WHS tlicn HpcaliiM', niiido up >i,v liis \()ic' tlin in'ci'MHary («ii-llilril« hi faviii- of tlio aniuii(|lniiiil, IIiiIh ills- rp^;.MiliiiK as nin'oiiHill\|||oiiiil llni HiiHKK vitl" Uii'll III foh'H Willi li ^ll■- Imlo lilm to voli- cxicpt in caso (i{ a 111'. (Bonloii, Thirty Yt'ai»' Vl(*w, vol i, p. Its. I Hi'iiry Clay, wln'u spoaki'i- in 1817, votr \ in favor of nn liili'iiial iiiipiovi'iuonlliiU wliirli .M;i'li- mil hail vt'looil. '' llulo I of M\\ Wulrtl'C'is "lili'li wii-* oilnli\aU,v iwlwptoil April 7th, ITS'J. "(VlUi lill.'lil, IMi^OHi aiul Maiiiialof llio Hull's anil rrartlvoof tlui Uouso of Ki'piV'intalivos (1(S93), p. .'>:U. '* Killionni r. Tlionipson. lO;) C.S., IflS; Kii'lli'V r. Carson, 1 Mooiv, r.C, '■' liiiiiliHl r. Alilioll, 11 Ka?l, 1: BraillauKh v. (lossott, 1'2 Q. B. D., 271- ? "••'■•] uriiKi: iKH'si; oki'ickus. 4o5 ^ 7.'i. OIlK-r OilicorN of (li<> Jloiise. 'I'lie otlior Dllicois ()[ llic Ilniisc ol I>t'[ji'L'tii'ittalivoR are .similar ill name and luiictidiis to tlioHe in the House of Commons and tlie Stale lefjislatuics, llm elerk, serpeant-at-iirms, dooikeeiier, post- iiuistfi- and ehaplain, all of wliom are elected hy the House fiom lU'lSdll s not niemhei's, and appoint tlieir suhordiuati Tl ley Ihci after tlie expirati thr ( •liosen and until tlieir sin Tlie chief dutv rif the ouijress at ■which the' sois are cliosei d lali- rk is to k(H"]i till' rccoi'ds of tl le il iic-e and to make the pi'cliininary entries in the jiuiiial suli- jiii to correction by the speaker and the House.'' lie has also, e and statute, the important duty to call tlio jircliniinary hers upon the firijanizatioii of each Congress, and to y lU roll of mem ink il the reserve order and decnle all (]Uesticins lh(^ niilitar' (il'ilcer of the House. His duties are to preserve order, to exe- cule the commands of the speaker against memheis and strangers, ami thus to ju'oteet the House fremi attaek.s from wilhiii and with- init.' In conjunction with tin' sergeant-ai-aniM of the Senate 1 10 oints the capitol [ii House.** d he is al-o tin.' disl lursuig olllrer 11 f duti -f the doorkeeper, postnia >t>'r and cha[il;uii snl'li- ii ntly appear from thvir l\>spective u AH tlies •eat Hi'itii ollicers are, in the Vuited State.- Ithoiig di iiiil ill ■;pons ihle to th e courts loi tre.spasHi'H comniitted ^ 7:i. ' Huh' II of :>M Ciin(,'i\>Bs», ■^ Iiiiil. Utillrs T, ]II. « r. s. Kcv. Si., § ;ti ; r.iii>-in. scc^ sti rn. !} ;t8, over noli' n7; iiifni, Cli. XVI. ' Si'o prooordiiiRs nt llio ornniiiza- tiou ni llio ■llf.l, Ci.ngrcss ami suljsi"- HiU'Mtly n'l'eii-.Ml to Ij.v I 'nil lilli>l(l, WiKiwt and Minninl, cil. of Is'.i;), p. 302. 0'2(! S!. lit L., p. (VI.'-,; Kiilii IV. ' r. s. i{iv. St., § iK'21. «'2C St. (it L., p. (115. » Rules V, VI, VII. i> DurUctl V. Abbott, U Eu.st, 1; 45G OKKIOEUS OK HOUSE OI' KEI'IIF.SENTATIVKS. [("IIAP. X. ill olic'dieiice to the orders of the House." Private citizens wliom thoy have tlius unhiwfully arrested may Ix; tjiiieii from tiicir cus- tody liy till' wi'it of habeas corjjiis ; '^ l)ut it lias been lield tiiat no coiirL has jiower to control the action of the clerk of a legislative house in iiKikiii. Jc^wett (N. II.), 29 All. Kep., i'l'Ji; infra, Ch. XVI. CHAPTEJl XI. TIIK SKXATK. i; 74. TIk' Coiistitiitioiitil I*r»»vi.si«>iis ('(niceriiiii}? tlic Sonntc. Till; Si'iiatu of llic I'liilcd Stiiles is tin; only tippor k'L;islative cliaiiilii'i- ill till! world liiiit lias thu strciiirth to resist the will of the cleutonito for a coiisidcralilc jicriod ol' time. It represents the I'cilcral i)riiiei})le in I he odveinmeiit, and besides its legislative lias iiiijjortiint executive functions. The constitutional provisions conceriiinir the Senate are as fol- lows : — '•Tile Si'iiate of the T'liited States slinll he coiiiposed of two Sena- tors from each Slate, elioseii by tlie I.ey;islatin'e tliereof, fur six Years; and eaeli Seuator shall iiav(! one \'ote. •• iNiinediately after tiiey sliall he asseiiihled in ( 'oiiseqiienee of the tiist Kk'etion, they shall lie divided as e(|iially as may he into three ■('i:iss('». Tlic Seats of tiie Senators of the first (lass sliall ho vacated at the expiration of the second Year, of the second t'lasa at the ex|)ira- tioii of the fourth Year, and of the third Class at the expiration of tlu' sixth Year, so that one-third may ho chosen every second Year; ai.d if \iu'aiieios liapiu'ii hy Henio;natioii, or otherwise, durinsi; the I{ecess of tin' l-eiiislatiiro of any State, the Kxeetitive thereof may make ti'!ii]io- r;iiy Appointments until the next ^Meeting of the I.ejiislature, >\i)ieli 6li:ill then till such \'acancios. " No Person shall ho a Senator who shall not have attained to the Ape nf thirty Years, and been nine Yi ais a Citizen of the riiite(ire, in the ^Vbseiiee of the \'iee-l'resident, or when he shall exer- cise the Ollice of President of the Inited Stales. "The Senate shall have tne sole Power to try all Impeachments. 457 ■i:.8 Till': SKNATK. [rilAI'. XI. M'lieri Hittiii;j for tlmt Piiiposc, llicy wliall l)i' on Oath or Alliniiiuion. Wlion tlu! rri'sidciit of tin; Liiittil SUiU'S is tried, the Chief .liistiri' sluill |irt'si(U' : timl no Person siiall be convieted witlioiit the eoneiiiiiiKT ol' tw'o-tliirds of llie McimIkms |ireseiit. " Jiidiiiiicnt in Cases of Inipeaehnient shall not extend fiiitiicr tliiiii to removal from Ofllee, and disiiualifieation to hold and enjoy any ( lllioe of honor. Trust or I'rolit under the I'nited States: hut the I'arly con- vieted shall nevertheless he liable and subject to ludiclnieut, 'Iriiil, Juds^ment :ind I'unishment, according to law."' The I'resident " sliall have Power, by and with the Advice and ('oii- sent of the Senate, to make Treaties, [novided two-thirds of tlie Sciia- tois presiMit concur, and he shall nominate and by and wilh tlu: Advice and Consent ssary for a choice."''' Tlicsc hi.st j)o\vcrs will be discusseil snl)se(]tiently under the liead of tiie executive. 'J'lie remaJMiiij^ jjurt.s of the Constitution wliicli refer to the Senate do so in connection with the House of Representatives and will he considered in their consecutive order,* § 74. 1 Const ituliou, / rtielo I, Sec- tion :i. - Iliiil., Article It, Section 2; infra. •1 Iliid., TwelfMiAiiioiKbneiit; infra. * The functionH of tlie Si-iiato of the Ki'piililie of Jti'xico, bi'sides lliose wliii'h Jiii'lenisljitive, un! thus delined in tlic t-'()iisliliill()ii (An.. 72, H):-- "Till' e.KtIusive pmver-i of the Sen- ate are : — "a. To ii|>iinivc' ihc tri'iitios and diploriiiilic conveiilions wliii-li the Ex- •■(■iithiMuiiy iimUe wilh forc'lKii powiTS. '■((. To riitlfy tlio niipoinliiieiita ■wliicli the Prosidetit of the Uepuhlie may make uf ministers, diploiiiatie agents, consuls-(5(!ueral, superior cm- ployts of the Treasury, eoloaels iind other superior olllcers of the imlioiial army and navy, on the tonus which the law shall provide. " c. To HUlhorize the Executive (o pencil thedepaitureof iiiitioiial truoiis beyond tlie limits of '!'e llepiiulii', llio passage of forei;;a Vci'Mh throu^'li the national territ T that the E.xecntive may dispose itf the national guard outside of tlieir re- spective States or Territtirics, deter- mining tlie necessary force. s "''J OUICIN. 4.','.) S 7r». <>ri;;iii of the Soiiato. 'I'lic iminoof Seiiiilo is liikcn finin tlic hody wliicli nilcd luiciimt Uiiiue; iiiiil its j)n)lot\jiu was tin; Iiody of soiiior wiiniuis \Nitli Icr the linuiiiii u>t' of itivi' lo ill n 101)8 lli ■, llio 1':- U till' li' 11 "t >v liinri^ f tlio rd. ■r llmt ^ ) f the Uh •ir re- i^> dder- "f. To doclaro, when tlio roiiBtllii- liiin;:! Ii't,'i;iliilivciiiiil (•X('('iUiv it ,1 pruviiioniil (iovcnior, wlio bIiiiII call . loi'tions In ciiiifdriiiily wllli llio ('(•n>i imliiMi.'il laws (if tlio Kaiil State. Til ■ ;.ii;«iiiiiiiii'iiluf (idvi'riior sliull lie iii,.ili^ liy till) rcdcriil Execiitivo with till' a|i| nival uf tlio Spiiato, mid in lis rcns I'H Willi tlio iipi^roval uf tin' P'TiuaMcnt l-'i)iiinilH.>.i(in. Said fiini'- liuiiay f-lmll not lj(>, clccti'd Constitii- liniial < ii.niTiuir 111 Iho i'|i'cliiit ill accdrilauee with ,\rt. 105 ofiliis Constiliitioii." "Art. 105. Th(^ houses t^hall lalio (.'(i-'iiiaiui'O of onU'ial criine.--, llio IIiii-^u of Depiitii>s as a jury of ae- ciiMiiion, the Senators as a jury of juilKiueut. "Tlie jury of aeeusatioii shall have tor lis iilijecl t(, declare, by an aliso- liil'' majority of votes, whether tho nc'u-cd is or is not eulpalile. If the Uetlaialion sliould bo absolutory, the fiau'tlonary shall continue in the e.xorcise of hlx olHco ; if it should be eouileiiinatory, he shall be iiaiiiedi- alely deprived of his olllee, and shnll bo pl'ieed at the disposal of the Senate. Tho latter, formed into a jury of judfjiueiii, and, with tho iireseneo of the criniinal and of the aecuser, if there should bo one, shall iiroeeed to apply, by an absoiiile inajorKy of votes, tho punishment which the l;nv dosiKuates." Those of the Senate of the Kepublio of Coioinbia : — "Art. as. The Senate shall also bo iuvesled with the I'ollov.iiij.; powers: I. To reinstii|e thiis(> who have torieiled tlioir i'ili;',eii'.|i!p. This act of eleineiiey, aeeordin.^' to the ease and eireuinslaiucsof liiin who solicits it, shall have reference only to eleclo- ral iij;lits, or also l.i tho capacity to (111 delorniined putilieonices, or jointly to the e.xereiso of all political rights. II. To appoint two members of tho Council of Slate. III. To accept or decline tho re- signations of the iirosidenl or vice- president or the (lesi^;nato. IV. T'o eonllrm or reject nomina- tions made by the President of the Ito- iniblie of judges of the Supienie Court. V. To coiillnn or reject tho 111 Hilary aiipoiutments made by tho Govern- ment, from the rank of lioulenant- eolonel to that of the hifjhest ofllces iu the army and navy. VI. To ftianl leave to the President of the Kepublic to be temporarily absent from the capital lor oilier cause than sickness, or lo e.xercise his fuuclions outside of the capital. VII. To permit the passage ot ^ ^^. ^ ^. .o3A IMAGE EVALUATION TEST TARGET (MT-3) // // ^ A .^i- V«^ C< <, of the Senate of the Argen- tine; Ilepulilie : - "Art. LI. The Somite shall have the Bol(! power to try in public the oniclals impe.U'hi'd tiy the Chamber of Deputies, and Senators, wlieii silting for tliat ])urpose, shall be sworn. When the inipeaehed olUeial is I'resi- diMil of thra, § 47. •'' Moniii, Rise niid Dovolopniont of till' liii'amcriil Systoiu in Amoricu, JnliiiH Hopkins University Sliidlos, viil. xiil, pp. 211, 2If>. Cliiilmrra, In- Iriiiiiii'lioii to tho HiBtory "f tlu' Ito- vi'il of tlio Aincrii'an OolonicH; Huprit, IS 17, over nolo 27. ' PooroB Charters and Cunstitu- tillllS. ' "Sovoral Slates, sinco tlio war, havo cxporicnocd fho ncopssily of a division of tlid li'gislatiiro. Marylmid was saved from a most, iii'i'nk'ioiis measure liy lier Senaic. A rage for paper money, borcleriiiji on niailnoss, prevalleil In llioir House of Delegates — an emlsRion of £.'iOO,000 was pro- posed ; a sum equal to the elro'ilatlng mediiiiii of tlio State. Had the sum been emitted, every slillliiig of siioele ' lid have been driven from eireu- latloD, Olid most of It from the State. 4!:-. TIIK SKNATK. [ruAV. XI. r»';iMsylviiniii, Georgia and Venuoiit wuro the only Stales to (8- tablisli li'gislaturus with single eiiainbei"s ; and the action of tho foinier was due to the personal preference and inlluence of Knuik- liii. Mis remark that a legislature with two branches wns ]\\:v a wagon driven hy a horse before and a hoi-se behind, in opposite directions, is said to have carried the measure tiirough the consti- tutional convention.^ The subsequent repetition by tiie French Such a liisH woiilil not have bi'cii ro- j>airi'(l ill kovi'H ycais - not to iiicution tlio wlioli' catalojiiKj of frauds which would havt! followed this mfiasurc. Th<; Soiiatc, like honest, ju make every county town in the State the seat of goveriunent, by loUitiou. This foolish resolution would have dlsKnieod school-boys — tho Senate saved the honor of tho State by re- jecting it with disdain — and within two luontlis every representative was asliaiiieil of the conduct of tlie liouse. All pii'ill<; bodies liavo these llts of passion, when llieir conduct seems to bo perfectly boyish ; and in these par- oxysms, n check ishiglily necessary. " I'eimsylvania exhibits many iii- Btances of this hasty conduct. At one session of tho legislature, mi armed forco is ordered, liy a pic -iiii- tato resolution, to expel thescttleisul Wyoming from their jiosschsioiis- -iii a succeeding session, tho same peojili' aroconllrmiHl in their possessions. .\i one session, a charter is wrested fioiii a corporation — at aiioUn'r, resuned. The whole Slate is split into parties - everything is di^cidcd by parly — any proposition from one side of the liouso is sure to be damned by tho otiicr — and when oiio party peicciv4's tho other has llio advantage, they jil.iy truant- -and an ofllcirora mob liiiiit tho absconding members in nil llio streets and nileya in town. Sucii farces have been repeated in I'liiladel- phia — and ihrreal ni: Il.'id Ihcbgis- lature been framed with soiiio olieck upon rash proceedings, tho h lor of tho State wouhl have been saved — the party spirit would have dii'd wiili the measures proposed in the )■ "..'is- latiiro. IJut now, any nu'ii.'^uri^ iiiiiv be carried by party in the liousi'. it then becomes a law, and sows tlio seeds of dissension tiirou(;lioiit lli" state." (An examiuatioii iiilo liie Iciul- iiig principles of the Federal Con-li- tutiou propos'iits from the first, it is mischievous; if it agrees, it is stiper- Hiicius."" The two principal advantages of such a system are the prcvi'ution of tyranny and self-seeking by a single house, and the clu'ck to nvsh, ill-considered measures whicli may be xiHtnm'0 wlilth tlio rn- Fc.iirhcs of thu writer hiivo hwn ablo t, till! Orau«o Fri'o SUito, Sail Diiniiii^'o, Salvailiir. HoinliiraK, (iualB- lii.ila (lii'l (hi! Colony of irilish Coliim- liiatanil Iho history of iiioMt of tliem lias iiol li'inli'tl to coiiimHtiil thi! In- st it ill ion. TluM'oimcllsof Xloulcni'gro iiii'l Aiulorru socm to bi'long to tho c.irl'cr (y[io, wh<'r<) tho votiTs havo (111 iiMiiiiMliato Hharo In loKislatloii. Ill I'iiil'iml representati\"cs of tho {(jiir i'stati'8 arc still owasiionally COIlVoliOll. ''MIltiMi, in his Iloady anil Easy Wiiy to F,st(ililisln> a Frcn Coinnioii- wiviltli, Sir .Taiiic'sMatkliilosli, in Vin- diciai" (i.illii'.-io (§ iv), and Fraiililin in till- lirst Pennsylvania Convention (^ii;ini, over nolo 8 , all men of dyo|) le iriiing and broad |iolllie;il expcrl- onee, woro bollevers In tho advan- tiiKcrtof a Bln^lo lofjislitivo ehamhnr. S) also woro TiirK"t leltor to Dr. 1 ill e im Iho Anieriean Ilevolntlon) niiij till! leaders of ih« French llovolii- tioii. John Sinait Mill cxpressinl a iM-efereuei! for a slnglo chanibor with minority ropresenlatlon ( Eopro- ni'iitalivi! (lovermnent, eh. xili). Hoo al.su thu remarks ot Quldwiu Umilh !u the Uystaudor for May, IhSi), o M.iino's eriliclsm of this nplf^ram in Popular Ctovoriimcnt, p. 178. " Nominnled Sonales are nulli- lioH with a latent possibility for mls- chlof," said (loldwin Smith in tho Ky.itander (Toronto, May, 1880, (inotod by Doutre, Canadian Constitution, p. 07). '■- " I attach little woiglit to tho arRumont oflenost iiifioil lor having two Chamljers — (o prevent proeipi- taney, anl eompel a s<>conil delibera- tion ; for It must bo a very lll-eonsti- tuted represiMilativo assoiiihly In whieh the established forms of busi- ness do not rmiulro many nmro than two deliberations. The consideration which tells most to my jiulgmenl, in favor of two Chambers (and this I do regard as of some moment), is tho ovil offeet proilucod upon the mind of any holder of [lower, whether an in- dividual or an assiMubly, by tho con- seioiisness of having ( iiilly tliiin tlio lower houses. !■' See infra, § KO. '■ See infni, § 80. '" See llaiiio, Topular Oovommpnt, Essay III; ami again Estiay IV, p. 2'2'.l: " N'otlilii)? but an historieal prin- (•i|ile can )io Bueeesrtfully op|K)HPil to tlic piinelplu of making all public liiiwers and all parliamentary assem- lilii's the mere retleet ion of the average (i|iiiiiciii of the iiiiiltituile." Ill ilreiit Britain, Pcuiugal, Prua.sia, liiivMiia. Hungary, Saxony, Baden iiml WiirleinlxTg, the upper ehanibers me lomposed ehielly of hereditary iiii'iiilier.s or those appointed for life er elected to represent an hereditary iliiss; although in Portugal anil Ilun- g.iiv a few members seem to lie eliiiseii by a method of eleetion which iiiiiireetly represents the people. In (iiniiiiiny members of the upper house are iip|ii)inted for each session by the g'lveriinients of the members of the i'iii|iire. In most of the other coiiii- triis and tlie British colonies members ot the upper ehnmberb are appointed for life or elected for a term longer than theassembly, eillier immedinteiy or Indirectly liy the people; with In some coiinlries tlie requirement of a property i]ualillcation. In Italy the senators have a limited choice of new memliers. The practice in New Zealand and .Japan also iiresenia some pecidiarilies. See The Parliaments of the World, NinoteiMith Century for 1894, p. 708.) .John Stuart Mill was in favor of a single chamber with minority representation; but con- sidered that the liest sei'ond chamber would be a liody of men who had held Important otTlccs, or eni]iloynieiit8, legal, political, military or naval : - "Of all principles on wliicli a wisely conservative body, destined to moder- ate and regulate democratic ascen- dency, couhl possibly be const meted, the liest seems to bo that exempllflo vested In those most com- petent, arid who would then bo most inclined to lead 1 hem f(U'\vard in any rigid coui'so. The council to whom tin! task would be intrusted of rec- tifying tho people's niistalces would not represent a class believed to b> oppo-ed to their interests, but would consist of till ii' own natural leaders In till" path of progress. No mode of couiiiosili(Ui could approach to this in giving weight and I'lTlcioucy to their fuMclionof moderators. It would bo impose ibio to cry down a body always foreiuiist in iiroinoliug improvonieiits as ti nuTe obstructive body, what- ever amount of mischief it might obstruct. " Wore the place vacant in England for such a Senate ( I need scarcely say that this is a nn-ro hypothesis), it might be composud of some such elements as the following: All who were or had been members of the Legislalivo Commission descrllicd In a former chapter, and which I icfiani as an indispensable ingredient in a well constlli'ted popular guvcin- ment. All who were ov had been chief justices, or heads of any of ilio :uiperior courts of law or eiiuily. All who had for live years lllled tin* ulllco of imisne judge. All who Inid held for two years any cabinet oOlcc; Imt these should also bo eligilile to ilie House of Commons, and, if clccicd members of it, their peerage or Hiiia- torialolllce sliouhl bo held iii^^uspeiise. The condition of time is intiodiiKMl to prevent persons from being n.iiin il cabinet inluistirs merely to give IImmu a seat in tlie Senate; and llie poiioil of two years Is suggested, that tlm same t(>rni which qualifies tlieiii for a penshm might entitle tliom to a s nii- torship. Ail who had lllled llieotllco of cominander-in-chii'f ; and all who, having commanded an army or a lleet, had been thanked by Parliainent for military or naval succo-iscs. .VII governors-general of India or Hiitisli America, and all wlio had held fer ten yefirs any colonial governoisliip''. The permanent civil service slmulil also bo representeil ; all should be senators who had lllled, during ten years, the important olUces of iiiider- secretary to tho Treasury, peniiiiiicnt under-secret ary of State, or any others equally high and ri'spiuisible. Tlift funeth ns conferring tho senaloiiiil dignity should be limited to these of a legal, political, or military or imvid character. Seieutllloaud llleraiy enil- §70.] PUOCEEDING8 IN CONVENTION. 4«7 government was to be established. On the third active day of till ir .session the resolution, — '• • lliat flic national le(l to bo partial to a single house of le^^islutlou." ' I pin ii subsequent vote. New York, New Jonscy and Delaware Vdicii ugiiin.st the ])roj)osition ; Pennsylvania joined the majority of . fven Status, and Maryland was divided ;2 but the real dispute at tint time was wlietiier the United States should contin.ie as a ednfL'ileracy or be made a nation ; and the minority were iiiHuenei'd by the desire of accomplishing the former rather than by a con- viitiou of the advantages of a single chamber in a initimial i.'dvcrnment. Iiandoljiirs resolutions proposed also that the second luanili be elected by the lirst out of nominations by the State iii'iuo aro too iiidollnito ami (lis])ut- ulili': tlicy imi l.v a power of scli'ctioii, whoicii^i t lio other i|iiulilli'iitloiis speak fnr llu'iiiselvoH; if tlio writings liy wliiili i-cpulation Ims Ihh-u gaiiioil aro iiHi iiiiiiiH'lid Willi politics, tliny are nil I'viil.'iuM; of llie spec'ial (inalilies ri'.|iilie(l, wliile if political tliey would iilldw successive iiiiiiistrb'8 to delu^d 111 • lloiisc with piirty tools. ' (liepn?. Gciiiative fiovcniaieiit, ch. xiii.) It iiiiiy lie doulih'd, wliellier u body i(iiiilio-.c(l of aj^ed and Konty men on till' retired list wliicli would be used lis 11. sli(>lf upon which to lay politi- tiiiiis wlio had outlived tlielr useful- ness or had teiiiponn-ily lost their seats in the lower Ijnise, could bo expect eil to favor any novel measures (if leroiiii or to have any elTect n. ICC. ' Ibid. > See ibid., p. 240, note. 9 Ibid., p. 1G9. Miidli^on siippiirtwl Wilson, liiit would not curry tlio (Icli"- Kation of his Statu. Ibid., pp. 1id., p. 170. 1- 11)1(1., p. 240. " Iliid., p. 1(17. Oouverneur Morris (ilso wiHlicd to havo tho soiiiilors ap- poliiti'd l)y the oxwutlvo. Ihid., p. 272. '• " Mr. Madison. In order to judno of till- form to bo glvt-n to this in- glllullon, It win bo propor to tako a view of tho ends to bo served by it. TlioBO were — llrst, to protect tho pco|il(i nualnst their rulers; secondly, to iirot(H't tho people uKainst the tran- isl(^nt Inipressione into which they tliciiisolves nilKht be led. A people dclilicintlnR in a tomporato moment, mid with tho experionco of other na- tions bi'fore them, on tho plan of (jovcrnnu'ut likely to secure their hiipiilnesH, would (Irst bo aware, that those charged with tho public happi- ness might betray their trust. An obvious ]>rocaut ion against this danger would be, to divide the trust betW(!ou (lllTerent bolies of men, who might watch and choclc each other. In this tiiey would bo governed by the sam l>nidenco which has prevailed In oi- t-Miiiziiig tho subordinate departments (if (,'iivorniuent, where all business 11a- bli^ to abuses is made to pass through sepanite hands, the one being a cheek (in the other. It would next occur to such a people, that they themselves were liable to temporary errors, through want of Information as to their true interests; and that men chosflu for a short term, and employed but a small portion of that in public afTairs, might err from the same cause. This rellection would uaturally sug- gest, that the govermneut bo so con- stituted as that ono of its branches udglit have au opportunity of acquir- ing a comp(!tont kuowbHlgo of tho public Interests. Another reflection e(puilly becoming a people on such an occasion, would be, that they tliem- selves, as well as a numerous body of represenUitlves, were liable to err, also, from llckieuess and passion. A necessary fence agaiiist this danger would be, to select a portion of en- lighlen(?d citizens, whose limited number, and lirmuess, might season- al)ly intoriioso against Impetuous counsels. It ought, finally, to occur to a piHjpie deliberating on a govern- ment for themselves, that, asdifT('rent interests ncc(>s8arlly r("sult from the liberty meant to be secured, tho major interest might, under suddeu im- pulses, be tempted to commit injus- tice on the minority. In all civilized countries tho people fall into difTerent classes, having a real or supposed difference of interests. There will ba 470 THE 8KNATE. [c'llAl', XI. for tlirt!0, otliera aj^.iiii four, and thit of Maryland for (ivo yt-iiis.''' Tlio last had the lij^ht to fill vacancies in its own body.'" 'llio tei'ni of six years was chosen as a ooinproniisc l)etween niiii' anil four, Tlifio was a tic vote upon tlie (luestioii to afjrcc to live.'" Four menihers, ono of whom wius Alexander Hamilton, proposed that the senators should hold their offices for life, unless removed hy inipeaehment.'' <'roil!tor8 nud debtors; farmprs, nior- t'hriii' anil iiiiifiiifactiin-r'*. Tlioro win i.c, piirlk'uliirly, tlio ver, bo rei^anled, even at this time, as ono homojjeneoim muss, in whleh PverythiM« that affeets ,i ])art will affect in tlio same miniier tlio whole. In framing a system wliich wo wish to last for hkos, wo Bliould not lose slglit of the ehauses whicli ago will produce. An Increase of population will of necessity liicroaBo the pioportion of those who will labor under all the hardships of life, and secretly sigh for a more eiiiial distri- bution of its blessings. Those may in time outnumber those who aro placed above the feelings of Imligonco. Acc:iidlng to tlio e(|iial laws of suf- frage, the power will slide into tho hands of tho former. No agrarian attempts have yet been made in this couiilry; but symptoms of a levelling spirit, as wo have understood, have suITlelpntly appeared, in a certain quarter, to give notice of tho future danger. How is this danger to be guarded against, on the republican principles; how Is the danger. In all cases of interested coalitions, to oppress the minority, to be guarded against ? Among other means, by tins ostablishmeiitof a liddy. In tliegovcin- meiit, HuHlclently respeetiible for lis wisdom and virtue to aid, on such emergencies, the prc'iionilerance of justice, by throwing its weiglit into tliat scale. Kui'h being the olijecis of tho second branch In the pioiioscd government, he tlioiight a consider- able duration ouglit to bo given to il. He did not conceive tliat tlio teria cf nine years could tlireaten any real danger; but, in pursuing his ]iiirli('u- lar ideas on the siilijeet, he sliiinlcl reiiuiro that tlie long t(>riii allowed to the Bi'cond branch slioulii not coni- meiice till such a period of life as would render a perpetual dlsiiiiaiili- catlon to tho ri'-elected, ill lie imon- vonleut, either in public or jirivate view. He observed, that, as it was more than probable wo were now illgesting a plan wliidi, in Its opera- tion, would decide forever tiio fate of republican government, wo ouglit, not only to provide every guard to liberty that its preservation could re- quire, but be equally careful to supply tho defects which our own experience had particularly pointed out." (Madi- son Tapers, Elliot's Deliates, 2il eil., vol. V, lip. 242-21.'?.) Sei' supra, § 75. '* Tho Federalist, numbers xx,\ix, Ixiii. 1' Ibid. " Madison Papers, Elliot's Rebates, 2d ed., vol. v, pp. 241-215. '8 The olliers were Bead, Robert Morris, and Gouvernour Morris (ibid., pp. 241, 271, 585). § ''*••] I'KOCKMUNGS IN CONVKNTUlN. 471 'I'lu; provisicill for the I'lccdnli uf iiifliilH'ls Ir, Idtltinii wilH iiddiiU'd uiiiiniiiiouHly iit tlic HU^r^.'osticni nl' rioiliuin ami l!:iiiili)l|ili.''-' I'riiii'.s Friiiiu; of (ioveiiimt'iil for IV'iiiisylviiiii;i liiid iiit)viili'rrowed from the senates of the cities 'mise, sugj^ested l)y Uoger Sherman, as previously de- si riiK'd.22 l-iiiher ^lartin of Maryland wished that the Senate should vote liy States, anil (iouverneur Morris of Peiuisylvania that the inunber fioMi each State should he three; hut neither was ahle to eavy iiKire than the menihei-s of liis own delegation in favor of hia virws.^'' The piovision for the temporary siij)|ily of vaeaneies in the Senate hy the State executives was inserted by the Committee el' 1 )etail in the f illowing form : — '■ Vncnncies may be supplied by the executive until the next meeting (if tlie leijishiture.""* rpon the consideration of their report, — " Mr. ^ladisoM, in order to prevent doubts whether resignations could liv iniulfi \>y senators, or whetber tlicy could refuse to accept, niov.'d to strike out the words after 'vacancies,' and insert the words ' happening liy refusals to accept, resignations, or otherwise, may be supplied by till' legislature of the State in the representation of which such vacancies sliiill happen, or by the executive thereof until the next meeting of the k'^'i.slature.' Jlr. (Joiivernenr Morris. 'I'liis is absolutely necessary; otherwise, as members chosen into the Senate are disqtialilled from be- 1' Iliid., p. 241. ■^ I'oare's rharlers nntl Constitu- tions, vol. ii, pp. ir.20, l:i;i4, lOlO; vol. 1, |i. 274 ; Slovens, Sources of tlie Con- t^tiliilion, p. 78; sui>ra, §4'.), note 9. -' Canipt)ell, Tho Puritan in Hol- laud, Kiiglaud und Auiurica, vol. ii, p. 423 ; Stevens, Sources of the Con- stitution, I). 78. s^ Siipri, §J 48, 64. '■" Madison Pnpers, Elliot's Debates, 2d ed., vol. v, pi.. 356-357. a* Ibid., p. 377. 472 THE SENATE. [CHAl'. XI. ing appointed to any office, by Section 9, of this article, it will be in the power of the legislature, by appointing a man a Senator against his consent, to deprive the United St.ates of hid services. " The motion of Mr. Madison was agreed to iwm. con."^ The other words of this chiuse seem to have heen inserted In- tlie Committee of Style without dlHcussion. The Convontioii eoiisid- ered mid tlisiipproved suggestions that senatoi-s must have a prop- erty qualification,^ that like memliui's of the House of J^ords they should have tlie right to enter their dissents, in all cases, upon the journal,^" that they should choose the President in ciuse of a fail- ure of a choice hy the electors, ^ that their consent should he required to pardons,'® and that they should have the power to declare war ^ and decide controversies between the States.'" The proceedings iis to the presidency of the Senate, impeachments, and the power of that body to concur in treaties and approve appoint- ments will be dcscril)cd latcr.^ The latter were suggested hy the powers of the colonial councils.''^ §77. Senatorial Eloetloiis. The Constitution simply directs tliat the senators from each State shall be " chosen by the I^egislature thereof," ' witliout pre- scribing the manner of the choice. A subsequent provision is that — "Tlie Times, Places, and IManner of holding Fllections for Spntitors and Representatives, shall be prescribed in each State bj' the Legishitiiie tliereof ; but the Congress may at any time by Law make or alter uiich Kegulations, except as to the Places of chasing Senators."'^ For nearly one hundred years after the adoption of the Consti- tution Congress left the matter to the regulation of the scveial States. It was settled by uniform ac([uiescence that the govoMiior of a State, although by the Constitution liis assent was necessary 26 Ibid., p. 396. 26 Ibid., p. 217. Supra, § CI. " Ibid., pp. 407-40S; see infra. SB Ibid., pp. r.07-513. »» Il)id., p. 480. »« Il)id., pp. lUl, 438. " Ibid., p. 379. »■' See ii'fra, §§ 82, 88, and uinler the licnd of tlic exociilivi" power. *' Infra, § 80. § 77. ' C'oiiBtltution, Article I, Sec- tion 3. 2 ConstHution, Articlo I, Scctiou 4, see infra, Ch. XIV. i"-] SENATORIAL ELECTIONS. 473 to tlio unactment of laws, was not a part of the legislature thereof wiicii a senator was to be chosen.'' It was decided hy the Senate tliiit the two houses of the legislature might, by a joint resolution (ii- lule adopted by both of them, without the consent of the f,Mvi'rnor, provide for the manner in which a senatorial election siiiiuld take place; anil that the Stiite constitution cannot limit tlic [lowers of the legislature in that respect.* It seems to have liicii the prevailing opinion shortly after the adoption of the (Con- stitution that a seuatoriid election nuist take place by the joint lutiiiu of both houses of the Icgishiture acting separately.'' The iiicdiivcnienccs of tins metliod were, however, soon obvious, and tiic practice was adojitcil in several States of electing senator's ill J. iiit convention of the two legislative houses in case the houses ill ting separately had failed to make a choice.'' This method was » story on the Coustitution, 5th Oil., §70."). < YiiliM' V. Mallory, Tafl's Soiiato Eli'iiiin Cases, continued liy Furlior, jip. 1-27, 129. Ill that I'liso tho report of tlie Coiiinilttee on Prlvih'Hcs and Kleilions, whieh was presented by Mr. lirlwlil.Bald, at p. l'2i) : "Tho no.xt oli- ji'i'iicm is that it has not thi) forms of law usual in legishillon, tieeauso it is not signed by the ofllcers of each liipiise or approved liy tho Kovernor. Il is a sullleieiit reply to stale that till' ConstitiM Ion doi's not ro(|uire tlio li'ilisliitnro to reijnhite Hie manner of clfi'tion liy law; it may be by resolii- tl'in, either joint or several, or in any oilier method whieh coiniiiaiids tho i^'icementof both houses of tlie legis- la ure. Tho form of action bein^ dis- ir. lionaiy and tho substance rinht, tne o'.ijection liecomes iiiinialerial. T'lc will of tlio two housi's. when arcrtalned liy vote in tlieir respeclivo olmi'ibers, is for this purpose a sulll- ci.'ril hiw, because they alone are eiii- lioHcred to prescribe tho manner of oliniisiiiK in such mode or by such Mil IMS as they please. On this iioint aS;iito Conslilulion can neither lon- tinl nor modify tliiit of tho United States, for the latter is the supremo law." See also Lucas r. Faulkner, ibid., p. 020, ,iifra. note 11, and Oiiin- ions of Ju.stiees, 4,") N. JL, r>',(5 ; Opin- ions of ,Tuil).'es, 37 Vt.,G(l.'i. Supra, § 55, over note (>. " Kent's Commentaries, vol. i, p. 22(1 ; Tho Federal Farmer, Letter 12. This was the cont eutioii of thiv Federal- ists of New York at Hk! llrst senatorial election in that Stale, when they liad n majorily in the Si.iie senate, and their political opponents a nuijority in the lower house and in tho joint assembly. They refused couseiinently to a^reo to an election by a joint ns- senibly aft • didanrcement bciwr.en tho two houses, and proposed that eai'h house sliould then be rei|uired 1o chooso Olio of tho two candidales previously chosen by the other. Tho asseiubiy refused to aHiee to this, and consci|ueii11y New York was not rep- resented in the Si'iiate at tho llrst ses- sion of th(" First T'oiiKrcss (Mcllaster, The Political Depravity of the Fallieis. Atlantic Monthly, vol. l.w, jiii. 628- C2!)). '■ Keul's Coiiiineiitaries, vol. 1, pp. 2211; Slory on the Constitution, 5lh ed., §705. 474 THE SENATK. [CIIAl'. XI. approved hv tho Senate, which recognized an election by a niajcirity of the members of both liouses in joint convention as sulliciiiit, altliongh tliere was no concurrent majority by each house in I'.iviir of the successful candidate.^ It was, liowever, hehl that it was necessary tliat a quorum of each liouse should be present rtheii the candidate was elected ; since otherwise it could not be saiil that he Mas elected by the legislature.' The matter was settKd by Congress in 1806, by the passage of an act for the regulation of senatorial elections as follows: — "The legislature of eacli State which is chosen next preceding the expiration of tiie time for which any Senator was elected to ropiosont such State in ("ongresa shall, on the second Tuesday after the mci'liii!; and organization tiiereof, proceed to elect a Senator in Congress. Sucli election shall be conducted in the following manner : Each house shall oi)euly, l)y a viva-voce vote of eaeii member present, name one pi'irfon or Senator in Congress from such State, and the name of the piTsoa voted for, who receives a majority of the whole number of votes cast in each house, siiall be entered on the journal of that house by tlie elcili ' Simon Cameron's Case, Tafl's SciiaUi Klcrtion Cases, coutiuuod by Furhcr, i>. 108. 8 Ca-rf (if James Harlan, IH.'iT, Taft's Scnati' El«'<-tion Cnncs, contiiiuod by FurliiT, ji. llt'J; but soo tlio otsi' of Fltcli ami li^^'ht, 1S157, Ibid., p. 148. Ill Harlan's case, K.'nalor Bayard of I)c taken to mean tlio individual members of tho li'Kislatiiro or the body or bodies of wliich tho li'Kislaturo is composed. I Bupiioso tho term as used in tlio Con- Blitiition nieaus tlio' bodies of which till) leiti^latiire is composed. Tho honoiable Senator from Georgia, if I npprociato his mnumeiit, insists that the iiower beiiiK delegatod to the lejj- Islaturo is vested in the members of the lej^lslaturo, and that whonovor a majority of tho raembors of the wiiele logisluturo under a law such as tliat existing in Iowa vote for a man lie is elected, though one of tho co-onllnato branches of that legislature may imt vote for him, and may, as n boily, re- fuse to go into an olection. Sii', I liolil it to bo a princiiilo of law which lias, I think, no exception, that where two Integral bodies are authorized to do an act. It cannot bo done without tlio consent of those two Integral liodios. They must both bo present and act in tho matter or there can bo no valiiliiy in thi! act done. This is a uiiiviiMil law. I can call to mind no casewle'in a contrary principle prevails, whether rotating to legislative action or cnr- porale action. Indeed, in rerenni'O to corporations, it has been deciiled over and over again that where tliero are two Integral bodies who must ceii- our In an act they must both be pres- ent and act upon tho matter as bodies, not as Individuals." SENATOltlAL ELKCTIONS. 475 (11' srori'tary thereof; or if either liouse fails to <:ive sticli niajorily to !iny person on that day, thi? faet sliall l)e entered on tiie jo'.irnai. At twelve o'clock meridian of Ihu ut if the siuiie person has not received a majority of the votes in eaeh house, (ir if either house lias failed to take proceedings as reejuired liy this sociiou, the joint assembly shall then proceed to choose, by a viva-voce viite of each member present, a person for Senator, and the person who ivci Ives a majority of all the votes of the joint assembly, p. majority of :ill the members elected to both houses being present and voting, sliall be declared duly elected. If no person receives such majority on the liist day, the joint nssendily shall meet at twelve o'clock meridian of e;ieli succeeding day during the session of the legislature, and shall take Kt least one vote, until a Senator is elected. Whenever on the meeting of the legislature of any State a vacancy exists in the representation of Muli Stale in the Senate, the legislature shall proceeii, on the second Tuesday after meeting and organization, to elect a person to till such v;ie:Micy, in the maimer prescribed in the preceding section for the elec- tiiiii of a Senator for a lull term. Whenever during the session of the leirislatMre of any State a vacancy occurs in the representation of such Stiite in the Semite, similar proceedings to (ill such vacancy shall bo liMil on the second Tuesday after the legislatu''e has organized and has iKitiee of such vacancy. It shall be the duty of the executive of the Siiile from which any Senator has been chosen to certify his election, miller the seal of the State, to the President of the Senate of the I'nited Stiites. The certilicate mentioned in the preceding section shall be eniintersigned by the secretary of state of the State."' Indcr tliis .statute, the Senate has held tliut an election is valid wlitii inad(! in a joint convention by a majority of the nK')nl)er.s of liotli houses, in Uio absence of a (inornni of one of tliem.i" IT. S. n. S., §§ 14-10. The iai- iiM'.'i.-ilo en 11 SO of this le;iisl,'itioii wiis Tiihii P. Sloeldon'sCdfO, T.iffs Sennto El.'l'on C'lisea, continiKvl Ivy Furl ler, |>. '2J('i; where tlio Seniilo ilivMed iiliiMi,t evenly upon tlie (luesllou wlirllipr a plurality of tho joint UB- sembly could elect. >' Cnsn of Jnines U. Eustls, iliiil., p. 4fi4; Davidson v. Cull, lliid., pp. 710- 712. Tho I.ist case overruled a. deel- sloM on till' snlijeet liy til e Slide eourt ; Sliito rx rel. FleiuinK r. Ciinvford, 28 Fin., 411. See SpolTord r. KelloKK; Tuffs Seiintt) Eloelioa ('uses, loiitin- ucd by Furber, p. 471. It was tlio 470 THE SENATE. [chap. XI. AVluTo the Constitution provitled that the legislature in extraonh- nary sussion shoiihl enter upon no husiness, except that stated in tlic proclamation by which it was called together ; the Senate lield that sLiidi a legishiture might elect a senator and till a vacancy, although that object was not stated in the proclamation.'^ opiuion of Souiitor Edmunds that so much of an net as doclaivd what legis- lature hhouUl «lect n senator and au- thorized the election by the legislature in joint convention was unconstitu- tional. " I wish to say one word, Mr. President, about what is called tlie act of CoiiRress of IMGfi. The Constitution provides that Congress may regulate the maimer liy which and the time ut which the legislature of a Stale shall elect a Senator. That Is all the au- thority which the Constitution of the Uniteil States reposes in C'ongr<'ss over that suijject. It says in another place, but in the same connection, that the legislature of u Slain shall ordinarily — I nm not now on the question of lllling vacancies — elect a Senator for a term of tlx years. It names nothing but the legislature of a State to expiration of a term, or how long before or how long after, shall elect a Senator, goes beyond its conslitulional power. I am also of opinion, and I stale II de- liberately, and I believe I have stJited It before, that wli<>n the Congri'ss of the United Stales undertakes to cre- ate u body to elect a Senator which the Constitution of the State has not created, and which is not its legislii- ture, it has gone beyoiul its pinvor. By the constitution, I think, of every State in the Union, certidnly every one that I know of, the legislative power is vested in two sepiirati! and inilependent iiodies, each one of wliich acts by itself and for itself, and llinl Is the legislature of the Stale of which the Constitution of the United Statw speaks when It says that tli(> legisla- ture shall ele<'t a Senator. Theicfi>ro I am of opinion that Congre.Ks has no more power to turn thi! two boilirs, the Senate and House of Representa- tives of a Slate, formed under its own constitulion as two separate biMlies ef different numbers and of dilTeroiit constituencies, into one consoliilatcd body voting per capita, than it lias to de-laro that a town meeting in the State of Vermont may elect a Senater and call that a legislature, liecauso it Is not liy the constitulion of the SUto its legislature. But that is c part fr-m this question, and I shoidd nut havo referred to It only that the act of Congress bus lieen s|ioken of." (Ke- marks of Senator George F. Ednnni(U in Blair's Cane, Congressional iti'cnnl, vol. xvli, Part I, p. 2;t. Tafls Senate Election Cases, continued by Furlier, p. 44. ) 1' Lucas I). Faulkner, Taft's S(>iiate Election Cases, continuear tliat llii> act of the Stale would be void and tlio authority of the act of Congress would prevail. "We cannot see any difference be- tween such prohibition of a Slate constiliitlon applicable to the consti- tutional electors of Senators, who are members of tlie State li>gi-lature, and the constitutional eleclois of repre- sentatives, who are a body of electors aulliorized to vote for nienibeisof the most numerous branch of the Stato legislature. 478 THE SENATE. [CIIAI". xr. Uivm of office of one of wliiuli liiis not expired nntl that of the otlur not begun ; the hitter, if tlie hist elected, siiall ukiet the scuii- toi-.'^ A {)ennaneut organization of a State legi.^hituio is not essential to a senatorial election. It is enough, if a siillitMfiit t'Mnporary organization has been made, to wairant tiie passage (if hills, although no permanent organization lias been made and the secretary pro tempore has not taken any oath of office.'^ " 'i'lie intention of the Congress, as is plainly evident from a consid- eration of the whole act, was to place it out of the power of a majcuiiy of ellhcr house to prevent a majority of the two houses acting to^ethi'i' in joint asscnildy from electing a United States Senator, in a e:ise when' tiiere had been such an organization of the legislature as will eiiaMf it to exercise the ordinary functions of a legislative body, such as om:'(I- ing law3 and making record thereof. Tliis being so, is not the coiulii- sion irresistible that whatever is a 8u(Iieio!it organization to cnalilo a legislature to do the latter should be sutlicient to enable it to elect a, United States Senator? Any other construction would place it in the power of each house to organize so as to enable the legislature to sit its entire session of forty, sixty, or one hundred days, as the case may be, enact laws, and peiforni every fuuetion of its being, save and exci'pt only that of electing a United States Senator, and then adjourn, and yet would place it in the power of a JartiouK majority in citlicr house, the dilatory and obstructive action of which as u minorit;/ oi a whole legislature in res))ect of proceeding with the necessary preliminary steiis toward th(! elec'lion of a United States Senator is the vcr;/ thing above all others the legislation was aimed at, to absolutely prevent (lie election of a Senator by refusing to make that i)ermanont organization which the contestant insists is necessary before the legislature can elect a Senator." '* The word "chosen" in tlie .>-tatuto means the same as the word "elected," and the claim that the legislature is not chosen until "Wo tlicreforc are eloarly of tlio opinion tliat tlio eloon riiv- lli';,'('8 uikI Elect ions, present cil by SeiiMtor Jliteliell of Ore),'on, in CliiH- tjetl V. Diiliois. Tafl's Semite r.lc<'- lioM CiiscB, continued by Furber, p. 601, " Case of Archibald Diekst)n of Keiiluclfy, In 1K5'2, Tafl's Siuiate Elec- tion Cases, continued by Furbor, pp. 13-15. Sen mipra, § 71. " Ilepoit of the Committoo on Prlvilei^'es and Eloetioiis, presented liy Senator Mitchell of Oret;on, in ('la(,'gflt V. Dubois. Tafl's Senate Election Cases, continued by Furber, p. Gd-i. " Case of Elliridjio C. Laphani and Warner Miller, Tafl's Senate Elei'iion Cases, eonti;iued by Furber, \i. COl ; Ilartr. Gilbert, iliid., p. iHi. '-' Loul.-iana Cases, Sjiofford ii. Kel- loKH, Taft'a Senate Election Cases, continued l>y Furlier, pp. 471, 490; Coi-bin r. Duller, il)iil., pp. 511, 541). ■^1 Case of .Tared W. Willianm, Tafl's Senate Election Cases, continued by Furber, pp. '23, 25. But see Cases of Gohlstou and Claiborno an. G04. Soo also case of Pow.'l Clayton, Ibid., p. 348; eases of I'onieroy, lliid., pp. 3;!0 ami 310; ease of George E. Speneer, ibid., 51ij; ease of La Fayello (tiover, il)id., 5(35 ; ease of Jolin J. InKalls, ibid., 59(i. •J3 Case of Alexander Caldwell, Taft's Senate Eleelioii Cases, eonliniied by Fiirber, pp. 330,334: " Looliinv' at the transaelion in its real eliaraeter, it was a sale upon the part of Mr. Carney of llie votes of his i)ersou»l and polit- ieul friends in the legislature, to bo delivered by him to Mr. Ciildwell as f.ir us possible. If it were lenitirnato for Mr. Caldwell to buy off Mr. Carney as a candidate, it was ecpially leHiti- inatt to Ituy off all the otiier candi- dates and have the field to liiin.self, by wiiieh ho would e.xert a Hnoand MeCiirty r. Fitch and Bright, iliiii., p. 148; Louisiana Cases, SpofTord r. Kellogg, Ibid., p. 471. -' Case of David Turple of Indiana, A. D. 1887, Ibid., p. 623. But see Corbln v. Butler, A. D. 1877, ibid., p. 541. M Sykcs V. Spencer, A. D. 1874, ibid., p. 51.'); Louisiana Cases, A. D. 1873, ibid., p. 385: Corbln v. Butier, A. D. 1877, ibid., p. :.il; Ciark and MaHlnnisr. Sanders and Power, A. D. 1890, Ibid., p. 631. " Sykes v. Spencer, A. D. 1874, Ibid., p. 515. 482 TMK SKNATK. [CIIAI'. M. lot box, out of (leftTPnce to certificutes issued frroneously to piMSdiis who \v(>io not cleoti'd." "° 'I'lic iiiithority of tliis lui.s been shiiken by a later deeisioii.'" Wliere States were in insnriectkm and oceupied by military force, tile Senatt; dctenninf'd tliat there eould be no free cliiijct', and tliut, cons(M[uently, tbe action by tlieir respective lej^islatiuvs in elc(tini>' senators was void.'*''' Dnring the Reconstniction, liotli houses (if CoHfrrt's-! ref\ise(l to admit senatoix from States wliicli had ln'cn in insurrection and which had not ratilied the Fouitcciiili Amendment.''** Where senators and representatives Avere (dected before tlie ex- pulsion of their predecessors,*' before the admission of a Territniv into tlie I'nion as a St.'.Le, and before the readinission of ;i Sinic into the Union after Ueeonstrnction, it was held that the adiiii.'siuii related back so as to ratify their election.*'' A senator thus eleiU'ij was not, however, admitted to the Senate after the passage of an enabling act lint before the admission of the State.** It has lucii held that ;u\ election of a territorial delegate before the organizn- tiou of the territorv is void.''" '" Taf L'h Si'iialc Elcrtiou Cases, coii- tiuiii'd by l''urbi>r, p. 521. Seo u lar- ger ({lint itioii from this roixirt, infra, C'h. XVI. "' Clark mill MnKinnis v. Samlprs aiitl Tower, A. D. IH'JO, iljiil., \>. 031, G'.n : " The report on Hykos v. Speneer, (leeiih'd by I lie Senate in 1873, is re- lied iiiioii as supiiortiiiK an diiinioii emit rary to lliat wliieli we have slated. If so, we dissent from it. ]3iit ll is to be remarked that in that case, wliieh was upon an elecliou held less than seven years after the close of the, war, the doctrine of the report is not re- lied upon in the debate. It is further to be oliserved that that ease is to be distiuKuished from this by the fact that there it was conceded that the persons who had not certificates were duly elected." "• Cases of Fislibaek, Baxter and Snow, ibid., p. 202; cases of Cutler, Smith and Hahn, ibid., p. 210; eases of bej^ar and Underwood, iliid., p. '.il 1; siyjra, § 3a. "•' ■Tones and (larland v. IIiDmimIiI and Rice, Ibid., p. 241; Marvin r. (in- born, ibid., p. 24.'); Whiteli-y ami Fiii- row V. Hill anil Miller, iliid., p. 247; Hart V. Gilbert, ibid., p. 2S2 ; siijim. §38. ■'* Case of Willey and Carlile, A. b. 18(>1, ibid., p. 177. ** Case of I'helps and CavanaiiL:!i nf Minnesota, 1 liart., 248; Hail, r. (lil- lierl, Taft's Senate Election Ciisrs, continued liy Furber, p. '282; l!i',v- nolds V. Hamilton, ibid., p. -^'i', McCrary on Elections, 3d ed., S '■210- Contra. But seo case of Blouiil ami Cocke, Taft's Senate Election Cases, continued by Furber, p. 77. ■'" Case of James Slnelds, Taft's Senate Election Cases, contiuuuil I'y Furber, p. 171. ■'" Case of J. S. Cauement, 2 Bart, 51fi. ? ''^■] CLASSIFIf'ATION flK Till: SENATK. ■IX:\ The int'ligibility of the jjcrsou who recuivus a majority of tin- \ litis (hn'S not give tlie election to the candidate with tlie next lii<;iicst number. ^ 78. Classiticatioii of the Somite. The Constitution directs a chissilication of the Senate as fol- liiws : — " IiiiiiiL'diutcly after tlioy shall be nssenibled in Conscqiiciifo of tlic lii'.-l I'.lfctioii, they hIiuII be divided sih nearly us iiiny bo into three t'hissi'g. The Seiits of the Seimtors of the fh-st Ciiiss sludl be vaeati'd !it Ihi' Kxpiration of tlie second Year, of the second Class at theex])';!;!- tiiiii (>r tiio fourth Year, and of the third Class at the expiration of tlie sixih Vt;ir, so tliiit one third may be chosen every second Year." ' On till' original organization of the Senate. May 14th, 1780, a I iiiniiiittce was apiiointed to consider and rejxirt a mode of ciiiry- iiit,' into efYect tliis constitntioiial provisiuii. In accordiinee w illi tlirir report, the senators then sitting were aibitrariiy divi(ie(I into three cli'.sses, the tirst iiududing six ne/nibcrs. and the second ami third, seven each. T'Inee pajiers. iiundicred 1, 2 and 3 re- si'cctively, were rolled up and jiut into a box by the secretary ; luid then one senator from each cla.ss drew a number. The class which (lri!W number 1 vacated their seats at the expiration of the second, the class wlii(di drew number 2 vacated their sciUs at the end of the fourth, and those who drew number 3 at the end of the sixth year. This jdan, on account of the number then pres- ent III the Senate, left tlu; first class, who vacated their seats at the cxpiriition of the second year, one less in number than each of the other two. To prevent any unnecessary incipiality in the classes, when the senators from New York appeared, two lots, one iiuni- heivd 3, that of the small class, and one blank, were placed in the box. After each senator bad drawn a lot, the one who di-cw iiiinilu^r 3 was placed in the small class; and the other di-ew ayiiiii from the bo., containing numbers 1 and 2, taking his place ill tlie class whose nund)er he drew. When the seiiatois from Noilii Carolina ajipeared, there were then two classes of eiiual iiiiiiiluMs, iuul one with a numb Coustitutiou, Artli-le I, Soc- tlie Privileges of tlie Senate, pp. 190- t;on 3. 203. § 7'.'.] VACANCIKH. 4H."> lugisliitiiru, eithfi' tlinmph its failure to uwvt ntU'S tlui tciin fx- ])ins, or Ity iu iiiljonrniiiciit wiliiout an eli'ctioii, tlie liii[)peniiig' iif ;i vacancy wliii;h autliorizcs an apjiDintiiient Ity the Stat« exeeii- tivc .' \u other wortls, is tiu? -.void *• liappcn " in this connection .sviuinynions with tlie word " occur," or ilocH it mean tiie occur- rfiuc of an event wJiich cannot 1k) foreseen and .so provided for liv till' calling of the lejjislatnre in extraordinary session, if that k' necessary, to (ill the vacancy ? Ill snpport of the more restricted moaning of the word "haj)- piii." its advocates rely upon the ordinaiy meaning of the word, wiiicli, it nnist be admitted, suggests that the event was iinox- pfctcd;''' upon the surrounding words in that clause of the Con- - '■ Hut It is Kiiid tlmt tliK word 'hiippi'ii ' dooH not iioccssarily n^for to a ciisiialty or an uuox|io<'tod ovciit ; that in (iiir lauKuaKO wo make uko of that word iiidifforontly for ' ocour ' ' or I'oniK to pasH.' It Is respoi'tfiilly siih- iiiiltiMl tliat tills is not truu. An event that is provldi'd for by law to lakii plucn at statod periods known to all nii'n is not correctly spoken of liy pi'dplc of ordinary education as ' liap- pi'iiiiin,' liccause there Is no element of uncertainty In It. The examples Hivcn of statutes providing for cerUiln thing's to be done on a certain day of aiiii>nlh 'If It happen not oi. a Snu- ilav,' etc.. will not bear out the asser- tion. It Is true that it might be known I" all men who are astronomers, and wimld sit down and makocalculalioiia that a certain date In a certain year wonlil full on Sunday ; but the ^roat masses of mankind do not think of it in that way. They speak as though thi' lliinK were absolutely uncertain. But we do not say, for instance, that any natural event, which all men kuow and look for, did ' happen ' to come at the time on which it was expi'cti'd ; we do not say that the sun ' happened ' to rise on a certain (lay; we do not say that water 'hap- pens ' to How down a descent by the force of (jravity. That Is a known law of nature. We do not sny that Christmas ' happens' to come on the 2.>th of Decenilii'r; by the universal consent of CliiistoiKloni tli.it event comes on that day without i)cnulven- ture. We do not say that a not© ' happens ' to fall due on the day wlih'li Is specllled In the instrument, thou|{h It no doubt Is often said tliat It 'happened' to fall due when the maker did not have the money to jmy It. We do not sny that (.'on(,'rcss liappened to meet on thi'llrst Monday in December, that is the law. Wo do not say that a Scnatoi's term in this liody hap]ieiied to expire on the Hil day of March, for that is the law written In thi> Constitution. We do say, |>er contra, that Senator A. U. ' happened ' to die before his term had expired ; we do say that Si'iiator C. I>. ' happened ' to resii.vi before his term had expired; we do sny that Senator E. F. 'hapiiened' to become illsc|iiall- lled by acceptiun an inconipntlblo oniceorto be expelled before his term had expired, and so on. In the com- mon acceptation of manUind these phrases are used and understood with- out roi'cmTln(j in the nM'cas of tlic Icgislaturoof a Stale, arc <'()iiipi>llc(l to nisort In tlic lU'K"- nicnt (((( inronrpnirnli." (Miiioiity He- port in Loo Mantlc'H C'uhc.) " Ham t'. Mist^ouri, IS Howanl, 12fi ; Tcniiii ks r. S<'!iwaltz, L. II. 3 ('. P., 315; Astibury Ry. * C. Co. v. lliclic, L. It. 7 H. L., (l.")3 ; Countess of KotliOn Kiikalily WiterWorli.sConitiiissioiior.-i, J). L. It., 7 Aijpeal (Jascs, C.tM, 70(!. * '• In apjilying these delinitions and It'gal rules to tlic clause \vc are dis- o^sil>lo to nuiko un idea plain liy tho uso of language. It can not refer to a vacancy occurring by tlio regular expiration of a term. Tlial sugges- tion is excluded by tlio previous men- tion in special words of llioso terniK, provision in like Hpecial words being niado for lllllng tlioin ; tlierel'ore, the next clausu is Independent and en- tirely disconnected from that preced- ing it Inasmuch us it rofcrs and must refer to tho lllllng of a vacancy hup- peidiig otherwise than by the expira- tion of a regular term. Tho enlarging or gonoral words used by the authori- ties must relate to tho same kiml cf tilings to which tho special wcmls relate; they must bo pjuxdvm iji'iirrin. ;is the law says. Now the only pos- sibl(^ kindred lietwecn tho aci'ldmital and tho regular terminal Ion of scua- toiial s(>al is that th(>y are both t'O- r'a;ifiV«, but they are not f;/»«r/cm,';ciim'ji. in that tho one is a vacancy cri'iilcd by law iiiid tho other is a vaciinoy created by aci-idcnt, and a'o eiitiicly dilTerent in their legal offeits. Tli.' ono is a basis for tho exerilsn of executive power, tho other is not" (Minority Keport in Lee Ibmlif's Case.) '■ " A Senator under an oxci'iitlvt' appointment, may or may not ropri'- sent tho political views of his Hiatft Ho nniy bo tho more porscmai favniili' of the govcM'iior. TlieSenatp, asfiirus practicable, shonhl be niado to rcprc- Himt its const ilutlonal constltuem'T, and In this respect should pn'serw tho republican feature of our I'liici." (Minority Report of Comniiltoo ■ . rrivilegea and Elections adopti'ii I'.v the Senate, in I'helpsCasn. TiU'l'sSra ato Election Cases, continued liyFiir- b(>r, p. '20.) « Citing Article V, which provides that "no State, without its cimsent, f,. l-liSll Wi^(; ':' "ll ^h■ 11 I.edc ill I.e Sen; f'on.-iii r. s, ] cpinio V(j| ii, p. r,: \..l Ml, 1). il.i. .,Xu|. vnl. N'i. p. 1 Iliid., 1 Stale kdi ana, 2t •] VACANCIES. 4h: fniiii buing deprived iit any time of iiK full ivjji'cseiitiition in (lie fiiuue. They relj' ii[)()n the iiiactical lonstiuctioii ut' llii! siiiise- (jiu'iit similar langiuii^e that "IIki I'rosident slmll have rower to lill up all Vaoniieios tluit may liap- licii (liMin<» tlie Heeesa of the Senate l)y <;raiitiug ('omiiilHsioim which slmll expire at the end of the next Si'ssion." ' i'liili'r tliis, the power of tlie President to iill vacancies caused by the exiiiration of olhciiil terms during the reeess of the Senate li:;s heeii recognized by statute ; ** has lieen extended in practice, iiiulcT the sanction of nine Attorne^'s-General,^ including Itoger 1). 'ianey,'" afterwards Chief-Justice of tlie I'nited States, to ra-rs wliere the Senate had adjourneil witiiout acting on a uouu- iiaiion to till a vaeanc}' which had occurred during its session; and i. sanctioned by the decisions of tlie Suprinnc Court of Iiiiliana uiuh'r a similar constitutional jirov'sion concerning tiie iKiwcr.-i of tile governor.!' It appears iiy tlu; reports of tlie de- liates of the Federal Convention that the words, •■ by resignation, (ir otherwise," were not contained in tiie fir.-.t draft of the Consti- tinii. IIS rei)ort"d b\' tiie Committee on Detail,'^ and were sulise- i|ii(iilly inserted upon the motion of Madison " in order to prevent (i(iul)l.v whether lesiguations could be made l)y senators." '•' •• W'c hear nuicli of the word 'otherwise." If Mr. .Mailisoii by [irojios- iii','. or the Convention by adopting, tlic words • resiguation. or otlicrwise,' had meant to classify a scries of eases like lesignatioii, why would not Mr. Madison, einiuent in his knowledge of tlie iviglisli language and clear in its expression, iiavo said ' like- wix'".' "'^ The latest precedent was the Montana case of Kee shall lin dopriv. il ot itn oijual Suffrngo in till' Sl'DlUl'." ' ('(insdluliou, Artie].' II, Section 2. »r. «. iii'v. St., s nil!). '('pillions ot Altorncy^-Cti'iu'ral, vol. ii, p. iVi,") ; iliiil., vol. i, p. fiUl : iliiil., viil. iii. p. (17;); iliid., vol. iv, p. ")'23 ; lliiil., vul. vll, p. Ihii; ihiil., viii. X, p. 3'>l\; ilild., vol. xii, pp. ;U, i'>r,; iLiid., vol. X' i, ji, r>'J-i. '•' Iliiil., vol. ii, p. 525. " Stain cj: re/. Vniii'oy r. Flyilo, 121 Ifldiuiiu, 20; tjlulo I'. Golby, 122 ludi- nim, 17. Spo nl.'^o Gormlcy i,'. Taylor, 41 (ia., 7(i ; M'ulsli v, Coiiiiiionwc'iltli, 7 Weekly Notes (Va. S. C. , 21. '- Madison's Papers, Elliot's Do- luites, 2d ed., vol. v, p. 1)77. 11 Il.id., !>. 3'.)C.. .S'H/)m, § 7il. (ivor note 25. " Senator vieorj^e F. EdiiinndH of Veriiiuat, in tlie Deliate on lilair's Case, C'oiiKre.s.siiinal lieeord, Mil. xvl, Part I, p. 23; Tail's Senaie Eieetion Cases, continued liy Fiirljer, p. 40. 488 THE SENATE. [CHAV. xr. Miintlc, decided August 23d, 1893, when the Senate, l)y a vote of tliirtj'-live to thirty, refused to recognize an appointment by tlu; govcrniir, to fill a vacancy caused by tlie expiration of a term, made after the adjournment of tlie legislature, which met after the term liad expired and failed to elect a senator.'^ This decision overruled the majority report of the Committee on Privileges and Elections."' The decisions are so conflicting that the question is .still open. " See the New York World of Au- gust 24, 1H!)3. A motion to rouoiisidiT was (Iffivitcd ou Au},'iist 28, by 28 yeas to HI nays. This was followed in one or two other cases at the same session. i" At that lime, the Senate was engaged in a proionfied cimlost over the repeal of that pail of the Sheiinan Act whith coraiielled niDnthly pur- chases of silver ; and the persons who had been ajipointed senators would have added to the strength of the minority. The previous cases upon the suliject were as follows: In the case of Keusey Johns jf Delaware, in 17'.)4, it was 11 solved by a vote of 20 to 7 that whei-o a session of the legis- lature had intervened l)etwoen the resignation of a senator and the np- pointUKMit by the governor of Jlr. Johns as his sui'cessor, tlie appoint- •ment was invaliil (Taft's Senate EUv- tlon Cases, continued by Furlier, pp. 1,2:. In the case of ITriah Tracy of Conncclieut, in 1801. the Senate, by a liarty voteof i:t to 10, admitted Tracy, who liad been appointed '>y the gover- nor during a recess of the le^iislature to fill a vacamy causeil by the expira- tion of his own previous term (itiid., p. [i). In the case of Samiii'l Smith of Maryland, in 1800, Mi. Smith was admitted to the Senate under similar circumstances (ibid., p. 4). lu ISO'.), Senator Joseph Anderson of Tennessee, and in 1817, Senator John Williams of the same State, were respectively oppolntod by the governor of that State before the expiration of their terms to 1111 the auliciiiatid vacancies until the li'(ris- lature should supply them. Tliey took their seats witliout olijection or dhscussion (ibid., ji. (J). In this case of James Lanmau of C'oniiedi- cut, in 1825, the Senate refused lo admit Mr. Lanmau, who had been appointed by the governor previous to the expiratiim of the term of Ms successor to 1111 the vacancy thus anticipated until the legislature wliii h met a few months later should su|i|ily it. The vole was 23 to 18 (ibid., pp. r>, C'. Whether the ground of the exclusion was thatno vacancy exislcil. or that the executive could iiol supply a vacancy before it hajipeued, Ims been disjuited. (Compare the argu- ment of Senator Vest of Missouri in Blair's Case, ibid., 1)7 3!), with il"' argument of Senator Hoar in the siiiiio case, ibid., 41 42, and the ndiierity report of the Coinmittee ou Privileges and Elections which was approved by the Senate in Hell's Casi-, ibid., jip. Ill ■ 32.) In the case of Ambrose II. Sevier of Arkansas, in 1837, the duratlen of the term of Smier, after his clecliiui, had been determined Viy lot anil c,\- pireil within n less time tliiin ."ix years. The governor, before il« r.\- jiirnlion, appoinled Sevier senator to till thc> anticipated vacancy until Hi" legislature could supply it. The Commit tee ou rrivlleges and Klei- thms approved the decision in L.ui- nian's case, stating: "This decision VACAN(!IES. 48U li st'cms that where the (hiratioii of the term of a senator ia (lilfiniiiiud by lot, but i.s limited to a kiss period than six years. scouis to liuvo boou goufirally no- (Hiii'scoU in bineo thiit tiiin! ; nor is it iiiti'iided by tlie coiumilteo to call its (•()rii>(lii088 in ijuo-slion. Tiio priii- cipii' iisHi'rtnd ill tliiit cnse is tliat tlio ligi-lutiin' of a Stato, l)y malvinsj elce- thMis tlii'iiiHelvi"<, sliall providt! for 111! vacaiicloa wliicli must occur at sl.iiiii unil liuowii ix'iioil.s; anil tliot tlio expiration of a ri'Hular term of siTvii'O is not such ii contingency as is ciiiliracci! in tlu! second section of the llrst article of the Constitution. Tlie I'ase now under cousideratitm is wlmlly dilTerent in principle. The time when Mr. Sevier was to go out nf ellicc> uniler his eleiMlon nnule tiy the l"f,'islature of Arkansas was deci- iled liv lot, aRreeably to the provisions (if llie Constitution on that Bulijecl. .Ub'i- th(> decision tlius made, the li'(;Uliiiuro of Arkansas, not ludiiK In Hl's^ioil, could not supply the vaeaucy ; and the case, in the opinion of lli<< ceiiindlloe, conies fairly within the lirevisioii of tho Constitution con- tiiiiied in tho third section of tlie lirsl article, which declares, 'and if viiciuieies happen by resignation or oilhTwise duriiif? the n-cess of the h'^'i^-lature of any Slate, the executive tlc'ii'of may make teruponu'y appolnl- nii'iits uiilll llie next i Una of the h't;islaturo, which sIkiII then till such vacancies.' The conimiltei> are of oiiiiiiiin lluit Mr. Sevier is entitled to lii-i seat under the executive- appoint- ment of the 17th of January, IMHT." The report of tho comniitlee was sus- tained by a vote of H't to I'.l, Welisler ln'iiiK in tho minority (ihld., pp. 7-!)^. In il (ISO of Charles II. Hell i>r New Haiii|i~lilre, in 1H7'.I, upon tin' expira- liiii of the si'natorl.'il term, two legls- lalnreshad bi'cn ele<'led. The Senate ha'l adopted tho report of llio Com- mittee on Privileges and Elections that the legislature last elected, but tho term of which had not yet begun, was entitled to elect the new si'iiator. The governor appointed Mr. Bell to 1111 the vacancy bet ween tho expiration of his predecessor's term and tho supply of tho same by tho new legis- lature after Us organization. Tho Senate by a vote of .'}5 to 2S, which was not divided upon party lines, rejected tho report of its Conimittoe on I'rivl- leges and Elections and admitted Mr. Bell to the seat (iliid., pp. 2i;-:i5). In the case of Henry W. Blair of Now Hampshiri", in 187!), a similar ruling was niado by a vole of 36 to 20 (ibid., p. lU',;. In tho cas(! of Horace Chilton of Texas, in IK!)], the gover- nor had appoinieil Jlr. Chilton to llli a vacancy occasiouci by the resigna- tion of a senator t)ef(ire tlie period when the resignation took elVecl. The (|uesli(Mi was raised whether tho governor had the power to appoint Mr. Clillton before the lesigiiation took elTcct. The Seiia'i adopted tho report of the Ckimmittee on Privilegi-s and Eli'clions, and ndmllled Mr. Chillon (ibid., pp. 4S ni). The report cited tJH" case of Kohert M. Clinrlh^n of Georgia, who was thus appointed by tho governor. His appointment rr. Precedents of Priviieses of tlie Senate, p. '.i. In IHIH tho Senate soiigiit to revive tlie prac- tice l)y asliing President Madison to attend and coMHult witli tlieui upon foreign alTairs: hut lie declined (Wilson, Congres'-ional Government, p. 231, not 01. In IKIC), when Presi- dent Polk asked tlie advice of the Senate concerning a proposed treaty Willi Great Britain relative to tlio Oregon boundary, ho did so by a secret niessage (lienton, Thirty Years in the Senate, vol. ii, \>. (17.")). Senate Kule XXXVI. ' " ISefore that tiino ttio custom Iiad been to refer to select com- mittees different juirts of tlio Presi- dent's message, and these were practi- cally stuiidiiiK committees. Throe committees e.\isled before ISlfi : 'The Coniiuitlec> on Engrossed Bills, created 111 1HI)(), the Coiiimitteo on Enrolled Bills, which was a joint committee, and the Committee to Audit and Con- trol till' Ctmtingent E.xpenscs, created iu 1807" (Eiirber, PrecediMitsn'lating to Privileges of the Senate, p. 317). « The nomination of Benjumia § HO.] SKXATOUIAL COUKTKSY. 493 mn: of wliich was so bitter tliat it caust-d I'lvsidt'iit rrarfii>li) In fall l)y tiie hand of an assassin ; hut in tlu; main tlie Senate lias tri- umphed. One part of it is firmly estahlislied. Tiie Senate ha.s never eontirnied tlie nomination of ii postmaster a<^ainst tiie will of tlie senator who lived wliere the oIVkx' was situated. It insists that eaeh of its nieniheis shall seleet the man who delivers to him his mail.* The Senate has established the position that it is a continuous body alwa3S in existence, wiiieh does not need a new organization every two yearn nor the recommencement tlien of all business, as does the House of Representatives. •" So the two-thirds who bold over exerci.se the exclusive right to pass upon the credentials and qualifications and to judge of the elections of the new niem- bei's, and disputes concerning what constitutes a prima facie claim to a seat are of little importance." ^loreover, all proceedings upon bills there introduced continue without abatement till their final disposition, and do not lap.se by tiie expiration of a Con- gress.'^ 'I'his permanency of the Senate and the length of its menilieis" terms hi've given it a dignity possessed by no other legislative body now in existence. It is still able to tiansai't business with- out the application of the previous question, or closure, as it is Fishljouriio to tho post of naval olTlcor (if tho port of Savariimh was rcjoctod at tho first Hossion of Iho Senate, August 4, 17H9, "simply Imcaiise tho Goorjjia senators preferred another" ( lieiilon's Aliri'Jgmcnt, vol. i, pp. IG- 17 and notes to p. 17). 'Wiishiiigton protested in B message nominating another to tlie sanu> olllee (lljid., p. 17). ' The last iUustratioii of this prao- tioo was tho concession hy President €levelaiul to Senator Hill of tho selec- tion of the postmaster at .\llmny, New York, in 1S!)5. By insisting upon this principle Charles Sumner secured the appointment of tho historian Palfrey to tho Boston post-olllce liy Lincoln. "> See tho debate in tho SiMiate on the Removal of the Public Printer, in 1841, esi>ecially tho remarks of Sena- tors Buchanan, Allen, Biiyaiil and Silas Wright (CongrossioniiKilolie, vol. Ix, pp. 2;i0-2r)fi). " Il)id., Taffs Senate Eleclion Cases, continued by Furlier. In Indi- ana, where one-half of llie Senators hold ov(>r and two-tliinls coiistitule a i|Uoruiii, and New Jersey, whore two- thirds liold over and the provisions of tho State whieli alTeet the jioini, »io similar to those in the Federal Constitution, it seems that a different rule prevails. (See the opinion of .Irdgi- Niblack in Robertson r. The State cere?. Smith, 10!) Iiul., 7!), 123; State r. Kogers, 56 N. J. Law, 480, 52'J-,'-);ttl. ) '^ Ibid. 494 Tlir: SKNATK. [ 'IIAIV XI. ti'iint'd in iMirope, uiid iiltlioiigli since tlio ailniinistnition of Tv Ici,, Avlieu Clay attenipted to i;iiani,a! tlio rules so as to unable a nnijor- ity to cut olT debate,!'^ numerous efforts in that direction li;ive been made, all bitlierto have failed." The reports of it.s ((Hii- niitteos, especially those on the Judiciary and on Privileges ami Elections, contain discussions of questions of constitutional, statu- tory and conunon law winch are excelled only by the opinions (if tiu' Suitrcnic Court of the United States. There is on the wluili! a stability and consistency in its decisions upon disputed ques- tions involving a construction of tlie Constitution superior to those not only of tlie llousc but of the highest courts of alinosl all the States ; while ui)on the trial of impeachnients it has been proved that a controlling part of its niemlwrs are able to divest themselves of partisanship and act judicially, although the poli- tical factions to which they belong have a vital interest in the result.'" Although there has been no need of its interposition to protect the small from any encroaciunent by the larger States, until the Civil War the Senate was more conspicuously the guanlian of State rights in general. Their advocates maintained the iiositicm that the body was an .assembly of aml)assadors from sovereign States. During Washington's administration. North t-aroliiia directed her senators to execute a deed ceding land to the United States i'" Senator 'I'a/ewell of Virginia declined Jackson's offer .if a place in the cabinet, and said : — " II:iviii<; iK'cn clcctcil n senator, I would as soon think of tiikini: ;i place under (icorge 1\' if I was sent as miuister to Lis court, as I wouiil to take a place in tliu cabiuet." " Insistence has fre(|uently been made upon the right of State legislatures to insliiict their senators in Congress.'* In 18* See Fmlji'r. Pri^codi'iits llelntinR to Privileges of llio Sc'uati", jip. 217- 23(t, luul tlio proci'etlings iu tlio suiii- iiier of 18!)4. i-' Infra, § 90. '■ U. K. St. at L., vol. 1, pp. 100- X09. " .Tames A. Hamilton, Reiuiiiis- (•(^nees, p. i)0. >» Boiilmy, ftudes do Droit Consti- tiitiouiii'l, |ip. Ill), 120. The belief in the rii;lit of iiistnietion to a repre- sentative hy his consliluents was vei y eoiiimoii ill the Tliiited Slates diirin;; the ei.uhteeuth century. Members cif Congress under the Coufedoralion ,< HO ] INSTIiUC'TlONS. 496 .Inliii (^iiiiicy Adams resigned after voting for the cmliargo in ii|i]io.lti(in to the wislies of liis constituents. A senator in lS:i8, iilUT arguing against thu 'J'arift' of Abominiitions, said, "a-i tiie nigin of tile State of Kentucky lie felt liiniself l)onnd to siirriMider liis individual o])inion, and express tiie opinion of liis State."'* Joiiu Tyler, in 183G, before he was President, resigned his place (•iiiisiilcri'ilthoiiiHclvcsljouiKl liy thom. 'I'lir D.liiwurc* iloli'KiitcM to tlio ^^'(l- iTilCdiiviMilioinvon'inMtrurliMlon oni) iniini Elliiil's Dcliiilcs, '2il I'll., vol. v, [1. lliri:. Ni'iirly all till; iiipiiiliorsot thu SiiitiM'oiivt'ntions of nitilW'iition wcro iiisinic'tpil, anil llio voti's of soiuu Vir- Ciiiiiins ill fuvor of riitlllciition anil in violation of tlioir iiialriirtionH liaw lii'on tho pauHo of niui'h roinpliiinl as a lncMch of faith. Tho Lost rrinoiplo, li.v Harliarossa (Scott), pp. ICil-K!!), .\\'\: II, pp. 151»ir.4; Libhy, Cioo- j-'iMpliiral llistrilmiion ofVoti'on tho f.iliTdl Con-stilntion, pp. 77. H7, 94. S'l' also WoriM'slcr JIaHazino, vol. ii, p. 117; North .Vnifiican Kcvicw, vol. iv, p. 22:!, liy J. (K Palficy ; Aincrlcan (JiiartiTly liovirw, vol. v, p. 41; So. Lit. Mo.ss., vol. 11, i)p. 40,5, 530, (S2;i, liH4; vol. ill, p. ;t!»; NIIch' llcj,'., vol. xxviii, pp. my, 200, 210; nciiioiTatii! Kovimv, vol. ix, p. I'M. Hamilton in till' Ni>w York t'onvcntlon, Kliiol's Dcliati's, vol. ii, p. 2.'i2. In Enf,'lan(l thi' ri^ht srnm8 to have bocn ori'a- sionaily rccogiiizcMl, allhoii;,'h it hail Inii^' lii'ciiclisiisi'il in 17H0, whi'n liurko niailc hi.s famous S|)<'rch to tlio cioc- lors of Jiiislol, A papor In Sliaftos- liiiry's hanilwritiii.moiitaiiis "Iimtrur- tioMs for Moinliora of r.-irlianu'nt fiiini- iiiiiiiimI for JIarch 21, lONl, anil to Im hold at O.xford." It lii'^ins : "(Jontlc- ini II . _ Wo have choKon you two our liniili. 1, 1804). ^- Mr. Uryco says: "So far as a strnngor can judge, thoro is certainly less respect for th(^ Senate collectively, and for most of tho senators individ- ually now than there was eigliteou years ago," in 1870. (American Cem- nionwealth, Part I, ch. xil, note. Sec also Thi' Senate in the Light of History, The Forum, Novcmbiu, IsiU.l Tho writer is unable to observe tlmt tho Senate has fallen in public respi'd as much as the House and tho Slate lcgislatU''cK since that time; and ho attributes the dccadcriei! of all to tlio fact that of lalo years the coinitry hiis been so fortunate as to have few po- litical questions of suflicient gravity to withdraw the ablest minds from business euterpri.ses and legid coiitro- voi'sios. "' Furber, Precedents of Privileges In the Senate, i)p. '282-310. Si'c Tho Conduct of Husincss in (^mgress, liv Senator George F. Hoar, North Amorl- can Review, vol. c.xxvlii, pp. 113, 115- 110; infra. ■■'< Seiuitor Hoar boliovea that through the Houso rule which, ui'"" tho report of a couforeuco betwoea ^ so.] GENERAL OIISEUVATIONS. 497 Secure in the confidence tluit tlie poojilc who entrusted tliein willi power will not mistrust tliuir use of it, senators liave heen iiiiiiioved by the threats of thi; IIousi^ to withhold the sujiplies, licl'dic which other second cliamhers have always (juailcd ; ami iiiivc only in a single instance yielded tlitnr judgment to such in- tiiiiidatif)!!.^' They have had more than one contlict with the executive concerning the jin^iogatives that they claimed, of which llic lirst was at the opening of Washington's administration,^' and Ijiil one. President Jackson, has finally triumphed.''^ 'J'heir en- (TiMchnients upon the power of appointment to ollice have sul>- ji lied them to more criticism than any of thidr other actions;'-"' liut llicy have l)een in tlie main successful ; and though they have thus undoubtedly excluded a few wlio would have done good jmb- lic service, and in minor cases liave often comj)elled the a])point- tlio two liodips, allows to Its coiisld- onil 1(111 immtMliiito proci'dciiop of nil ol hiT liiisincss, iiiul no doliatc, thn Seu- iitc has nctually iiioro UiIIikmico upon i|i|ii(iprinliona tlinn tlio Hoiisn whloli oiininiilcs them (itild., pp. IIH, 119). -•' Whon tho.v liiTiiiiUed tlio piis- piijii^ of tho net, of ,Tniii> IH, 1878 (20 Si. al L., p. llf)), in rolntion to tlio usi' of ttic army at* a ;h)«»c romildtim. Sri' ('(IX, Tlirpc DccadcH of F(Ml(-ral Lc-lislalion, p. (VM; hifrii, Ch. XVI, and ."iiiirit, § 4ij. •" Siipni, note 8. President firaiit li.iiil inoro defi'renco to this custom tliiiii pciliaps any otlicr o.xeoutivi!. Fnr a fcccnl history of his .sacMlllco of a ciiliiiict olticcr, in order to olitain Vdlcs in Hup|)ort of tho treaty for tho aniHxation of San Domingo, see How .Tii(l,K(' Hoar ceased to l)o Attorney- 'iciii'ial, by Jacob D. Cox. Atlantin Moiilldy for AuRust, 18!)5, vol. Ixxvl, 1>. b'2. In 18!t3 Senator Hoar said: '■ Wlicn I came into pulilic llfo in IHl'iH, theS(.'Dateclninipd almost entin? tonti'iil of tho exo('utivo function of ai)|"'inlnienttoonice. Every senator, Willi lianl'v an exception, seemed to fancy that the national officers in his SUito wt>re to be n band of political henchmen devoted to his personal fortunes. Wluit was calbid ' tho cour- tesy of thoSenatn ' wasdepimded upon to enable a senator to dictate to the Executive all appoinlmcnts and re- movals in his ti^rrltory. That doc- tiino has disappeared as completely as thclocusts that inf(!stcd K^ypl in the time of tho Pharaohs " lOing- Kccord, nnd Congress, vol. x.\v, p. 137, April 8, 18!)3). Thi.s was before the late conllicl between the Senate and Presi- dent Cleveland. *" In the expunging resolution which is discussed, infra, under the head of the Journal. 2' " The executive department has been crippled ; and tho inlluence and power of Congress, and especially of the Senate, have beconio far (jrciitcr than they should bo under IIk^ system of proportion and baiaiu'e embodied In the Constitution. Dcspit(> Jackson's victory there is, to-day, far more dan- ger of undue encroachments on the part of the Senate than on that of tho President " (Honry Cabot Lodge, Lite of WoDster, p. 230). 4(18 TIIK SENATE. [CHAV. XI. iiieiit (if uiiwortliy (■andiiliitos, in hoiuc noUble iiiHtuiices tlicy liiivf siivi'd Uitj cKiintry from disgract'. The a(!lioii of the Se iiatc upon tioaties has usually l)cen coiisir- vativc, has at times protected tlio iutereHts of the I'liited Stutvs, and lias never caused serious niisciiief. In it« legislative uitidP it iiiis fnililled the hopes of its creator. Tliere has boon mviv sional impatience at it*» deliberations over measures of rclnriu demandeil by a larjje majority of the people, but upon the wlmlo there has been a feelinp that little harm lias been done by tiui delay, while many noxious nieiusures that have passed the IIiiiihu liavo been thus defeat (Morse, .Tef- fcrsoii, p. ll'>7 ' Tiie defeat of the Force Hill is a reci m. iiislaiice. '' An UMieiiilmi;,! to tlie Nebraska eoMstitutioM, ailoplrd in 1875,nator. The viito.s east for such oan- (lldales shall be canvassed and re- turned in the same manner as for State officers." For orguments in favor of sueh an amendment see the speeches of Senators Turpie, Palmer and Mitchell (Cour. Record, Ist Ses- sion, r,'iil fouKress, pp. 70, 12('.7. Win. .11!)2-;U9«. .'1202, 320J, 70.32 i. On llie other side is the speech of Senator Hoar (53d Congress, ibid., vol. .\xv, I-. i;i7). 81 England's last prinu; ininisliT, Rosobery, himself a inembcr ul' tho Mouse of Lords, has said tlml llio St'nato is " the most jiowerfui and eiTlcient Se<'oud Chamber that exists" (Wilson, Congressional Govenuin'iil, p. 228). For discussious of th<' Scnato, see The Federalist, Nund)erH Ixii- Ixvil ; Story on the Coustitiitio;., Pook 11, eh. x; Wilson, Congressional (iov- ernment, ch. iv; Brjce, American Commonwealth, Part I, ch. x-xii; Maine, Popular Goverument, Essay IV. CHAPTER Xn. Tin: I'UESIDENCY AND OTIIEU OIFICKUS OF THE SENATE. {; H I . (JoiiHtitutioiinl ProviNiuiiN coiioernlnt; tlio PreMidency niid Ofllcers «>f the Hoiiatv. TitK Constitution oidiiins : — ••'riif Vice President of tlie United States shall be I'lvsident of llie Semite, Imt shall have no Vote unless tiicy be equally divided. The Senate shall ehuse their other Ollleers, and also a President pro toui- pfiir, in the Absence of the N'iee President, or when he shall exercine the Olllce of President of the United States." • S 82. History of the Provisions ns to the Prosldeiioy and Offl- cerM of the Senate. Tlio presiding officer of the House of Lords is the Lo7(l ('lian- cellor, wlio iiiiiy or may not be a peer, who has no vote unless he lilts a seat there, and cannot enforce order, that power being vested ill the house at large.' In the New York Constitution of 1777, the president of the State senate was the lit'utenant-govcinor, will) was elected by the people in the same manner as the gover- ijor, whom lie succeeded in ease of a vacancy.'' In the Federal Convention the Committee of Detail inserted in their report, without previous instructions, the section : — " The Senate shall choose its own President and other odicers ; " • and another by which tiie president of the Senate was to till a. vacancy in the chief executive office until a new election, or, in the case of a disability, until its removal.* These provisions were § 81. ' Constitution, Article I, Soc- ticii 11. S H'2. 1 Poore'B Charters and Consti- tuti' -18, vol. 11, p. 133G. ^ Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 377. » Iliid., p. .180. ♦ Ibid., p. 401. 499 .■)00 rRESIDENX'Y OE Till!: SENATE. [chap. XII. at first adopted without di.ssent. Tlio election of tlie Pie.sideiit by liie legisliiture was then contemphited. Tlie ollice of \i(f- Piesideat waa invented afterwards us a device which it was believed would secure a better choice in tlie election of a Presi- dent. The reasons for making him also jjresident of the Senate were thus stated by Roger Sherman : — " If tlio Vice President were not to be president of tbe Seniito, lie woiikl be without employment ; and some other member, by bein^ niiule president, mut-t be deprived of his vote, "nless wlien iin vqwA divisiuu of votes might happen in the Semite, which would be but seldom."' § 83. Powers of tlie VIee-PresiOont over the Senate. The Senate has shown great jeah)usy of the Vice-President, and has limited his powers so far as was permitted by the (.'onstitution. The powers to supervise tbe journal ' and to ajjpoint committees with which he was once invested have been taken from liiin.'- ("alhoun, when Vice-President in 18'2tJ, at tlio time when Joiin Randolph of Roanoke was abusing tlie license of debate by gioiis personal abuse, declared that in his opinion he had no po\v<^v to call a senator to (U-der for words spoken in debate." New rules were afterwards adopted, the eonstrnction of which was doubtful as to this point, although in 1850, when the compromise of tiiat year was under discussion and personal controversies not infre- ' Madison Pap«ir», Elliot'H Dobntos, .'id e shall oxanilfieand corriM't tlio jcnii'iialrt lieforo they aro read." 'I'hU nilo was rescindod April It, 1K20 (luihor, rrocodents Rolating to rri\ ll('H('s of tlio Seiiato, ]). 103). ■^ Tlio (•oiiiiiiiltoort wfio originally eloctod by llio Seiiato. Divoiiibor 9, 1823, it was iTsolvod that "all ('Olii- iiiittoos gliall lio aiipoiiilod by Uio pro- viding oltii'cr of this House, unl(>F9 ordorod otlic'i\vis(! by tlio Sonalo." April 15, 1H2(1, Ill's nilo was losi'indod. December 4, 1828, a rulo was adopted by which comniittops woi-o iippointoil by tlio prosidoiit pro Ifmpore, or \\]\on that olllco was vacant, Ijy ballot. Dif- ferent rule.! wore adojitod fiom linn' to tiiiio, liy sonio of wiiicli tho Vico- Presidont was aiitliorlzod to ninki' 111" appoinlnioiits. Tho present rule w.as finally adopted, which provides tliiil nnlesB otherwise ordered, the stand- ing coniniltlees shall be appointed hy ballot in thenianiier therein direrlcil (Rulo XXIV). It is custoiiiary, lidw- ever, to suspi-nd tho rnloaud uppninl them by resolution (Fiii'lier, rrece- dents llelatlng to Privileges of tho benatc, pp. 317, 335-311). 8 Ibid., pp. 118. 119, 121. §83.] I'OWERS OF THE VlCE-l'KEHlDENT. 501 (|iu'nt, Fillmore expressed the opinion that they granted this power Id liini.^ The present rnlos provide: — •• If uiiy Senator, in spealiiug or otherwise, trausgresa the rules of tlie Senate, the Presiding Ollicer sliall, or any Senator may, eall him to order ; and when any Senator shall he called to order he shall sit down and not proeeed without leave of the Senate, which, if granted, shall be upon motion that he be allowed to proceed in order ; which motion shall lie determined without debate." ' The Sc- \te has always refused to iiermit the Vice-President to designate a senator to take liis place during a temporary absence ; l)ut has usually elected by unanimous consent the man whom he selected. * Otherwise the Vice-President or the President pro tempore of the Senate has all the powers usually exercised by presiding offi- cere at the time of the adoption of the Constitution ; including the right to recognize a senator who wishes to speak, and thus to give him the floor, and the right to put the question, so far as they are not limited b^' rules of the Senate which are in conformity with ilie Constitution. In 18114, when Lieutenant-Governor Slieehan liiid refused to put the question as ordered by a majority of the New York senate, that body held that he had thereby abdicated his position for the time, and the (piestion was put by the leader of tiic majority. The New York Constitution of 18!)4. on account of these proceedings, orda" ; that the temporarj- president of the senate shall preside "in case of tiie absence or iuqieaehnient of tiie LieutenantrCJovernor, or when he shall refuse to act as I'resi- ileiit or shall act as Governor." " The senator who thus put the question was chosen by the people to tlie position of Lieutenant-Governor that same year. The Vice-President may give tlu! ciisting vote upon the decision of a contested election to the Senate.* Tiie oftice of Vice-President, with the mode of his election and tlie jiroeeedings upon his succession to the presidency, will be ilis- cussed later. * IbUl., pp. 120-122. '■ Hulo XIX. " Finlier, Precndenta Rotating to I'rivllogeg of tho Senate, p. IfiT. ' Art. Ill, 8oc. 10. May, Law of Parliiuimnt, lOLh ed., |). IHfi. ' Louisiaua Ciisch, Spoffoni i'. Kcl- l"gg, Taft's Senate Election Cases, THE SENATE. [CUAP. Xll. g 84. The President pro tempore of tlie Senate. At the firat session of the Senate, they proceeded by ballot to the choice of a jiresident, for the s ; Furlicr, Pri'ii'dciils UclatiiiK to Priv- Ilegi'H of tlio SpiihIi', p !7t".. * Thn first two of tlic'80 nisolutlonB were adoptwl unanimously; the last by a vote of 34 to IC ; after the rejec- tion of ft proposition to amend the same by nddinR the claiiso; "riitil tho happiviii of tlio oontliigtMii'v jiio- vlded for in lii ■ 9lli Section of tho act of Congress, approvt'd Slanli 1, 17!i2, when lie is authorized to act us Pns- ident of the United States. iJnniiiiry 10th and 12th, 1876, 1st Session, 41th Congre.ss, Journal of Senate, pp. 9i), 99; Cong. Record, 311-31(!, SCO 117:1, Senate lleport, 3 ; Fiirber'sPreccilerils Relating to Privllej,;eH of the Seiinte, l)p. 173 1S2, where all the previ.ni? precedents ujion the subject are ci" leeted.) A State case of doulitfii. authority holds that n pourt iiiny. in an information on the nature of .iquo warranto, determine tiiu Mllu to tho ^ S4.] PKESIDKNT PRO TEMl'OUE. 603 lictoiit for the Seriate to elect a. President pro tempore, who bIiuU hc)! shall not.exteiid lieyoiid an adjournment, I'xecpt by unanimous consent."' " In the absence of the Vice-Presi- dent, and pending the election of a President y.-.j tempore, the Secretary 1)1' the Senate, or in his absence the Chief Clerk, shall perform the duties of the chair." ' Tlie president pro tempore may resign that oflice while retain- iiiL,' his ollice as senator. His resign. 'tiun slionld be adch'cssed to tin- Senate.'* The president pro tempore of the Senate retains liis r;i,dit to vote upon all questions before tlie Senate.'" In tliis, he (litt'eis from tlie Vice-President, who can only vote in case of a tie." The presiding oilicer of the House of Lords can never vote iuless he is a peer.'^ • ' (!ih Irun siMinlo. Sliilo r. Jtiigors, 50 N. J. Liiw, 4H0 ; infra, Vb. XVI. 'Till' ri'Kolution was drnwn liy St'imtor KviirLs iiiid rrportod liy hliii friim tho C'omiiiittco on l'rivih>}jos iind KIocUoiib; and was mloptt'd by tho Si'iialo witlioiit a call of llin yc.-m and nays, lliirch l'2tli, WM) iCinKn'Hsionnl Ki'|i(irl, 1st Sossioii, r)lt.t Coiif^rcss, 21U-2150; Furbor, 1'roi.oUoutB llu- latln^ to PrlvlloRos of tlio Sonate, jip. 18;i, IHH. « Sc'i' Fiirlii'v, Prccodouts Ri'latlng to Privileges of the Scuate, pp. IHO- 1H!>. ' Seimto Rule I. " Iliid. » Furlicr's Procodents Uclntlrig to Privdcfucs of the Senate, 181-lSG. 1" Uesolullon of Jliirch 1!), 1792; Journal of Senate, vol. i, p. 4'2!). " ronstlliition, Artiele I, Section 3. '- May's Law of Parliamuut, 2d od., p. 1%. 504 THE SENATE. [chap. Xll. § 85. Other Officers of the Senate. The otlier officers of the Senate are in general the same as the officers of the House of Representatives, perform similar duties, and are subject to the same liabilities.^ They may be removed at pleasure of the Senate at any time.^ The officer wlio per- ns tlie duties of clerk is termed the Secretary of the Senate. § 85. 1 Supra, § 73. 2 Cliff D. Parsons (Iowa), 57, N. W. Kep., 599. CHAPTER XIII. IMPEACHMENT. g 80. Provisions of the Constitution Concerning: liiipeHcliinent. The remainder of Section 3, of Article I, provides for the trial of iiiiiieachnients. For convenience all the parts of the Constitu- tion which relate to impeachments will be here grouped and dis- cussed together. They are as follow : — "The House of Kepresentativ'es shall chuse their Speaker and other Ollicers; and shall have the sole Power of Impeaclimeut." * "The Sciiiiti! shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Atlirmation. When the President of the United States is tried, the Chief Justice shall preside; uiul no Person shall be convicted without the Concurrence of two-thirds of till' Memliers present. ,Tudgment in (';ises of Iinpeaclnneiit shall not exti'iid further than to removal from Ofllco, and dis(pialiiication to bold aud I'lijoy any Olllce of Honor, Trust or Profit under the I'nited States : Imt tlie Party convicted siiall nevertliolcss be liable and subject to In- ilictiiiont. Trial, Judgment and Punishment, according to Law."'^ "In t';isc of the liemoval of tlie President from Olllce, or of his Deuth, Kesiirnatiou, or Inability to discharge the Powers and Duties of the 8!iid Otilce, the Same shall devolve on l.e Vice-President, and the Coiiirrcss may by Law provide for the Case of Removal, Death, Hesig- iiiition or Inability, both of the President and Vice-President, declaring wliat Ollieer shall then act as I'residont, and such Ollicer shall act aci'oriliny Jury. '« Similar provisions are found in most of the State constitutions, altlioutfli some provide for the impeachment of former oilicei's wlio arc out of office ;" others, tliat the effect of an impcacimu'iit shall be to suspend from otilice the person affected;'* ollici's pre- scrilx! the practice with more or less detail, and in New Yoik there is a special Court for the Trial of Impeachments, wliicli idii- sists of the senate with its president and the judges of the Court of Appeals.^ § 87. Oriifin uf ImpeacliiiientH. Impeachment trials are a survival from the earliest times of jurispruilence when all cases were tried before an assembly of tiie citizens of the tribe or State. Later, ordinary cases, botli civil and criminal, were iissigned to courts created for that pnr|i()st', but matters of great public importance were still reserved for the decision of the whole body of citizens, or subsequently of tlic council of elders, heads of families, or holders of fiefs, 'i'iiis was due i)artly because in eases of this character there was dangir of undue influence in the decisions by the ordinaiy courts ami of resistance to the execution of their decrees, and partly because tliey aft'ccted public as well as private interestjs. In Athens, nil citizens vot«d on the ostracism of a man, which was his exile. In Rome and in most other ancient cities, those charged with (^anitiil « Article II, Section 2. 6 Arlii'lo II, Section 4. « Article III, Soc'tion 2. ' New Jersey Constitution of 1844, Art V, Hec. 11. See Vermont Consti- tution of 17H6, Art. XXI ; and injra. » North Dakotii, Art. XIV, Sec. 190; South Dakota, Art. XVI, Sec. 5 ; Rhode Island, Art. XI, Sec. 1 ; South Carolina, Art. VII, S(^c. 1 ; Texas, Art. XV, Sw. 5. So formerly in ArkansaH and I'loiida. See infra, § 88, note 17, and Apiicn- dix. 9 Art. VI, Snc. 1. Fur iirovisions concerning inipeachments In tho con- stitutions of other countries, scesii- pra, § 77, note. •] ORKilN. MJ (ilTiiiscs liiul tli(! riu^lit to ii trial l)y the people.' The rrrmt coun- cil-, (if the (iei-maiis, in the time of 'J'acitus, tried capitil cases hy ii ]iriiiee(hnfT aiiak)(^()ns to an appeal Ijefore tlie EiiL;lish House of l,ui(l-i.''' Such a])i)cal8 liy individuals seem to have been coiuiuon miller the first Norman kings. In tiie reitrn of Richard II, the l,oi\l Cli.incellor was thus tried on the accusation of a li-]imi)Ufi;er fur lakinf^ bribes in the form of money, cloth and fisli.'"' 'I'liese wiic abolished by tlu; act of 1 Henry l\\ c. ]4.* ^Icauwliile, iiii|irachineuts instituted b}' the Commons ani);n, sec Rot. Pari., Ill, pp. I(t-1'2, 1.53, l.'iC, ; Stcplu'ns, History of tlic Criminal Law, vol. 1, ]ip. 145- 155; Taylor's Origin and (rrowth of the English t'onstilution, p. 442. « 1 Stale Trials, 271. Hot. Pari., V, p. 3fin ; Taylor"! Ori- gin and Growth of the English Consti- tution, p. 412. » 2 State Trials, 1119. 508 IMPEACHMENTS. [chap. XUI. Melville in 180.5." The reports of the trials upon them ahound witli matter of interest to the lovers of literature as well as stu- dents of jurisprudence and histor3\ They describe the degradatiou of Bacon. They contiiin the pathos of Strafford, and the splendid imagery of Burke and Sheridan wliich adorned the trial of Warren Hastings. ^ 88. Proceedings in the Conveution as to Impeiielmient. In the first drafts of the Federal Constitution which were sub- mitted to the Convention, impeachments were to be made by the lower liouse of Congress and tried by the " national judiciary," or " Federal judiciary." ' Alexander Hamilton proposed " all im- peachments to be tried by a court to consist of the chief-justice, or judge of the supreme court of law of each State, provided such judge shall hold his place during good behavior, and have a permanent salary." ^ lake the rest of liis scheme this received little favor. And in the report of the Committee on Detail tlie Supreme Court was given jurisdiction over " the trial of inipeacli- ments of officers of the United States." ^ Gerry then moved that that committee be instructed to report " a mode of trying the supreme judges in cases of impeachment." * Such a report was made, recommending tiiat they be tried by the Senate.^ Gouverneur Morris was the first to point out the danger of the trial of the Pi-esident by the Supreme (^jurt." The subject was again referred, with others which had not been finally determined, to a connnittee of one member irom each State," which re|)orted this jiart of the Constitution in substantially the form that it re- tained.* " Stephens, History of tlie Criminal Law, vol. i, pp. 157-1.59. § 88. I Elliot's Debates, 2d ed., vol. V, pp. 128-131, 188, 190, 192. •' Ibid., p. 205. » Ibid., p. ;t80. * Ibid., p. 447. « Ibid., p. 462. « Ibid., pp. 329, 480, 528. ' Ibid., ]). 503. ' "The clause roterrin;? to the Sen- ate the trial of Impeachments against the President, for treason and bribery was tal, considering the legislative tyniiiiiy tli(> great danger to bo appi v bcuil.Ml ; but there could bo no danger tlial tho Senate would say untruly, on their oaths, that tho President was guilty of crimes or facts, especially as in four years ho can bo turned out. Mr. Pinckney disapproved of mak- ing the Senate the court of iiiipeach- ments, as rendering the President too dependent on tlio legislature. If he oppmeanors ' against, was struck out ; and tlie words ' United States ' unanimously inserted, in order to remove anil)iguity. On the question to agree to the clause, as amended — New Hampshire, Massachusetts, Connecticut, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, ay, 10; Penn- sylvania, no, 1. On motion, tho following: — 'Tlie Vice President, and other civil odlcers of the United States, shall be removed from office on Im- 610 IMl'EACHMKNTS. [cilAi-. x;ii. would render the exeuutivu too woiik and destroy liis indciHiid- eiK'e of the other depiirtnients of the goveruniunt." These ()l)je(!- tors were, howi'vcr, ciisily convinciMl of tlu'ir error, iind of iIk- danger of leaving the power of the President uncontrolled, uml his conduct free from puiushnient until the terniiniition of liis office.'" Indeed, .strong ol)jeetioiis were urged iigain.st tlu; iidop- tion of the Constitution because there W(?re such diflicultius in the way of his conviction on an impeachment.'' A shoiL discMission took jjlace as to wiiat shoidd constitute an imprachahle ofTense. The first definition was "mal-iiractice or ne^dei't of duty." ''^ The report of the Committee on Detail said Inat the Pres ident might he removed on impeachment, and con- viction "of ♦reason, hrihcry, or corrnption." '^ When the report was discussed Colonel Mason first moved to insert after "laihery," "or mr.ladministration," then substituted "other liigli crimes and niisde'.neanoi's against the State;" and finally " United States "for " State," in which form his amendment was adopteil.''* A similar provision as to the imjieachment of other ollicers was addcd.'^ The Committee on Style droppe2H. 529. ) ' Gonvcrncur JIoriiK: "The exec- utive is also to be Inipeaclwible. Tliia is a danKeious part of tlio plan. It will lioUl liini in sncli dependence, that he will bo no check upon the lenisialuro, will not be a linn (jnard- lan of the people and of the public Interest. lie will bo the tool of a fac- tion, of sonio leadinf! demagogue in tlie Icfjislature. These, then, are the faults of the e.xecutive establishment as now projiosed. Can no better eslalilishnient be devised? If lie is to bo till' niiardian of the |)eople, let him be appointeil by the people. It he is to be a cheek on tli(> legislature, let liiui not be impeachable," (Elliot's Be- h&tea, 2d ed., vol. v, p. .3.15.) "Mr. Pinckney did not see the neces-sity of impi^acliments. Ho was sure thpy oughtnot to issue from thelefjislature, who would in that case hold thorn n.< a rod over the executiv<', and by tlmt means elTectually destroy his iinli-- poudencc. His rovisionary power, in particular, would be rendered alln- ftether insipniflcjint." ( Elliot's I)i'- liates, '2(1 ed., vol. v, p. ;)U.) Riifiis King spoke to the same effect (ibid., pp. 341-342). i» Ibid., 340-343, 361, 3n2, 36C. " See Luther Martin's Letlpriil'ifl., vol. 1, pp. 371), 380). !■= Elliot's Debates, 2d ed., vol. v, p. 149. " Ibid., p. 380. " Ibid., p. .'52S, quoted supra, note 8. 16 Ibid., p. 529. it 8M.] HISTOKY. 511 A motion wiw mnde to amend it by adtlinp, "that peraonH im- |ii;i( 111 il 1k! suspended from their oflices until they he tried and iiii|nitted." This was wisely voted (h)wn."' The (Hsorderlv pro- ct'i'diiigs under similar constitutional provisions in the Southern States, in one of which the assembly began by impri... ■ nng tlie (governor in his office, have proved their mis(!hievou8 character.'^ 'I'lie rest of this part of the Constitution was adopted with littlr or no discussion,'* and seems to have been copied from the Niw York Constitution of 1777.'" I'cMirs Frame of Government of Pennsylvania in 1683 pro- viiicil for impeachments by the assembly triable before the coun- uil.-" The charters of the other colonies seem to have been silent uiiiin the subject ; but the colonial asscmljlics, in imitation of the IJii^lish j)raetice, claimed, and in Massachusetts, North and South Carcilina exercised, the power to impeach their judges and other olliccrs for trial l)efore their respective councils.'-" Chief Justice Tnit, in 1717, was found guilty by the Council of South Carolina oil an impeachment by the House of Delegates for "having en- trnisscil the judicial power, by acting as judge of the King's iHiicli, the common pleas, and the a[i. 541, r.42. ■■Mr. Miid- Isoii. The Pri'Hidcnt is made too de- [ifiiili'iit alreiidy on thi- h^nislatiiro l)y till' jiowur of Olio braui'li to try lilm ill coiiispiiuonco of an iiniicaihnii'nl by llio otlior. This iraincdialo Biispon- sion will put him in the power of one br.inih only. Tlicy can atany moment, iu 1)1 iliir to make way for tho functions ot uiiolhi'r who will bo nioro favorable III tlioir vlows, voto a toniporary ro- iiioviil of tho existing magistrate." '' Si'o tlie History of Impi'arhmonts 111 Aikansas and Florida in the Ap- pciiiiix. '• Klliot's Debates, 2(1 ed., vol. v, pp. i;)l, 3S1, 4H0, 507, B2S, 529, 559, .502. '•' N. Y. Constitution of 1777, Art. XXXIII ; Professor Theodore W. Dwight in 6 American Law Register, N. 8., 277. -'" Pc lore's Cliarlers and Constitu- tions, j.p. 15'21, 1.521!, IS'iS, 1,52!». '■" John Adaiiis' Works, vol. v, p. 230; Chiilniers, Inlroduction to tho Historj- of tho Revolt of the Colo- nies, Book VII, ch. xi; Book VIII, ch. xi. See tho Appendix to this vol- ume for an account ot these proceed- ings. •i'- Ibid., Book VIII, ch. xi. See the Appendix to this volume. '-•' See tho Jlassuchusetts Constitu- tion of 1780, Part II, Ch. I, Sect. 2, Art. VIII ; New York Constitution of 1777, Alt XXXIII; South Caroliua ConstltutloQ of 1778, Art. XXIII. 512 IMPEACHMKSTS. [CHAI'. .\!It. under the Confederation in 1780, Judge Ilopkinson of the State Court of A(hniriilty was iinpeacilied l)y the aHseinhly, tried mid ac([nitte(l hy tlie eouneil. Janu^s Wilson, a prominent nieinlK r of tlie l'\'deral Convention, was one of iiis attorneys.''" Montesquieu, wiiose opinioni Iiad great weight with the fruiiicis of tiie Constitution, i)niise(l iiiglily tiie Knglisli system of imiu'iuli- meiil.'-*'' Ahieiiiavclli aseriiied tlie fall of the republic; of Klorcnce to tlio laek of a law for the inipeaehment of eitizens who platted against it.^' 'J'ucker .sai. Kcasoiis for the Trial of Iiii|M^aeliineiitM by the Hoiiafe. 'J'lie selection of the Senate as the tribunal for the trial of ira- I)eacbmcnts has been the target of severe criticism both before' and since the adoption of the Constitution.^ The defense of the method adopted may be best stated in the language of Hamilton, Story and Kawlc. " A well-constituted court for the trial of impeachments is an ol 'ect not more to be desired tiian dilllcult to be ol)tained in a iroverniiieut wiiolly elective. The subjects of its jurisdiction are those offences which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust. They are of a nature which may witii peculiar propriety be denominated I'oi.niCAi,, as they relate chiefly to injuries done immediately to the society itself. Tlie prosecution of them, for this reason, will seldom fail to asjitate the passions of the whole community, and to divide it into parties inoie =* Seo Appendix. '■"' Montesquieu, De I'Esprlt lies Lois, livro xl, ell. vi. 20 History of Florenee. 2' Tucker's Blaekstone, vol. 1, Ap- pendix, 348. § 89. > Seo Lutlicr Jliirtin's letter, Elliot's Debates, 2il eil., vol. i, pp. 379-380. 2 8oe Tucker, Blaekstone, vol. 1, Appendix. ^H'X] RKASONH FOIt TIIIAI, IX TIIK SKNATK. r)13 or Irs.s frii'iully «t inimical to tiio acciisi'tl. In iiiiuiy cuhcs it will coh- iHct ilrti'lf witli the iiri'-pxisfiiiii fiiPtions, iiiid will piilist nil tiicir (iiiiindsitics, piiitialitii's, inlliu'iu'i", iiiiil iiitiTCHt lial, it may be asked, is the true spirit of the institution itself? Is it iKil desiiined as a method of National Inqukst into the conduct of |iulilie men? If this be the design of it, who can so jiroperly be Ihe iiKluisilois for the nation as the representatives of the nation them selves? It is not disputed that the power of originating the inquiry, (ir. ill other words, of preferring the impeachment, ought to be liiilueil ill the bands of one branch of the legislative body. Mill not the reasons which indicate the propriety of this arrangement strongly pli;i(l for an admission of the other branch of that body to a share of llie iiKpiiiy? The model from which the idea of this institution has been borrowed, pointed out that course to the eonventiuii. In (ireat Uritain it U the province of the House of Commons to piel'er the iin- peaoliiiient, and the House of Lords to decide upon it. Several of the State constitutions have followed the examide. As well the latter, as the former, seem to have regarded the practice of impeacliments as a hridle in the hands of the legislative body upon the executive servants of the government. Is not this the true light in which it ought to be regarded ? " Whore else than in the Senate could have been founded a tribuniil sufficiently dignified, or sulllciently independent? What other body r,u IMI-KACIIMKNTS. [CH XIU. woiilil l)c likely to foel cotijiilcnce cnninjh in its mm nitiidtimi, to prcsc rvo, iiiiiiwcd I'.iicl miiiilliieneeil, the iiccosaury iinpaitisility lu'twcon an /»'//- ridiiiil acouscil, and tliu ri'iiri't-cntdhrcs of tin' jii'ii/ilc, liis iiccnsi'rs.' " ('()\il(l the Supreme Court hiivc been lehed upon as answeriiiir tins desciiption? It is nmeii to be doubted, wiiether the nienilieis of tiiiit tribunal would at all times be eudowed with so eminent a portinn of fortitude, as would be called for in the execution of so dillicull a tiisk; and it is still more to be doubted, whether they would jjosscss llie degree of credit and authority, which might, on certain occasions, he iiidis])ensable towards reconciliii!! the people to a decision that slimilil happen to clash with an accusation brousiht by their immediate rcprc- seutatives. A deficiency in the first, would be fatal to the aecuseil ; in the last, dangerous to the public traiKpiillity. The hazard, in Imili these respects, could only be avoiiU'(l, if at all, by rendering ilml tribunal more numerous than would consist witli a reasonable iutcnliim to economy. The necessity of a numerous court for the trial of iiii- pcachments, is equally dictated l)y the nature of the proceeding. This can never be tied down by such strict 'ules. either in the delineiitioii uf the offence by the prosecutors, or in tlie constriietion of it hy tin' judges, as in conmion cases serv to limit the discretion of courts in favor of personal security. Tiiere will be no jury to stand between lii' judges who are to ()rc>noiince tiie sentence of the law, and the ]iarly«liii is to receive or sulTer it. 'i'lie awful discretion which a couit of i.ii- l)eacimients must necessarily have, to d'-om to honor or to infamy llif most coniidential and the mostdistingi slied characters of the eoinnm- uity, forbiils the coimnitment of tlie trust to a small number of persons. "These considerations seem alone sullicieiit to authorize a eonilii- sion, that the Siii)ri'ine Court would liav(! been an im|U(>per siilistiluti' for the Senate, aa a court of iin])eachments. There remains a furllicr consideration, which will not a little stiengthen this conclusion. It is this ; The punishment which may be the consequence of convictinn U))on impeachment, is not to terminate the chastisement of the olTemliT. After having been sentenced to a perpetual ostracism from the eslci'ni and confidence, and Iionors and emoluments of his country, he will siill be liable to prosecution any making tlie same persons jiiiiges in both cases, those who mi^ziit hap|)en to be the objects of indscciition would, in a great measure, be deprived of tlie double secu- riiy intended them by a double trial. The loss of life and estate would often be virtually included in a sentence which, in its terms, iin- ]MiritMl nothing more than dismission from a iircscut, and disqualilica- tion for a future, ollice. It may be said, that the iulerveution of a juiy, in the second instance, would oliviate the danger. l!ut juries are fir(|iieiitly inlUicnced by tin; opinions of judges. They are sometimes iiiiliiecd to find siiecial verdicts, whicli refer tlie niai.i (luestion to the li, isioM of tlie court. AVho would be willing to stake his life and liis i-iMte upon the verdict of a jury acting under the auspices of judges 1 had lucdetermined his guilt ? • Would it have been an iinprovi'iuent of the plan, to iiave uiiiled Ihr Supreme Court with the St nate, in the fonnatioii of the couit of i:ii|icaeliinents? This union would certainly have been attended with sevi>ial advantages; but would they not have been overbalanced by the sinnal disadvantage, already stated, arising from the agency of the same judges in the doid)le prosecution to which the olTcnder wouhi li(> lialile? To a certain extent, the benefits of that union will be olit uned fniiii making the chief justice of the Supreme Court the jiresideiit of the point of iiupeachinents, as is pniposed to be done in the ]ilaii of the eciiiveiition ; while the inconveniences of an entire incorporation of the rnniier into the latter will be substantially avoided. This was peihaiis the prudent mean. I forbear to remark upon the additional ])retext fill elaiiior against the judiciary, which so considerable an ;'iig;neiitalion iif ii!< authority would have atT'orded. "Would it have been desirable to have composed th< court for the tri;il of impeachinents, of pers(nis wholly distinct fiiim the other de- partinenls of the government? There are weighty arguiiieiits, as well :i<.'niiist, as in favor of. such a plan. To some minds it will not appear ;i trivial objection, that it could tend to increase the coiniilexity of the I'lililieal machine, and to add a new spring 1o the government, the iitilily of which would at best be (piestionable. Itiit an objection which will iKit be thought by anj' unworthy of attention is this ; a court for iin'd iiliiin such a plan, woidil cither be attended with a heavy expense, or iiiiuht ill practice be subject to a variety of casualties and inconviMiieiices. It must either consist of perinaneut ollicers, stationary at the seat of :;1(! IMl'KACII.MKXTS. [('MAI'. .\!ir. Liovi'i-iinient, iind of course entitli-d to fiNi'd ami rpirular stipoiul.s, or of CLTtaiu ollirers of tlio State liovci'iiinentsi to be calU'il mioii wlieiu-wr ::n iinpeiicliiiienl was actually depiMidinu'. It will not lie easy to imaiiinc any tliird modi; UMtcrially dilTereut, wliieii coidd rationally he ])ro|ioseil. As the eoiirt, I'oi' reasons already iiiveu, ou^iit to lie luiinerous, the lirst sehenie will l)e rei)rol>ated by every man who can ooinpare the extent of the public wants with the means of sui)[)lyin<; them. 'I'he seeoiiil will be espoused with caution l)y those who will seriously consider the en."' " A review of the princiiial olijections that have appeared afjainst tlio l)roposed court for the trial of impeachments, will not improbalily eradicate the rcTnains of any unfavorable impressions which may still ex'st in resrard to this matter. " The ^'/'.si of these objections is, that the provision in the (pu'stion confounds legislative and judiciary authorities in the same body, in violation of that inii)ortaiit and well-(\slablished maxim which reipiircs ;i separation between the different departments of power. The true meaning of this maxim has been discussed and ascertained in another l)lace, and has been shown to be entirely compatible with a |)arfi;ii intermixture of those de[)artments for special pnrposei preserving thi'm, in the main, distinct and unconnected. 'I'his partial inter- mixture is even, in some cases, not only (irrtper but necessary to llie nnitual defence of the several members of the government against each other. An absolute or (pialilied negative in the executive upon the acts of the legislative body, is admitted, by the ablest adepts in politiciil science, to be an indispensable barrier against the encroachments of the latter upon the former. And it may, perhaps, with no less reason bo contended, that the powers relating to impeachments are, as before in- timated, an essentifll check in the liands of that body upon the en- ' The FcdcriihHi, No. Ixv. § «•'•] Till-: FEDEllAI.IST. r.i7 HAT. x!ir. cn>:iclimuiits of the exoc;;tive. The division of tiiem betwcon tlio two bi;i'.]('l)os of Ihe li'j^islature, assiL'iiiiiii; to one the rijrlit of accusing, to the otliiM', tiie riijiit of juili;inir, avoids tlic ineonvciiicnoe of making the sanii' persons both accusers and judges ; and ginuds against tlie danger of persecution, from the prevaleucy of a factious spirit in either of those l)ranches. As tlie concurrence of two-tliirds of tlie Senate will he re- (jiiiMte to a condemnation, the security to innocence, from tliis addi- tional circuinstauce, will he as complete as itself can desire. " It is curious to observe, willi what vehemence this part of the plan is assailed, on the principle here taken notice of, by nien who profess to admire, without exception, the constitution of this Slate; while that Constitution makes the Senate, together with the chancellor and judges of the Supreme Court, not oidy a court of inipeaehnients, but the highest judicatory in the State, in all causes, civil and criminal. The jiroportion, in point of numbers, of the chancellor and judges to the senators, is so inconsiderable, that the judiciary authority of New Yoik, in (he last resort, may, with truth, lie said to reside in its .Senate. If tlie plan of the convention be, in this respect, chargeable with a dp])artiire from the celelirated maxim which lias been so often men- tioned, and seems to be so little understood, ho" ich more culpable must be the constitution of Xew Vorkr^ " A second objection to the Senate, as a court of impeac-hments, is, that it contributes to an undue accuiiiiilation of power in tli;it l"Mly, teiKling to give to the government a couatenance too aristocratic. The Senate, it is observed, is to have eoiieiirrent authority with tlie Kxecii- tive in the formation of treaties and in the appointiiienl to olllecs : If, say the objectors, to these i)rerogatives is added that of deciding in all eases of impeachment, it will give a decided predominancy to senatorial iiilhience. To an objection so little precise in itself, it is not easy to liiid a very precise answer. Wliere is the measure or criterion to whicli w.' can appeal, for deterniining what will give the Si'uate too niucli, loo little, or barely the proper degree of inthience? Will it not he more safe, as well as more simple, to dismiss such vague and uncertain calcula- tions, to examine each jtower by itself, and to decide, on general prin- ciples, where it may be deposited with most advantage and least incon- venience? " If we take this course, it will lead to a more intelligible, if not to * " In tlinl of New .Jersey, also, tlie ami Houlh CaniUrin, , to secure the equilibrium of the national House of Keiiresentatives, the plan of the convention ha.s jirovided in its favor several importiuit counterpoises lo tiie additional authorities to be conferred upon the Senate. The exclusive privilege of orignudiiig money bills will belong to the House of Representatives. The same house will possess tho sole right of instituting inqjeachments : is not this a conq)lete counterbalance to that of deternniiiiig them? The same house will be the nnqiire in ail elections of the I'li'sident which do not unite the suffrages of a niaJDi it}' of the whole number "f electors; a case which it cannot he do'dited will sometimes, if not fie(picnlly, happen. Tlic constanl pos- sibility of the thing must lie a fruitful source of inlluence to that body. 'I'he more it is couteinphited, the more inqxjrlant will appear this ultimate though contingent power, of deciding the competitions of the most illustrious citizens of the I'nion, for the first ollice in it. It would not perhaps be rash to predict, that as a mean of inlluence it will be found to outweigh all the peculiar attributes of the Senate. "A tliint objection to the Sena <• as a court of impeachments, in drawn from the agency they are to have in the appointments to oHiee. It is imagined that they wciuld be tuo indulgent judges of the conduct of men, in whose olllcial creation they had participated. The principle ■"i '^'•'•] TiiK Fi;i)j:i:.\i.;sT. :>\i) v( this oliji't'tiou would I'oiiih'iiiii :i piaolicr, \vlii<'li is to he sci'ii in nil tiic Slate govci'iiineuts, il' not in :ill liu' uovornnji'iits willi wlii I.' we lu'c iin|uaiiit(Ml : I iiionii tliMt of I'l'nilii'iiii; llioso who liold olliecs (luiiii;!; lihiisiiro, tli'iK'ndent on tiii' i)lt':isiiri; of tliosi' who appoint llu'ni. Witli ((|U;d phiiisibiliiy mifjlit it W. alli'i;i'd in lliis case, tlial Ilic favoritism of liii' latter would always" '"' an asyhiin for the niishehavior oaclnnent8, is derived from its union with the Ksecutive in tlie power of making treaties. This, it has been said, would constitute the Senators their own juilges, in every case of a corrupt or perlidious i20 IMPEACHMKNTS. [chap. XUI. execiUion of that trust. After haviug combined with the Execiitivi- in lii'trayiii^ tlio intort'sts of the nation in a ruinous treaty, wiiat prospect, it is asived. would there be of their being' made to suffer the puuisiniiL'iit tiiey would deserve, when they were themselves to decide upon the accusation brought against tiiein for the treachery of which they have been guilty? "Tliis objection has been circuhited with more earuesluess and with greater show of reason than any other which has appeared against this part of the plan ; and yet I am deceived if it does not rest upon an erroneous foundation "The security essentially intended l)y the Constitution against cor- ruption and treachery in the formation of treaties, is to be souiiht for in the numbers and characters of those who are to make tlieni. '1 he .lOiST AdKNTY of the Chief Magistrate of the Union, and of the twu- thirds of the members of a body selected by the collective w isiloin of the legislatures of the several .States, is designed to be the pledge for the fidelity of the national councils in this particular. The convention might with propriety have meditated the punishment of the Executive, for a deviation from the instructions of the Senate, or a want of iiite;;- rity in the conduct of the negotiations committed tiy him ; they niiirht also have had in view the punishment of a few leading individuals in the Senate, who should have prostituted their influence in that body as tli^ mercenary instruments of foreign corru|)tiou ; liut they could nut witi more or with eijual propriety, have contemplated the impeachment and punishment of two-thirds of the Senate, consenting to an iMipni|iir trei ty, than of a majority of that or of the other branch ' '^'•'•] .lUDGK STOUY. 521 '•So fur !i8 mij;lit concern the misbehavior of the Executive in per- vert iiij; tiie instructions or contravoiiiiiii'iiu' Coiiit, if nil apiieiil to it v.in' not iillowablo, woiihi liave veiy ^ruat weijfht upon the iiiiuds of iiiri'iiur jiidiit's. J5iit that part of the reasoning which is addressed to tlu' im- poilaiice of niiiiihers in giviii"; weijjiit to tiie decision, and espeei;illy that wiiich is adthvsscd to tlie public coiitidenee and respeet which onjiht to follow upon a decision, is entitled to very great wc^ight. It is iit, liowcver, to give the answer to the whole reasoning by the othir side in the words of a learned coinineutator, who has embodied it wilii no small share of ability and skill. The reasoning ' seems,' says he, 'to have forgotten that senators may be discontinued from their st'iii.i merely from the etfect of popular disapprobation, but that the ju(l;j:f.s of the Supreme Court cannot. It seems also to have forgotten tlmt, whenever the President of the United States is impeached, the Coiisli- tution expressly requires that the Chief Justice of the Supreme Court shall preside at the trial. Are ail the coiilidence, all the firmness, iiiiil all the impartiality of that court supposed to be concentred in the Chief Justice, and to reside in his breast only? If tiiat court could not be relied on for the trial of impeachmeiits, much less would it seem worthy of reliance for the determination of any question between llie United States and : particular State; much less to decide upon the life and death of a person whose crimes might subject liiiii to impeachnn-iit, but whose intluenco might avert a cimviction. Vet the courts of tlic United States are by the Constitution regarded as the proper trilmiwils where a jiarty convicted upon an impeachment may receive that coiulisiii punishment which the nature of his crimes may require; for it must not be forgotten that a person convicted upon an impeachment will iievor- theless be liable to indictment, trial, judgment, and punishment aoeord- iiig to law, etc. The question, then, might be retorted : can it be siip- jKJsed that the Senate, a (lart of whom must have been either jxnV/ii/is criiiiiiii-'i with the person impeached, by advising the measure for wliicli he is to be tried, or must have joined the opposition to that measniv, when proposed and debated in the Senate, would be a more iiidepemU'iit or a more unprejudiced tribuiial than a court composed of judges hold- ing their ofHces during good behavior and who could neither be presuiiii'il to have participated in the crime, nor to have ])rnjudged the eriminal? " "This reasoning also has much force in it; lint in candor also it muBt bo admitted to be not wholly unexceptionable. That part which 'Ibid., §7G0, citing Tucker's Blackstoue, vol. i, App., p. 237. T'''-] •UJIXiK STOItV. y2ii i- ii.idri'ssed to tlic ciri'iim;'liiiK'(' of tln^ Cliicf .Iusli('i''s pi'Cf.iiliiii.' !it llui tii^il of till! I'rosiili'iit; of tin; liiitcil Stalfrt wtis (;i.s wi: •■.luill liiTi'.'ifU'r >,■.) not foiiiuli'il on liny Mil)liositioii tliiit the Chief .Inst ice wonlil In' sm|io- rini- III coufKlcncf iind lirnincssiuul iini);irli;ilit_vto llio I'csidncof llir jmlut'S (ihouiih ill talents and imbiic ivspcct and aiMiniicnicntri iii" niii;lit fairly lie piTsunied their superior), bnl on the necessity of exolndinii; tin' \'ic'e- rrc^iiUnit from tiie chair when lu' rniiiht have a manifest interest whicii Wdiild destroy iiis iniiiarliality. Tlial pari wiiicli is aihlresse.d to tiie supposition of thu Bouators he'w^ /xirlirijies criininis ia still more ex- ci plional)le ; for it is not only ineorreet to alllrin that the senators iiri.tl lie in such a predicament, but in all probability the senators would, in !ilii!()st nil cases, he without any participation in tlie offence. Tlie (ilieiices whicli would be generally prosecuted by impeaclunont wouUl lie those only of a liiLth cliaracter, and belonging to persons in eminent stnlions, — such as a head of department, a foreign minister, a judu'e, !i vice-president, or a president. Over the conduct of such persons the SciiMte could ordinarily have no control; and a corrupt combination wiih them in the discharge of the dniies of their respective- ollices could scarcely be presumed. Any of these ollieers might be bribed, or CDinmit gross misdemeanors, witliout a single senator having the least knowledge or participation in the olTence. And, indeed, very few of tile senators could at any time be presumed to l)e in habits of intimate ji.'ivoiial confidence or connection with many of thesi,' ollieers. And so l':ir as public responsibility is concerned or public coiilidence is required, the tenure of ollice of the judges would have no strong tendency to si'ciM'e the former, or to assuage public jealousies so as peculiarly to I'lUDurage the latter. It is perhaps, one of the circumstances most im- 1111! lant in the discharge of judicial duties, that they rarely carry with tliiiii any strong jxipular favor or popular influence. 'J'he iulluence, if M!iy, is of a dilVercnt sort, arising from dignity of life and conduct, iilisiinence from political contests, exclusive devotion to the advance- ment of the law, and a linn administration of justice; circumstances winch are felt more by the profession than they can bo expected to be pnised by the public."' "There are, however, rcasoiw of great weight besides those which liMve been already alluded to. whicli fully justify the conclusion Ihiit the •>niueme Court is not the most appropriate tribunal to be invested with authority to try impeachments."" " lu the lirst place, thu nature of the functions to be performed. 1 Story on the Constilulion, § 701. » Ibid., § 703. Alii IMrKACll.MKNTS. [(•IIAP. Mil. 'l\[f ol'ffiiccfi to wliicli the powor of Miipi'iiclimcntfl lin.s been ami is oiiliiiiuily :i|i|)lii'(l us n riMiu'ily iirc of a jiolitical oliarftctcr. Not liiit tlial orinics of a Htriotlj- Ici^al clmnu'liT fall within the Hcope of tlie power (for as we sliali prt'Hcntly nee, tri'imon, liribory, and otiicr iii<;ii Clinics and niisdi'ineanors arc expressly within it); Imt that it has a more eiilarffcd operation, and rcachcH what are aptly termed political otTcnccs, growinij out of personal misconduct or gross neglect, or usur- pation, or habitual disregard of the public interests, in the ilisciiaiirt' of the duties of political olllcc. These are so various in their character, and so indefinable in their actual involutions, that it is almost impossi- ble to provide syslemalically for them by positive law. They must he exaiiiiiU'd upon very brt)ad and com|irelieii.sive iirinciples of public ])olicy and duty. Thej- must be judged of by the habits and rules and principles of diplomacy, of departmental operations and arrangeineiits, of i)arliaiiu'iitnry practice, of executive customs and negotiations, of foreign as well as doine.'-lic political movements; and, in short, by a great variety of eirciimstunces, as well those which aggravate as those which extenuate or justify llie otTeiisive acts which do not ])i'operly be- long to the judicial character in the ordinary administration of ju>tict', and are far removed from the reach of municipal jurisprudence. Tluv arc duties wiiicli are easily understood by statesmen, and are rarely known to judges. A trilmiial composed of the former would tlierefori' be far more competent in point of inSciligeiKa' and abililj' tluin tlie lattiT for tiie (I'scliaige of the funclions, ail other circunislances being e(|ii:ii. And. surely, in siicli grave alTairs, the competency of the ti'uiuiial to discharge the duties in the best manner is an indispensable qualilica- tion." '" " In the next place, it is obvious that the strictness of the forms of proceeding in caM's of olTeiices at common law is ill adapted to im- peachments. The very habils growing out of judicial emiiloyments. the rigid manner in which the discretion of judges limited and fenced in on all sid ■«. i;i order to protect persons accused of criines by rules and precedents, and the adherence to ti'(dinical |)iiiieiplcs, which. \wr- haps, distinguishes this branch of the law more llian any oilier, are all ill adapted to the ti'ial of political otTences in the broad course of im- peachments. Anil it has been ol)serve:l, with 'n-eat ])roprie1y, that a tribunal of a liberal and comprehensive character, conliiied as little us possible to strict forms, enabled to continue its session as long as tlir nature of the law may recpiire, (lualilied to view the charge in all its bearings and dependencies, and to apjireciate on sound principles of J" Story on the Constitulioii, § 7G4. .Il'IHlK STOKY. |iiiMi<' policy tlie ilefcnce of tlic iicciiM'd, spciiis indis|)ciisiil)lc \i> tlio valine of llu! trial. Tiio liistorv of iiiipciicliiin'iitH, liotli in ImihIiiihI mikI AniciicM, jiisliru'H the iciiKuk. Tlu're is Utile tcciiMical in the nioilt' of pnici'i'iliiijr ; tlie cliiir|if8 are Hiitllciciitly clear and yet in a general form ; tliere arc few exceptions wiiieii arise in the apiilication of tlie (. 400, Cliristian's Note. In Ni'W York, where the judges of tlio (Vmrt (if Appouls nuil tlin Si'nato form tlio Court for tlio Trial of Iiiipench- iiii'nts, tlio former, with exception of .luilfjo Cirov(>r, have almost uuiforinly in tlie Appendix, infra. Tlio cusos wlieri' iiiipeai hinents liav(> heen tricil ill the ordinary courtH have nil re- sulted in ac((iiitlal8. in at \:':\>t one instance where the proof ai-'fiinst the respondents seemed very cleiir. See The- State rx ret. .Vltoiney-Cieiienil t'. linekley, TA Ala., Tm-, Stale of Ne- braska V. 'Williani Lec^se, EN-Attorney- rL'(|iiired far stroni^er proof of fiiiill (rener;il,37 Neli.,'.)'2 : StiiteoVNelniiska than would satisfy au orilinary jury r. (leorHo H. Hnsiinns, .Vltoriiey- lii'foro voting for eonvietion. See General, and otliers, 37 Neb., !Hi Dorn's Iriipeaehment Trial anil Bar- whieli are described iu the Appendix, uard's Impeaehment Trial deseribcd infra. /■)J() IMI'IIACIIMKNTS. [ill.M'. Xill. sidiis. iiiul in the viiidiciilicm uf ilirii' own imliticnl (IccisioiiM, tli;iii scrms (U'siiiilile for those who iiiv ihiily ciillcil upon to di'citle upon the piiviitc I'i^htHiindchiinisof nuMHlistiiijtiiishcd for their political con8f(pienc(',zi':il. or iictivily in tlu' riiniiH of piirly. In a free tiovi'rnnii'nt lilic ours then' is a picniiar pro])ri<-'ty in withilrawln;; as niiicli as possibli' ail jinliciul fiinctionnrii'H from the coutests of mere party strife. With all ilifir I'lforts to avoid tliem, from tlie free intercourse, and constant changes in u ri'pid)iican j^overnment liotli of men and measures, tliere is at all limes the most imminent danger that all classes of society will be drawn iiiin the vortex of politics. Whatever shall have a tendency to secinv in triliunals of justice a spirit of moderation and exclusive l). 502, 503. See, eh. x.\ii, p. 214. 528 IMPEACHMENTS. [CHAI-. XIII. and bold their stations for a longer term. They are, therefore, inoic ii! .ependent of the people, and being chosen with the knowledge tliat they "inay, while in ollice, be called upon to exercise this hifjli function, they liring willi tlieni tiic conlidence of tiieir coiiHtitiiciits Ihiit liicy will faithfully execute it, iuid the implied conii)!ict, on their own pint, tluit it sh:ill bo lioiie.stlj' discharged. I'rccluded from ever becoming acciiscis t!;eiiisclves, it is tlieir duty not to lend tlieniselves to the animosities of parly or the prejiulices against individuals, which may sometimes un- consciously induce the House of Representatives to the acts of accusa- tion. Habituated to com|)reheiisive views of the great political ielatioi,s of the country, they are naturally the best qualilied to decide on those charges wliicli n;ay have any connection with transactions abroad, or great political interests at iionie. And although we cannot say tliat, like tlie Kiiglisii House of Lords, tliey form a distinct body, wholly unintluenced by t;:e passions and remote from the interests of the people, yet we can discover in no other division of the government a greater prol)ability of independence and impartiality."" Tlie.su iirguinents have convinced tlio Ainerican p 'oplc, and in all tlio States except New York, Oregon, iiiul Is'cliraska, inipcacii- niciit.s are made and tried siibstantliilly as is provided in the (^iiii- stitiition of the United States, altliongli in a fcnv the C'iiief-Jiisliee of the Supreme Court presides in all impeachment trials cxcejjt wlieu he is a i)arty. New York maintains the practice established in lier first constitution, and lias a special court for the trial of impeacdime!. :s which is composed of the president of the Senate, tlic ..tMKvtors, or a major part of them, ,iiid the judges of the Court of Appeals, or tiie major part of them.'" I'Lxjierienee has shown ''.at the jutl.H'cs have been more disposed to ac(piit than have the seiialufs.'* Tiie Ori'gon Constitution ordains: — " I'ublicolllccrs shall not be iinpcached ; but incompetency, corrujilion, or malfeasance, or inedlcieney in olllce, may be tried in the same manner lis criminal of ences, and jndginent may be yivcn of dismissal from ollice, and such further piinishinent as may be prescribed liy law." '' In Nebraska impeaclnnenis are made by a majority of the legis- lature ill joint convention. Tlie}' are tried by the Supreme Court, 16 Uawlo on tlio Constitution, di, zxii, pip. 2(il-W2, <|uoIcm1 with np- prf)val In Story ou Iho Constitutiou, §775. 1' Now Yorlc Ooustltiition, Art. VI, See. 1. '* Supra, noli' 11. i» An. VII, S(;i;. 19. no.] BLOt'NT S MVICAI'IIMKNT. ■2'.) uiik-s.s i judge of that court is iiii])eiicli('d. wli 'ii lie is ti'icd l)v tliu jiKljrus of the District Court.-'* Ill Louisiana there is a remedy alternate to iuipeacliuient liy a iiiiil in the Sujireiiie Court by tlie Attorney-Cieueral for tlie ic- iiiiival of tlie judges of tin; Court of Ajijieals and other courts.-' These provisions have not been tried siillicieutly to determine wlitther it is yet safe to trust the courts with so tremendous a jiii'isdictiou as that of the removal of a President of the I'nited SiiiU's. S 1>0. History c»l' linpcafliiiiciits before the tSeiiiite of tlie United Slates. There have been seven impeachment trials before the Senate of till' I'nited States, of which twfi fdy ba^'O resulted in conviction... Oil .July 7tli, 17!'7, William Hlount, a senator from Tennessee, was impeacheil for high crimes and misdemeanors. On the siinie (lay the Senate ri^solved that the respondent be taken into tin' custody of the messenger until he should entei- into a recognizance, which lie gave, binding himself in the sum of i?i20.000 with two suHicicnt sureties in the sum of 81 0,000 each, to appear and answer such articles of imj)eachmcut as might be exhibited against liiiii. On the following day he wiis t'xpelled from the Senate as };iiilty of a high misdemeanor, entirely inconsistent with his jiub- lic trust and dutv as a senate T'l u'reiiiKiu the suretii d ]i IS jierson. nd asked to be (bschartrcd. It was tli I'CMllX'CC that tak en into custodv tl le messenffcr, tin til h lid eiitei' into another d'coiniizancc to the same elTect, 1 iinisi ■If ill tl ic sm 111 of >?1,0(l(), w: 'i two snUicient sureties in the sum o .f iiiii cac-h. which was also iriveii. Artich's of i Ml jicaclimenl were lint pr csented until Mie next session, in nuarv. IT'.KS. 'I'll cliarued ; That the res[)ondent wh:'" senator had conspired * > crealt miotc nd set on foot, within the iui'isdictioi am .1(1 territiirv o till' I'liited States, and to conduct and carry on from thence, a iiiihlary hostile expedition against the territories and dominions (if ^paiii in the Floridas and Louisiana for the jmrpose of wresting the same from S]iain. and of conquering the same for (ircat ' Art. V, Soc. It. ■^1 Art. CC. 180 IMl'KACIIMENTS. [ CIIAI'. XIII. IJiitiiiii, with wliich Spiiin was tlieu at war. That at tlio saiin! lime l:c Iiad cDnspiied and c(iiitiivc(l to excite tlic ("reek and Cheii)li()ii.s of Spain, in tliu I'loridas and Lonisiana, for the same purpose, in viohition of a treaty by wiiich tlie United States and Sjjaiu h:iil agreeil to maintain peace and harmony with all the means in tlieir power anioncT thi' Indians wlio iidial)ited tiie country adjacent tn th undaries of tlu; I'loridas 'J' lat lie had furtl ler coiispiivil iiid contrived to alienate and divert the coididence of tl. Inil ian trii)es o nation.'- fi \U irawi< ins, tlr temporary aireiit of tiie I'nited States appointed by tlie 1' in accord .ice \\ itli law to ri'sidc amon<; tlie tribes, and to d di'iit iijiilii>li. impair and destroy tlie iniluence of that at;'ent with those tiilics, and their friendly intercouise and understanding with him. That he had conspired and contrived to .seduce .laincs t'arey, tlie iiiicr- pretcr duly ajipointed b}- tlie United States to reside witliin siid Imliaii triiics, from the Wlim-loii's Sliilo Triiils, ]i]\ iii'm. Sj '.K!, iiiiil Aii|ii'nili\ to lies '-'"ill 'I'Jl. Siiiiii' III' till' iii't;iuiii'MlM iin> Mihiini'. i|iinlrM infra, Sj 'XI ■' Iiii|ii'iicliiiiiMil 'I'l-iiil of Sliipprn, - A'ldisiiii'H liii|ii'iu'liiurnt Trial, biiiitli, ami Yeali's, iiijru. Api'i'iiilix. o32 iMri:A('iiMi:\Ts. [C11AI>. Xlli On Fehinaiy 8(1, 1808, JelTerson sont ii message to tln' ILms,- of IJt'privSL'iitativcs in wliicli liu siiid : — " Tlu> oiiclosi'd letter mul allidavits pxliil)iting iiiatter of coniiihiiiit agiiiiiiit John l'ickeriii'"•] CilASK S IMI'KAtlHMKNT. 033 his cDiiit, swore tliiit .lu(lu;i' ricki^rinp; was never deraiifjcd except uln'ii (Irimk. Otlicrs, iiicliidino; oiu: of tlu' sc'iiiitors i'rnin N(;w II;iiM|i.sliirc. liotli III" \\li(iiii ul'tcr thcii' h.'slimoiiy votid for an aii|uittal, t(,'stified that I'ic-kuriu^- was insane wlieii sober. 'J'lio Senate voted that the form of piittinL;' the final (jnestion should lie: '• Is the respondent guilty as eharged in the Article?" Five senators thereupon retiretici' of liie ci'iminal court in Ilal- tiinore, and while holding tliat jiosition was also commissioned cliief-justiee of the (ieneral Court. lie held both [lositions until, aftei- an luisueci'ssful attempt in the house of delegates to remove liiui. a joint resolution passed both houses of the State legisla- ture declaring the iiuicture of the two olliees tmconstitutioiial.^ '•Annuls of ("oiinrcss, IKO'2- IHO.'), I'll. 'JC.T -'2(iH. .Vtuiiilrt (if CoiiHrcsH, IMK! IS(I4, pp. 27, 7(1, 224-225, 2C8, l!T(i-271, 275, 29S, 315-307. '• Wharton's Stuto Trials, p. 43. ' ILiiil. 534 IMPEACHMENTS. [ CHAl'. xm. Ts'(ilv,itlist:iii(liny this history, lie was iippoiuted Justiue of Iho Sii- pii'iiiL' Court (if Ihi! I'liitud St.itrs by Washington, iigiiiiist the pni- tt'-t of a miiiiin'i- I. Ur' I'rcsiili'iit's frii'iuls.'* ]n liis early lil'i luid heeii an t'xtvenie Denioci'at, hnt after his ajipointnieiit he Ih- ciinie the most aiiul o i tiie l"\'th 1 )y ur^'inn' grand juries to linil indictments, many of which thev r I'luseil d l.v faiiii the trial of those wlui were inc licte I! V Lrross lui- s enaiL;'( s t(i grand juiies abounded in denuiieiations of the l-^reneh Jicvoliit Kin am 1 the Democratic party. He took the stump for Adams at he time when Jert'erson was elected." He "ids.dv insulted tl bar I )V his treatment of souk; of its leadinu r mcmiiers, niclu(nMir Wirt. For this reason his impeachment seemed the he.>t opiioi- tuuitv for the insertion of an oiicidnLT wedno which mJLj'ht residt, if not in the removal, at least in the intimidation of all the Feil- orulists on the Sujjreme Court of the United Slate .V iftei' its dcliverv a violent charge made bv .lustice Chase to tli( grand jury at IJalti r.iore wa; tl e occasion of the followiiitr hUtei by the President t i .loseph Nicholson, who was then one of tin manugcis of I'leki-ring's impeachment : — " You must have heard of tlie extraordinary charge of Chase to tli( .luiy at Balthiu Oiiiiiit tills seditious and olllcial attack tl i(> priiieiples of oiu' Constitution and on tiie proceedings of a State Id go uiipiniished ; and to whoi: poinledly as youi'sell' will hi ik.'il for Iho necessary nieasiu'es? J ask tiiese (juestioiis for yian- considera- tion ; for myself it is hetter that I should not interfere." '° iNieholson, at the advicci of friends, declined to move in the liter. The fact that in case of CI lase s removal he wo lUld liave ,l)ah ilv heen his successor seemed i: The t:i>k was assumed Its Iph I sulluuciit i-eason.' ly .fohn liandolpli ol KoanoK( II is igiie raui'e of law. and even of the elenu'ntary priiiei[)lcs of justice, ami his lack of tact, which was never so apparent as in the managciiieiit of this pi'oscciition, was the main cause of its failure. « (rihl)'rt Wolcdtt, Vlll. 1, i>. 300. " Miu'im tl) Nicliolsoii, All^;ust n, " Wharton's Sun n Trials, i>ii.-l'itr). IHOii, Nieliolson'K MSS. Adiiius, ilis- 11 JefTci-soii to Nicholson, Aliiy 13, tory of the Uuited Btulos, vol. ii, l)p. 1803, Jefforsou's Works, vol. iv. p. isr,. 150 151. ,0.] CIIASK IMl'KACIi.MICNT. O.iO '1 ln' iii'ti^v; till' St'ditiiii l,;i\v; ;iii iinpioiRT iittfiniit Id iiKlucc ;i ■^laiul jiay in Dfiawaii t(i tiiid an iiidictiiiL'iit apie of Maiyland ;e;;iiiist tlieir state, goveriiinent iind conslitiitioii, a coiidiiet lii;ilily cen- siiiiilile in any, hut jiecnliarly indeeent ami iinlieeoiiiinj^r in ii jndjie of the Sii|ii'iiiie Cuint of the I'liiti-d States, :ind nioieover, that the said S:nniiel Chase, then and there, under jireteiice of exeicisiiiijr his jndieial ri;^ht to address the said grand jury, as iiforesaid, did. in a nninuer ilv unwarrantable, endeavor to exeite the (idiiiiii o f 11 lid "r jiuy, and of the good people of ^laiyliind auaiust the government of the I'liited States, I y delivering opinions, which, even if t le judicial tuitiioiity were competent to their expression, on a snitalile occasiiai in ;i i)i()|iiH' manner, were at tluit lime and as delivered by hiin, highly in- tlceeiit, extra-judicial and tending to ])rostitute the high judicial chaiae- li'f w itii which he was invested to the low piiri)ose of an electioneei ing iKii-iiMin." As niisconduct upon Fi'ics' trial tlio respondent was charged \\itli delivering an ojjinioii in writing, on the i|iiestioii of law. the coiislrurtion of wliieli the defense the niiilerially depended, tending to ]irejiidiee. the niiiids of the jury lel'ore eoiiiisel had lieeli heard •it the case of the defemlint, 1 his de'fens with reslrietiiii. tl le (leleiKlanl s eoiinse 1 fl iilViring to such Fnglish authorities as they believud iip[iosite, or from citing certain statutes of tlio I'nited States, which they deemed illiistiative of the positions ujion which they intended til rest the defense; with dehairiiig tlie prisiuier from his consti- tutional luivilefro of addressimr the inrv on the law, as ^ tin 1 act, am as on 1 at tl le same time endeavoring to wrest from the jury their indisptitahle right to hear argument, and deterniine upon the ipiestioii of law, as widl as the nucstiiui of fact, involved in the verdict which they were recpiircd to givi'. The allegations oi' fact 'j3(! IMl'KACHMKNTS. [CIIAP, XIIL as distinct from the legal conclusions in these charges were cloiirlv proven. Frii's liail been indicted for treason in fciking part in tiin Whiskey Uehcliion in I'ennsylvania. On liis first trial lu; was {•onvicti'il, hut a new trial was granted on account of the bias (if one of till' jurors. Tpon liis second trial in the Circuit Court of the United States in rhiladeli)hia on April 29tli, 1800, as soon its tlie Court opcncil, Judge Cliase stated: — " tliat tlic Court liad made up their minds as to the law of Treason, and to avoi(i being misinulerstood they had rcdueed tiieir opinioi' to wi-itiiis,', and that they iiad directeil tlnee copies of the opinion to be macU^ out; one for tiie District Attorney, another for counsel for the prisoner ami a third for the jury to be delivered to them after the case liad ^'one through on the part of the prosecution." '- 'IMu' prisoner's cotmsid, two of the most eminent lawyers at tlie I'hiladelphia l)ar, Dallas and Lc\\is, thereupon stated, that as theiv was no dispute about the facts, and the only doubt Avas as regaids the law, they could not proceed. On the following day, the jiris- oner was brought to the lar, and the court iusked the counsel whether they were ready to proceed with the trial. " ^Ir. Lewis then observed, that if he had been employed by tlitt prisoner, ho would think himself bound to proceed ; but hiiving hrcii assifiued as his counsel — (lie was interrupted by Judge Chase, who said, ' You are not bound by the opinion (U'livered yesterday, but are at liberty to contest it on liolh sides'). Mr. Lewis answered, that lie had understood that the court had made up their minds as to the law, and as the prisoner's coun.sel had a rijrht to address the jiuy holli on the law and the fact, it would place him in too deiirading a situation to argue the case after what had ])Mssed, and, therefore, he would not juo- ceed with the defence. Judge Chase answered with impatience, ' You are at liberty to jiroceed as you think proper. Addri'ss the jury and lay down the law as you think projier.' Mr. i^ewis answered, willi considerable warmth, ' 1 will never address myself to the court upon a question of law in a criminal case.' He then went into a lenjitliy !"l;ii- meut upon the law of hifih treason in Kiiuland, previous to their revo- lution, and contended that the courts, since that period, had considered themselves as boiuid by those decisions which were made prior to it. '^ Testimony of William Rawlo, who was counsel for the iiroseeulioii "U Chase's Impeuchment Trial. S 'JO j CHASE S IMI'KACIIMKNT. r)37 .liiil^ie Chase observed, that the counsol must do as they please. Mr. Diilhm then rose, and went into .1 {general view of the fjronnd, wliieh li:ui lieen taken by Mr. l^ewis, and eouciiided with his determination not to proceed as counsel for Fries. .Judge Ciiase observed, ' No oi)iu- ioii has been given as to tlie facts of the case. I would not sutler the witnesses against those persons eliarged with sedition;! combinations, to lie examined before the trial of Fries came on, lest tlieir evidence might liave been heard by some of the jury. As to the law, I know tiiat the tri:d before took a considerable time, and that cases at common law, and decisions in Kngland before the Hevolution of the law of treason, snch as the case of the man whose stag the king killed, and wisiicd the lionis of the stag in the king's belly, and the {-aseof tiie innkeeper, wlio kept tlie sign of the crown, and who said he would maki' iiis sc}n heir to the crown. 'I'hese cases ought not, and shall not go to the jury. There is no case which can come before me on which I have not a decided opinion as to tiie law; otherwise I sliould not be fit to i)reside here. I have always conducted myself with candour, gentlemen, and meant to have saved you trouble by what I did. Is it not respectable for counsel to say that they have a right to offer what they please to tlie jury? M'hat! would you cite decisions in I{onie, in Turkey, or in France? You will now proceed, and stand aiMjuitted or condemned in your own consciences as you conduct the defense, and go on in your own way. The case will be opened by the attorney — the manner must lie regulated liy the coiu't." Judge Peters added, that the jjapers were a!l withdrawn. Mr. Lewis said, the paper was withdrawn, but the impresnions icniaiued wiUi the jury; he, therefore, should not act. A pause then ensued for :i few moments, when .Indge Chase said: 'You can't bring this cDtirt into dillieulties, gentlemen; you do not know nii' if yon think so.' "" Dallas teslifiod that Cliaso tlicii told tlu' counsel "that we might address the jury on the law, but it would be at the lia/.ard of our reputation." " i>ntli coiiiisel tiicu willxhvw. Fi'ies was eonvictcMl \\ itliout (■(uiii- sel and sclilenccd to death. -As his coiuiscl. liowevt'r. tilidouhledly expected when they retiri'd from the trial, in c()nsi'(|uciK'e oi' the iiregularity of tiiu proceeding, their client was ])ardoiieoiiciiu'iit wiis m;iilu iiioii! witli tlic ohji'ct of cxrltiiiif syiii- ]iit!iy for tlif ai'ciisiMl, tliaii witli tli (I idea that the witlU'-sos uliii-i' ti'stiiiioiiy il was cI.iiuhmI was iiiatcnal, naiiicly, I nsHii'iit Adiins, tliL- SfcieliU'v of Wai-, and several si'iialois, woiilil liiivo til. acciisL'd. .ludoc Ciiasirs ciiiiduct, iiowcvcr. U. lllicliiublcdlv tMUsed trial was so si-aiidaloiis tliat il would li; liis coin ictioii iiiioii an iiiqicaciiiiu'iil at tlif pi'useiit day. lie liid tl)!()il''''a)Ut tilt' ca- c'lidcavol'cd to scciire a conviction. had insulted ciiiincnl connscl. anioiii,' otiicrs, W nil nil ucii a dci,n'ci' thai ihcv linaliy icfiiscd to conti Wirt, e tlio ai'.;niiicnls in the couisc of wliicli tlii'y iiad liccn intcii njilcd. I that hiforc the trial he had pnlilicly aiinoiincL'd as sill II ••iii:;l he Would leacli the lawyers in \"ii'eiiiia the diO'eienec iitv.i'cii liiieity and the licentiousness of the piess."aiid llr.it he lia 1 told the marshal t'lat if lie had any -f tl lose ert'aliires or liiiiplo called 1 Jeiiiocrals "' on liie panel of jliiyiiicii lie shoiihl slriiie tlieiii off. He had eoiistantlv thi(Hi"lioiit tiiu trial referred to cuunscl who were men of nriUiro aire, as •• vc 111 eiitleinen. to inll ■d 11 iieiiee tile jiirvliy these as IS oilier siicrs wliicli 1!s Id nml 17. '* Tlio nll(>}ii'il lilicl.-f upon wliicli tlio Hrand jiir.v rrfuscd U) llml iii- (lictriKMits, ulUioiitili urj,'('cl liy Chiisi- to do 81), W(>i-o as follows : K.\tract from Urn Tlio Mirror of February Gtli, 1800 : - "COMMUNICATION. " The JUumiii'iti of New ICiifiland are composed of certain icclc^iaslicit, who wish for political sway ; and of laynion in oflicc, who wisli for clerical iiilUicncd to retain theni in phu'c ; hy the means of the pulpit and sword ; or church and .State. The senators and reiiresenta- tives in Coniiress from Connecticut, belong to the New Knj,'lan. The above is a clue to the sedi- tion law — certain gentlemen did not wish to have their conduct and designs investigated at home; for this ciui.se they have wished to destroy the Kditor of the IJce, and introduce a system of terrar.'' Extract from the Mirror of Fi'briiary 8th, IHtiO: — •■COMMUNICATION. "In our last, wo presented a 'elite' to the poliiics of Connecticut, from tlu'lr desire to obtain place and favor. We now exhibit a due to the New Ilainp- shir<' aristocracy. The collector of the customs, loan offleer, marshal, one of tlie ,< liO.] ('MASKS imi'i:aciimi;\t. oil The cliiirv't; to tlic ^'I'liiiil jiiiv in Mui vlaml \v;is (Iclivcrcd May iM. iMKi. It coiitiiiiicil ciitirisnis uiioii tlii; loiMluct (if tlic PriiKi- spiiiitorHof CdiitJresH, 1111(1 two of tlKiipp- ri'-( ntiillvcs ill tliiit biicly, went o/i/ ami itentml liirien, . lid liiivo over cdiitiiiuuil III ho siicli. 'I'll 1 coiunictiir for tliu nii- valnrsliiii l)iiil('ciii,'(l('i)iirtiiii'Mt was also iiliiry — ho is iirotluT In oiioof the rcp- ri'sciitiitivcs, \vh()s(! nislcr is iiiiirrloil to lliu ilisli'ii't jiiilj;i', (wliosi^ former ric'i for Ihi! indcpciKliMici' of Aiiicrica i-fdouhlfiil). Those Ihrec p'lillcMiii'niiro uliiid to llio I'resiileiil. ot Ciinilirhlfiecol- li'U'e, wlio married the sister of tin? wifo lit the (llslriet jiiilKPi and of tl"' naval coiiiractiir and oiio of tlio representa- tives. "The former Inry senator is Mr. l.ivermore. The representatives are Messrs. Sheiiff and Oordon ; the dislrlet jiiilL'f Is a Sir. I'Uilcerint? ; tlie naval con- traitor is a Jlr. .laeob ShealT; the mar- sIkiI is Sir. I!(ij;ers; the loan ollirer is .Mr. Pieree, a cousin to tlio bte Kovernor Weiitworth, and the noUector U Mr. Martin, whose wife i.s sister to Mr. I'iiire. Dwiylil and AVillard, as heads (if liler.iry iiistitnlions and eeelesiasti- c:il societies, thus have the chief sway in Cuiiiieiticul and New llampsliire. " Tlic^rciiuicDi'dl ]Vliiij!i und uhl luricfi hniv llic ciinlrdl in our niilUinul iiffiiirK { are ciiiispiciious in piihlio iimcessions; and wear the weed of monrnin!; tor Wasliingtou, whom they have often hiaiiiled with the epithet of lieliel" K.xtract from the Mirror of February 2il, 18UI); — "COMMUNICATION. " We hav(^ prcHeiited the readers with a view of the New lCiii;larid lUiiiiiinati, and a clue to Britisli, tory or monarch- ic;il inC.uence, in New Hampshire and Coiineetii'ut, in which intolerance, and a Want of duo respect to the revolution and it.i promoters and defenders must be clearly been. This foniiiilablo Imdy are liedged round by, or shelter them- selves under the scditlim l.iw, /iry mar- shals and juries, which may lie packed nut of llrilish rommixsiirien, and the plunderers of our farms, the murderers of our fathers, brothers and .sons, or those who burned rinreliurehes, ami laid waste ourlilerary and Ipenevoleiil insti- tutions duriiii; the last war." Kxtraet from The Mirror of March I8II1, IHIII): — " I-'or The Mirror, Ac. " What are the fruits of .lohii Adams's admlnisiraliim? tic has eni;a^'ed lopiiy 8 ])er eenton live millions of dollars. He has eslablished a stiindiii,' army, which besides its enormous I'xpense of four ndliions and two hundred thousand dol- lars, keeps a number of cilizens in fear of their lives. He has obtained an appropriation for supportlii!; foitl- lications, of VOO.flUO dollars. For the navy 17!W, fiuir millions three liun- dred and fifty tliousand dollars, amount- ing ill the whole to nine millions two hundred and fifty thousand dollars, exclusively of a numlier of volun- tary and umiscerlained subscriptions for Iniildins and ('(luippini: ves.sels of war, for which the subscribers receive interest, at 8 per cent. He lias levied a ilirccltdjr, which in this state annmnls to more than the whole of the tax paid into our state treasury. Ib^ has jiro- cured the enaction of an alien and se- dition law, which are a curse lo any country in which they exist. lie has given orders to one of our judges to de- liver up Jonathan Kobblns, an American seaman, to be tried by a Itritish court martial, although the name of the per- son accused was Nash ; in direct con- tradiction lo the laws of nations, and of our constitution. And finally I't .'j 'o liav(! a new loan of :',ol)0,000 d.illar.s, for which he will be obliged to pay 8, and probably 10 per cent." ('.ha.se's Im- peaclinidit Trial, Evans' l{eport, Ai> pendix, pp. 68-00.) '>[-2 i.mi'ka('ii.mi:nts. [chap. \ii! lidlislii'd die ollii'i's of CiiouiL .lud" erutic ))iirty lor liaviii^ :i tlio ruiti'd States, the leceiit cliaiurert in tlie ( nnstitiuiou :\I;nvlai viand wliu-u establi ■lied iiiiivei''-al siim-a''( ffi ami llie I'iuiIp chaiiLfes contiMiijilated in llie judiciary of tliat State, whieli, it w; " will, ill my judiiincnt take away all sofuiity for properly and poison iilierty. The independence of the national judiciary is already shiikt to its fonndation, and the virtue of the" i)eople alone can restore it. 11 inilepeiKleiice o f the jiidires of this States he entirely destn the hill for aholishiiiij; the two siii)renie courts should he ratified hy iIm next iieneral asseiiilily. The change of the State C'onstitntion hy allow in;j; nniversal snlVraiie will in 1113' opinion certainly and rai)idly deslni; all protection to iiroptM'ty and all security to personal liherty, aiul en ican coiistiiiiiion will sink into a niohocracy, the worst of all pos i'l)ii hi sihlo governiiieuts. Ti ic iiriiicipal nianatrc ■rs for the Ih onse of l{(?prc'S(>ntalivcs were John Uaiuhilpli and .I()sci)li Niidiolson. Judge Cli were l.,utliur J{. Martin, U. (i. JIarpcr and Joscphsoi ise s eciun-i'l llopl if whom Harper had takei: part in the trials of hoth lil(Uiiil iiimI iclvernienale was then more than two-thirds Imi the manner m wliicli tlie impeac inient was eondnctcid, and the fear that a convietion \\'(Mild result in fuither attack's fiu th SuiireuK: Conitof the I'nited States were undouliledlv the reasons hat lU'lueei a nuudier o the Norll foil, •I's of .lefTersiiii to vnte for an ae(|uitlil. It is not likely thai similar o ITen if cnuniiiited liy a jU(lL,n! at the present tlay, would remain niqainished. The result of the impeacliment was, howi'ver. in one I'espeet lii'iie- lirial. Chase was harmless duriiifr the shoit iieriod whieh he sur- vived u|io ■{'hi u the heneii.''' h next impeaclnuent tri that of .lames II. Peek, judi^^e the District Coint of the Tnited States for the District of .Mis- S'lUii. n 1 liS:iO and liSlil. A lar'-e nuuiher of suits aijaius ■;l Ih m ted Stiles founded upon Sjnuiish land claims wi |ien( line; in li rt. Ah ei' an opii 111 in fa\orof tlie riiited States, in a suit ayainst them li\ the widow and heirs of .Vutoine Sunlard, m Is-.',"). I, like Kdward Lawl wless. tl hiintiir isel, pulilished an auiiiu nious letter in a newsoaper in whiidi lie temperately, and with re nufairuos than is usual in newspaper aifjiimeiit 1" iited 1'-' K.'priii, cf (lie Triiil (it tlie Hon. S;|I!II1(>1 Clllise, one of till' AsSOclntO •Iii^lii'i's (if tlio Sii|i|('iiie ('oiirt (.f tlie t'nilcd SliilcH, lii'forc the Itiuli Court of Iiii|ii>;ii'liiii(Mil, ('Oiiiposcil (if till' S..|i,ite (if the riiilcci States, fur I li.niics exliiliil"!! (ij^iiiti: (, liiiii I'v llic House of l!i'|ireseiiliUiv('s. in llie iiiiim^ of llii'iiiselvi's, and of nil the l''oi.l,.(a' llio riilKMl Sillies, for Hi^■ll Ciiiiii's .V Jtisili'iiieuriorH, sii|>|iiisi'il to h:!V(> lieiMi liv liliii coiniiiilted ; with ihi) noci.'ssmy Docuineiits mid Onidiil l'a|i('rs, from his Iiiipciieliment lo liiial A(M|iii|lid. Tiikcii in SlKirllmiiil, liy CImrles Kvtuis, and Ihi' .Vrminicnls of Coiiiisi'l revised liv tlicm 'loni Ids Miiiiuscriiit. lifiliinioii! : I'riiiled lor S.iiniiel Hiitler and (icor^e Ki'iitinK(>, Iso.'i, pp. -JUS, witli .Vppi'iidixeontaiiiin'.; Ilio ple.idlii.^s and cxliiliils, pp. (IH. Trial of S.iinnel C'liiise, nn Assoeiale .rilsliee of the Slipri'llie (.'ollll o!' llie fnited Slides, inipcarlied dy (lie Hoii-e of Hcprcscnlalivos for Ifigh Criiiiis ,i!id Misdoiiieanois. Iiiken in Slioriiinnd liy Siiniiiel 11. Sniilli and 'riioinasliloyd, vol. i, lip. ;i.S7. and vol. ii, pp. Illll. WasliiiiKton Cily. I'riiiled for Siiniiicl H. Sniidi, ISO.".. History of llie ruilcd Slates liy Henry Adams, \ol. ii. pp. Its l.l!), 2IH '214. History of Illll Unilod Stales liy John Haeh M.>raslcr, vol. ill, pp. 102, 108, 173, IHl, !S'2. 644 IMrKACIlMENTS. [('IIAP. XIU. out ceitain errors intowliicli lie cliiiineil llie jn(l<,'e Imd fullouw hen reiiileniit' tlmt )y the Siiiin^iiic 'l"l;e ilccisiiin was sulise([Ueiitly revel- Cdurt of (lie rnitnl Stat .liwlue I'erk soon as lie leail the ailiel e, iiroiitrii t L iwlcss hdore liiiii hv an iil- taeliineiil. alaised liiiii I'nr some lime in opiMi (•(Hirl, lii'M liim ^^iiiliy of ciiiiteniiit ami ordcreil his iiii]iiisiiiimcnt lor l\viit y-lour hours ami sii^pciisiiiii t'iom the hir nf that eoiiit Ccir ei^'lileeli calciiilai' nioiilhs, tile result of wliicji was to iiiMetieaily pirvenl him fidiu any fnithi'r |iroseeutiini nf Spinish 1 ind-elaims, since the time alhiucd for thi'ir ]irost'eiilioii expiicd durinL,'' or shortly after hi-^ term of puiiishmcnt. Lawlc-s immcilialely comjilained to tlie llonseof licprcsenl ilivcs. In Is^ii.tlu' 1 !■ lUsc ( 'ounuittee on tlio •Indiciai \-. one t\\' wlioiii wa> l>aiiiel Wchstn, ie|ioitrd that the petit ii should have 1. to withdraw. 1 wii vea rs later, tin jii'tition was auain prtscnlcil mihI I'ld'erri'd to the .Iiidiciaiv Co hnt no rejKut was initti tx-r was auaiii reierrcd to them, iiiallv , in ni- Is-J'i. when the iiiat- Ihe .ludiciaiy (■ 'mnnlt(!e ii ported ill favor ol' an impeaehuient, w liioh was ar-ordiiiijly voted aiul tiicd. 'I'iie niaiiai;i'is of liie House wrre James Huchaiian. afti'rwai'ls President of tin- I'nitcd States. Henry li. Storisand Anihrose Spen- cer of New York. (leoiLfc A. WieUlifl'e of Keiitn.k Will AlelMillie of South Carolina and Charles Th Win iiid Jon iih in .M( iinsid for the respondent \v redilh. Tl le case was trieil with th irieal aliilily on l> tlit oides. 'I'lie hest li !it4llio;iti«- JMstiflfd Jiidj»e I'ei'k in |iMnisliiiin- a criticism njion eis deci'sioii as a (■i>utein|it of coiiil. It seemed to the Senate that it least jn 'ilied in asHUtniiiiT that siieh |iow cr cxis Stedi he was at least jn Mlied in asHUtniiiir tliat siieii p that tht'^'- Was u>> such clear pioof I'l.iled Slat'K pri'lVrreil liy I lie Hoil^i> of U''|)ri'S«'li1«- § '.H.I. lirMl'IIUKVS IMl'KACilMKN'T. Till' I'csiilt \v:is til mssiicre o f ;i law limitlniT tli power ol till) ( oiirls (if the I'liitcd States tn |iiini>li for coiilciiipt to II' mislii'liavior o f !UI iH'rson or ncrson IS ill the iircsfiicc of tin' siiiil cnurts. or .so near thereto ii.s to olistiiiet the !i(liiiiiiislr:itioii of jiisliee, the misbehavior of any of the ollleei-s of said coiii-ts in the olheial traiis- :iclioiis, ,'iiul tiie (lisoliedieliee or resistance livanvsiieli ollicer, or livaiiv Iiar;y, .1 iiror, witness, or other iiersoii, to any lawful writ, iiroeess, order lecree, or eoiniiiaiid of the said court larh's Mere wiili I'l't (it ay he Wi li- iell>ll OH Ills e that : aii.l i-e a> l.v .1.(1 iriiv.-' IM-I of ef 111" cIlmh'IiI ■es«>111ll- w llic Southern ( 'oiifeilei'acy was formed. S. II. 1 Iiiinjilncys, t judo-e of till' Inited States for tl le disii'ie if Tl ,1 lepted and di.seliaryed the diit ies of a similar imsition under the ( iiiifedcratc (ioverninent without resicruiuir tlio oHiee held hy him miller the ("nited States. He was eoiiseijuently iiiijieaehed and hefore tlu; Senate in Jinie, 18ti2. 'I'lie articles ehaiired him irici ith 1 reliell Willi a |inl)lie s|ieeeii incitiiiir revolt am siiiinion and (io\eninu'iit of the I'nited Statei loll aLTaiiis t theC ilili illliile laratiou therein of the ri^ht of seees- f ion litl I supiiort. ai i',i''\ and asjfreemeiit in the ordinance ot seia'ssion ; with or!;j-ani/.iiixcr]it the specification conccrninL;- iK'.'iliisI him fiir Hi^h Xtisilc li iifiiiiors iiiiilllc iiiHi;('sli.(l liv 11 siiiiiliir slaliile pas-i'd Hv ..Villiiir.I. SiiiM. ill I'eiiii^vh lifter the iii'i|iiill.".l ol' liiil'.v, Ildsioii. riil>li-^h''i| liv Ililliiiril, the jmljii's who were iiii|ii'Ucli('cl fur Oriiy ,\ Co., is;t:i. pp. niri. ■- Art (if Miin'h 2, l.s;tl. 1 Si. ill L. tlie iiiiprisdnnipiit of I'lissiiiore. Sei- Appeiiilix to this volu IMC. Si in i In r sliil- p.4^7; t!. S . Hov. St., §725; Fiwter's uli's linve lipen pusseil in iiiaiiy ot Ihi Pt'il'iiil I'rnctlee, § "i i. This sliiliile dilTi'i t States. Wuh introduced by Buehiiuiiii. iiud wiis 346 IMPKACH.MEN'TS. [cifAP. XII tho arrests and confiscation; siMitunccd to rumoval and (li.s(jii;iliti- (•ation to liold any ollict.'.-' 'I'lif iiiipcai'linicnt trial of I'PL'sidcnt Jolmson is tlie most ro- markal)lc event in tlu^ annals of jurisj)rudence. Never l)i>f(irt', had an attempt been made to remove tlie eliief exeentive of a nation nnder the forms of law. Despotism tempered ]iy assassi- liad jirevailed in many countries. In Knirland ami iiatinn i'^rance. kimj's liad iiccn triven tlie form of a trial before the ir <'X('- eulion : but in eaeli ease the triliuiia I \vh iH-li i)i(inounee( I th^ hiel 1 (!on(l(iiiii ilcmnalidii hud no fonndatiou in law imr jurisdiction over the ac enseil, and the pi'oceedinL;> wei-e as irrei^ular and as des'ilute e legal sanction as tiiose before the lynch couils \v catlli'-tliievcs in n:ll (ilnlir, 2cl Session, 37lli CongrcBB, Pari IV, pp. 2942-2953. '-* Sc' Kupra, § 38. S 00. .lOIINSONS IMPEACHMENT. 547 )f ('oiiLrn'ss onactcil lii iil'kT ■r I lis veto. it i('(l fis if liis teiiuru of ollice (Impended upon tliei On .liiniiiiiy 7tli, 18(!7, Jiuncs M. Asliluy of Oliio siihniitted the llowiiiiif piT;iinl)l(' aiid resolution, \\lii lierehv, aiithoriz(!(', to ininiire into the ollieial coiidiict of And I'ew .'oliiison -I'r. it of the tinted (States, discha I'^niiT the juiuers and dntii'sof the ollice of I'resitleiit of the I'nited States, and to n |i(nl to this House wheiher, in their opinion, the said Andrew .loiiiison, v.iiih' in said olllce, has lieen sinilly of acts which were desisziied orc:ih'ii- l:;lr.l to oveitlirow, subvert, or corrupt the (iovermnent of the Inited States, or any department or oHicerthereol' ; ami whether the said .Vndrew .lohnson has been ijniity of any act, or has coiis|)ired with others to do acts, wliich, in contemplation of the Consiitutiini, are IiiLili crimes or s, re(piirin<; the interposition of the coiistilntional powi is iiiis(i(nneaiior 1)1' this House ; d Unit, sal 1 <'Oinniitlee I lave power to si'iid for pi I jiapers and to administer the customary oath to witnesses. " A niontli later, tiie {'oinniittec dii the ,Iiidici,iiy icpoiied that ■V had exiMiiiiicd a laitrc iiuinlu'r of w itiic.- d (1 ociini. n;s. I not haviiii,r coniple di ted ilie invcstiij'ation. di'eini'd it inexpediiiit .■I slilmiit any (■oiicliision hcyoiid tiie staleliieiil, that siiriicieiit ti'S tiiuoiiv iiad lic'c'i hidU'^ht to its notice to justify and adiiiil a fiii llier prosecution of the iuvcstioation (»n .Maivh Ith of ih. new ( 'ongrcss assi'inhlfd. On ilic motion of .Mr. .As'ili H o:ise lived tliat the Judiciar\ Coniniittcc wli udd continue the iiivcstitratum aiithonzci th Vein ed (liiriui;- the last session of (he loinicr (oiiorc. her, lliu rcjiorts of the Coniniittcc \\crc ]n'eseiitcd. T '11 appointed e resolution 'ss. In No- jority reported a resolution tlireetiii};' the inipi'atliinent of President. 548 nirHACHMr.xTS. [flFAP. xiir. .Idliiisoii l)i'c;ui-<(' iif liis failui-i' to cull ii special session of Coiilj'ivss oil the liiial siu'rciidcr of the ( 'oiifedeiate forces, liis ivts in I'ccogiiiziiisf without st;itiitoiy authoiity the govcrmiients in ijir States which hail licen the seat of tlu^ riihellioii. his pwhlii .--uli- staiitial denial of the right of Congress to ]ii-oviile for th<' itridii- .strnction, his abuse of the powers of veto, aip^iointnicnt, rriM(i\ii!, and pardon, his atteni])ts to jiivvent the ratilication of the Four- lecntli Anicndnicnt. hi> [inlilic slat/nients en, •Muraging resistance to the schenii; of iiecDnslruction dirocU'il hv Congress, his (lis])()- sition of captnreil railroads and other pr(>[)erly. and his iis(> of the iuniy tf> disperse a lawful asseinlily of cili/eir: in ivouisiana. A minority, which was composed of ixepulilieans as well as Democrats, submitted two reports with a resolution dii-ecting that the committee Ix; diseliargeil from further consideration of the proposed impeachment, and that tlu; subject b:' laid upon the taiile. The pro|iosed iinpeaelnne)it was voted down by a largi; ma joiity .'•'■'' The proceedings had a(tcom]ilished foi' tlu; tinu; tlieir object — tiie iutiniidalion of the I'resident into the I'xeculion of tlu? Ki^constnu- lion acts which hi' considered unconstitutional. Ab'anwhile a bitter (piarrel was bi'cwing between .bihnsoii ami Stanton, who was tlien Secretary of War, holding over since \An- coin's administration. A year before. Congress had passc of disobedience to the act, a >eeUon had been added, makiu'.; such disoliedienn' ;i iiigii misilenieanor. 'I'he act provi(h'd, " 'I'liiit every iiersoii holding any civil olliee to Mliieli lie liiis lircii up- pointed I'V and uilh the udvioc ninl ennsent of the Semite ami every person who shall hereiiflei- 1.. :ippoiii'.'d to oiv such olliee, anil sliiill -■'' Mil'lierBOii. HIhIdi-v of tlio Hn- liiiili^e, tiotli of wlioiii wim'k Iti |m|Ii|| icinsli'iieti".!, pp. 187-l!lll; Uliilin', runs, eoliniliis an iililo iIIhi'IIhhIiiii iif Twenty Ye>irs 111 {'nntrn'^H. \ol. II, thn si||ijt«et <>f Imi'eiielininnl. iS'ii/ilii. pp. :Ui>;)17; HoiiHo ».-|ioi(h, idtli j| :i!t I'i'liK., 1st ScsHlon. No. T, Nov. 2.'), * This siilijeet will Iio i|iscu-^ Jierformii\g the duties thereof, and not to the ollicer sii HU!»|\e\t\|od ; Provided, lu>wever. that the President, in <'ase he hiiiill lucvime satislled that such suspension was maile oi; insulllcieut Uroultds, shall bo authorized, at any time before repoiting such siispen- siin to the Senate as above providid. to revoke such suspension ami 'linstato such ollicer in the performance of the tluties of his ollice." "That the President shall have power to till all ' leuncies which may happen during the recess of the Senate, by reason of death or resigna- lioii, by granting coniinis.sions which mIi.iII expire at the end of their next session thereafter. Aud if no ap[iointnient, by and with the ad- 550 IMPKACIlMKNTa. [CIIAI-. Ml ■vice iiiiil pouscnt of the Sciuito, nl..'ill Im iiiiidii to such ollice ho vaciuit or ti'inponii'il y fiMi'd na iiforosiiid diirini; sucli next HcHsion of tlu- ScikUo, such ollico sh;\ll rt'inniii in .ahoyMiin' wilhoiit iuiy Hid;iry, fees, or ciiii>lii- mciits !itt;ic!it<] thcicto, until tlic siunc sh;ill be filled by !ip|)oiiitMH'Mt thoii'io, by mid with the ndvic(! iiiid conseul of tho Soniitu ; nnd duriiii; bitics licliiiiiiinc; to such olIi<'(' shMJi he iiw exercise such powers iiml dl tl ic powers ;hiiI ( such tin cxei'cised by such other ollicer as iii.'iy of tli ill, it was claimed, liow( ver, bv Staii- ind 1 let oil after MS SUppll th irters, that .lohiisoii had no jiower to remove the •t irv of War, who wen; holding 1 bad not ht^eii vea])i)oiiit(Ml. On iceis. llieludiiiLi tlr itliof I. iiieoln, aiM Ai!'riistr)ili, ISdT, the i' •ut wrote to Stanton : — V tllllt " I'liblic considerations of a hii;li character constrain nie to sa j'our resii^natiou as Secretary of War will be aeeepteib" Mr. Stanton replied immediately aeknowledjjfinjT tiie receipt of tlic letter and addinjj : — " I have the honor to say that public considerations of a high cliiir- =■ 14 St. at L., 11. ■l:in. -" I?laiM(>, Twrrily Years in Ciin- grcKj;, vol. 11, pp. 2l)9-27'l. ll.id., pp. 3')3~3r)6. s no, ] BIPRACH.MKNTS. actPi' wliicli alono have iniluced iiie to contimio lit tlie heiul of this Dc- IiMittiu'iit, coiisti'.aii) me not to n'si<;n the Spcrclni'yHliip of Wiir ln^forn the next iiieetin<^ of C'oiijjft'Kw." Oil Ausfiist 12tli, 1M(!7, Juliiisdii siisiii'iiildd Siaiituii IVoiii his (illicc 11 iidcrtlio 'IViutrc of Ollicc Ad, mid )illt"d (icllclMl ( JfMIlt scci\'t;iry of war (nl iiitcriiii. Stanton rciiliiMi ilriiyinL;' the I'li iliiit's ri^dit to siis|ii'iid liiin \v Srna itlioiit tlu; advice and coiisciit of the tr. ami willioiit li'^'al cause: — '■ liTit inasimic'h as the frenernl coiriiiiarnliMi; tiic aniiics of t!ie I'liiti'd .Ni.ilt's has hcen a|)i)oirit('il ml iiilirim and has notilicd me that he has lici-epli'd the appoinliiK'iit, I liave no alternative hiil lo siihiiiit iiiiiler (ilist to sui)erior force." When (lie Senate met in I), ilief, the I'i'esi(h'id iiotilied it of tlie siisiieiisioii, witli Ids reasons. The Senate rel'used to cone ur 111 liie lame. 'rhereuiion. (ieiier;!! (irant at once siirrenih'red tlie War Di'uaitineiit to Stanton. Tiie I'resideiit i d( lant hail I'ailh ill this : d clainu'd. wiiat (iraiit deiiieii, tliat he had nri {iroiii- iii|ireiiie Coiiilor the I'nited States for deieiniimition.''' ()u Fuliruarv 21.st, l.Sl!8, the J'rcsiduiit wrote the following let- tci-s, which were the immediate cause of his imjieaehmeiit: — • " KxKcuTivK Mansion, Washington, D.C, Keliniaiv :.M . 1808. Siii ; l?y virtue of the power and authority vested in nie as President the ('(institution and laws of the I'liited .State s. von are Mereliv re- iihiveil from olliee as Secretaiy of the l)e|iarliiiciil of War, and voiii' ''iiiictiiais as sucji will terminate n|ion receipt of this comnMuucatioii. Vnii will transfer to IJrevet Major (ieneral Lorenzo Tlionias, Adjutant • ieiieral of the army, who has this day heeii authorized and emimwered til act as Secretary of War "(/ iiiti'rhii. all records, hooks, [lapers, and oilier piihlic property now in your custody and charsie. Kespecl fully Andki'.w .Johnson. (Ion. K. M. Stant Washiniiton, D.C " Exi'.ffTivK AIansion, Wasiiin<;ton, D.C, !■'< Isik: Hon. Kihvin M. .Stanton haviirj; heeii this riiary •_>!. ISnS. av removed from ' Blaine, Tv.only Vi'iirs ill Coiifiress, vel. ii, jui. y4H-3ijl. I.Mn:.\(ll.MKNTS. [CIIAI-. Mil. olllci' ;is Si't'ictiuy for tin' I)i'i)iiitiiiont of War, you nro lii'iihy iiiillioiizid :iiicl I'liipowiTC'tl lo act an Sccivtary of War ail iiilvriiit, and will iiniiu- tllalt'ly enter n;)oii the (lls('iiaijj;e of the duties iierlidniiifl to tiiut (illicit Mr. Stanton has been instrneti'd to transfer to yon all the reeonls, books, jjaiii'r.s and otiier public property now in liis cnstoily and charge. KespectfuUy yours, Anduew Johnson. lirevet .Major (Jeneral I.,oi!i;n/o 'riK)MAS, Adjutant (ii'Ueral, I'niled Slates Army, Washiiinlou, D.C." Till! I'lesident informed the Sunate of 1 lis net loll tijioii tlio same Stiiiitoii refused to surrender liis oilicu to (iein'nil Tli oiiias, lay. k'ho (leniaiided possession iuhI leiiiaiiied in eontrol of tlie Depait- ueiit. 'I'lie Semite fortliwitii ]iassed a lesoliitioii declaiiiiif, — 'that iiiuler the Coiistiliition and )f the I'liiled Stales, the Presi- dent has no i>o\ver lo reiiiov(! the Seeri'larv of War, or to desijinale any other ollieer lo iierforni the duties of that olllee nd iiili'n'iii." On tlie same day a resoliiti(ui for the imjieaclimeiit of tlie l'ie>i- de'iit was iiitrodueed in liie House of lit'pi'osentiltives and relViiiil to the Committee on iieeonstriietioii. T\w. next moniiiii;' 'riionia-; was arrested liefore lireaicfast liy the; iiiarslial of the y St niton, ehai'niiio' a viohitioii of the Tenure of Oniee Act. A writ f)f habeas corpus was immediately issued 1 y tlic same .iudn'c *'■ it n'ranteiiilltlllellt (il riidiiuis lis 1) violation (if tlie 'reiiiin? (if ( )lliee Act, and "All lilt t(i drtine and [iiiiiisli ei rliiin ennsjiii'acics, apjiroved 'Inly ;:i. ISIil." 'I'lie iiiiilli iiitiele eliin;<,fe(l tliat (in Fehniaiy iJlid, iNtiH, ilie I'lcsideiil liroii^dit liefoi't- liimself, William II. iMiiery, a (ieiii^ral (if the Army in (•(iiiiiiiand lit tlie di'iiiU'tmeiit at Wasliinfftdii, and iij>ti III iii^lnietiiins in relation to militarv oiieralioiis issued liv llie I'i'us led liiln that the act. wiiieli [ildvided tlial "all orders iind ■lit or Seeietary y )f w ir. sliii U lie issued thr (lllLlll y the (i d of riiiv, a 11(1 111 ease ol his iiiii diilitv tlirouuli his next ill iiiiil the A was uiieonstitiilional ; with intent tliereliy to induce ICmeiy in liis (illicial caiiaeity us the coiiiiiiiinder of the de|iartinent at Wasliinjf- tiiii. to violate tiie [irovisions of tiic said act and to take and receive, act upon and obey suih onlers as he I he said Aiuirew .lolin- soii min'lit make and ^dve, and which should not lie issne(l thr 'Ugii the (ieiieral of tlie aniiy of the I'niteil Stales, aeeordiiij,' to the |iro\isioiis of said act. and with th/ fiii'thcr intent thcieliy to ciiahle the I'lvsident to jireveiit the execution of the Teiiure of 1 IHice Act and to uiilawf ully |i reveiit Stuntoii from coiitinniiiL;' tii liiild tlii^ (illice of Secretarv of W Thai said Andrew .!( 111. I'll .'lit of tllf riiite(l Suites, iiii- iiiiiiilfill of the iiiuli duties of his (jllice, and the diiiiiily and |iroprietics llu'icof, and of the lianiuiiiy and cdin'tcsics wiiieli (iiiulit to exist and lie iiiaiillaiiu'd lietweeii the executive and Iciiislativi' liraiiciies of tln^ j.'iiverniiieiit of tl ■ riiiled Slates, dcsiniiinu and iiiteiidiii;; to set aside the riLllitfiil au'liorii > :inil jHiwers of ( '(iii;j;iess, did atteiiilit to liriug iiili) disirraee. idit'iiii', hiitivd, eonteiiii)!. and ri'imiaeli llie ( 'oiijiivss of the r lilted Sta; (li'strov die rciiaii aii'> the several laaiiches llien-df. to iiii|iair and ara; n peel of all Ihc picid people (if the I'liited Slates for tile Coiitiii-ss and li'iiislative pdwers tliercdf. (wliieli all otli- t'l'iH of the iiovcniiiieiit oiielit inviolalily to preserve and iiiaiiitaiii), mill to excite the oiliiilli and leseillliieiil iit' all tin mm iieiip le ;-f the ■ Bill 'I'l rciii's ill Oin- Snpra. § IIH. over uiite 95. uivss, vet. il, pp. a."i(i :ii';i. IMAGE EVALUATION TEST TARGET (MT-3) ^4l ^ive said Andrew .lolinson as tlie ( hief Magistrate of tlie United St:ites, did, on tlie cigliteeiitli day of August, in tlie year of our I-ord one thou- sand ojirhl liiindred and sixty-sis, and on divers other days and times, as well before as afterward, make nud deliver, with a loud voiee, <'i'i- ttiin intemperate, inllammatory, and scandalous harangues, and liiil therein utter loud threats and bitter menaces, as well against Congress as the laws of the I'nited States, duly enacted thereby, amid the ciies, jeers, and laughter of the multitudes then assembled and in hearing, wliieh are set fortii in the several specifications hereinafter written, iu substance and effect, that is to say : '■'' ^jiecijication Fimt. — In this, that at Washington, in the IJistrict of Columbia, in the Kxeeutive Mansion, to a committee of citizens wlio called upon the President of the I'nited States, speaking of and con- cerning the Congress of the I'nited States, said Andrew Johnson, Pres- ident of the United States, heretofore, to wit, on the eighteenth day of August, in the year of our 1-ord one thousand eight hundred and sixty- six, did, in a loud voice, declare, in substance and effect, among other things, that is to say: " ' So far as the executive department of the government is con- cerned, file eO'ort has been made to restore tiie Union, to heal the breach, to pour oil into the wounds which were consequent u])(>ii tlie slriiggU^, and (to speak in common jihrase) to jircpare, as the learned and v.ise physician would, a plaster healing iu character and co-exlen- sive with the wound. We thought, and we think, that we had partially succeeded ; but, as the work jirogresses, as reconstruction seemed to be taking place, and the country was becoming reunited, we found a dis- turbing and marring element opposing us. In alluding to that clement I shall go no further than your convention, and the distinguished gen- tleman wlio has deliveretl to mo the report of its proceedings. I shall make no reference to it tliat 1 do not believe the time and oecasiou justify. " ' We have witnessed in one department of the government every endeavor to prevent the ;'esloration of jicace, harmony and union. Wo Lave seen hanging iii)on the verge of the government, us it were, a body called, or which assumes to be, the Congress of the Unitctl States, while, in fact, it is u Congress of only a part of the States. We inive Been this Congress pretend to be for the Union, when its e'lxry step and § IIX] AliTIC'I.ES A(iAlNST .XtllNSON. fio5 !iit ti'inUd to piM'peluati' disiiiiion siiid iiiiiko a disniptioii of tin- S!!ili>a iMi'\ italile. * * * Wo U^.\\•^• wren ('<)ii<;ri'ss sonri, heretofore, to wit, on the eighth day of September, in the year 111' our Lord one thousand eight hundred and sixty-six, before a public M-seniblage of citizens anil others, said Andrew .lohnson. President of the Inited State§, speaking of a. id concerning the C liiited States, did, in a loud voice, declare aiiiiiiig other things, that is to say : " ' (io on. Perhaps if you had a word or two on the subject of New (lileaus vou miuht nnderstaiid more about it than vou ilo. And if von ougress of the substance and etTect, will go back — if VI ill iro back and ascertain the cause of the riot at New Orleans, perhaps you will not be so prompt in calling out New Orleans. If you will take u)) the riot at New Orleans, and trace it back to its source or its immediate cause, you will tind out who is responsible fi>r the blood that was shed there. If you will take up the riot at New Orleans and trace it back to the radical Congress, you will llnd that the Soli IMTKACHMKNTS. [chap. XIII. rii)t at Ni'w OrloiitiH was nubstaiitiiiUy (ilanucU. If you will take up till" pnx'onlings in tlii'ir caucuses you will uiHlprstund that they there knew that a convention was to be called which was extinct by its power haviiiu; expired ; that it was said that the intention was that a new f^overn- inent was to be orjfanized, and on the ors^anization of tliat {iovernmeiit the intention was to enfranchise one portion of the population, called the colored population, who had just been emancipated, and at the Hainc time disfranchise white men. When you desii;n to talk aboi't New Oilcans you ought to understand what you are talkinj; alxiut. When you read the speeches that were made, and take up the facts on the Friday and Saturday before that convention sat, you will there lind that speeches were made incendiary in their character, excitiiii; that por- tion of the population, the black population, to arm themselves and prepare for the shedding of blood. You will also find that that eoii- vention r to deny, tliat tlio le^iisliiliou of Maid Congress was valiil or ol)lii;atury upon him, tiio said Amlrcw .lolni-im, I'xci'pt in so far as lie saw tit to approve the sanii-, and also ilicirliy denyin<;, and intending to deny, tlie power of lliu said tliirly-iiiutli Conjrrcss to projiose aniendnientti to the Constitution of tlie Uniiod States ; and in pursuance of said declaration, the said Andrew Joliiisdn, I'ri'sidcnt of the United Stales, afterwards, to wit, on the tweiity-lirst day of February, A.I), ei^^hteen hundred and sixty-ei»lit, at tii's oily of \Vashiii;j;ton. in the District of Columbia, did, unlawfully, and in dis- re<;ard of the requireiiicuts of the Constitution, that ho should take care that the laws be faithfully executed, attempt to prevent the execulioii of ail act entitled ' An act reffiilatin"? the tenure of certain civil odicps,' passed March second, eiiihleeu hundred and sixty-seven, by iiiilawfiilly devisiiitf and contriving, and attempting to devise and contrive means by which he shoulil prevent Kdwin M. Stanton from forthwith resuming the functions of the ollice of Secretary for the Department of War, notwithstanding the refusal of the Senate to concur in the suspeusioii theretofore made by said Andrew .lohusou of said Kdwin M. Staiitou from said ollic^e of Secretary for the Department of War; and also, liy further unlawfully devising and contriving, and attempting to devise and contrive means, then and there, to prevent the execution of au act entitled ' An act inakiiig appropriations for the support of the aviiy for the fiscal year ending June thirtieth, eighteen hundred and sixty-eiirlit, and for other purposes,' approved March second, eighteen hundred and sixty-seven; and, also, to prevent the execiiticniii); artsumcnts for its pri'sentatlon heforo the iiinliest court of justice in the land. We s(ient most of the inorniiiKover the questiou of selecting the chief nianaKcr, — in selec'tinu the Uou. Thuddeus Stuvous, chairman of the lio.'inl, who was to make the c'osiii;^ ar<.(unient in lichnlf of the House. That having Iiecii .'-el- tleil, I .sail! : ' liiil who is to iii.iki' tlio opening aiKUinent, and pii; lliecaseiri form for presenlallon in the Scinli'? Therearo less than three days In wl irli to [irejiare it. Who is an.Nioiisfnr Unit. place'/' Tliere were not ninny caiuli- dali's for this lalxir, and I .said : • Very well, I snp|iose, as usual, the opening of the ease will fall upon the yoiin;_'iHt counsel, ami that is myself.' The iiiciii- liers of till! hoard unanlnniusly s.ilil: • Will you undertake iV! ' ' Yes. If llio hoard desires It, and no one else will have it, I will." It was agreed upon that I should prepare the case .iiiil make the openiiifi arfjunioiit, anil I thought that it would not he of nuii'b couseiiuonee after that was ilnm' who did the rest. And thus I heiane' the leading llgure of the impeailiiiient, for better or worse." (Butler's Book, pp. !)'27-y2H. ) *" "The inorninR otter the opening of the urKUinont, I asked one of tlm board of managers, a very clever (.'I'li- tleinan, to have the kindness lo ulTcr u piece of written evidonco, but his §00.] .IOHNHON's TICtAI,. M8 ol the impoacliment wero curried off by liim ; altlinuiili tlu; coii- cluiliiiL,' a:|fuiiu'iit of JdIiii A. Hin^r|iain wsis iicrlmps tliiil wliiili (lispliiyt'il tilt' most oi'utorii'iil iiliility. Uutlcr opened the case for the House on March 'iOtli, and the trial continued almost daily until .Miiytith, iHtiH, when the wiiole case wa-t suhniitted to the Senate. A few days were oecaipied in the settlement of the form of the (|iiestion and the practice iipon the judj^ment. and there was a short adjournment on aeeouutof the illne-ssof one of the senatoi-s. At the SiMiate conference it appeared that two at least of those wild were in favor of a conviction were iinwillinfj to sustain the article which eharfjed a violation of the Tenure of Olliee Act, since llicy li.'licved that Stanton's ease was (!xcc])tcil by its proviso.'" For the test vote, accoi'diii^ly, they selected the concluding' article, wlii'li incluiled several ciiarges, a belief in the sudiciency of any one of w hich mit^ht be sullieient to satisfy the conscience of a sen- ator who voted "f^iiilty," to the wliole.^^ On May l(!th liiat vote uiis taken and the resiioni'i', that I coimIiuIciI to relievo Fiiiilin;,' ino iiicorri^jililo, tlicy Icfl, iiio liiiii. Aslor iii.vsi'lf, I caimUo the con- lo my (Icvlccs." (BiUler's lionU, |i|). linsion lo try llio cnse u|ion thoHanio \)'l'.) ',I:10. i riili's of ovUliMK'c. and in tlio sanio ■" l*i)llti<'al Li'hiIcih of tlio Iti-ion- iiiioHMM' an I Rlioiild try a IjorsiM'aso, siniclion IVi .id, liy K. (l. l{o■-^^, Tin) iind I lincw liow lo do that. I lliori'- Fonini, vol. x.\, pp. 21S, 2jr> ; ()|iiiiiiiii fort' was not in trepidation. When I of Senator SluM'nian, .Iolinson'.s Trial, (lis'ussi'd tlialcinestion with the man- vol. iii, |i. 1 ; Opiuionof Senator Howe, a^ers tlioy suemed to lio u fjood deal iliid., p. 58. cut >ip. They said : ' This Ib tlie *'- .lohnson's Ini|)eaehment Trial, lireati'sl cnso of tin- times, and It is vol. ii, p. 4H4. SlePhorson, History of lo 1)0 eonduoted in the liighost possi- tlio lliMonstriietion, ]). 2H'2. Iile nianiior.' ' Yoh ' I wild, ' and that *' Ulalne, Twenty Yours in Con- is aceordiug to law; that is tbo only gross, vol. 11, p. 375. Au attempt to '>64 IMTKACIIMKNTS. [('MAP. xrfr. suit. Tlic court tli.-ii adjoiinicil willioiit ii diiy, and tliu Cliicf .liisticu (tillered a jiid^rriiciit of iiccjuittal iijioii tlicsi; tliici.- iirticlcs. 'rwuiity-iiinii HunalDrH aftiTwai'ds lili'd niiiiiioiis in jiiHtilicitiim of tli(!ir votes. Tlie niinoi'ity included ci{,dit DcinocratH and four ilc- |iiil)licaii sMiiportcrs of tlu? adniinistralion \v1ioh. '227. " William riU. Fi'SBonilon of Maine, .losoph S. Fowler of Teniiessue, .lames W. (tiiiiies of Iowa. .John B. Himilor- Hoii of Missouri, Eilwanl O. Ross of Kansas, Lyman Ti'iinilnill of Illinois and Voter (i. Van Wynklo of West VirKinia. *' Blaine, wlio voted for tho ini- |ieaehment when in Iho House, eight years hilor pronounced his judgment that tho proceed ings were not juslKled and tho aoquittnl proper ( Blaino, Twenty Yearn in Congress, vol. II, pp. 375-383). Mr. .lustlee Miller wns of the same opinion (Lectures on tho Constitution, p. 172). S. S. Cox In his Three Decades of Federal Legisla- lion, I'p. .')H2-.')!»3, gives nn InterpslinR account of an interview between tho I'rosldont and Senatiir Grimes of Iowa at tlio rooms of Itevenly .loluison, during tho trial, when Andrew Jeiiu- Bon expressed his views of his politi- cal duly in such a manner as to con- vince tlu^ senator that Ills continimnw In olTlco would not bo Injuiiouu to tiio country. Cox also claims to have InlUienced Henderson's volo. Tlio ofli- eial report is Trial of Andrew Johnson, President of tho United 8t;le8, lietoro the Senate of tho United States, on Impeachnu'nt for High Criuiea and Misdemeanors. Published t)y Order of tlio Senate. Washington ; Oovern- nient Printing Oniee, 1H68. Tlirci! vol- umes. Vol. I, pp. 711 ; vol. ii, pp. laS . vol. Hi, pp. 401. >' !'«^-] IJFXKNAI' S I.MI'KACIIMI-.NT. Tin; iit'xt impciiilimciit tii.il Ijcfcin; tlie Sijiiate of tliu riiilcd Stiili's Wdiilil M'rm lik(! an ,iiiti-<'liiiKix, wcii; it not fi)r the dis- l;1;UcI'ii1 llltun^ur tin; (•ll,llj;c, tlu! illl[i(il'llillt ((ilistitlltiollill (lUcS- lidii wliicli it laisi'd, itiiil tlit; woinli'iful aliilily wliicli tlic i;()i,,i.ul (III liotii siilcs (lisplayi!!!. Ill 1HT(), ill tlio (joiiisu of nil iiivestigiitioii Ity ii coininittt!" of ilif lloiiso (pf IJi'pri'Si'iilativL'S, it aiijiearcil tliat tliu Secrrtaiy of War, William W. Mclknait, had fo|- suveral yuurs heuii 'vi iviiijj liitwcoii )! closest connee- tion with the jioint, it luis not said that the President, Vice-Piesi.lcut, and civil (jfllcers, shall be li.'dile to impeachment ; but taking it for granted that they were liablo at com- § «!•] PEK80NS SUBJECT TO IMPEACHMENT. 667 the only limitation is tliat a commoner cannot be impeached for a iiicn law, lias introducoU nil itiipcni- t ive provision as to their rotnovai upon loiiviction of oortaiu crimes. Tlin (|ii('8tion, tliereforo, is, wliat poraons, for wliat ofTencres, are lial)le to l)e iiupi'aelii'd at common law? And I am coiilldcnt, as to this point, tlio I'liniiii^ ami iilieralily of tlio co\insel will save nio tlie troiit)lo of argument, or ilio citation of nutlioritics, to <'f- liihlisli the position, that the question of impeachaliility is a, question of dis- iri>tion only, with the Commons and I.onls. Not that 1 .iiean to insist, ilial the Lords have lopil cognizance ol' a char|.;c of a capital crinn- against a i-ommoncr, imt simply tiial all the Kiii'^'rt Bulijects arc! lialih? to lio im- pcaclicd liy the Commons, and tried hy the Lords, upon charKi's of hluli crimes and misdemeanors. And this, fir, (iocs to tlie e.xlont of the articles cxhiliiled against William Blount. And for my part, I do not conceive it would l;ave been sound policy to have laiil any restriction as to person upon the power of iiupeai'hintj. Il is not iliilicnll to ima;?in<' a case in which tl'.e jiunishment it imposes would ho llnMnost suitable which could be in- llii-li'd. Let us suppose, tlial a citizen !iol in onic(>, but possessed of ex- trusive! inllu(>nce, arising from popu- liir arts, fi-cun wi-allh or connec- tions, aelinited by stron« amiiition and aspirinf? to the first jilace in the • loveriiment, should conspire with tlie disafTected of uir own country, or with forei;;n Inlriijuers, by ill; gal iiilillce, corriiplioii or foiee, |o ]ilace himself iu the ]'rc> idential Chair. I would ask in such a case, what puidsli- ment would be miu'e likely tt> <|ucll a spirit of that ilescriplion, than alisohilo and perpetual discpialilica- tlcm f<,r any olTlee of trust, honour or proUt under Llio Cioverumeul ; and wh;it punisliuK'nt could bo better calculated to secure the pi'ac^e and safety of the Stale from tlu' repetition of the same offenceV" (llananer IJayard in lilount's Impeachment, Wliarton's Slal(! Trials, pp. 20.">, 'Zm.) " Nor can I conci'ive how the uni- versal e.\teiit(.f Iheiiowerof impeach- m<'nt, contended for by my lionorablo colleague, is contrary to tlie spirit, tho objects, or the policy, either of the law of impeachment, or of the Feder.il CNuistilulion. The use of the law ol impeachment is to punish and thereby prevent oDV nces which are of such a nature as to cnd.inKor tho s.afcly, or injure the intcrists of the Ilnilcd Stales: and the object of the Federal ('oiistilulion was to |iro- vido for tiiai safely, and to jirolect those inlerests. Such ofl'cnces iiuiy 1)0 committed, as well by persons out of ollli'c, as by person.-? in olllco; and allhouKh the puidshmenl can p) no furllicr than removal and dist|ualill- cation, wliieh reslricllon wa>, perhaps, wisely inl reduced iu order to previMit those abusi's of the power of impeach- ment, whiih had taken ]ilace in an- other country, yet it may oft' n be exircmi'ly import a'lt to |>revenl, such ofl'diders from ficltinK luti) olTlce, as well as to rcniokc them .en they are ill; anil it is, therefore, us ccui- sislent with the policy of impeach- iiHMits, and th(' lu'inciples of the Fed- eral compai't, to punish them in tho one ease as in the olher. This doc- trine, it is furl her said, would enable Coicjrcss to interfere with the Stale governments, by i,mpeacliiii,i! Ilu'ironi- cers. Ibil, t Ihis(> iuipcachmcnis must be founded o, offi'iices npiinst the t'niled SbMie.-*; and if sudi oll'enccs were committed by Stale olllcers, I cannot see why Ihcy iui)ihl not to bo imnibhod, as well as in any olhur uasu. 508 IMPEACHMENTS. [chap. xiir. (capital offense.^ This contention was easily refuted 1)}' tlie coun- sel for tlic defendant^ and rejected by the judgment of the Siuvly till y wi)iil-nih offices, tlicro iiiijjht lio soiiu'tliiiig in till) olijcction ; lint that conld not l)i> Hits ciisc, hIiico tlio re- moval and disqnalilleation apply to olllees under Iho peneral (government alone." (Mannjjer Harper in Bloiint'a InipeailinicMt, AVliarton's State Trials, pp. ;i()0 301.) 8 2 Woiidi'son'.s Lncture.s, p. (iOl. Tlie same rule jn-evails in I'rance (Lni Con- stitulininiejle siir los Hapiiort.s dfs Pon- voirs I'ublirs, lCi-'28 .Tuillet 1H75, Art. 12): "I.t Presidfiit d(? !a Rr|mbllque ne pent Ptre mis en accii.sation (pie par la Chanibro des deputes et ne pent etre juge que par lu Si'nat. Les Mini.slres peuvent etre mis en aecUBatlon par la Chanilire des deputes pour crimes com- mis dans I'exeivieu de leurs {unctions. En ce cas, ils sunt jug'^.s par le Seiiat. Le Senat pent etre const itiie en cour de justice par un decret du President de la lifpuliliqiic, rendue en cunseil des miiiisties, pour juger toulc iiersomio pr6venue d'atteniat coniniis contre lo sureto de I'Ktal. Si I'instruclion est commcnci'o par la justice ordinaire, le dCcret de cunvoctitioii du Sfinat pent etre rendu jusquil I'arret de renvoi. Une loi delcrniinera le mode de pro- ceiler pour r.iccusalinn, I'iiistruction et le jugenieiit." Loi relative a I'OrKaniza- tlon des Pouvoirs Publics, 2ri-'_'S, I'l'.y- rier 1875, Art. 0: . . . " Le Pre-iident de la Kepublicpu) n'est responsable que dans le casileliaute tiviliison." See Uiir. gess, Political .^cieiuvLi and roiiiparativo Constitutional Law, vol. i, Aiipcndix,pp. ,3;)(i-.'!;;T, .T!1 ; ibid., vol. ii, pp. 2'.I1-20l!, ■ can rescind and annul all previous bad laws, liut the power of the people is only to make the laws; they have nothing to do witli ej'ccutiny them; they have nothing lo do wiili eJCpininiUnij them ; and hence arises tlie diver-ily in the modes of rcinedyiiig any grievance, which they may suffir from the conduct of their Uepicscnta- tives or agents. It a Lej;is!ator acts wrong, ho may be expelled before tlie term for which he was chosen has ex- pired ; ho may be rejected at the la xt periodical election; and the laws wliicli he has satietioned may be repealed liy ii new representation. Hut if an Ivxetii- tive or a .ludicial magistrate acts wrong, the people lia\e no inimediate power to correct; iirosecntlon and iinpeachniciit are the only remedies for the evil. Then, it is manifest, tli.it by the power of iinpeaclimcnt, the people did not mean to guard against thein.selves, but iigainst tlieir agents ; they did not mean to exclude themselves from the right oi re-appointing, or pardoning; but lo restrain the Executive magistrate Iruiii doing cither with respect to olliceis, whose offices were belli independent of popular choice. The subject is made more plain, by two considerations: - 1st, tliat ulthough eitlier House may ex|iel a menilier, they cannot (on tlio lirinciples of the Constituiion, witliout any expre-» |iroliiliitioii) expel liiiu twice for the same cau.se: 2i\, that the President is not empowered to pardou in cases of impeachment. In the case § '-H-] PEK80SS SUBJECT TO IJIPEACHMENT. 569 Si'iiiite.^ The maxim of construction tliat tlio expression of ono liiiiii,' is tilt; exclusion of iinotiier, clearly controls. 'J'he ("onstitu- lidU is a [rrunt of limited powers for Federal purposes only. Tiie (il)jct't of the <,nant of the jxtwer of inii)eachnient was to free the iiininionwealth from the danj^rcr caused liy the retention of an unworthy public servant. A further extension might be danger- nf expulsion, the member ia seijt to the podplc, but if tliey clioose to return him asjiiiii, lie has a perfect title to his seat. Ill the case of an iiupeaelniieiit, the de- limiuent oflicer is disiiiissied ; on the tri'inral power of the Executive lio iiiit;lit be reaippoiiited ; but to guard aKuiiist the abuse of tlial power, tlie CiMisiitulion superadds a sentence of perpetual distpialificalion." (A. .J. Dal- las, respondent's counsel In Blount's liiipi aclimeiit, AVharton's State Trials, p .;>^i.) " That the Constitution of the United Slates, limited in its Legislative and llxeeutivo jiowi'rs tocerlain enunienited olijieis, as well as in lis judiciary, where ajiny constitutes a jiarl of il-i aduiinis- tiation of jiistiee, shoulil lie left without buiiiids ill ihi^ liazardous iinu'eeding by iiMpeachnient only, is grost-ly improb- able, and, I trust, unfounded. Con- trary, I am sure, to the spirit, and, I lliink, also to the letter of 'he Consti- tiiliijii. Let us trace the operation of this principle. A Slate oIKeer is liable to inipeiichnient, in the Senate of the St.ile. Is he liable at the same time, ami for the same offence, to inipcach- iiuiit in the Senate of the United States! Will an ae(|uiital In one be a bar in the other? In disputes between the powers and relative jurisdiclions of Slate and United Slates, tla^ same rea- 8II11S may Indiieo an aecpiiital in the f'Tiner and a condeinnation in tin' lat- ter. Would not tills oi'easion a liabel, a confusion of coiistiiulions, a nioiisler of jiMisprndence ? In jurisdictions not emanating from llie same aiithorily, where a party had not his elioice, the citizen is liable, it Is said, to successive trials, and contradictory determina- thms, for one ol'feiiee. 'I'lie distant in- habitant is amenable, we are told, at the bar of this Court, for every siHcies of offence, at tlie distance of a hundred or IV thousand miles from liis vicinage, to wlioin the prosecution itself would be ruin, and here liiiisl submit to the awful (li.vntioii of the Senate whether lie shall retain his honour or be doomed to disgrace, recorded ami transmitted to posterity, u|)oii your arciiives, art un- worthy the oHiees oiiiiient of their bodicii for one hour, but, in conse- quence of a veiHlicl of the neighbor- hood; at the same time that it Is sug- gested, till ir hiMionr they have not se- ciire than tlio other'? No. They simply took lliin into coMsideratloii ; This provision simply meant that it was imperative that on Impeachment for certain crimes of a hij;h grade civil ollicci's shoulil bo riMuovcd. Why not military ollh'ors'? Because military talciil is of a peculiar cliaracler. One man in an army may not represent oni; ono man, but ids name may be (jood for a thousand, leu thousand or niore. Suppose you take tho ease of the Uuka of Marlborough — a man uoled per- r-"-] I'KUSdNS SlIItJKCT TO nU'KACll.M KNT. 671 'riio ineuiiiiL,' iif the iilir.ise, '• oflicfi' of lliti raitcil Slufrs," is iii'iii' (loulittiil. Tlic ([iKj^tioii w;is (lisfiissiMl witli yrcil ;'.l)ili;\ oil the ti'iiil of the iin|ic ichiuful of Senator Willi nil lUouiil, for ivy- iU'j; to uorrii[)t ii;i Indi in iii^eiit ainl iut^'ipivlcr, ami indiici.' him to alienate the Indians from the United Stales." Pending the ini- ]it;aeliinent, Hloiint was expellcjd by the Senate for the same oifuiise. His plea that the Senate had no jurisdietiou, wliieh was tiled suhseiinentl)- to his exjiulsion, was sust.iined liv a vote of fonr- tifii to eleven and the impeaehnunit dismissed. '" As is s;iid by Wharton, '-in a legal point of view, all that this ease deeidis is, thai a Senator of the I'nited States who his boen exiielled from his seat is not after siieli expulsion subject to impcaehnient." '' liMjiB for his avarice — n iiinii wlio, if 111! liad liccn lU'osocutcil for oflliial miilin-actico midei' our Constiluliim, would li.'ivo bci'ii reiiiDvcil fi'Diii ()!Vkc> liail tills piiwin- Ik'oii cxtonilnl to iiiilllary ofllcciH ns woll a.^ civil ofll- I'l'is; but to ri'inovi) the Duko of Mailliorough fnuu tlio licail of the aiMiioH of Englaiiil would have liccii i'i|iiivaloiit to jicUlliig liiM- place as a iiiililary nation In tliu face of tlic world. So llicro is a reason why military olTlcers should not be neces- saiily removed. You may remove tlii'ia. If tliodemaiids of the lli>|iulilic ■''Huire you should nunove them you ^liould do it, but you are not coiii- li'llc-d by the Constitution to do it. Tli.'l is why it wa.-i maih- applicable till >. illcers alone, and in rcfci<>Mcn lo civil ofllccrs, we have daily and iKc.irly indications that if the very l"'undance of pco|i|e would s;u-iiig up, numerous as the frogs ol' Ei^ypl, fully competent .•Mid amply willing lo till the places. Ii was rostricteil as to military ollleers hc'causo of tlio character of the duties tlicy have lo perform ; it was r"sl riclcd as to naval ollleers for the same icii.son ; and it was not, as I appre- litMid, for the cause suggcsled by .Tudgc Slory; that there were <'oiirls- nianial to try their crimes. The spirit of our institutions is that the ]ieoplc shall at the lime hold their hand on every olTlcer in the United States. As to those that were elected by thenisolve.s, Coiigressnicn, (hey placi'd it ill the imw, r of Congress to remove them. .\s lo those that re- |irescntcd the St.itc.-, they placed it in the ]iov.er of those representing the States to remove them. That is, they held the powerof removal all the time, directly or indirectly, and iu- triistcd It to no single in(li\idiial. As to tlm ollleers of the United Slates, who are (hose umler the Exei'iitivc, (hey meant (o hold the same hand upon (hem, and they did holil it. They meant (hat the military, llie maritime, and the civil aliUe sliall be subject to impeachment and trial, and (hat if it is necessary this court can drag from his height the military hero, or may draw from his depths the depredating customhouse ofllcer. This is the view we tal' Ibid., p. ;ilfi; «»;ir(i, § ItO. " Ibid., p. 317, nolo. IMI'KACIIMK.NTS. [CUAI>. XIll. Till' fad of tln! fxpiilsion, liowevcr, |iliiyi'(l little p:ii't in the arpu- iiK'iit.'^ 'I'lio iiiiiiu (juustioiis (lisiMissod wltu whether persons not eivil ollieers of tiie United Stites eoiild be iinpeaehed, whieli \v;i8 nccess:i)'ily ni' Dallas, ibid., p. '2S1; Inijcr- Boll, ilild., ]). 2%. " Uawlo cii tho I'oiislltiilioii, p. 203; Story on IlK'Con.'ililuliiai, !;^ T'a.'i, V!)."); ManiiRcr Gi'oikc Fiisliii^ Hoar In Rclknai)'s ('as(>, p. 1H(!; ((uiiti'd, infra, noto 20. n Soo tho si;. Jon on Kxpulsion, injra. '■' Article I, Section !). See Iiiu'er- Holl in lilonnt's laipciicliincnt, Wliiir- ( oil's Stale Trials, p. 2'.ir), 21)1') ; (juotcd, infra, S !)2, note i:i. '" ArticloII, Sections. 17 Arliclii II, Section 2. " Article I, Sc'tlon fi. '» Article II, Section 1. §»^-] PERSONS SUB.IECT TO IMPEACHiMENT. 578 iiu'iit, which is limited to that anil goes no further. Inasmni'h :is till) President and Vice-President were not chosen hy tlie peojiie, hut hy tlie Electoral C'ollege, a iirovislon to prevent their suhst'(juent ('ligil)ility to office seemed also expedient. For tlie removal of an unworthy senator or representative, the jiower of expulsion was coiift'rred upon their respective iiouses. It was not intended to allow eitlier iiouse to regulate the memberehip of the oiher. Nor (lid the people intend impeachment as a check uixm thcinsclvf's.^" ™ A. J. Diilliis, ros|ioii(lc'nt's coiin- fii'liii lilDunl.s Trial, Wlmrlon's Stall- Tiialfri, ]). 281. Si'o iilso iliiil., j). 278; .larcil Iiij^iTsoll, rt'spomlcul's coiinscl, il>iil., p. 2'J'i and pnHniin. " Ih it to l>o Idlrratcd — I'an two Inaiiclu's of n Icfj- isliilivo body dwell ti>K<'llHT iiudiT tlio Coiislitiitioii ill poaco it oiio of Iheiii h;iH tlio (•onstilutioiial pn-roi^a- tivi' to lay its hand upon ii inonilicr of tin) oilier and force lliat liody to wlileli ho lieloni^s to put liiiii on trial tor an nliurte of that very le^^islalivo ollico to which he wa-s elecledV" {XIanat;er George Frirtliii! Hoar in Bel- knap's Casn, p. 180.) "The Senator is not an ofllcer of the United Slates; the Coii,i;ros.siiiaii is not an oOicer of tlio United Stales. Wliy? Ill the formation of onrdovern- iiient three elements entered. Tlioro worn tlio jieople, tl'o States, and the <;eneral (Joveinment. Tho people aro represented tiy the CoiiHressinon ; lliey receive their commissions di- rcclly from th(! i)oople. Tlioy aro tJio (illiccrs of tho people of n State, and not of the United States. They may do olllcial duty with reference to tho Uniled States, na some otiier State ofllcers do now; but they are still ofllcors of tho Slate. Tho Senators re]ireseiil tho sovereignty of tho several Slates; tliey represent tlio Slates, and as such aro oHlcers of tho States, and not of the XInitod States. So that a Senator is not impoacliablo, iu that ho is not an oiiieer of tho United Stales. A ronf;rpssman is not impejiclialile, in that lie is not an omi'er of tho United Slates, but an olllcer of tho people of a Slate. It leaves ii, then, that tlioso coKnizablo before this Court are only tiioso ho aro tho Government ollicers of tho United S'.ates; who aro ollicers allUo for every Slate; wlio receive their powers alilio from every State, ilirectly or indirecUy, wlio aro commissioii'd by the people of all tlio States, or who aro eomniis^ lolled by some jii-rs' u re- presenting llii> |ieo|ileof all tlie States. So tiiat the onicc rs of the United States are llioso iiicliided in t!in execu- tive departiiKMit of the Government, and every olllcor of that exeeutlvo do- liartmciit wo c onceive to bo iniiieai'h- ablo before tliis trilmnal." (Jlar.aj^er Geor^je A. Jenlcs in ]icll'.s Case, I>. 172.) Si'o, however, tlie very able arnumoi'ts of l!,;y,ird ami Harper to tho contrary, in ISIonnt's (!:ise, Whar- ton's State Trials (|>p. 'iW 272, 302- 311). Ill the conventions wliicli rati- fied the Coiislitiiliou, General Cliaiies Cotesworth Pinckney ntid Governor Randolph, who were aclivo members of llio Federal Convention, siioki* as if a senator could be impeached (Kliiot's Debates, 2d cd., vol. iv, jip. 211:) -2G5. See also ibid., vol. ill, ji. 202. Seo also ibid., vol. iil, p. 402). Tlie Speaker of the House cannot bo inipeaehod. In re Speakership of the House of Eepre- seutativos, 15 Col., 620. 674 IMl'EACIiMENTS. [CIIAI'. XIU. g 03. IiupeacliiiKMit nftcr Kxpiratlon of Official Term. A more difficult question is still uiideciiied. Can an ollicur of tiic United States he inipeaelied after lie is out of office for his acts wliile in office? Tiie point was tiiorou^ddy discussed in the case of William W. Helknap, wlio was impeached in 1870 for receiviii;^ bribes while Secretary of War. On ^larch 1st, 1870, he was in- formed hy the Chairman of the Committee of the House on the exi)i:nditures .") ; JIanager (icorgo Frisbio Hour, ibid., pp. 1!)'2- 193 ; and arguments of other ninnagers and opinions of senators wlio voted for conviction, pamim. * Howell's State Trials, vol. xv, p. 1. » Supra, § !)0. That Blount's Case Bottled that no senator or represen- tative could be impeached, and that no private citizen can be Impeached o.Tcept for an act done under an oBicial capacity, was conceded by the managers of the House of Ecprcsenta- tlves In Belknap's case (Manager Scott Lord, Belknap's ('asi>, \t. lOlt ; M.ina- gor George A. .Jenks, Belknap's Case, p. 171; Manager George Frisbio Hoar, Belknap's Case, p. 17!) K " Manager George Frlsbie Hoar in Belknap'.s Case, pp. lU.'i-lilfi; cii,.u(f Whitlcmore's Case. See mipra, ^ 71. Conim, F..l\vardB v. V. S., 103 IT. S., 471 ; Meehem on Public Officers, § 4U. ' Article II, Section '2. 670 IMPEA'^llMKNTS. [('ll.M'. Mil, If it he conceded that in any case a pei-Hon can he couvictiil by (lie S'jnate upon an imj)ea('iiincnt when out of oirux'. llie nilc nlll^t a|i])ly to all. No aihitraiv |niiiit of time ciin ]n' si'leclfil, i)eroi\' which, hy i'esii,Miatinii, he can he ahsolvod fi-nn the cnii- seijUi'iK'cs of iiis liji^'h ciiiiu'-i and niisdenieaiiois, and alter which he eaiiiiot. ( 'onseijiieiitly, if ihc view niaiiilaincd on lichalf uf the icspondent is eoirect, a jinhlic olliccr may rc.si^'ii his ollice diii- inj^ an ini|ieachnieiit, aft •!' iiis conviction, at any time hei'oie tlic Hciitenci' has hcen actually pronounced. Tiiat would he to render the whohi proceeding's nu^'atory and ahsurd. It cannot !)• tint the Constitution warrant; sueli an ahsurdity." The last part of this artjunient. seems not heyond dispute. Tiicro is a wide distinetion hetweeii an exit from olliee pendinjif an ini- peaehment and one heforo. After the jurisdiction of the court has once iittached, hy the vote of the House of Uepresentativcs that an ollicer he imju-aehed. it may well he claimed that lu) sul>- sei]ucnt act hy him or hy the President can divest it. That this was so appears to have hcen the {H>inion of a lunuher of senatoi-s who liiout,dit the Senate had no jurisdiction over iJelktuii).* The third point of the arj^unamt seems the stronj,'est. Tiio. hmjruaj^e of the Constitution providiufj that a civil ollicer of the United States can he imi)eachcil, it is true, limits the jurisdiction to the otlicers named in that section of the Constitution. The jurisdiction j;ranted. however, is over the jjcuson who is tlie ofliccr; and attaches to him for the rest of his life. There is certainly no tixpress provision in the Constitution, nor docs its lanL,niapre ncccs- saiily iniply that when he cciuses to he an ollicer he is relieved from liahility to impeachment. If a statute jjrovided that an olli- cer or a director of a national hank should he liahle to punisli- meiit for an official act, the courts would not dismiss an indictment, ' Seo tlie lU'KUiiH'Uts of llio maiia- in sucli a case tho Scnato would Ioho giirs iiiul opiuioiw of tlio senators jurisiliction, il>iil., p. l:t7. Ex-.Jniltro who voloil for conviction in Bcllcnap's case, jinHHim. '' Si'nator Conlclinn in BoHtnap's Trial, p. 239; Senator Fri>lingliuysen, ibiil., pp. 25!)-2r,2; Senator InKalls, ibiil., p. •i'.H. See Montgomery Blair, counsel for tho responileut, ihiil., p. 88;i. Ex-Soualor Maltliow H. Carpen- ter, respondent's counsel, claimed that Jereniiali S. Bl.ieli ili'eliued to express an opinion on tliis |)oint, ibUI., p. 21G. Of. In re. W.ilkei-, 3 Am. Jurist, 2S1. The Mississippi senate eonlinueil tlio trial of Lioiitenant-Governor Davis and pronounced judgment against him notwithstandiiiK his resiRnation after tho proeeodinKs had begun. (See Ap- pendix, infra.) § ''2.] LIAHIIJTY OK I'DiniKI! OI'KICKIiS. Ih'i'iiusc fduuil aftiT tlu' oniciiil torm liiul cxpirod. Tliat is siiid to lie till! iiiitiinil and priu'ticid iiii'itiunt,' of tlie liiiiijimjrc used by tlic Coiistitiitioii. I'ublic jKtlicy iiiiiy wi'U dciniiiid tlic jicrix'tiial dis- i|u;dii'u'ati()ii from ollict) of a criminal wliom it was not jMissililc to iiiipfai'li diirinj^ his oHicial term lu'cansi^ tlio evidtnci! to pi'ovc liis 1,'iiilt liad tlit'M not been disuovcrcd. In tlic Federal ("onvcn- ijoii. there was sonio diseussion as to wliethcr it would not he Will tf) confine iinpeachmeiits of the I'resiiU'nt to a time when lie was out of ()lli<'e, a.s was the practice in \'ii'j,'inia."' This shows tliut it was the helicf of those who drew the Constitution that ini- |ii iicliments might take pl.ioe at tliat time. Several State consti- tutions before and since have provided for impeachment after tiic expiration of an ollicial term, as well as dniinj;^ the same." 'I'iie failure to provide against impeachment after an ollicial t; rni siiows an intention that it should be includ(!d. To this it was icplied that tiie failure to inchulc, showed that it was intcndeil til exclude it.'^ In Blount's case both the counsel for the defcnd- iiiit conceded that an otlicer could not relieve himself from the " Elliot's Dohiitcs, 2il eil., vol. v, p. Hid. S("(i Vlrt-inia roiistltiiUoii of 177(i. Similar is tlio Chiliau ("onstltu- tiiiii, .\rt. H'.i. 11 ri'iinsylvnula Constitution of 177fi, Sim'. '22 ; Dolawarc Coiiatitiition of 177fi, All. '2;t; Vi'i-Mioiil Constitution of 17H(!, I'll. II, .\il. XXI, and (loorgia Consti- tulion of I'flS, .\rt. I, Si'f. 10. I- "It irt argued tliat If a rcsif?na- tiiiM slioiiid lie pormittnl iindor such I'iriuiuKlani'cs, tlin pcoplo would lio (lifrauilcd out of their rights to have till' olTerder disqualified. The aifju- iiii'iit is that, as the party ought to I'Kiape, the law does not prevent it. lint this does not follow. It might lii'tliiM'oniinon case of a raswM ominnu». But I eoutend that It Is not a camiH omiMHUH, and point to the deliates to i'liiiw that it was never coiiteinplated tlmt any but persons holding ofUce sliiiiild bo impeached, and also to show that, so far from being a fraud upon the jurisdiction of the Senate to resign ponding an impeaeliment, those debates show that an inlliientlal p.irl of the convention was opposed io Impeaeliment altogether, and lliougtit the lM>tler way was an appeal to the peo|ile by tlie aecused ])arty; and it Is, therefore, consistent with tlie views of all sides in the convi'iilion that a way of escape by resignation should lie left to an accused olllvr in order to enable him to have his day when a more auspicious period for a fair and just judgment could be had upon his case, while effecting tlie only object eonteinplated, namely, tlie re- moval of the ofllcer. No evil or alnise can result from tlie reslgnatiim. It is a purely iniaglii.iry 111 which can arise from withholding the hand that would disfranchise a citizen and di.-abin him from vindicating himself In a calmer moment." {Montgoinei>- Hl.iir. Counsel for the Defendant In IJc>l- kuap's Case, pp. 98-99.) 578 IMI'KACIIMKNTS. [chap. XIU. imiH-'iichmuiit by resijfuation.'* Jolin Qniiicy Adams saiil iu Coii- ^less tliiit an (lilluer could \ni inipuiiehed fur uii ollicial act at any '" " Tho (iriiiflpal argument on both sidi'B wiiHou tlie(Hiu»Uou whether a Sciiutoi' wus UII lm()i?U('ha)ilu I'ivil ulllci'i', and Uicmo in no cloulil tliat tho Jud^'inrnt MisliiiniriK tliu ])li-a was on that Ki'ouiul. Hut tho opiiilonM of the VKiy ulilo i.'oiuiHi'l on liolh Hides eonsliliite very weinlily evldeine of the ('ontiMn|Minini'oiiH iiuilcistandiii); of thi- t'oiisiitiilion. 'I'hi' two mana- gers, Mr. Jlavaid and Hi'. HuipiT, and till- iN\o lounsi'l for thi' drl'i'u- (lanl, Mr. Dallas and Mr. In;;ersc>ll, well' anions the aMest lawyers of their day. Mr, Uayard said : - - " ' It is also alleged in llie plea that the party iinpi'ached is not now n Si'nator. It Is enoiiK'i tliat lie was a Bonalor at the lime tho arlirlea were prel'crre'«l (loi'ti'iiiti Ihat Ullll''!' Ill) t'il'('IIIII!itUII<'l>B II pl'l'MIIII IMlulil III' llll|ll'UI'lll>(l llfttT liu hilll lofl an oiJli 1'. IL was fur tliii Interest e, and liieolhery in dilVerenl laii!,'uag() liiit in Hulistance concnrred ill I he same o|iini()n. Tliey put their ai'^Miment on the i^round tliat undor arioiher conslitutional provision llio man had been expelled for tho h»nio laiiso from tho Senato withlu a few days. In other words, u eouslilu- tioiial and cpiai^i jmileial proei'ediiiK liad been had which not only exempted till' defendant but disi|\ndilleii tho tri- liuiial. One of the gentlemen t^oes ^sible to have u trial on inipeachmiMt before a body that by u two-thirds vote has just di termined every i|uestion of f.iil which is involved In tho issue?' That was the iiiunnii'iit which Ihoso (ouMsel Buiiinilled to llio beuuto at that. time. Of tho toundness of the decision to the Hlonnt ea.so no ((ues- tion, as far as I can rememlier, has been lali-ed since. That the membiTS el either liont-e of t'onfiresw should be in;peachnblo by or before tho other, or that nil ollicer whose dm it's uro IcKif^lative fhonld bo culled in ([ues- liiin elsewhere for olTlcial acts, could never be tobraled and is repuKnant to the naluro of the ofllco itself." (ManaRor Oeorgo Frisbio Hoar In Uelkiuips Case, pp. 186, 187.) ""The miinai^er from Massachu- setts cited John liuin -y Adams, and coiiplud tho citation with as lofty ft ou- logy as ono man can make upon an- other. I, of course, do not detract from the merits of tluit distiiiKuishod man. Ho must liiivi! had somo attract Ivo i|Ualitios, sinoo ho was considered by a very larKe niunber of his <'ountryiiiea lit to bo set up as a candidate for rresi- dent apiaiiist him who was then tho foremii-t man of all lids world. Hut the public history of Mr. .\dains shows that he of all men that ever lived wag tho least reliable upon a (luestion of law. He was too fond . 'ilH. : 'j Barnard's Impeachniont Trial, vol. i, p. I'.tl. liuiler's Impeachmeut Trial ; UubboU's Impeachmeut Trial. )80 IMPKACHMENTS. [chap. xirr. lias 1)6011 lield that after a man has ceased to he a soldier he iiiav he tried by a court-martial for an offense eoniniitted while he was suhject to the articles and rules of war.'** Ill the arguments on the other side it was claimed that the pii)- visions for impeaehiiients were {jcnal and must ho construed strictly. They deprive the accused of a trial hy a jury and of tin.; other safeguards granted to criminals hy the Constitution ; and lie may he put twice into jeopardy for the .same nITense. since an ini- pea.ihnient is not a bar to a sui)sequeiit iiulictinent in a court of common law for the same crime.'' if a private citizen can he successfully lnn)eachcd (iiie day after his exit from oHicc, he may he impeached at any time during his sul)sccj,uent life. To authorize such proceedings would jilaee a tcrril)le weapon in the hands of a dominant j)olitieal ixirt}-. That no such attemiit was made before the case of Belknap, was a sign of the belief that the power did not exist, since party ft'cling was cjuite as hitter after the defeat of the Federalists by the Democrats, and the defeat of the Democnits by the Hepuhlicans, as at any suhseciucnt time. It has been the repeated practice in the House of Heprcsentatives to wiirt iiiipciu'lKMl, iiud liiid lii'i'u such iiiiinlorniptcdly since tlio alleged niis- di'Mieiinois in ofllce were conunitted. Tlie fuel thiit tlu' offi'iiso occurred in till) previouH lorni whb ininmtnriiil. Till! object of iinpeacliment is to re- move a corrupt or urnvorlliy oillcer. If tho term has e.\])ireit and he is no lon^-er in t.nice, thalolijoet is attained, and tlio ri'ason for his inipeachtnent no longer existi-.. lint if tho offender is i-till an ollicer, he is anienalile to irnpenehnient, iilthoiiKh tho acts charged were committed in his pro- vio\i9 term of th(> same offli'e." fStnte 11. Hill, Ex-Treasnrer, 117 Nehrasku, 80.) "The term ollicer cannot properly 1)0 aiiplied to a person who is not at tho tiino in tlio holdinfi of an ofllcr. When a person ceases to hold olllee, he iniinediatcly becomes a private eltlzen." (Ibid., p. no.) ''■ Lord GeorKC Sackville's Case, A. D. 1700, Tytler on Military Law, ch. ii. ; fn re AVliliarn Walker, ;t Ameri- can .Tiirist, 2H1. lint so(> Winthrop, Digest of Opinions of .Tiidgo Advocate Generals, ed. IHHII, p. 201). " Ex-.Iiid),'e .Tcremiah S. lilaik. Counsel for Defendant in Bolkuup'8 Case, pp. 220-227. §03.] IMPEACHABLE OFFENSES. 681 iinpfiulied." Tlie Supreme Court of Xul)i-i!,ski has hekl tliiit no /le. The puzzle arises out of the absurdity of inipeaeliiiig an K\-l'resident. Our friends on the other side are so hampered i)y their own theory that they are obliged simply to decline ausweriiif^. Tlu'rc is one answer and only one con- sistent with their loj^ie, and that is this : That when an Kx-1'resideut is iinpcaehed an Es-C'hief-Justice oufjlit to preside at the trial."-" Tlie doubt upon tlie (piesliou and tlie unsatisfactory result of l?elkiiap's case, make it luglily improbable that a .similar attempt will 1)0 made in tlie future. ^»:t. Iiiipeaclialtlc OffeiisoN. The provision in tiie Constitution of the I'nited States eoncern- lU'^ inipeaehable ort'enses is, that — "the President, Vice-rresidont and all eivil oflieers of the I'nited States shall be removed from Olliee on Impeaehinent for and Conviction of Treason. Bribery, end other hiirh Crimes and Jlisdeineanors." ' It hits been claimed, as has been shown above, that tliis claiiso dr.os not limit the jiower of impeachment; but tiiat under tho previous provision on tlie subject,- the persons liable to ini[ieaehment are the siuiie here a.-i in iMiEfhuid.'' It is. however, well settled that the sole iinneaehable olYeiises are " Treason, Hribeiy and ot'.ier hieh (billies and Misdenieaiiois." Treason has been delined in tiie Constitution as follows: - - "Treason afiainst the United Stales shall consist only in levyinji War against them, or in adhering to their Kneinies, giving thoni Aid ami Comfort." ' i» Cited in Uarnanl's Trliil. vol.1, pp. ir)S,.ir)l. See the Mississippi c.-'HeH ill tlio Apjieiidix, infi-n. " Statu V. Hill. Kx-Treasiirer, 117 N'eliiiiska, SO; i|iiiil('d xuprit, unto LI. See Appeiiilix, infra. -' Ex-.IiKlKe Jeronilali S. Blaok In lielkuap's Cuso, p. 225. § m. 1 Arliele II, Se<'tion 4. - Article I. Seetion '2. •' S::jirii. i ill. « Arliele III, SeeliDii ;i. Seo tho diseiissieii ol' llio .Iiidieial I'owor, infra. .582 IMI'KACHMKNTS. [CIIAI'. Mil. F(ir till' (IcliMit'rtu of tlio crime of biil)ery wo nnist look to the (■(PiiiiiioM law."' 'I'li'j ()!il_v (lilliciillv iuisf.s in the foiistniciioii of til.' liMiii, >• other lii;>li ( 'rimes luid .Mi.sdunieiiuor.s." As to this fmii' theorits have lieeii ])roiioseil: 'i'liiit exee[)t treason or hriheiy mi offeiHu is inipeiieiialile wiiieh is not deehued liy a sUitute of the United States to be a crime subject to indictment. That no oft'eiisc is im[ieaciiable wliieh is not subject to indictment by such a statute or by the common hnv. 'J'iiat all offenses are imiicadi- able which were so by that branch of the common law knuwii as the law of I'arliament. And that the House aiul Senate have the discictiiinarv jiower to remove and stiL;inat'ize by perix'ln d disi|u;di- fi.atioii an olliccr subject to im[ieachment for any cause that to them seems lit. The position that, except ti'casou or bribeiy, no offense is impeachable which is not indictable by law, was main- tained by the counsel for the respondents on the tri;ds of Chase'' and Johnson." Out of abundant caution in this respect certain " Story on llioCoiistittilinii, fiUi od., § 7;i(), Hco tlio (lut)ulo ill Hiiniaiil's IiiilM'iicliiiu'iil, Trial, pp. '2(1.")!) -Ii07."i ; anil ilio pr(MM>(>iliii^(n in licllciiap's Ini- peacliiiioiit 'I'lial, Miprii. ij ItO. Tlie Uvcnticlli arlii'lc nf Jianianl's Ini- poarliiiuMil c'liiir};i'ititu- tioii ol tlie United States prove ail tliat is necessary to be attended to f.ir tlie piir|)oses of tills trial. I jiroiiose. there- I lie, iiisti'.id of a search tliroiijh the pri'cedenis wliicli were made in liie times nf liic I'laniayeiiets, the Tiidor.s. and tlie Smarts, and wliicli have Ijeen repealed since, to <'oine nearer home iind see what provisions of the Constitution of the Initi'd Slates bear on tliis (iiieslion, and wliether they are not silllicieiit to siltle it. If they are, it is rpiitc inima- teriiil what exists elsewhere. My lirst position is, that when the ronstitution speakH of 'treason, liribi'ry and other liigii crimes and misdemeanors,' it re- fers to, and includes only, lii^'li criminal ol'fiMices against liie I'liiled Slates, made so by Ronie law of the I'liiti'd States ex- isting; when the nets complaiiied cif -.vere ilone, and I say thai this is jilaiiily to be infirred from ee.cii and mery provision of ihe Constitution on the snlijecl of im- inachmeiit. 'Treason' and ' hrdiery.' Nuliody will (hmbl that these are here ilcsii,'iiali'd lujili crimes and niisd''niean- liis af;ainsl the rnili'd States, made such by the liiw.s of the L'nitfd Slates, which llie framers of tlie Constiliition knew iiuist hi) iiasscd in llie nature of the i;ov- eniment tliey were about to create, be- ciuLso these are offences wliicli strike at the existence of thai governnn'iit. 'Other h\ji\\ criines and mi-demi'anor.s.' Xiinriliir aniiciis, lli;;li ciiines and niis- ili'ineanors; .so in^li that tliey belon;,' in this company willi liea-on and briliiry. That is plain on the face of theCniislitii' lion in the very liist step it takes on tlie subject of iinpeaellliieiil 'Ili-ili crimes and misdemeanor-t ' ai;aiiist what law ? There can be uu crime, there can bo no misdemeanor without a law, writ- ten or unwrillen, exjiress or implied. There must be sume law, otherwise there is no crime. My inii'iiireiaiion ot it is that the laiiiiiai;e ' hij;li crimes and mis- demeanors ' means ' offences a!;ainsltlie laws of the I'nited States' Let us see if the Constitution has not said so. The first clau.se of the second section of the second article of the Consliinlioii re.idg thus; 'The President of the United States sliall have the jiower to snint re- prieves and pardons for offences Mgainst tlie United States, except in cases of iin- lieachmeiii.' ' Offences again.>t the tTni- ted States' woiihl Include ' cases of iin- peaelinieiit,' and Ihey mii;ht be pardoned by the rresident if tliey wi re iioi ex- cepted. 'I'lieii ca.ses of impeachment are, accord ini; to the express d(cl:ira ion of the ('■uistiiuiioii itself, eii.se.s of of- fences nsainst tlie United Slates. ' Still, the learned inaiia^'er says that this is not a court, and lli.it, whatever may be the charai'ter ■ f tliis biTly, it is bound by no liw. Very ililTi rei.t was tlie undeistaiidini; of the lalhers of the Consiiiiitiuii on tills snlijecl. '■ Mr. .Maii;i,i;er Ihilier. Will you stall- where it was 1 said it was boiuni by no law 'i' "Mr. Stanliery. ' A law iinio itsell.' ".Mr. Manaeer Butler. 'No comn.on or stalute law' was my hmsuau'e. " Ml. Curtis. I desire to refert >tlie Rixlyfouith nnmlier of The Federalist, whieli is found in Dawson's edit lun, on pa^;e4.'i:l: ' The remainini; powers which the |ilaii of the Conveiilion a lots to the .Senate, in a distinct eapacily, ai'i' com- prised in tlieir participation with the Kxecutive in llie appoint in. iii i • ollices, and in their judicial character as a court for the trial of iiii|ieaeliiiieiils, as in the biisiness of appointments Ihe Kxecuiive will be the principal am'iit, Ihe pro- visions relating to il will most piopcriy 584 IMriCArilMENTS. [chat. XIU. s'laU'd tliiit the acts Llieieiii foi'biddeii shall 1m; " high iiiisde- lucaiHirs." be lii.soiisscd in tlic i'x;iiniiiatlon i)f that (U'parlmi'iit. Wc will tln'ivl'drc eiinclucli^ tills lii'iul with a vii'W of tlie jiullcial character of tin! Sfiiatc' And tlicii it is di«cussi'ii. Till' next posiliou to which I desire the atleiilioii of iho Senate is, that there is eiiouijli wrilKMi in the Coii- stituticjii to prove that this is a Court in which a judicial trial is now beiiiK car- ried on. ' Tlie Senate of tho I'uited States will liave the sole power to try all impeachnienls.' ' Wlien the Presi- dent is tried the Chief Justice shall pre- side.' ' Tlie trial of all crimes, except in case of inipeaehnient, shall he by jury.' This, then, is the trial of a crime. You are triers, presidi'd over by llie Chief Justice of the I'nited Slates in this ))ar- ticular case, and that on the express words of the Constitution. Tliereis also, according to its express words, to be an aeipiittal or a conviction on this trial for a crime. ' No person shall be convicted without tho concurrence of two-thirds of the members present.' There is al.so to be a judgment in case there shall be a coi vicli(ui. Judi;nient in cases of inipeaci nient shall not ex- tend further than removal from oHice and disciualilicat.on to hold any ofliceof lioiior, trust, or prolit under th(! United States. Here, then, there is tlie trial of a crimp, a trial by a tribunal desiKuated by the Constitution it; iilaeeof court and jury ; a conviction, if guilt is jiroved ; a judgment on that conviction ; a punish- ment inllicted by the judgment for a crime ; and this on the express terms of the Constitution itself. And yet, say the lionorable managers, there is no court to try the crime and no law by which the act is to be judged. 'I'lic honorabh^ manager interrupted me to say that lie qualihed that expression of no law ; his expression was, ' no common or statute law.' Well, when you get out of that field you are in a limbo, a vacuum, so far as law is concerned, to the best of my knowledge and belief. I say, then, that it is impossibh! not to come to the conclusion that the Constitution of the United States has designated impeach- able offences ,is offences against the I'nited Slates ; that it has provided for the trial of tliose offences ; that it has established a tribunal for theptirpo.soof trying them; th.tt it has directed the tribunal, in case of conviction, to pro- nounce a judgment upon tho conviction and intlict apuni.shment. All this being provided for, can it be maintalni'd that this is not a court, or that it is bound hy no law ? " liut the argument does not rest mainly, I think, upim the provisions of the Constitution eiuicerning imiieaeh- nient. It is, at any rate, vastly strengili- ened by the direct prohibitions of the Constitution. 'Congress shall pass no bill of atlainder or ex post facln law.' According to that prohibition of the Cmi- stitulion, if every member of this body,, sitting in its legislative capacity, and every member of the other body, silling in its h'gislative capacity, shoulil uniu- ill passing a law to inmisli an act after tlio act was done, that l.iw would b" a nieie iiuUily. Vet what is claimed byUielnui- orable managers in beliaU'of meiiiber.^of this body? As a Congress you c.iiiiiot crcat(> a law to punish these acts ii' no law existed at the time they were done; but sitting here us judges, not only after the fact, but while the case Is on trial, you may individually, eac'i one of you, create a law by himself to govern tin) case. " According to this assumption, llie same Constilulion whieli has made ii a bill of rights of till' American citizen, not only as against Congrc-s hut as against llie legislature of every State in the rnion, that no ex p 'ntj^irln law >liall be [lassed — tills same Constitution has erected you into a body and empowered every one of you to say aid iiiveniani J; !)3.] IMl'KACHAULK OI'KKNSKS. 585 Tlie first two theoi-ies are iinpractieablo in tlieir operation, inconsistent with otlier hin<^if.i\ Cciiislitiilioii, ell. xxix, |). 273), " tlio power of iin|i<'iifliiiu'iU, ex(M'pt as to th(> two i-xprcsscd cases, is a iiimidelo nullity, and the parly is wliolly dispuiiislialile, liowever oiioi- iiiiiiis may lio Ids cornipliou or crinii- iiality. It will not lie siillliient to say that, in tlie cases wliereaiiy offenre is imidslied liv any statiiteof tli(! I'nili'il Slates, it m;iy and oiiRlit to 111" deemed an iiiipea<'liable offence. Il, is not ant fitcUiin ; If 1 cannot fiiul a law I will make one. Nay. it lias olollied even' one of yim with imperial [lowcr; it has cna- lilcd yon to say, sic culn, sir jiihin, slut ])ri> riitiiine volimlas; I am a law unio myself, by which law I shall fjovern this ca.se. And, moi'c than that, when eacli one of you boforo lie took his [ilace here called (ind to witness that he would ad- minister impartial justice in this casi! accordlii!;; to the Con.stltntion and the laws, ho meant su'li laws as he iiilnht make as Im went alonf;. The C'onstitn- tioii, which bad prohibited anybody from makiii<; such laws, lie swore to oliscrve; liiil he also swore to be governed by bis MWn will; Ills own Individual will was tlic law which he tlius swore to observe ; and this sjicclal provlsiiin of theConsti- tullnn, that when the Senate sits In this ciijiaclty to try an impcaehinent the .sen- ators shall be on oath, means merelv every offence that by the Constltiilion is so impeachable. It imist not only bo an offencM', but a liiyli erlni" and niisdeiiieaiior. Hesiill of altainder '! Il is a caso iH'fore the rarllameiil where the Tarlia- nicnt make the law for the facts they liiid. I'.a( h legislator — for it Is in their li_;;l.-lallve capacity they act, not in a ju- dicial one, - is, to Use the phrase of the honoralile manau'crs, 'a law unto hlni- sclt,' an. XIII. to ill) so may In; iidmitU'd. For it is not liki'ly that any (,'iiiirt woulil hold void ooUatiMaily a judgiiiuntou an inipeaclnnent whcio th(! Suiate had jnrisdiction over the person of the eondennicil. And nn(h)nhtedly a eourt of iinpeaeinnent luus the juiis 11. Htistin>;s, .\tioi-iiey- Genernl and otheis oniceis, 37 Ne- brasliii. !)fi ; s. c. ,'■.,'■. N. W. Hep., 774. ''•• Woode.^on's Lectiiiis, vol. ii, |)p. fiOl r,(li>. "Tlie Dnlie of Suffoli; was im- ppaelieil for liit;li li'e.'isoii, 2K II. O, Seiil. Jud. r.'iri., '>'.) (Ii vol. 2 V. 151)7). For iii^tii treiisoii in suliverliiig tho fundiiiiii'iital iaw.-i, and iiilroduciiiK arbiti'ary power, Loi'd Fimh, Sir Kolierl Berkley and Lord Kliaffoi'd. 2 Kush., GOG; 3 llnsli, 13(;5. (^Vide Kush, part 3, vol. 1, I3G.) The nnl;(> of Suffolk wasimppaehpd, '2H 11. Ci, for llial beinij ambassador lie coiisenti'd lo iho delivery of divers towns to llie Kiiif^ of Frani'e, williout thi! privity of the other ambassadors. Art. 4 'rWeSeld. 3 vol. 2 P. l.'iO?). The Karl of Urislol, that, he, beiiiK ambas.sador, ^avofalse informations to the kin-. 1 IJnsli, 2411. That, ho did not pursue his instruc- tions. Art. i, 1 linsh, -'M. That he pursued his embassy fov his own piolit oidy. Art. 4. 1 Uusli, li-'iO. Cardinal Wolscy, that ho nuulc a treaty between tlio Topi! and the Kiiij,' i>f France, when ambassador to H. K, without th(^ privily of his kiii«. 4 Inst. SI), l.-,G. Tliat he joined himself with tlio kiuK. 4 Inst. 1)0. The Earl of Bristol was impoaclied, § 93.] IMPEA(UtABLE OFFENSES. .'JH9 In tliis class of cases, wliich rest srt mucli in the discretion of '2 Car., t lint lio coiinHclled ngaiiist a vvnr wltli Spain, wlion that king nffnuiti'd us, to thu (liHliononr and di>(i'iiii>'iit of Iho realm. Art. K. 1 lliisli, 'i.")0. Tliat 111" advlst'd a loli-ration of the fiapistH. 1 Uiish, 2.")1. 'I'hal hcriMliM'il tho Ulnt,' to popery. 1 Itii^M. -i.Vi. 'Jll-i. .^[i('llal'l di« la Poole was imi)ea('hed, that, lie iiicileil tlie kiiif? to a!)(!. The Spencers, that they gave- liad counsel to the kintJ. 4 Inst. .51. Thi^ liiirl of Orford, that he ad- vised a prejiidieal peneo. 8 May, 1701. Lord Finch, that he, lic'ins; speaker of the coMinions, refii.sed proceedings in the house. The Duko of Buckingham was im- peached, for that he, heing adndral, iiegli'cted the safeguards of the sea. Uush, 308. The Earl of Orford, that lie haz- aiileil the navy, and had neglected to take .ships of the enemy. 8 May, 1701. Michael de la Poole was impeached that he being ('hancrllor acted con- trary to his duty. .Seld. Jud. Pari., '2(! (It vol. 2 P. l.Wfi). Lord Somers that he ratilied a peace, not a|iproved by the partii'S al. 16 May, 1701. 'L'liat lie put the great seal without wiiiianl. Ibid. .\iid to a 1 lank <'ommission. Ihid. .Michael de la Pooh^ was impeached, that he purchased lauils of the king, which he had proenred to be surveyed under their value. Seld. Jud. I'arl. •21 111 vol. '2 P. l.'iOfl). For a fraudulent purchase from the king. Seld. Jud. Pari., '20 (3 vol. 2 P. 1. ")!)«.) Sir John, Lord Somers. 16 May, 1701. The Duke of Huckingham was im- peacheil for plurality of olUues. '2 Car. Kush ;)(ir,. The Earl of Orford, for exereising incompatibh- olllci's. 8 .May, 1701. So the Lord Halifa.t. :) June, 1701. The Duke of liuckiugham was im- peached forgi\ing 11 inc'dicine to the king without the advice of the iiliysi- cians, Uush, It.'il. So the Spencers, fatiicr and son, weri" impeached for that they pre- vented the great men of the realm from giving their counsel to the king except ill their presence. 4 Inst. .111. Tliat they put good maglstratea out of olTlce and advanced bad. Ibid. The Earl of Orford was impeaclied that ho encouraged pirates. 8 May, 1701. Sir a. Mompes.son was imjieachod for the procurcmeui of piiicnis of mo- nopoly. 18 Jac. liusli. -21. '27. ,Seld. Jud. Pari. HI (II vol. 2 P. ir.llH., Loid Chaurelliu' liacon was im- peachi'd for bribery. 18 Jac. Rush, 28. Seld. Jud. Pari, lil (H V(d. '2 P. 1.5!)0i. The Duke of Buekingham, for the .sale anil purchasi> of oldces. Hush, 111)4. The Lord Fiiicli, for urdawful methods of enlarging the fon'st, when assistant to the justices in eyre. Art. U. ridi' IJusli, part 3, vol. 1, 1117. For threatening other judges to subscribe to his opinion. Iliid., ,\rt. 4, 5, 6. For delivering opinions wliicli he knew to b(' contrary to Imw. Art. 7. Ibid. For drawing the business of the court to his chamber. Art. 8. Iblil. So an Impenc'iment was exhibited for several extortions and deceits to the iiiiblie. Seld. Jud. Pari. 1!) (3 vol. 2 P. l.")04, 1.5imi. An Article was exhibited against C'.iO IMl'E-VCHMKNTS. [f'HAP. xni. tilt' Senate, the writer would lie rawli wlio were to attenii)t to ])ri'scril)i' the limits of its jiulsdietioii in this resjieet.''"' I'iiriliiinl \Vols(>y for exercising li-j^u- tivi' aullioiity to llic iiri'jiiilicc of llic iiiitlioiily luul oppri'sslou of onllimrlcs mid houses of nlittion. t Inst. H9. So tiyaiiiHt llu) Earl of Oifonl, for t'onvorting tlio luiblic money t.o liis own use, wlllioul account. K May, 1701. So an iinpeaehnienl was aj,'alu8t tlio Eail of UrI'oiil, that he procured from tlie liiiii,' to liinisolf exmliitant giants in lands and money. H Hay, 1701. So against Lord Soniers. 1(1 May, 1701. For taliing money, &v., from a for- eign prince without giving an account tor it. 8 May, 1701. For selling goods, taken as admiral, for his own use, without m'countlng for a tcntli to others. H May, 1701. Lord Halifax, forolitaining grants of estates forfeiti'd for rel)ellion. June, 1701. For obtaining grantsof money when there was a war and heavy taxes. Ihid. .\nd grants out of the king's woods. Ibid." Comyn's Digest, rarllamenl L., 28-3!). Dr. bacheverell was impeached for preaching a seditious sermon. How- ell's S.atc 'trials, vol. xv, p. i. The Earl of Clarendon, for falsely allirmiiig tliat Charles II was a papist, for introducing an arbitrary govern- ment into tlio king's pl;inlatious, and for giving biid advice concc-rning tlii^ numu'uvres of the lleet. Ibid., ^■ol. vi, pp. ;i 1(1 :i;i:). The Earl of Orrery, for raising money by his own authority from the kings suliji'cts in Ireland. Ibid., p. 91,'".. Sir Adam Blair and others with him, for disj.erslng a seditious and treason- able paper. Ibid., vol. xii, p. 1207. Lord Chancellor Maedeslleld, for selling Ills appointments to mastership in cljancery. Ibid., vol. xvi, p. 7(17. Warren Hastings, for oppressive go.ernment in ludiu, and extortion upon the natives there. (Burke's Works. ) Viscount Melville, for deiiositingt hi' publico funds with a private banker, where it was suspected that he used them in speculation. Howell's Stato Trials, vol. xxix, p. Oil). ■-' The constitution of Alalianui au- thorizes lnii)eachment "for willful lu'glecl of duty, corruption in ollice, habitual drunkenness, ini'ompetency, or any olTcmso Involving moral turpi- tude while in olTlce, or committed under color thereof, or connocfed therewith" (.\rt. VII, See. 1). Tliat of Arkansas, "tor high crimes and nusdeineanors and gross misconduct in ofilce" (Art. XV, Sec. 1). That of Colorado, "lor high crimes or misde- meanors, or nialfeasauce In ollico" (Art. XIII, Sec. 2). That of Iowa for any misdemeanor or malfeasance in ollico" (Art. Ill, SiM'. 20). Tliat of Kentucky, " for any misdemeanors in olTlce" (Art. LXVIII). That of Loui- siana, "tor high crimes and misde- meanors, for iKmfeasancc or iiiid- feasance in ofilce, for incompetencv, for corruption, favoritism, exlorli'ni 1 oi)pression in ollice, or for gnK-^a misconduct, or luibituiil drunkeune-s" (Art. 10(1). Tiiat of Michigan, "for corrupt conduct in ollh'c, or for crimes and ndsdemeanors" (Art. XII, Sec. li. That of Minnesota, tlie s.-inie (Art. XIII, Sec. 1). That of North Daliotii, " I'or habitual drunkenness, crimes, corrupt conduet, or malfeasance or misdemeanor in olTlce" (.\rt. XtV, Sec. lOGi. Thatof South Dakota, "for drunkenness, crimes, corrupt conduct. §03] I.M riCACHAULE OKl'lCNSKS. fif>l All imiioiiL'luiblo offuuse iiuiy uoiisUt of treason;'" hriljcTN' ;'''2 (ir ;i lircarli i>f ollicial duly liy iniilft'iisiiiu'e or inisfcas iiico, iiK 111 liii^r iKiiuluct such as (Irunkuiiness,'^'' wlieii habitual or lii en and still is judge of tlm tliirly-si'cMiid judici;il district of tlio stale of Kansas, and tliat llio .said Thoodosius Uoliiiii, wlulo occiiiiy- ing tho ollicial position as judge of said judicial di.slri<'l, unniindfiil of tlie high duties of his ollii-e and llio iligtiity and proprieties thereof, has been repeateiliy intoxicated in public places tlu-ougliout Kaian liinisi'lf in ii li'wd anil ilisniari'- fiil niannor, in tliis, lliiil hi> illil tlii'ii ami tiiiTi' resort toa liouscof ili-fanic, ko|it, for tli« pur|iosi's of proslilulion, In company witli a proslituti-, wlmso name is unknown to tlio Honso of lli'pnv-i'nliitiM's, anil did tlii'ii and thi'i'i' linvdly, liiscivionsly I'oh.iliit and aKsoi-iati' with said woman, wln-reliy hi', thi' Haiil E. St. .Inlii'n Cox, was guilty of a niislii'havior In olllci', and of I'riiiiosuml niisdiinii'anors in ofllci^ " (PP. a I, im>. In tlio saini' caso a di'nuirri'r to till' following,' ••irticlo was ;;l Arst also overrnU'd ; "'I'hal K. St. Julie;, C-in lii-inK a Jnil^'i" of the Di.striet ('i>iirt of the Stale of Xrinno^ota. and for tho ninth jndiei.d di.^liiel, iinniii'.dfnl of his nn ler the ijillnenee of into.\ieatinK liipiors. '• Sj>i'rijiriili())i Si'coiiil : In this, that tlio .said Theodosiiis liotkin, wliile holdinj;, diiriiif? thi> llrst week in March, IKOO, an adjonrneil term of tile Jaiinary, IH'JI), term of the district I'oui'l of .said Seward county, was in- toxicated, and nnder the Inlhionce of intoxicating Ihinors" ; with nine simi- lar speeillcations. (Hotkin's Impeach- ment, Trial, Article II, [ip. .nii-Ht.) "That the said Theodosivis Botkin, duties as Hiich judge, and of llie iIIl;- lllly and )iroprieties of his said oHlco, and in violation of the laws of tlio Stale of Minne.-ola, did at divers times sincn the lili day of Jannary, A. 1). 1H7H, at sundry places in the i^aiii Stale, demean hiinsi If In a lewil and dis;,'raci fii't mamier In this, tliat lie, the said K. Si. .Jiillen Co.\, did then and there freipicnt lionses of 111- faini',aml consort witli harlots, wliero- hy he, the said K. St. Jnlion Cox, has hroiight liimself and his liigh olllce into disrepnto to tho niiinife.>-l injury of the morals of the youth and j^ood cilizcnsiif the Slalo of Minncsola, and disgrace of tho administration of jus- tice, and is thereby guilty of mislio- haviiirin olllce; ami of misdcineanors In olllce." ill.id., |ip. 21, IC.l, Ifil, 171, .'I'iT. ) Upon the decision of the (liMiinrri'r to this arlii'le speeillcations of tho limes and places where the offenses were committed were ordereil by the Senate and furnished by tho managers. It was further ordnred that should no such speeillcations ho fnrnislied no testimony in support of the article should be I'eceived. After the spccKleal ions were furnished tho Senate voted "that the objections of the res|i)ndciit be sustained as to the twentieth artnle." ;Iliid., p. ,")'27. ) judge as aforesaid, nnmindfiil of llio high dniies of his olllco and the dig- nity and proprieties tlieriHif, while engaged in holding, throughout his siiid district, in tlie various counties tliereof, the terms of his I'ourt, as re- i|uired by law, and wliilo sitting on the bendi as judge, has been re|)eal- odly into.xicated, and under tho in- flnenco of intoxicating liquors, by moans wh(>rcof the said Thoodosias Botkin has Imnight his high olTlce as judge as aforesaid into eontompt, §•■'«•] i.Mi'i;.\i' ollii'i' liiiiniiiiw, iiscil ill tiif (II sclil litre l'lilirii|i> iiimI ilis^jiiii-i', l(> till' liiaiiirrst !-i'iiiJiliil mill ilaiixi'r tii tin' iKliiiiiil'-- ':iilliiii of jiiHtlri', aiid til till' ^!ri'al mini ipf (ill Kdoil oltlzi'iis; wlini'liy KUllI 'rili'lllldsillH Dlltklll, Jllll^'ll (IB iiliiri'.-djil, WiiH K'liUty 111' lil^li imIhcIc- llli'JIIKIIS 111 linilM', Wllll'll lllll SI'I I'lirtli ill till' f^'-vcnil H|li'i-|llr(lllllMS lllTliIll- iifliT wi'illiii, In sulistiiiicii mill cITi'i't, tliMl Ih to s(iy ; " Siiif'JiritlioH Flrxl : In I Ills, timt. Ill" Mild Tlll'OllOHiUH Jiotklii, wliiln liiililliiK the June, 1«'.)0, term of the ili>lrirt court of Sowai'd ciiiiiity, in mill distili't, mid wliili' sitting on tin- I" mil lis jiiilf,'!', WHS iiiliixii'iili'il, iiiiil uiiiliT till' iiilluoiicc of intiixii'iitiiiK lii|llorH"; Willi tlll'Ki) sinilllll' Hpi'i'lllril- tiiiiis. (Kotkin's Ini|ioaclinii'iit Tiiiil, Ailiil.'III, [1. :l». I "I'iitit llii' Hdid Tlii'odosliis I!i)tkin, juil^o im iit'oi'i'siiid, uiiiiilnilfiil of tin' lil^li diitii^H of Ills ollii'i) luid till- dig- nil ii'S mid i)ni|ii'i('li('8 tlicroof, lins, .-iiirii mid diiiiiiK Ills snld torni of nMi.i', lii'i'ii mi iiiililliiiil iisiT of Intox- ii-.-ilinu liquors to siirli an cxi'i'ss as III liir,'i|iai'iliiti' liliii for a I'li'dr-iiiindi'd iliM'hm-j,'ii of Ills Kiiid jinliciiil fiinc- limis, I'V nifiins wliorcof tin' said Tlii'iiilosiiis liiilkili lias brou^lit his lii.'li oMiiM" as jiiil^ji) as al'uri'said into I'l'iiii'iiiiit, and ridii'uii) and disf^nici^ 111 I 111' iiianirest srandal and uri'iil li.iHurr of till) adniinistration of Jus- tin, and to till" Hri'at srandal of all pHiil rili/.i'iis; whiM'eliy till' said Tlii'o- ilii>iim JJotklu, jiiiltio as aforesaid, wiis unilly of a liijjh inisdoiiiomior in oilii'i'." (liolkin's Inipi'iii'linii'iit Trial, An. vri, |.. :!i;; ibid., pp. iir, 21;-) i. Ill' was lliially ai'i|iiitti'd. In IliKsanio caso, di'iniirrors to llu- fiillowiiiK ai'lii'lt's wi'ri' sustained : - ■'Tliat the said Tlieodosiiis Bol kin, juilne as alori'.saiil, uiiiniiidfiil of tlie lii;;li duties of hisolliee mid the dij;. uiiy and jnopriotiea thereof, on the •2'.Mli day of AiiKilht, Is'.Ml, nn tlni streets and in piililie plares In llie city of I,eiili, ill Wlihita loiinly, was drunk and ninlir the liilliieni'e of in- loxiratin^' lii|iiors, and was eii;,'a;,'i'd III II dninketi and luil-ileroiis quarrel on said streets and In said piiMIe plaees, and \mis then and ihere so disorderly that ho had to lie taken iiff said streets by the sherilT ot siiid eouiity to prevent u fiirllier dlslurii- miee of the peaeo; by liiemis where. of the said Theoiliislus Holkin has brmulil hi- high olliee as judge as at'orrsaid into eiinti'inpt and ridii-ule and disgraee, lo the great seandal of all good eltizens; wliereby said Tlini- dosiiis liolkin, Judge as afoies.iid, was giiilly of high niiMlenn'aiiiirs in oflli-e." (Trial of Tlniidoslus Hutkin, Art. IV, p. .'It.) " That the said Tlieodiisius Hi ill; in, jiidgo as aforesaid, uniiiindfiil of the high duties of his ofllee and the dig- nity and proprieties tlieieof. ami ni'l- withslmidiiig his duty to enl'mie the laws to proiiiliit the sale of inlo\i.-at- iiig iii|iiiirs in lliis State, exeipt "for inedieal, siienlilii', and ineelianiral purposes, lias during Ids said liTiii of olTlee knowingly and wiilfully fre- (pienteil plares within and ihiouglinut Ills said jiidieial distriet where iiituxi- ealing liiiuors were sold ill violation of law; by ineaiis whinoof the said Tii(!oilosius IJolkin has brought Ids high olliee as judge as aforesaid into eonlenipt, ridieule, and disgrace, and has encouraged tin; violaliiin of law, III till' great scandal of all gnml citi- zens; wliereby said Tlieodn-ius liol- kin, judge as aforesaid, was giiiiiy of liigli inisdeini'aiiors in olliee, wliidi are set forth in Ihe several specilira- lioiis liereinafter written, in substance mid elTcet, that is to ."say : " Spcrificdtiim h'irnl : In this, iliau the said Theodosius liotkin did, on or 594 IMPEACHMENTS. [CHAP. XIIU of 1111 official function, which tends to bring the office into dis- ttbout tho 10th day of Jauunry, 1890, iiud on sundry, and divers other days thi'roal'li'i', knowingly and willfully froi|ueiit till' drugHtori" of Shortman & Tici', iu tho city of Springtleld, In said disli'ii't, ho, tlic said Thcodosius Botkin, Ihi'n well knowinn that tho said ShorlMian A Tl I'ro at tho time si'lling iiitoxic! ling licpiors in violiitii: :>! hi '• Sin'cifii'iir )i Sefutid : In this, thiit tho saivl Tliridosius Uolkin did, on or ahoul tho toiitli day of June, IHIM), and on sundry and divers otlnu' days tlnMi'iillcr, knowiuKly nnd willfully, fri>c|U('hlly visit thcdrun s'.orool'.I. A. L.WIllianis, ill siiid clly of Siiriiiglirld, ho, till' siiid Tlwodosius l!o(l then well knowing that tlio said .1, A. L. Williams was at tho tiiiio soiling iii- toxloaling liijuors in violation of law. " Sjifrljif :li{iii Thirii: In this, that tho said Tlioodosiiis lintkin did, on or ahoul tlio lOlh e called Bill Maddox, intoxicating li- i|Uors, sold ill violation of law, lie. Ilie said Tlieodosius Botkin, then ami there well knowing the same tn have 03.] IMPEACHABLE OFFENSES. 595 cjiiite.^'' or iiii abuse or reckless exoreise of a discrctionar}- 1 11 mkl in violation of law." (Ibid., An. VI, jip. :i.-., 3G.) -■' .V jmli^i* was convicU'd by tlm New York Si'iiuto iin mi ni'Uclc wlii<'h cli;ir.ii'd (hat " wliilo silliii)^ on tho brn.'b iukI lioldinj; a term of Ills rourt, ill ilii' ju'i'seiu'o (if suitors, couiisi'l and nlliiM'iH of said court, and of olhor lii'isoiis from limo to timo thori" pres- (Mil, lii'did r('poal(Mlly di'port hinisi'lf ill a inaiiiier unseemly and imlocor- ou^.; did ri'pi'atodly uso langiiaKo cii.-irsc, olpsci'fic) and iiidwiMit; did rc- pi'iitcdly u^p lrinj;uaj,'(>, justly caus- iiii; tlio^i' p"'''*"'"" '" '''^ lii'iiriii:-:, and nlliiT pi'i'sous, to liclic'vi! anil uiidcr- Miiiid tiKil 1m>, said CJ('orKi''i. D.iriiard, in liis ollicial action as said jiiMicc, arlcd not «itli an lioiii'st liili'lit faitli- liilly to discliargo tho duties of his ."iiid ollico, and to uso tho process of said court for tho purpose of doint; justice, but with the wronjifnl and corniiit intent to aid and benefit Ids friends and favored suitors and I'oiin- si'l ; did repeal edl/ when apidiealions were made by coi nsel to him, tile said (leorj^e (r. l!;irnarii. In his i ■"■ liid I'apacity, for divers writs, orders ami processes, treat such counsel In a iiiiinner coarse, Indecent, arliitrary and lyrannli'al, and calculated to iii- tiiuidale, oppress anil delay such cMiinscl ill llie dlschargi^ of their suoin duly to tlieir eiienls, and to ilcpii\e smli clients of their right to iillicarand lie protected in their lili- erly and property by counsel, nnil in lliealiovn inid other ways was nullly of conduct iinliecoming (hehiu'h jinsi- lieii which he held, and ti'iidiiu! to brill;; the adriiiiiislraliiin of jiislice iiilo couleiiipt and dls;,'raee, to the K'leat scandal and reproach of the siiid Court, and of the justice of the .S(»l(> of New York." 'riii'rc were several speclllcations, of which only three were Those proven were: — proven. That or about the month of October, IH71, upon tho occasion of an application to him, the saiil (icorgo a. Barnard, wliilo ho was holding a special term of tli(> Supreme Court In tlio city and I'oiinty of New York, for the aiipointiuent of a referee, (lio party making tho application siig- gi'sted the appoiiitmc^nt of (Uio Gr.itz Nathan as such referee, wliore',i|im the said (ieorge (i. liariiaid said iii siibstam-e, Miralz Xatliaii — (rnilK Natlian; I know no (iralz but one; that is, (rratz Coleman; ho is my (rralz,' or 'he Is iiiv referee the said (li'orge (i. Barnard tliercby al- luding to a noli IS fact, thill saiil (iratz Nathan was a person usually elected as ii referee bv .Tilstic Car-- dozo, and lueaiiiiig Iherel.y that lie had a like favorite in one .lann s ][. Coleman.' That in the vear 1K7II. cation was ma le, to til d (i (irge (i. Barnard, while he was hohling ii spi'cial teriii of the .said court, at tlie place last aforcsaiil, for the a|ipoint- uient of Thomas \V. Clerki then late a jiisl ici? of said court, as referee, whereupon tne »;:id (Icorge il. Bar- iiarl said, in substaii thai iio I'laii need ofl'er that person's nai Idlll as rereree, the said jierson >i,:A lied about him ami had been his eii.'iiiy, and that he laMiicd his fricmis and not his eiieniii meaning llnreliv. that in his judicial cap.'icily he acti>d with iiiti'iil lo favor his friends." " 'I'liiil on or about the •2lih ihiv of March, IMI!), while Ih .1 (i (}. Barnard was sIiIIiil; on the bciii'h and holding a speciid term oi' .said (iiiirt, at saiil plac(>, one Tliomns C. Diirant, who was then vice-presideiiL if llic I'nion I'acilic Hailwi! Com- r>9G iMri:AciiMi;NTs. [niAr. xiir. l)ower,'* as wjU us a lueacli or oinissioii of an ollicial dulv iiiiposfd puny, was licing oxaiiiiiieil in said fourt as u witness, ami said Diinint, iu tlio coui-si) of sucli t'xaniiiialioii, lestilloil in ifl'crcnico to a roinaik that had lii'i'u oponly and piil)li(dy made by tlic said (ji'orno G. IJariiard in tlio liuicli-rooni of llio Asior House, at Haid cily, lieiiij^ a place of j^eiieral re- rl, in the ■ els or to the ert'eet fol- owin);: 'I have driven ono set of id I and 1 ^(Mjundrels out of New York, ( am goint,' t'> di'ive out lliis set, on Kui'li I'l'niai'lw liein^ so testilii'd to, said (ieoi'He ii. Barnard, from his seat •on the l)oneh, in the presence of suit- ors, olUeers and counsel of Iho court, admitted that he had made said re- jnarl\, at tin; place and undiT tho cir- <-umstancL'a testilled to, thereliy giv- ing thoso present to understand that he, said (i ■ v.. I?a •d, as J' tico of the said Supremo Court, \ised tho process of said court, not for the purpose of doing justii'e liclween party and l>arly, hut for tho purpose of prosecutiiij; and harassinj» the Union I'acilie Kallroad Company and thi' olllcers thereof, saie.' And one of counsel in I lie case staled : ' This gentleman was not appoiuted by consent.' The said fleorge (J. Harnard further said, in elTect, : ' I don't c:iri', I shall ns, rcstroy cimlidenco in the inlogrity of tho motive and action ot tho judge. In my judgment tho j)ublic av(jwalof a principle of judicial action so de- structive of conlldence in tho integrity with which a uki t important branch of the jurisdii'tii' . uf tlio courts, in which tho respondent .sat, was c.tcr- cisoil, do.s sustain tho charge of bringing si-andal and reiiroach upon tho court." ••»' In tlio same trial (|ip. 'IWM 'JtlWi it was said by Judge Grover, with whom tho rest of the Court of Ini- ; eachnient seemed to agree: "The counsel of tho r.-sjiecti vo parties agree Bubstanlially upon llu' law us to "lint coiistitut(>s an iuipeachable offonse. They e.NprosHcd it in somewhat difl'cr- ent language, but Iho fnndamealnl idea was tho same, that an Inpeiicli- ablo olTense in a judi al olllcor cou- W § 03.] IMl'l'ACHAIiLK ori'KNSKS. 597 by statute or eoniiD.iii law;-" or a public .speech wliuii off iluty ^istl'll (if Mil intent ioiial vidliilion nf iluly oil his ]i:irl to tlic pri'jiidiro of |iiiiiil.- .justice; Of a ri'c'lt without ri'unrd to whether it is rij^lit or wrons:, or if lie does it conscious that he is vio- lulina the law, or if lie act without liiiviiiH examined it at all, ho is guilty III' a violation of tho duty of his oOlee. This, in tii(| liiiiKuaRo of the aiticle, is • lual and corrupt conduct iu (iniet>,' and an iiupoaelialilo olTeiise." On the same trial, Senator D. V. \V Hid said : " A. rifjht decision may lio aniveil at in siicli an oppressive inau- - 'T 1 1 ii, jiid^'e as to lie converleil into ,. i^i .It wroiiK. 1 mean liy that that li ; .". .irrivo at what would lie a just 1 ni- !; 'n tho end, inamaniKnlo coni- ■lo I eat a wroiiR as to render lii'i 'C'- '.lalilo to conviction on aw artl- ticle I ' !:• , eachnient. I will supposo a case: A sunimous Is drawn up ae- coiiip.iuied by ueoniplaint, n^ainst me, .■iliowiiif; upon lis fiico that I oive au lidui st ili'lit wli. ii I iiej^leot or refuse t(i pay, and which, after a trial, must, if proved, entitle the plaintiff to a iuilmnent a;;aiiist me, and an execu- tion to lie issued thereon, and my properly to lie seized and sold and the avails turned over to tho plaintilT. Nmv, will hotell mothatlf upon those •■:ip rs, a jud({e, without notice, issues 111 order to the sheriff to 8(>lzo in,y liniperty and pass It over to my credi- tors, or ajipolnts a reeeivor of my jiroperly, and at the san)(> time, and in the s;inie manner, i.ssues a writ of a.ssislance to put that property into the iiands of a receiver, and, if you please, noes still further, and inserts la that order appointiuH a receiver, a provision that when that property is placed iu his, the receiver's hands. It shall Iio by hiai liandeil over to the plaintiff in the action : tliat the judno cannot be impeached for that act lie- caiiso the papers pres(i|iled to him, on their face, made a jiri'ma /(inc case of indelitednesa against nie'^ " (Ibid., jip. aO!),". '2n!)(;.) Tho judge was couvicted by a two- thirds vote of guilty on Article XI, to which this reference was made, for granting ex parte an order appointing receivers and ordering them to take inimiMiiatc jmsseasion of a railroad; i'lthoui;h the papers oil which theap- plical ion was made alleged insullicient to sustain the jurisdiction, when the evidence showed that the judge left his mother's deathbed on a telegram from .Tames Fiskon tho iiioriiing whon h(< granted the order, went to New York to tho house of I'isU's mistress, and not (Indinghimthere, totheOrnnd Opera House, and thenco to another house owned by James Fisk, and signed the order; having left Pough- keepsie at possiission of the railroad at 11 o'clock the same evening. ( Ibid., pp. 21)1)11- '2101). ) ■-" I'Ickeiiiig's Iiiiiie.ichment Trial; Humphreys' liiipeachiuent Trial; .\il- dlson's Iiu pe.nch men t Trial ; PrescoK'a Impeachment Trial; IIoldi>ii's Iiii- peaclinient Trial ; Frn/.iei's Imjieai'li- ment Trial; Daruard's Impeachment Trial, vol. ill. pp. 2n:)7 •2'2();t. In Stale r. Ctcm'ge S. IListings, Altorney- fieiieral and others, ;t7 Nebraska, 90; s. ('. ."iTi N. W. neji., 771, the court 598 IMIMOACIIMENTS. [CHA1>. \11I. ■\vhidi ciicouiaji^L's insui'ivctioii.'-^ It does not consist in an oinir in jiidgintMit made in n'ood faith in the decision (if a donlitfnl q'.iestidii of hiw,'^ exeejit perha|;s in tiie case of a viohition of llie Cojisiitntion.*' ■hides sneh aetioi'. by an oflicer wlien aeliu ,■ ■■<■'. a menilier «-- of a hoard of eonimissioners;^' anarhiMi'iit Tiial, infra, § lU ; IIiiiu|iln'i'vs' Imiioacliiiicnt Trial, fuiynt, 4j '.Kt, in/ni, § ".l:i. -•• Till' lollowliig (li'liiiitiou by Ea- JiiilHi' William Lawroiu'O Iiail tlio aj)- ))i'Oval of tlio manaKors of Joliiisoii'a Imin'achmcMl Trial : " An Inipoaclrilili! ]iit;h crinio or misdonioanor in 0:10 iu its n.itiiri) or c'onsi'i|n(?iiio siilivorsivo of wiiiii' fiindaiiK'nlai or I'sscrilial priii- ciiilo of gov(>rnmi'nl- or lii(»lily jirrjii- di<-ial to tlio imlilu! iiili'r(>st, and this iiiay consist of a viohition of tlic Con- slltulion, of law, of au olllcial oath, or of duty liy an act coinndltiMl or oii;ir. res| dent's counsel, Willlani Wift, in !'(>! k's Trial, HZ/jra, § 1)1); ]!:i}-nard's Impeachment Trial, vid. iii, p. '2ii:iH, jier (Ifover, .1., p. 'JO.-)". l'ecl;'s Iiu- jieiichnieiit Trial, per Jlanaircr, after- ward-; President James liuohauan, d. ■J'2S ; per respondi'in's counsel, William Win, ]ip. -IDl -l'.)-"); I'liase's Inipe.M'h- ment Tilal, HHj)ra, § ',)!), iiil'ni, § '.)J; ri'oscoll's Impeaelinicnt Trial, per llanand-, afterwards Chief Justice, Shaw, p. lH-2; Jaclison's Impeachin<'nl Trial; Huliliell's Impeachment Trial; I'a^'e's Impeachment Trial; Holkin's Impeaclunenl Trial, infra, Appenillx to tliis volume; Kt.'ite r. (li'ori^e II. lla.stings, Attorney-General, and oth- ers, ;i7 Xehraska, 00. ^'> See reek's Impeachment Trial, per Mami^ler Clnirles A. WlcklltTe, p, •ii'2; Johnson's Impcai'liment Trial: Frazicr's Impeachment Trial; Hel- (len's Impe.'U'hmi'iit Tritd, infra, Ap- jiendix. ■" liulier's Impeachment 'I'ri.d, 111- fra, Apiiciidlx. •'- llulibcU's Impeachment Trial; li.'irnard's Impcichment Tri.d; But- ler's Impeachmciit Trial; State r. ]iour^;(H)ls, •1.') La. Aim., l:t.")(); s. c, 11 So. Hep., '2H. See the iiuotatlon from State r. 11111, Kx-Treasuror, 37 Ndi., SO, ill); ipioted Hiipra, S 12, nolo l.">. •"Trial of Henry W. .Merritt, n Spei'ial Justice I'or preserving tin' peace in the city of Xew York. New York. I'ulilishcd by (iould, liarinsit O)., IH-IO. S.'c § ;).■.. '* Supra, notes '23, '24, § 93.] IMl'EACHABLE OFFKNSES. 599 while holding oilice but nut when exi'icisiiig an ollicial funclioii : "' iinlil after convietioi! of an infanidus ciinie or of a nii.sdfnii'anor fiiHowed l)y a suntonce which pievents his discharL,'!' of liis olhcial dnties.*' in case of such a conviction, an ollicer of the I'nited States or of a State -where tiie Constitution provides no otiier method of removal, may, in accordance with the analogies of the ciininion law, undouhtedl}' l)e removed Iiy impcaeiiincnt.''' At least where there is another method of removal, an ollicer shonhl not be impeached for pliysieal or mental incap:ieily.''* Jn Tyler's ailmiiiistration, Joiin (^niney Adams in a rejiort U) the House of Uuprisenlatives exjiressed the ojiinion that a President might be inipi'aclied for an almse of tin; veto power."'* In the Nirginia Convention Madison said tliat if tiie President "got up"' a treaty •• \\itli surprise" he woidd be inipeached ; '" and tiiat '-in- capacity, negligence or perfidy of tiie Chief ^Magistrate " should lie a grounil for impeachment." (Jouverneur Morris said: "The ilxeeutive ouglit, tiierefore, to be impeachable for treachery. Cor- rupting his electors and incapacity were other causes of impeach- ■"i Supra, noli" "23; infra, § 95, notes 1 and 2. ■■"i Infra, § !)5. •'" Sci! lli.i nrgumont of Clmrlos A. Wiclilin'i', niiuiaj^iT in Pocli's Inipciich- Hirnt Trial. \t. adit; HanK's Caso, 11 ('<>k(>, '.I'.); Ki'x r. liicliai-.lsoii, 1 liiiiT, ."ilT, t>;iH; C'oninionv.dalUi r. .Jcini'K, 1 Uiish (Ky.), T'i.") ; Slater, lliiniphrii's, 7! Texas, Kifi; .Vinlrcws v. Kiufi, 77 itainc. '2-U, '2;!2. ■'" See, however, llie langnani' ot (ioiivenieni' Morris ijiioled I'li/ni over Mule 1'2. Ill tlu' ease ol' Wanl Hunt, .Iiisliee ot llie Supreme Court, wlio was ini'apaeitateil liv illness, and re- fused lo i'esif,'ii unless pi'nHJoned, Con- Ki'ess passed a liill I'ivinK him a pen- sion upon Ills resl!,'nalion. A siinilai- slatiite was passiMl in the easo of ii District .Tud^'e of the Vniled Slates. The hrief of Ex-Tudne William Law- rence, adoptixl li.v the nianiiLjers of •Tohnsoii's liii])i'iiehment trial, says; that the power of inipeaehment " may rpaeli onieers who, fnuii ineapa<'ily or other cause, are nli.solulely unlit for the perforniiini'e of tlieir ollliial duties, when no other n'meill, House Reports, '27lh Congress, 'id Si'ssioM, v!(•>. *' Jludison I'apers, ibid., vol. v, p. 000 IMPEACHMENTS. [chat. XIII. Jiient. For the latter he should be punished not as a nuiu hut us an ullicHT. and jjunisliud oidy by dej^rudation from ollice." ""^ In the first duhatu in ("onjjjri'ss on the right of removal from odice, ]\l;iilis4. Convictions upon Inipou-IiintMitM in t]ic United States. Convictions on impeachments and removals in some cases with discpuililication iiave occurred in tlie United States as follows : l*ickering, a district judge of the United States, for ordering a ship with her contents, which liad been seized for an alleged \u>- lation of tlie custom laws, to be delivered to the claimant without requiring a bond as proviilcd by law ; for refusing to hear any testimony offered by the United States in a proceeiling to con- demu the same vessel ; for refusing to allow an a[)peal by the Unite'! States in the ease ; and for drunkenness and profanity on the bench.' Humphreys, a district judge of the I'nited States, for a i)ul)lic speech inciting revolt and rebellion against the Con- stitntiou and governnieutof the United Slates and a pidilic dcchir- ation therein of the right of secession ; for supjiorting, advocating and agreeing to the Ordinance of Secession; for organizing arnicil rebellion against the Unitiid States ; for joining in a conspiracy lo opjiose by force the authority of the United States ; for refusal to hold court; for unlawful acting as judge of the ("onfederate liis- triet court, and in such capacity making tudawfid arrests and ini- pil.-njii...^:;t.:.^ /vd.lisoii. a judge of a court of common picas iu I'ennsylvania, for charging a i>etit jury in langu.age disrespectful to an associate lay judge, and for refusing to pi'rmit liis associate to charge a grand jury.-' Sherift' (iicenleaf, in Massachusetts, for *^ Madison I'lipiTH, vol. v, p. M'.l. <■■• EUioll'8 Dcluiti's, 2(1 P(l., vol. iv, J). 3S0. Sco also opinion of Scnatoi- Ilowi'ln Jolinson'sInippai'linicntTrial, vol. iil, p. 71. <' Si'o ttii> itiinoilt.v ropoit of .Tamos F. WiLsoniuiil l''ii'd('rickK.\V()0(llii-iilno uiion the tlrst iiropositiou to impeach Anili'inv Jolmsou (House Kciiorts, liitli i'onnri'ss, l.sL Session, No. 7, p. HO.) 4j '.)4. 1 I'iclici'inK's InipcMH.'linii'nl Trial, supra. § IKl. '-' Iliimpliroys' Imjji'aclinuMit Trial Kiiprit, S 1)0. ■' .Vildisoii's Impoaclunont Trial infra, Apiicndix to tlds volume. 94.] COXVK'TtONS IX THE UNITKn STATICS. 601 \hv cnil)ezzlcmeiit of public money; for exliibitiiieasurcr of Califor- nia, for misuse and waste of the State funds. Hardy, a district jiiilge in California, for pulilic language when off tUu bcucii express- ing his sympiitiiy ■witli the Southern Confederacy." IJobinson, secretary of State, and fJeorge S. Hillyer, auditor, of Kansas, for selling bonds of the State at a less price tiian was authorized by law and at less than they might liiivi! obtained^- for the same. I'"ra/.iei', judge of a Criminal Couit in Tennessee, for releasing by habeas corpus a mendierdf tlie State house of representatives I'mm the custody ('f the sergeaiit-at-arms.''^ (iovernor Holden of Xiuth Carolina, for refu.--iiig to obey a writ of halieas cor[ius, in imitation ■• Appomlix to PicHcoll's Iiii|"'arli- iiii'iil Ti-ial, pp. 2I'2-'21 1 : >-cm> Appoinlix to lliis vohiini;. ' Ibid., pp. 211-2H!. Sec Appc^Tiilix. '■ Iliid., jip. '21(! -217. SiM' Appcrulix. " I'fi>sc(itt's Inipciiclimi'ut Trial, infra, Apppiidix. " Si'o .Tiicitson's InipcacliiiH'iit Triiii, pp. ;t;i('i-.'!:i7 ; AppiMnlix, iufnt. " Elliotl'H Impoachiui'iil Trial, Ap- pendix ; infra. '" WicklillV's Inipi'achnient Trial, infra, .\ppi'iidix. n Hall's' Iriipcailiinc'iit Trial, in- fra. AppiMidix. Hanly's IinpeachiiiiMit Trial, infra. Appendix. 1-: I'npeacl.nicMt Trials <)f.ToliM W. ItdliiMMHi and (leiirgo S. Hillyer. Se»> .VppiMidix. I'' Frazier's luipoachment Trial, in^ fra. Appendix. 602 IJIl'EACHMENTS. [ciIAr. XIII. of I'rosidi'iit Lincoln, withimt 1 'jfisliitive autliority. (ioviiim!' ]Jutler of Xt'hraska for enilK!7,zlinfj the jmblic funds. I^iL'utcn nii- ti'overiior Davis of Mississijipi, for selliiif^ a pardon to a conviiK-d uiurdi'i'er durinLf llie absenco of tiie governor from tiie Stite. Judved, offer analogies that may be useful. A puhlic officer cannot be removed for a crime which is not a violation of liis official duty until after conviction by a court having jurisdic- tion of such crime.^ After such a conviction he may be removed if the crime is infamous, or even if it is a mere misdemeanoi', when he is sentenced to a term of imprisonment which will prevent hiiu from discharging his official duties.'^ u S(>o their respoollvo trials in tlie Appi'iiilix, iiifrn. '* Baiuunl'rt Ini|ii'at'iiin('ut Trial; siijira, ^ 1)3, notes 25, •2ii ; infra, Appou- dlx. '' Sco tlioir rospoclivo trials in tlio AppiMiilix, infra. §!)5. > Hmkh's Case, 11 Coko, 99; Eex V. Rlcluinlsou, 1 Uurr, 517, 51)8; Commonwealth v. Joiie«, 10 ]$ush (Ky.), 725; Stato v. Humphries, 7-1 Texas, 4fifi ; Andrews r. Kiiij;. 77 Maine, 224, 232. But see Dliv.r v. City Council, (!9 (in., I(i5 ; People r. Hoard of Police, 11 Hun. (N.Y. ), lOIt; Pooph' II. Frnneh, 32 Hun. (N.Y.), 112; s. c. no How. Pr. (N.Y.>, 377; nml other cases cited in American .iml EuKlish Encyeloincilla of Law, m>I. xls, p. 5fi2, in Note 1. 2 Iljid. But SCO Coniniouwealtli i'. Shaver, 3 WuUs & S. (Pa.), 33S. !i !'-^-] CATSIvS OF UK.MOVAU 608 'I'Ik! following' acts have liueii licM sui'li bnvulu'sof nl'iii'lil il;i:_y as to constitute a ciiUH(; for rcni(j\-:il I'loni ollicc : iK iiianilinn' atid receiving illejfal fees;'' receivin;^ brilies;'' t!io ])evsistrnl i\ uisal In- ii county clei-k to perforin his ilnties as clerk of the hoard of county conunissioners, alihou^ii he l)elieveil tliat the action which they contemplated was illeifal •/' the |)crsistciit icfnsal liy a rounty attorney to priisecute violations of the licpior law, althoU;^h he i)ased his refusal upon his belief that the sciitinient of (he coniniii- iiity was opposed to the enforcement of the law;*' the ri'peatcd i\'moval of frovernmeiit landmiirks by a county surveyor. altlioiij;h hi; cLumed the right to do so for the pur[)ose of rectifying the original survey;" the use by superintendents of the jjoor of their ollicial power and the poor fund to compel the recipients of their favor to vote I'lidcr their di(.'tation ; '^ the failure by the same of- lieeis to refund to the treasurer monc}' repaid them by persons to whom the', had given temjiorary relief ;'■' the action of the same oflic'.'ro in drawing orilers on the county lieasnrer in favor of per- ^.iiis named therein, collecting the drafts themselves anil coia- pt'lling the payees to take from them goods at exoibitant prices in ])ayment f)f the drafts ; ^^ the act of a comity clerk in knowingly ])erinitting a material alteration of his ollicial rci'ords;" the certifi(;ation by a board of State canvassers of an erroneous state- ment of the votes upon a constitutional amendment prepared b)' (heir (derk and not examined by them,'^ and the false certiliealion of tietitions records by a county clerk '•'' without proof of corrup- tion in either case; the false certilication by a register of deeds over his ollicial signature that he had examined a title and found it unencumbered although no statute authorized a certitirate by him." A statute providing for the removal of a public ollirer for habitual intoxication or for voluntarv intoxication in business '^ IJiiiikoin'idge v. State, 27 Toxns App., 51.'). * Sdito r. Jcispy City, 1 Dutchor, N. .1. Law, r,M. "5 StiU(! V. Allen, 5 KiiiiMtis, 21:1. "Stiitc! V. Fostor, ,32 Kansas, 14: .s. c. 112 U. S., 201. ' iriiikleri'. Slate, UNebniRka, 181. * GaKcr D. Board of Suiieivisors of Chippewa County, 47 Mich., ll!7. » Ibid. 11 Iliid. n CoiiHuonwealtli v. Rari'v, Ilardin (Ky.\ 22'.). '- Attorney-General r.r ivV. Kieh v. Jochim (Micii. ., ."iH N. W. Kep.. (111. I'l ConiMionwealth r. Clwunbers. 1 J. J. Marsh (Ky. ), ICO. " State V. Leach, GO Maine, 58; 8. 0. 11 Am. Rep., 172. r.(i4 IMI'EACIIMKNTS. [ciIAr. Xlli li Kiis was liultl coiistitulioiuil as jnovidini^- for areinoviil from ollice foi' incapacity'."' Wliurc iiii olliccr iisstiiiied duties wliicli lie wuh not nMiuired to perforin, it was huld tliat lie mii,dit lie removed for want of skill in tlicir performance.'" It has liceii said that it is " [iroper to Separate the character of the man from the character of the oilicer"; that "a very honest man may make a very indif- ferent clerk, and a man despiealile for his vices may make an cx- eelh'iit clerk."'" It was held in Kentucky, that tlu' intoxication of a county j'.ilj,'e 'vhile in the performance of his ollicial duties when issuir.jf letters of administiation was not niis-feasance in oilice,"* liv a general term in New York, that the use of olisccne and ahasive languaj^e by a police-captain when oil' duty was not "illegal, eoriiipt or otherwise improjier conduct" for wliicii ho could he removed;"' hut it has hetm held misfeasance in olVice for a policeman to attack with his olhcial club a vrivate citi/.cn when off duty and seeking redress for a private wrong.'-'" It has been held that an ollicer cannot be removed because he was iiieligibl(! or disqualilied at the tiiiu' of his apjiointinent, the remeily being a (pio warianto ; -' nor (nv an act prcnionsly performed, iich as bril>- ery of a voter befoie his election, which might be a ground for con- testing the election,-- unless the act was a breach of ollicial duly committed while in the same oilice during an immediately- prece- dent term; 2" nor for failure to execute a bond reipiired by law:-' nor in the case of a jiostnian for failure to attend the great court on four occasional meetings, anil a meeting upon a stated day.-'' "■' MrCdinns r. Kiiil;, si Imlinna, 327; s. c. 12 Am. Ki'i'., V.\r,. Si'i- also Stato ti. (tilmori', 'iO Kiiusas, V:'t\ ; s. c. 27 Am. Ki'p., IH',1. lint seo CVumium- wpiiltli r. WilliiiiiiK, 7',l Ky., I'i ; s. c. 42 Am. Hop., 2(U. "J l'('(i|ilii rx rcl. Caiiiplicll i'. Caiiip- bdl, «2 N. Y., 217. " CoiiHiiouwealtli v. Cliaiiiliors, 1 J. J. Marsh (Ky.), lUS, 1(10, per Uiiilor- wooil, .T. '» C«iiiiiionwoallli r. Williams, 7!) Ky., 42; s. c. 42 Am. Ki!p.,2(ll. i'on- lri(, Kiii^; V. Mayer ami Hiiii^o.^cs of GloceHtcr, ;i lUilstredo, IH'J ; KiiiK v. Taylor, I) Sallccld, 21)1 ; Commoinvoalth V. Ale.\anUer, 4 H. it M. (.Va.j, 522. >'■' I'coiilo ex rcl. Leo v. DoDlittlc, 44 Iliin. (N. Y.), 2'.i;i. -M)livor V. City Council, 09 (la., 1(1.") ; I'l'oplo ex rel. Ilaycs v. Carroll, 12 Hiiii. (X. Y.),4;i8. -' Cojiimoiiwcaltli v. Lancasler, 5 Lilt. iKy. 1, Kil; People ex rel. Clapp r. Board of Police, 72 N. Y., 41."); Kllisoii I'. ltaleij,'li, b'.l N. C, 12.'). '-- Coiiiiiionwi'allh v. Sliavor, H Watts A S. (I'a.), H:i8. People v. Merritl, Kco Miipra, § !i:i, uolo ;)H. -'• Supra, § lilt, nolo 32. -* Hyd Analopous to impeiiclinu'iits aiv proceedings for the removal of jiulgL'S. Ill Kngliind jiulj^i's can lie icniovcd hy tlic crowj: Miioii an addross by botli liouscs of I'arlianicnt.' 'riicrc is no .similar provision in the Constitution of tlir Tnitcd Slates, wliieji nii'i or (itlierwise. The most reinarkiil)le eases were two removals by State lc{,'isLi- tiuvs of jiultjes for ohedii.'iice to tin' l'"u(leral ( 'oiistitiitinii : tliat of .hulj,'e l.oriii^- in MassaehiiHetts for the enforeeiiieiit of the Fii,Lfilive Slave Law; ami that of .hi(lf;e Iliiidmau in \\'est Virffinin for followinif a decision of the Supreme Courtof the riiited Stales whii.il overrule!' Iniitcachiiiciit. 'I'lie ai'tieles, as tlie cliarijes ai'e teinied, ai'e then })ropai'ed hy ii roniniittee of the House of HepresentativeH, and after tliev have i>een repoited to and a|i|)iove!t-]87!). Art. XII. Soc. 3. * New Yorlc Constitution ot 1846, 2 Miehigan. Ad of Jlari'h 30, 187'2. Art. VI, Soct. 1. G08 IMPEACHMENTS. .[chap. XIII. scnted to the Senate witli those adopted by the assembly ; upon wliifh tliu plea was overruled.'' On tlie trial of Judge Page in Minnesota, a plea to the juris- diction contaiiu'd in the respondent's answer set up tliat ihe journal of tin; iioiise of r('[)r('sentatives did not show the articles of impcaciunent liiiil been approved b\- the vote of the niajoi'ity of the niemlKus elected. The journal showed siin|ily " That the articles wei'e presented and duly adopted." Without taking testinimiy tin; senate overruled the i)lea.'' In I[olde!i's iiiipeaehnient trial in North Carolina, the house of representative's made an order amending an article of impeachment by substituting another ))erson for tlie one originally named as in- iio'.M'ut of tlie unlawful act chaiged against the respondent. An objection was made to ibis aniendnient upon tiie ground tliat it '.;ld not ])(' allowed unless new witnesses were examined before 'he bouse, or a committee thereoi", in support of this charge.'' The amendment was allowed without tins requirement. The answer was thereni)on amended so as to meet this new article and a replication thereto made by the lion..." In IIubl)eirs ease in Wisconsin tlie managei-s were allowed to amend the articles by correcting an erroi' in tlie name of a place mentioned in the siieci- iicati IIS. A new pica and answi'r were tlieii filed to the amen. «('>, CT, !)7Ml!. " i'a^'o'H Iiiiiit'arliiiiciil Trial, pp. 101-]1(); iiifm, Appciiili.s " CitliiK opinion of Altorncy-Opn- orr.l Charii'H Leo, Aniorican Hliilc Pa- pijrs, vol. XX, p. 101. " Holilon's Inipi'Hcluuont Trial, pp. 61-72, 101), IDI, Hitiira, S ill; iiijrii. Appuadix. Sou tlio urgumenl of Mont- (iencial, ;I7 Neb., 112, 'Jl. (,'oini'rv lilair, counsol for tlin rospon- (Icnt in Hi'llin.ip'H Inipcaclinu'ut Tri.il, p. 1(10. ^ itiilibt'll's Iiupoai'liiiipnt Trial, pp, 187 ISM, '211, r,X]. '» Harnard'sIuipoai'hincntTrial, I'p. 1!I2, 111.'). " Stain r. Li'i'sc, Ex-Allorno.v- § !'8-] ARTICLES. GOO Ip. Page's impeachment Iriiil llic cotinsel foi- the respondent iiuivt'd to (piasli one of the artich'.s as insullicient, heeanse indeli- iiito. Tiic motion wa.s denied, witli a provision that no evidence siionhl ho received nnder die article unless the managers should (HI or hcfore a cert.an date furnish and file in the ease a hill of particulars to tliat artiide. Tlie counsel for the respondent ohjected til tliis upon tiie grouncK that it amounted to a permission to tlie managers to amend tiie article without any action of tlie house of rc|ircsi!iuatives tliereupon, and \Aas in effect a permission to tlie 111:1 lingers to present a new article of iin[iea(limeiit, which power even the house itself could not have delegated to them ; hut the (liijcction was overruled. '^ Tiie a: tick's need not pursue the strict form of an iiidietnient.''^ (ircat looseness is allowed in their eonstruction ; and it is enstoniiirv to iiiingl.- rlietoric as well as arguments witli the statenieiii,s of fact wiiich they contain. In England, no dciiiiurer to an article of iiii- luiicliiiieiit lias ever heeii admitted:'* Imt our American practice ;ill'ords more safeguards to the accused.''' The articles must coii- li'i'i sullicient certainty to enahle the respondent to [irojierly pre- '- Th(> iirliclp was ns follows : — " Arli<'li> X. Tliroii.ulidut the lorm of olllco of said Shfniian Vufin as •'ui|;,'c' of tho ilistric't fourt ill (mil for s.iiii county of Mower, to wit: siiico (■roi- iiliout JHiiuaiy 1st, 1873, ho, t.h« i-iiii! Shonnaii riisjc, iishucIi jmltfo, has liuliiliiall.v iliMuoant'il himself towiinls till' olllcers of sniil Court anil towanls till' iitluT olIlriTs of Balil counly of Mntt.r, ill ii iiiaiieious, arliilrary iinil (i|iliri"isive manner anil has liabitiially ii^i'il till' |iower investi'il in liiin as .-■uih jiiilui' lo annoy, insnil and o|i- I'l-i-is Hiiiii onii'i'i's. and all oilier per- M'lis who have ehaiieed to ineiir tlie iii~|'leasnre of liiin tlie said I'afje." i Pace's Ini|i(>aelinienl Trial, pp. '20, U;:t, l-'2, '2:)2. ) '•' Lord Wintown's Impoaehiiiciit 'Iriai, Howi'll's Klale Trials, vol. xv, pp. h7.")H',»1 ; Report, on the Lords' •fiMMiials, HiirUe's Works, Little A liiown's eU., vol. xi, pp. i;t-41 ; Woode- son's Loetiiri's, vol. ii, jip. CiO."), Cilin ; Comyn's Dif-est, I'arliitminl. L. '21 ; Foster's t'rown Law, pp. :fs:i, :i',lO ; Story ou the Constitution, .")lii ed.. § HOH; ManaK'.T (leorne I'rlsliie Hoar, Belknap's Iiiipeai'iinient Trial, pp. 7l) 7."i. Ill li.irnard'.^ Inipeni'iinient Trial, Judge Allen said (at p. '20il ) : "If he has been nuilly of inal or eorric'l ad- ministration of Ills olliee of Jiii'^ii of the Supreme Court, and tho fiKts con- st it iitin}^ I lie aili'iii'd ma If. a mee, and the ai'tioiis or pioeeediiitis on wliieh the orders were made or judttnienta tliveii are set forth dislini'lly and ■ ■learly in the artirles, he eaii he eou- vieted, alllioiifjli the part ii'ular intent with wliii'li tlie arts were done or the particular Indiieeineiit liy wliieh he was led to aet are not alle(iod." n Report oil the Lords' .lournals, Hurke's Works, Little & Brown's ed., Mil. .\i, p. 1:1. "5 Injm, § 103. (110 IMPEACHMENTS. [CIIAP. XIII. piue liis defense and to avail himself of an acquittal tliereupon as •I I)iir to anotlier inipeachnient.''' It is usual, when the article (.•hai't;eH a course of (•onihict, to include therein a number of speci- ticatiiuis of such conduct. In Cox' case, before the Minnesota senate, demurrers to certain articles were overruled, but tiie board of inanaf,'ers were re(iuired to furnish the respondent with s])('cifi- cation-^ as to tlieni. Tiie senate ruled that if no such s[)ecificatioii8 should l)e furnislied no evidence shouhl be received under tliose artich's; aud after tlie specifications were lih'(l excluded all evi- dence in support of one of such articles, aud dismissed the saiue.'^ S !M>. Service of I'i'oooss on lni|)«':u'lini<>iit. As soon as the articles r.ve thus presented, the Senate issues a process summoning the party to appear before it to answer the articles at a given day. Tliis process is in the form of asiunmims, reciting the ai'ticles and notifying him to appear before the Si n- ate ill a time and ])lacc named tlicrein. wiiicli is lixcd by it. Ui liln his M'lswer to llie articles, aud to iiliide the orders and juclginciit. of the Senate thereon.' A jireecpt Utr the writ naming the tiiiio liefore the return-day allowed lor the service is issued to tiie scr- geiint-at-arnis of the Senate, who serves the \\rit citlitu- in jjcisdii or by clcpnty." In .lohiisoiTs case the retiirii-ilay of the sununoiis to tlie I're^idciit was one week after its issue was ordered.'' In Ikdknap's case the return-day was twelve days alter the oriK r.' In the earlier im])eaciimciits. wlien liie aceuse(l livcil a long ilis- taiiee from the jilace of trial and the means of travel were iiioio dinieiilt and slow than now, more time was allowe(l. Tlie nni- inoiis is si'i'ved either by the delivery of an attested copy ti. the person a(!cused ; or if that cannot eonvcniently be done, by leaviiii,' '"Story oil till" Conslitutioii. stli Ami. e{>, :>•>'. KKI'J. Si'i. Hiipni, § li:). iiole'2'!. § !1!). 'Si'imli' Itulcs fur Imiiciicli- inoiils, VIII. ■i iiii.i., vr. " Joliiison's Iiiipriiclinirnt Triiil. p. 1(5. ' Ui'll;imp'» InipoiiihiiH'iit Trl:il, p. ll">. Ill Miiiiii'sotii Kcrviec of ft copy ol' tlic illipcilcllllKMlt, lllllsl, lie milili' on llin ii'spomleiil nl leiist, t wi'iily days LrfoiM the trial .Art. XIII. Sec. r,\ Till' rule Ih the Hanic in Norlli D.iliota (Art. XIV, See. •2(10); Soiilli DiileiHi (Art. XVI, See. 7i. In New I!iiin|i- Hlilre 8cr\lee of a citation nnisl lie made at least fourteen ilays licfere the trial (Art. 38). § i»9.] VIJOCKSS. 611 ,.i; issues a SWIM' llie luiinKiiis, l!u' St'ii- it. to lile |U(l.!j;nn'iit till' tillUl tliu SUl- pcrsou lllllliniis •d.'* Ill (IIILJ llis- rc nil lit! ic niii- V I., llio li'iiviin^' >f 11 r.ll^V . ni;i.l.'i.ii iiiiv iliivs II. s.v. ro. nil OaUdla nil Oaknia ,.\v lliiml'- 111 iiiii.-l li" iVB ln'fiiro siicli a copy at liis last known i)laci! of abode, or at liis usual place dl' Imsiucss in some co!is[)icuous place therein; or if such service is ill (lie juiltrtnent of the Senate impracticable, notice to the accused til a[i])ear may be given in such other miinner, by publication or titherwise. as the Senate deems just. If the writ cannot be served (HI time, it does not abati", but furtlier service niaj'be made in such iiiaiiiier as tiie Senate directs.'' In Humphreys' case the ])rocess was served by leavinsf a copy of the sanii! at the residence of the respondent, who could not be finiiid in that vicinity. On his failure to apjiear in pursuance of llic sunnuons, a proclamation for liis ap[iearaiue was served, by ludcr of till' Senate, liy iinblicatiou in three newspaiicrs in Wasli- iiiL,''t(iu at least forty days successively, and iine newspaper ]inli- lislied at Ills I'csidc'ice for live days successively.'' 'I'lie old ICiiLflish cusloiii was to cite the party by a writ dii' ted t.. liimself or to re([uirc the sherilT to sumiiKiii him. and if he cmild nut lie foiuid to prochiim tbrouo'lidUt the realm that ' >■ did ntit aUciid on the day lixed ln' wimld be atlainteil.' I ■ liiiics, when the accused could not readily 1k' apprehended, the iviug was addressed in order that the jiorts mif,dit be sto^iped, that he niif' ' be prevented from takinjf shelter in the royal jialaces. and at tiie siiiiie time all persons were pri)liiliited under certain penalties from liarlioiinir and eiiiicealintj' him.'* There is no provision (irauthoiity iindei' tlu' Conslitution of the I'liited States tor tiic arrest nf the ;i(cnse(l by tiie Senate or his suspension finm oiliee peiidinn' the iiiipeachmeiit." I'doiint, wlio. however, was a member of the Sen- ate, was arrested and held to bail mitil tiie termination of his '• RuIps fi r Inipc'iicliiiii'iils. VIIT. " IIiinipliri'VH' Iiii|M'firllIii('lit, 'I'llill, f'iiii;^i'rssii)mil (ilolic. !2il Session, ;(7tli CoiiKros, i.iirl iv, |i. 'J'.il'J. ' WociiIoscim'h LiM'tiiri'S, vol. ii, |i. f.ni; cltintj 4 lusl. 3S .T.t; 11 Seldi'ii's Works, l(i21. « Ibid., vol, ii, p. (!(U; eitiuK 2 SI. Tr., ri7;i, T.\l (I'll. 17:10) ; Com. .Toiirti., ■Vpiii, i(;7n. ^ Si'e Profpssor DwIuIiI'h LcM'tiire onTriiilli.vTiiippni'limi'Mlsiii AiiiPiii'iiii I.iiw Hpnister, N. S., vol. vi, pp. '27G- '27H ; Von IIolsl's Ciiiisllnilioniil Law, pp. 1(12 HV,i. TIITiui.v ill his Tri'iiliso on (iovpriiiiu'iil iiiiii ('oiist iliitioiiiil Linv, p. ;l.")l. iii-Kiies tlial Coii^'i'i'ss may arrest iin iiiipcai'ln'd pn'sidi'iil orolln'r (■fllrpi- ami siispcnil liiin from ollit'e ppiidiii}; (lip proceedini^s. PoniPi'o.v, ill Ills Const itiitionnl Liiw, § I2S, tliiit this caiiiiot l)c> (lone to an oHlicr wliosp term Is fixed liy Uip Coiistilii- tioii, lint (liat it nilKlit lie vhen liU. tonii of olllcp is niprely stiitnlory. 012 TMI'KAniMKNTS. [chat. xnr. trical.i" Several State constitutions have jirovisions antluiiizinu a suspension from ollicc in sncii a cast;.'' In tlic State of Arkansas, tlie ini[)eaeinn(;nt of (iovernor Clayton henan hv several nieniluTs of the house Inekinn' tlie j^overnor in the executive ehanilier.'- J5 lOO. Maiinsff'ris of liiipoacliiiiont and Cloiiiiscl for I*ros«!«Miti«i». A eoniniitteu of nianageis is also a[)j)ointeil l)y the House to (conduct the inipeaehnient. Tliese maiiagei-s are alwavs inenihei's 4if tile House, and usually lawyers. In no i^ase has tlie House ar Association as well as liy tiie manaLfers, and the former had full control of the proceedinj^s.'* S lOl. SweariiiK' of the Senate. The Constitution provides tliat tlie Senate, when sitting for the jmrpose of imiieachiiK nt, "shall be on Oath or Atlirmation." ' The members of the House of Lords are not sworn, but give tJieir votes upon their lionor."'^ It was natural that in a country wdiero no privileged ca^^tc amon ; white men was recognized, the senators '" Vlmrtcin's Aiin'rii'ini Sirii ■ Tiinls, pp. 201-2(r2. -Jno ; Hiiprtt, S '.ll>- 11 In Lmiislimii (Art. VM), Nortli Iliikolii (Art. XIV, Sfic. 19H), Hoiitli D.ikDtii, Art. XVI, Si'c. .I), iin onicM- cannot pRi-foriii hin olTlciiil fiiiii'liouR iiI'liT inipi'iicliini'iil iind lioforc liis iic- (|iiilUil. So in JIii'lii;,'nii (Art. XII, Si'C. '2tl, iinil N('W .Tcrscy ns nwinls jiiiliriiil olllci'i's (Art. VI, Soi'. Hi ; iind in Ni'W Y(irli iis to juiliciiil (ilTJccru lifter llio iirliclcK " Imvi- lici'n pi-i'fi'rrcd to tlic SiMiiilc" (.Vrt. VI. Sec. IHi. Koo In tlio Mutter id . ■' Soo .\ppondix, infra. § 101. 1 Constitution, Artii'ir I, Soi'. tion :). - Hliickstono'sConiinentiiritw, vol. i, p. 402. § 102.] APPEAUANCE. 613 slumld be hound in tho SiiniL' way as jn(lo;cs and jurors for tlio administration of justici,'. Tlit' oatii or alliiniation is administered to the senators liy the presidiiiff ottieer for tiie time heing of the Senate.'' Wiien the Chief-.Instiee jjresided tlie oath was a(hnin- istered to him by one of tlie assoeiate justiees of the Supreme (\)urt.- Wlieii the Viee-1'iesident ])resided it was eustomary under the former rules to have him swoni by the seeretary of the Senate.'' If the respondent wishes to exchule a member of tho Senate from the trial, the safer praetiee is for (me of the other senators to object to his being sworn.^ ^ 102. A|ti>oaraiie« of the AfciiNCiI. On the return day of the process, after the senators have been sworn, the person impeached is called in their presence to appear and answer the articles. If he fails to appear in person or by at- torney, his default is recorded and the Senate proceeds er parte in the trial of impeachment in the same manner iis if a plea of not guilt}- had been filed.' On the trial of Judge Pickering, although the judge did not appear, the Senate received a petition from liis son which alleged liis insanity, and prayed a })ostponement and leave to defend for him. This was jjresented by counsel for the petitioner, who dis- claimed any appearance for the judge. Against the protest of tlie managers and after their witluh'awal to take the opinion of the House upon the subject, the counsel was allowed to present evidence of the judge's insanity in the form of depositions; but the managers returned and tlie trial went oi, in tlie same manner as if the jietition and the depositions in su[iport thereof had not been presented.^ » 19 St. at L., 34; Rulos for Iiii- pi'nrliiiii'iil, III; Bclkimp'.H Iiiipcacli- iiMMit Trial, pp. 11, 15,21,24, 29, 2211, 2:13. * Johiison'M Impcnchnipnl Trial, p. 11. s('iiiirti''s liiipoachmcnl Trial, Smith's I'd., ji. 12; PeckV Iiiipi'Oi^li- iiiciit Trial, p. .W. " Sec, liowcvor, .TotiusoirH Inipi'acli- moiit- Trial, vol. Ill, pp. ;U10-40a. ^ 102. ' Suiiato IlulcB for Iiiipoai-h- iMi'Mt, VIII, X; Pi(lic'riii(?'s Iiniicach- inciit Trial, .Viiiials of Congress for lH(i:t-lHll4, pp. .'II. -)-;)(■."; HiiiMplu-i'ys' Iiiipi'achriiciit Trial, Connri'ssioiial (rlolio, 2(1 Swwioii, liTlli Cotifiress, lSi;2, part Iv, pp. 2942 'i'.m. Ah to till' necessity of an appfaraiicc in p(>r- soii, HOC Hitpnt, § 90, note 'M\. - Pickering's Inipcaclinicnt Trial, Annals of CoiigretiH for lb03-1804, pp. 32S-;t07. 614 IMPKACHMESTS. [CIIAI". XI 1 1. T'^pon Ilumplireys' trial no appcaiaiice was made on iK-iialf uS the rt'spoiuk'n*., and all the jiroceedinj^s wore consequently ej- jxiiic/^ 'I'hf accused may apj)ear in person or hy attorniiy. In evcr\- trial liel'ore the Senate of the I'nited States, when; there lias heeu no (U.'t'ault, tiu' accused has appeared liy counsel. In several of tlie State impeachment trials, notahly those of Addison* and Jackson.''' tlie accused has conducted his own defense. The sen- ates of several States have assiuj-ned ('oiinsel to the respondent at liis iciiucst, and in sueh a ease a law may he passed jiroviding for their payment l>y tlie State.^ On the impeachment trial of Jolin W. llohinson. Senator Incjalls ol)jected to the furtlier appearance of one of (lie respondent's counsel hecause he iiad publicly de- clared out of court tliat the Senate was a jury packed against his clients. Tiie counsel thereupon witlidrew." |:? !<>;{. J*loiuliii(;:s of tin* Hospoiidoiit. On the appearance of tiic respondent upon an impeachment he is entitled to lie furnished with a copy of the arti( les. and time is allow mI Ilim to ]irciiare his answer thereto. If lie fails to [ilead, tlie tria^ procceils as if a ple.i of not guilty had heen made, and he mav hi allowed to defend hy counsel notwithstanding.' No dcni irrer to an article of imieaciiment lias heen tiled or sustained n the House of Lords.2 In the Senate of tlie I'nited States no demurrer lias ever heen sustained, altliough in the cases of Blount anil I5(dl;nap, jdeas and implications thereto which were analogous to demurrers were liled and argued. In the ease of Sheriff (ireenleaf in Massachusetts, demurrers general and sjiecial to the several articles of iinpeaehment were incoi'iiorated in the •' Humplircys' Iinpcai'liiiiont, Trial, OiiiHn'ssidiial (riolic, '2(1 Si'ssioii, l!7lli Ciiiiiiri'ss, IKU'J, |iiu-t, iv, pp. 2\H'2- 2'.).');! ; Scuiitc Uulcs for Iiiipoacliiueiits, X. * Infra, Appi'inlix. ' Ii)J'm, AppiMulix. Hi>l kill's iMipciichmcnl Trial, p. 72; /ii/rn, .\pp('ii(lix. ' Iinpoacliiiiont Trlnl ot Jolin W. Kdliiusoii, pp. 21H-'24!I. § 103. ' Bolknap's Iiiipuaohmont Trial, wii/inf, ^ !>(!. ]iiil so(> Hales' Ti'iai, infra, Appeiidi.N. - Kcport (111 llio Lonis' .TournaU, Hiu'ko's Works, Little A- JSrown's I'd., vol. xi, p. 13. On SiilTolk's iiiipeaili- iiH'iil, wlii'ii the respoMilent I'ailed to aiiswiM' but iilaceil himsnif on tlio king's (lispo.sal, it was held that as to one article lie was "neither (leelareii nor charged." (Stiililis' CouBtltutioual History, vol. iii, p. 118.) §103.] PLtlADINGS OF KESl'ONDENT. U15 respondents' answer, but were ovcituIihI/^ On tlie trial of Jii(l,i;e Cox before the senate of Minnesota, denuirrers to several articles were tiled and argued. 'J'lie Senate in two or tliree cases over- ruled the demurrer, Init directed liiat a bill of pai ticulai's of tlie articles should be furnished to tlie accused, and in the case of one article after the bill of particulars had been furnisl)ei>7 ; supra, § !))!, note •21. ^ Botktn'H Inipciiolimcnt Trial, pp. 215-l!('i5 ; HHjira, -, 'J3, nolo 2'J. '"' Ilopkinsiin's Iiiipnai'luui'iil Trial, Nicliiilsdii s iMipcacliniciil Trial, .Vildi- sou'h Inipi'acliiui'ut, Trial, iiijru, Ap- |M'IllliN. ' liolliiiap's IiiipLNichiiieiit Trial, pp. .^SO-.'ii'J ; Hupra, (j 90. Sec, however. Lull!!?' Trial, infra, .Vppcuilix. Clij IMPEACHMENTS. [chap. xur. lower house had adjourned without a day; but allowed the ques- tion to be raised by a motion that no action be taken.^ On (loverni)i' Wannoth's iuipeacbnient in Louisiana his triers relusiHl to jjciiiiit iiini to file exreptions to tiie jurisdiction upon tiie ground tb;)t neiUu'r tliey nor liis inipeaeliei-s were a hiwful h^'is- lative liouse.'' Upon Hates' ini|)eaeiin)ent trial, the (California senate refused to allow any objection to the jurisdiction l)efore the respondent pleaded to the articles.'*' ^ 104. }{«'i)lk-atioii. After a plea or answer is prei)ared and Hied, the next regular jiroeeeding is for the House of Kei)iosentatives to lile a replication to the same iu writing. In case nf a plea, the rei)lication may l)e in the nature of a demurrer.' In the case of an answer, the icpli- cation usually denies the trutli and validity of the defense therein stated and avers the truth and sufliciency of the charges and the readiness of the House to prove them at such time and place! ;is shall be appointed for that i)nrpose by the Senate. The rei)lii ;i- tion must be authorized by the House of ]{epresentatives and c:iu- not be filed by the manageis on their own responsibility, at least in the absence of a st. nle authorizing sucli a j)iactiee.- The practice in t\n' United States upon that subject is the same as pre- vailed before the House of Lords; although on the trial of l^onl Strafford, no implication was filed by the Commons, wiiich, ac- cording to a learned commentator, was >• ii mark probably of cou- temptnous insult and disdain."'' ^ 10.5. I'roci'oiliii^s on tUv Trial of iiii Iiiiiieaeliiiient. A time is then assigned for the trial, and the Senate at th;iL time or before adjusts tlu' inles of its proceedings. TIr; Seniilii of the United States has adopted twenty-five "standing Rules of Procedure and Practice in the Senate when sitting on the Trial of Inn)eacbiiients." ' " Tlie j)residing oflicer is ordinarily the \"ice- " Iiii[H';i('limcnl Triiil of Oolm W. AiMoricuii Sliitc Ti'i.-ils, |i. 'Jill; liol- EoliiiisDii, pp. I(l7-l;t:t. ' WiiriiKilirs Iiiipciiphment Triiil, infra, Appendix. '" Bales' Iiupeaehiiioiit Trial, infra, Appenili.x. § 104. 1 Bluuut's Caso, 'Wliarl.on's Ivimp's Case, |ip. 7I'-80. - Sujmi. §:; !)S, 100. ^ Wdoileson's Ijeedires, vol. ii, p. 1107. § 10."). ' S(!ualo Manual, pp. 105-17.1. S iur>.] TUOCKKDINGS OX TIIH TIMAL. 61T l'i( .sideiit, 01' in liis iil)st'ii(Hi the Prcsiduiit pro frmporr of tlie Suiiiitf."^ AVliwi tlic I'lvsiduiit (if tlie I'liited States is tried, tlie Cliicl-.histice of tlio riiited States ]ji'esipt of course when lie liimsi^lf is Iriod, or is n'.licrwise dlsi|ualilied. ■'' .loliiisou's iMipc.'icliMUMit Trial, ji. 12. '■ liclliiiap's Ii.ipi'.'ii'IniKMit Trial, pp. r.», 2(1 ; «(/;))•((. S '•"'• " .Senate Uulcs for IiiipciichuK^nls, VII. • .Tolinsoii'slnipoacliinoiil T'rial, vol. i, pp. lH."j-l«7, 27(1 ; vo:. ii, p. 4si), iS8, SuMiner's ojiiMioii on tlie suli.io(^t Is reported in vol. Hi, jip. 281-2',tt. At the trial o£ Lord Melville, Lord Cliuu- 018 nirKAClIMKNTS. [('II.V!'. Mil. Oil tlic iliiy ;i]ii)y the next I'arlianiciit. Tlu! previous precedents were conflicting.'^ Although this position has been disputed,'" it is settleil ly jaecedent that the Senate on the trial of an iin))eaehment sits as a court and not as a legislative body ; and the proceedings are entitle.'. cclloi' KisUino, will) was, however, a and Charles llobllison ; Barnanl's Im- peer, ili'i'iileil all ciueslioiisof ovideiiee iieadmieiit Trial ; Mather' i Iiiiiieacli- witlioiil, dispute. '•' I?y tlie eonstilulion of Wesl Vir- ginia i Art. VI, Se('. id: "Tho Senato may sit iluiin^ the recess of the le^is- lalnre, forllie '.rial of iinpeachmenls." »y that of Mield>;an (Art. XII, See. 3), Inipeaehinents must bo tried liy tlio senate, after the llnal adjournment of tho h^nlslaturo. ■" t'onstitution, Artieli> I. Section 5; Belknap's Iinpeaehment Trial, ]ip. !i'M, niiS, ,"il2-.")lt; Johnson's Iinpeaehment Trial, pp. 2(i-;iO, 32. In New Yorii and Kansas iinpeaehinents liavo been tried ment Trial, Appendix, infra. u BelUnaji's Impeachment Trial, p. 512. ''- IIist(My of the Trial of Warren Ilasliujis, publislied by J. Debrett, London, 17;)('.. Introduelion to part iv. For tho former pre(!fidenl», see ibid., jip. 12-41, note; Hallam's t'nn- stitulional History, Middl(3ton's Am. ed., V(d. ii, pii. 3'.»7-10(). " Seo tho nrKuments of the man- agers In Chase's Iinpeaehment Tiial and .Tohnaon's IinpeaehmcMit Trial, piiHMim; and the opinion of S^'iiiilor Sumner in .IoIiurou's Impoachmeul after the ndjournment of the lower houses. See Impeachment Trials of Trial, vol. ill, pp. 247-281. John W. Robinson, Georgo S. Hillyer |! Mi;.] KvinKNci:. tjl'j •■ III lilt' Sijiiiite of lliu I'liiifd Sliites siltiiii^ iiH ii Cniirl oT liiipiMrl;- iiiiit. '11 1« lu Jil'occi'dllifjfS iir(( foiKUutcil .silhstiiiili: ll|ii>U oi'iliiiiu'vliials. Ill ii'L'MiM to til I' ii(liiiissi()ii or v'ji'clioii of tcsliiiii.iiy, llii; t'Xiuiiiiiiitioii and (ross-cxaiiiiiiiiliou ol' wiiiics-cs. the iidi'S of I'vidi'iici! and tlit; otlu r (iiicstions ol' In dunti ansiiii. tlioiiuii tl icit! IS iin at lilicralilv and ficcdoin IVoiii ti'cii'iicalilv in all tlu'Hc respects.'''' 'I'lic jiivsiiiiiptiou of tliu imiofciict; of llie arcused is re<;(>giii/,ed as in ordinary courts of laAV.'" lie lias the riiflit to be confronted with tliu witnesses a<;iiinst liiiii, '" ami lias ill fjjoiieral all rijjlits guaranteed l)_v tlie Coiislitution to jieisons iliaiifi'd with ei'inie ('xe('])t those which reipiiic an indirtnicnt and jui y trial and which re_t,'iilatu the pi, ice of trial. ''^ t< KMt. JCviUfiK'o ii|i(>ii liiipciH-liiiuMit Trials. On the tl Warren llasuims it was deteiniiiied iiv tiio LordH that all the evi(h'iiee of the Coniinons in siip[)ort of all the articles should Ix; taken hel'ore the respondent's witnesses were exaniiued.i 'I'his has heen the universal rule in the I'niled States, except when depositions were admitted. ( )ii some of the eailicr I'^ii'-lish iniiieachniiiits. iiicludiiiif those of .Miildlcsi'x '•^ and Staf- f( tl le evidence t( iiid ai jfainsl each arlicle was taken nj) sejia- le evidi'iiei' was taken rately. On t1i(! inipeaehinent of Middlesex tl by the depositions of witnesses who were examined seerelly on written interrotralories, after the manner of the canon law, ^\liich was then followed in chaiioery ; and the iieeused was not allowed i'' MiuitiK'cr Himr in liclkiuip's Oise, " (!liii't .Tuslii'O Cliiisc, in .Iciliiison's Im|i<'iiiliiiic'iil. 'J'rijil, Vdl. i, p. I'J; mid p. H2 ; Hlale r. lliisliiins Allonii'.v- lhi> pi(ii'('c. Soe Slate cr rp^ Hclliiiap's Inipcacliiiii'iil Triiil, jhwx/ii I'P Alt,(>rM(>y-(iciiiM)il 1'. ]}iickli'y, 'A Ala- I'.l 111. Ill Kiali' I', (l.'iir^'c II. lianiM, n;);), CIT ('.21. '" S'.alo c.r tri. Attoriii'V-Clciieral v. 1 1 ;!s'i Ilia's, Altorney-CVi'Mcnil and cMlii'i's, n? Xi'li., 1)(1 ; il, was le'ld, that ;''(' Sii- IJiicKioy, 54 Al.-ilnuiia .">'.lll, (IIT-Cil. prciiic Couri acted judicially upon the '* Suiti; r.r rcl. .Vllonicy (tciii^imI v. truilof inipi'iirlinii'iitsjuid liiid not sue- Hui-kloy, 51 Alalji i!MI, (!17-i;21. cocd.'d to nay political l'uiicli(.iis that iiii^chl havo been viisli-d in thoSi'nal(>. S lim.i History of the Trial of Wiir- pu IlastiiiKs. Iiulili.slii'd liyJ. Dclirett, '■'Storyon thnCoii8lltulioii, 5tli cil., London, IT'.in, |). 10. *! Hll ; Report on the Lords' Jonnials, ■^ HowcU'a Sialic Trials, vol. ii, pp. liiirUc's Works, LilUc & Urowns ed., Il«:i-l-i54. vol. I'P (il)-l'2'2: Senator SiiiniiRr'i IIowi'll's Statu Trials, vol. Hi, Opinion in .lolinson's Iiiipoaclinicnt l)K'2-152C. Trial, vol. iii, pp. "iuli-duO. (iiiO l.MI'KACMMKNTS. [('IIAI', XIII. to si'i' ilii'ir testimony Im'Toi'i; liis iinswi'i'.* Tpon lui iiiiix'iicliiiHMit trial licroic (lie Siiprciiu' Coiiit of Aliiliaiiiii, it wiis licld tliiit tlio iicciinimI liiul tiir coiistitiitioiial rij^lit to 1h) confroiiteil willi the witiK'ssi's iij^iiiiisl liiiii ill court, iuid tiiiit a statute wa-s void y\\wh souLfiit to autiiorizi,' proof liy (l('|)ositioiis of which lie liad notice witli tiie riii'h* of cross-cxaiuiuatiou/' lu tiic tiials hcforc (he Scuatc of the I'liited StatcH no testimony liiis been admitted on eitiier siii:i, (117 C'Jl. " l'l('l;orin:,''H Trial, .Vnnals of Con- firi'ss, A. D.,lH0:i-18ll.l, pii. XU, ;M2 ; Huiirn, S !'"■ ' .lolinW. l!oliia.-on',-; laiiM'ai-liiiii'nl, Trial, ji. 0",. ' Hiil)l)eirs IiaiKsaclnueiit Trial. I" Ilillyor's Iinpeachinent. Trial, p. Drill; Cliaili's Riihliison's Inipeaehnient Trial, p. ;!:I7. " r.i'lUnap'a Ira]»'acliinpntTrial, pp. .")24-r)2!). In Halilicll's Inipoaclnacnt Trial, llie Wiscoaisiii Si-Mali) (li'iiii'd a iia)li(in . 80-81. Sco Ap- aml Nicholson's Inipeachinont Trial. peadix.) § 107.] Aiir.r.MKNTa. 621 iiioiiy of tlic rosponrlcnt liccii (iikcii. Tt was clainicd in llclkmip's case liy ICx-Soiiutor Miittlunv II. Ciii'in'iiti'r, who was ciiuiisil l'i>r llii' ivspoiidciit, tliat tli(^ rcsjioiiilciit ami liis wile had im liylit to ti'stit'v-''' 'I'liis wasdenii)(l Intlif m.ina'^cis.''' (hi I>ainard"s trial ihc U'sliiiKiiiy of tin; acciisud was adiiiitlrd witlnmt (|iitstiiiii ; " and ill otliiM' cases lie lias been allowed to iiialnl Tiiiil,ii|). 07K, '.ii»r>. " Xliuiiip'r Scott Lord in Bollinaii's Iinpciu'liiueiit Trial, p. 1039. " Bttiuiinl's IiiipHUflimuiit Trial, p. llillO. '" Addison's Impeaclimcnl, Trial, p. *101; Jacksou's Iiniieacliniont Trial, pp. 'iM-'iT"). Hal)bcll's Iiiipi'iichiiMMit Trial, p. 7S1. Sco Appcmlix, inlrii. '" StittlToid's Impcaclimi'iit Trial, HowoU'siState Trials, vol. iii, pp. 1:ih2- 1526. '" JlaiiaKcr Hiisloii. in nulilicUVIiii- pcaclinicnt 'rri:il, p. il'2t\. '* .Iiihu IJ. ("hipiiinii, counsel fortlio ri"s|>oiiilciil in IIiililx'H's Iiiiiii'achiiii'nt Trial, i)p. ]77'2, 177."! ; hifnt. Appendix. SCO Wilson V. V. S., 1411 V. S.,('.0. '" Belknap's Iinpcuchmont Trial, ]>. (;(',7. -'" I'ios<'()tt's Imiwaohment Trial, ,Vl)penilix, p. 217. ■-' Infra, .\pj)t'udlx. IMrEACUJIENTS. [chap. XIII. wliole case. In a ^Missouri iiiipeacluneut trial, the di fciulants' founse^ were allowed to nialce a motion, in the natnre of a deriiur- rer to the evidenee, for judgment wlietlicr tlie rcspoiideiit sliciild nrdve further answer, 'i'lie senate, after tlie argument of the motion, refused to allow the managers to witlidraw the articles willi(>'it the permission of the court. Sueli peiinission was, how- ever, sulisequently granted ])ef()re the decision of the motion and apparently without an}- action by tlie house wiiieh ])resented the impeachment; a most irregular proceeding.^ The Ilcmse of Com- mons iias the right to reply on eveiy ineidenlal as well as on the principal (juestion involved in the case.- This right, althoUL;li elaiiiiod on the trial of J(dmson, IJolknap ami 15arnard, has hccn overruled in the United States, and on incidental (picstioiis tlie [lartj- on the affirmative side of the ([ncsliou lias the rigiit to o)ii'u and ]'(^[)ly;'^ altliough the managers have tiie light to open and close the liiial arguments.* t{ 108. Doeisioii ii|m>ii Iiiipcaelniieiit. There can be no conviction n[M)n an impeachment before tiie Senate of the United States or any of the State senates without a concuircnce of two-tiiirds of the members present. In this, tlie Anieiiean differs from the Knglish practice, where a majority of the House of Lords, ])rovided at least twelve coninir, is suHicit.iit.' Tlie reoi-'vcincut of a vote of two-third^^ for a convielinn was tirst made in the New York ( 'oiistitntiou of 1777.- whicli in this ic- spcrt was usuidly followed in the early constitutinus of the other Stati.'s. Tiiat coiistituliiin, as did soi 'e othei's, also re(|uii'cd tlir vote of two-thirds of the lower house, which is not required by the § 107. ' Lucas' Impoaclnncnl Triiil, pp. 'J78, ass, 312-:i]i. Ill Hiu-ay'H Triiil ill (I.ilil'oriiin till' prosiilinu : "Nd iloiilil. t,lio coiMisi'l for tlio priisiviitioii liuv(> t.lio ri^'lit lo willnlriiw iiiiy (iiir. or tlio pii- \i\f list, of tlic Arlic'lca <\t Impoacli- iiii'hi, lliiit (Iscy cliocihP." Soo § DHaiiil Aiipoiidix, infrn. - liord JIclvilIcK Iiiipi'iK'liinoiit Trial, 21) Hov ell's StntoTriHlH.7ri2-7('i;!. "Joliuson's Trial, vol. i, p. 77; Ucl- knap's Trial, pp. fil-C,.-), 71-S7; r..ii- iiard'H Trial, iiifni, .\ppi'Milix. * Si'iiatc liiili'n {'or liiipiMi'linu'iii-. XXI. Harilv's Iiiipcai linii'iit. Trial, p. il'i't. Hi'i' .Vppciiiiix, iiifrn. § IDS. 1 ('(liuyii's DJK'i'st, I'arlia- mc'iit, L. 17. ••i Art. XXXIII. Pi'iin's Fonn of ilov- rrnmcnl, in lO'.il'i ro([iiir<'il (lie presi'ii^ n of a (]iiiMMiiii of two-tliinis, !i niajorily of whom inijilit convict. (Pooro, C'liar- ((THainl Constitutions, p. l.'iUn.) $ 1(!.S.] DECISION. 623 Coiisiitutioii of the United States, wli(>re a mtijorty of a (luonim (if Mk" Ilc'.ise of KcpiH'sentativcs can iiiipeacli an ( Dicer. 'J'lu- ol>- ii'(l to give SI) solemn a vnte npon a form of (piestion which they considered an un- fair one. anil ealealated to pre 'nde them from giving any distinct and explicit opinion npon the tnu ■uid most iiii[iiirtant pirint in the ease; viz.. as to the insanity of .bulge I'iekering, ami whe'her the charges I'iiHi;!- " Si'o Slery on llio ruiirtlitiiliim, i) 77'.». ■• .Toliiisiin'K Iiupi'iulitieMl Trial, vol. ii, p. -ITC. ; Helliimii's Inipi'iiihiiioul, TrI.il.p. llll'.l. Tlii-i prai'llciMviiH erill- I'isi'd in ]!iu-ii;irirs Tiiiiii'arhiiii'nt Tiliil, vol. ill, pp. a);i;i-'2o;ii. ^ rii'Ui'rliiK's Inipoiiclmii'iil Trial, Aimiilfl or C!oii},'ri'ss, IMi:) imii, p. :i(17; .FolinM)n's IiiipciirhMiont Triiil, vol. Hi, Tri.il, pp. '20 -as ; ;i2r,-:M,-,. On Hiodv's Triiil (pp. ■ir)S-.l.-,',l|, a sei.iilor was nl- lowi'il 111 Ifike llii' oiilh .il'torllie coii- rlii'-ioii of tlin li'siiiiioiiy jiiiil lo vol.0 iillliiHinli lie Imil lii'iiril no pint of the proor. '' Ilikl. Atklison's Iiiipiviilniitint Triiil, pp. 2n-'2H. But see Hariiiiid's InipeaeliiMont Trial, pp. 0',), 7H 82, 201'.) 2il.")H; IiiipiMU'linieiit Trial of pp. 3110 400; Ailill.'^oa'u Iiiipoai'liaioiit .Jolin W. Itoljliison, p. 34.'). 624 IMl'KACIIMKNTS. [CIIAI-. Xlll. contiiinetl in the Articles of Impeaehmetit, if true, amounted in liiiii to hijrli crime and misdemeauors, or not." ' 111 tlic House of l.c)nls tlic vote is on all tlio arti(di's, hut in tiic .Senate of tlie United States and tlie st'iiates of tlie several States, it is custoiiiaiy to vote on each article sepanilely," and in some cases to voli' separately upon each speeilieatioii in the article.'' In President Johnson's ease the Senate of the United States I'efuseil to order that a vote be taken separately on the sjieeifieations in any article."'" In a eas(Mvhere the result was not thereby ehaiif^'ed. a senator was allowed, by unaiiiiiious consent, to change his vote on the folliiwintf day." After the conviction of Joliii W. Iioliin- ,son, he moved for a new trial upon the Lfrouinl tliat one or more senaties. in pron .niicinif him utility, based their di'eisioii upon iin erroneous jirinciple of law.'- No attention was paid to tliis motion. All interestincf ([Uestion was discussed on the trial of IJelknap. As lias been told aliove, more than one-third of the senators voted, Tipou a plea to the jurisdiction at the openinj^ of the trial, that they had no jurisdiction of the respondent. Upon the final vote, it was contended by the managers and by a large number of thi^ Semitic that the decision of this iiieidciilal (juestion by a majority vole was conclusive, and that all senators were bound to vote guilty if lliey believed the facts chargeil in the articles were proved, even though they doubted the jurisdiction or believed that the acts committed did not aiiKMint to an impeachable eriiiie.'^ The argu- iiii.'iits in support of this proposition were substantially as fol- lows : — The only (|Uestion to determine against the defendant whicli retpiires a two-thirds vote is wlieljier tin; respondent siiould lie convicted." All other matters are to lie decided by the same vote " Pickering's Iiii|iciiolirii('iil, Ti'ial, " .laclison's Iiiipoiicluni'iil. Trial, p. Aiiiiiils of ('(>ii)4n'ss, ISOli ISdl, p. :U'M. ■K;.-.; iiifni, Appendix. ^ Si'imte Kiiles for Iiiipi'iii-linn'iit, '- IiiipencliiMeiit. Trial of .lolin W. XXII. Hohiiisoii. '■' liariKird's Inipeiieluiient Trial, I'l For a (lisciis^ioii as to whnllier vol. ill, pp. 'il.'il-ilTi'i ; HiilitpeU's Trial, il ro(|uires ii vote of two-tlilnls to llx jip. 7s:)-H19, tlie ])eiial(,v, see Hanianl's Trial, vol, '' Joluison's Iiripoaehiiieiil Trial, Hi, pp. '21Ht-21!i;!. vol. 11, pp. 478-4S1. » Constitution, .\rticlo I, Section 3. § 108.] DECrSION. 0-25 ,1'Vt'U arts iruu- liicli VlltO i;il, p. lin W. til llx III, vol. lion 3. that is required to decide any otlier parliamoiitarj- question, a uia- jorit}'. The word conviction, as defined in tiie dictionaries, means a detenninatiou of guilt.''' All otiier questions are preliminary lo this and may l)e decided by a majority. A majority vote, it must he ao K\-.(iiil(^i' iIiTi'iniah S. lilack, chiiihoI fill- ri'spondcnt, lliid., p. DO.^. " Manager ftcoruc A. .Icnks in Hi>l- kniip's Trial, ji. ILIS ; SiMiator Hoo(li. ibiil., p. lOT'.t. " Chlof-.Judt!0 Clmrcli, J mini's I'ol- gor and Unpallo, Sonalors I'ostiT, Haninicr, liCwis I,ord, Jlnrpliy iumI O'lirii-n in liarnard's Trial, pi>. '^I'i'i •21211, 2111-21111. '" llliodo Island i'. MaHsacluisi'tts, 12 rotors, Crir, 71S ; Drcd Scotl r. Hand- foiil, 1!) Howard, 'M)^ ; and othor rasoH I'itod l)y Kx-Sonatp. 1011 n)17. Soo Fos. tor's Fodorai I'rnclito, § '.13. 626 IMPEACHJIENTS. [CHAI>. XIII. ])rejuiliced in his constitutional rights because of the time or order of raising tlie question. ^^ ' ' The Constitution provides that ' no person shall be convicted [on iinpeaehment] without the concurrence of two-thirds the members pres- ent.' Concurrence means more than occasional union of minds. The word siifniiies rimnimj along with each other. That is, no person can be convicted without the agreement of two-thirds of tin' nieml)ers pres- ent upon every point necessary to and included in the conviction." ■' All but three of the senators who voted tliat they had no jniis- diction, voted not guilty, most stating at llie time of the vole that 'liey did so for want of jurisdiction.'-'* Tliat lias l)ecii the usual practice in tlie senates of tiie different States.^' § 10i>. Iiiiposition of Penalty upon Conviction. After the respondent has been voted guilty, tiie Senate 2)ro(;ec(ls to iix the punishment to wliieli lie sliall 1)0 subjected. The JIoiiso of Lords has unlimited power to punish upon impeachments. It may and has sentenced upon conviction, to death, exile, line, for- feiture, imprisonment, or simply removal fi'om oilice or dis(iualifi- cation from specified olhces, according to the nature of the offense.' The Constitution of the United Sttites provides tliat, — " .ludgnient in Cascsof Inipeaclnnent shall not extend furtiicr tliini to Removal from Odicc, and Disqutdiliciition to hold and enjoy any Ollite of Honor, Trust or Prollt under the United States; but the Party con- victed shall nevertheless bo liable and subject to Indictment, Trinl, .Judiiuient and Punishment, according to Law." '' Most Stiite constitutions are similar in this respect. AVlien the l^'csidcnt, Vice-President or an officer of the United States is convicted upon impeachment, he nuist be rcmov(;d from office according to the express language of the ("onstitution.' The Senate has discretion whether to add to this penalty distpiali- ■'' Senator Coiikliug in Belknap's Trial, pp. 90!), 91ti. ■^' Ex-Soiuilor Miittlmw H. Ciupeii- tPr, eouMsel for respondent, in Hel- knap's Trial, p. 1017. '-'^ lielliimii'H Iiiippnelimpnt Trial, j.p. 104!) lO.'ill ; Hii;)m, §§ !HI, i)2. '^ Bolkin's Iiiipeaelmieut Trial, pp. 1:170 1401). But see Harnnnls Irii- peaehmeut Trial, pp. ilti-iXi'.). '2144- •2140. § 100. 1 Comyn'.s DlKe.st, rurliiiiueut, L. 44. '^ Consliliition, Article I, Seetioii X ' Coustituliou, Artielo II, Soetioii 1. i! 109.] PENALTY. 62T ruatiou to hold any ofTice under the United States. In the case ol' Pickering', removal from oflice was the sole penalty imposed.* In Humphreys' ease, disqualilication to hold any otlier oilice of iionor or trust under the United States was also imposed.** The Senate has no power to dis(pialil'y the respondent from liokling olhce un(h'r any State, it may he that (hsipialilieation to liohl olliee under the United States would prevent the party accused from praeticintf as an attorney and counsellor at law in any of tiie Federal courts.^ In impeachment trials hefore the State senates, tliose convicted have hee'i sentenced to suspension from office for a sliort term;^ to removal without any dis(iualification,'' to removal witli dis(piali- iication to hohl tiic office in wliicli tin; offense was committed,® to removal witli disqualilication to hold any judicial office for a term of three years,'" to removal, dis(iualilication for thirty years, and a tine of six hundred dollars to pay the costs," anil to removal with pcriictual dis(jualificalion.'- A discussion took place n[)on the trial of IIum[)hreys' impeach- ment as to the form in which the penalty should be determined. It was helieved hy some senators that the proper method was to first vote \:helher the convict should he removed from office, and then whether he should also he discpialitied. It was feared lest the adoption of the first ([uestion might he considered to amount to a judgment imposing a sentence which would prevent the im- position of any further penalty, and lest its rejection might he considered as a judgmt'nt of ac(iuittal. So the division w:is taken upon an amendment adding discjualilication to the motion for a removal.''' It seems tiiat allhoU'di a vote of two-thirds is essen- ■• Plckciing'H 'I'linl. Aiiiiiils of Con- RFPHS, IHOIl ISOt. pii. ;tG('.-:<(!7. ^ Hiiiiipliri>yrt' 'trial, Connivssioii.nl rrldlio, M Sossiiiii, ;i7lli CoiiKi-oss, 1H(!1, 1K(;2, imit, iv. pp. 'i'M'i 'iliri,'). " Si>(' Adilisoii's Trial, pp. irii-lu't; Kx parte (Itoliind, t Wiill., ;t:i;), .'}7M. ' III OIK! pnso a year. Hunt's Im- ppucliiiKMit Trial; .\ppi'iuli.K lo Pnis- I'ott's Iiiipoacliiiiciit Trial, p. 21C ; infra, .\ppi'iiili.\. • Trials of Kohinaoii and HiUyor, Hardy 'a Trial, Groonlcaf's Trial, But- ler's Trial ; I'li/ni, .\pp('iidi.x. '■' Addison's Trial, infrn, .\ppoiidix. "1 C;ox' Trial, pp. ■JtlS,-)-2'.IH'.» ; iiifni, AppiMidix. " Osljoruc's Trial, intra, .\|ip.Midi.K. 1'- Hariiard's Trial, Davis' 'trial, Holiloii's Trial, Kra/icr's Trial, (iold- siuilh's Trial ; iiifn, ,\p|"'iiilix. " Ilnniplircys' 'trial. I'oiinrc-.ssiiMial Globe, '2d Session, ;i7lli Congress, ISIll, 18(i2, part iv, pp. 2!)51-aU53. ni>8 l.Ml'KACHMKNTS. [chap. XI ir. tial to a I'oiiviction, a bare majority may impose the seiiteiicc." Fu the Senate of tlie United States the sseeretary of tiiat hodv is nsiially directed to enter the judgment; and a certified copy thereof is deposited by him in tlie otliee of the Seeretar}- of State. '^ g 110. I>ai'- vided in tiie Act of Settlement that the king should have no power to grant a jiardon which might be pleaded in an impeacli- ment, but that he migiit, after conviction, by a pardon relieve the convict from the punishment thereby imposed.^ "The dilTerence is very important, for the paritou is not to be al- lowed till after 3iiil<;inent ; it tiien comes too late to clear away the con- sequences of attaiiiilcr; the blood ceases to be inheritable and cannot be completely restored but by act of rarliament ; the king may indei'il n Barniiril's Impenchnient Trial, vol. iii, pp. aiH-t UlUit. "' Seuati' lluU'H for liiipeachmonts, XXII. In H()lit lo the Senate artieles of impeaehmeat against William W. Jlolden, governor of North Oaroliun, anil llio said Sen.ite, afler a fall hear- ing ami imparlial trial, has, t)y Ihe voles of two-thinis of llie memliors present, this day rleterndneil that the said William W. Hidden is gnilly as charged in the Ud, 4th, .''.Ih, (Uh, 7th and Hth of said iirtieles; "Now, therefore. It Is adjudged by the senate of North Carolina silting as a eoiirt of impeaelimeni, ;il llieir clmmber, in lhc> city of Kaleigh, thai tho said William W, UoUlon lie re- moved from the ollleo of governor and l>e discpnilifled to hold any olliee of honor, trustor prollt under tho State of Nialli Carolina. " It is further ordered, that a eO|iy of this judgment lie enrolled and eer- lified by the chief justice as jiresiding olTlcer, and the principal clerk of the senate, and that such cnrlilieil co])y be deposited in the olllce of tlie secretary of state." In Co.x' Impeachment Trial, pp. 2!)K,5^21)H',), the judgment recited at lengtli tho articles on which tho respondent had been convicted. It has been said that a court of cominon law upon tho trial of an inilictm(>nt Is not bound by the rulings on an ini- peachmenl for the same olTenso. Slati' II. Town Council (K. I.), 27 All. Hep.. 59'J, ljl)2. S 110. 1 Article II, SocUon 2. '■i Howi'U's Stale Trials, vol. xl, pp. 725-804; i:i AV. Ill, oh. 2; Ilallaiiis Constllutiiaial History, Widdletou's ed., vol. ii, pp. 3it2-396. §110.] PAUDON. 6:29 roleano forfeitures and confer now titles, Imt caiiuot revive tiie family lioiiours iu their anticiit state of preeedeiice." ° Moreovor, iis was shown in tliu cast; of Stmffonl, tlio king would 1)1^ less likel)- to faci! the storm of [mhlic o2>ini()n after a conviction, at the end of a [)ul)lic trial in -which the proof and the enormity of the offenses had heen spread ahroad, than hefore, when it might well ho claimed that the pardon was granted to protect an inno- cent party from the expense of a defense against unjust charges. If an oflicer of the United States cannot resign his oflice with- out the consent of the i)Ower that appointed him, and the doctrines supported hy the niinority in lielknap's case he finally upheld, the President may indirectly, hy the acceijtance of a resignation, accomplish what he cannot do directly hy a pardon.^ 1'he Georgia Constitution of 171)8 pardoned all previous convictions on im- peachments.'' In England a judgment of conviction upon an impeachment can he reversed hy an act of Parliament. Whether such a power exists in Congress remains undecided.^ ' Woodeson's Lectures, vol. li, p. 015. * Belknap's Impeaclimenl Trial, su- pra, S§ 9(1, 92. 'Art. IV., Sec. 8. •> See tlie prooeediiiKs as to tlicii(?r- sons iiiipeucliod by the Oood I'arlla- iiK'iit (Stubb.s, Couslitutioiml History, 2(1 ed., vol. il, \>. IM), and on tlie bill to reverse Strafford's attainder, which failed to pass (Howell's State Trials, vol. vil, i)p. iriTl-lSTfi). Attainders upon convictions before juries and on bills of attainder have been often thus reversed ; e. ij. in Lord Russell's case (Howell s State Trials, vol. ix, p. (!*-)); iu Strafford's case (ibid., vol. iil, p. liVifi) ; Hcilingbroko's cas(! (ibid., vol. XV, p. lOdt , ; and others, in Hatsell's Precedents, 3d ed., vol.ii, pp. 3;)7-;i;iS, vol, iii, pp. -tT-iS. C, to oonforin to the King's will." The truth of this story is con- llnned by the title of the Hill: "An Ai't for Ri>stitution in lilood of t'arew Kuleigh, sou of Sir Walter Raleigh, hito attainted of High Treason; aiul for con(lrn\alion of certain Letters Pat(>nl nnule by our late Sovereign, Lord King James, to .lohn. Earl of Hrislol, by the name of John Illgby, Knight." (Hatsell's Precedents, M ed., vol. iii, p. G2, note.; The Mussa- 630 IMl'KACHMENT8. [UHAP. XUI. § 111. Concluding Observations upon Iiniicai-linicnts. Jefferson, in liis (lisapiioiiitiiiciit at tlic iiequittiil of Cliase, ternu'il iinpeiiclinuMit tlio scarecrow of tlii^ Constitution.' A bet- ter metaphor is that of Soniers, wiio ealkHl it tlie sword of (iohath, wliieii is li'ow that nearly all the State constitutions pennii the removal of judges by the votes of two-thirds or less of the nuMubers of a legislature, this simpler remedy is usually applied.'* lint no such procc'cding by Congress is authorized by the Constitution, and inipeachniciits have proved eilicaeious in the United States. Although there have been many acquittals where the guilt charged seems to have been flagrant; yet the Federal judiciary has thus been purged in one ease of a drunkard,* and in another of a niaii who was waging war against the Fnion while retaining the legal j)ower to free by habeas corpus any of his allies who were arrested for treason or made prisonere of war." In the State senates the convictions of Addison, Davis, Barnard and Cox " have been chuBotts legislnturo in 1711 rnvorsod thojudfjiiipntsof conviftioii for wiloh- Sitprn, § 3«. * Siiimt, § !)8 ; infra, Appendix. ' Pickering's case, nupra, § !)0. ' Humphreys' case, itupra, § 90. ' Supra, § 94, infra, Appendix. §111.] CONCLUDIVO OBSERVATrONS. 681 well needed and salutary examples. Were the power absent, we should have no check to executive or judicial tyranny. The necessity for its existence aud for cautiou in its exercise is one of the strongest arguments in favor of the perpetuation of the Senate.* ' Woodcson Bays in liis Lectures, vol. ii, i>p 30i)-37() : " For tho last coii- liiry nnd .a half, private persons ini- pcNichoii by tlio Commons liave cither sunk nndortlio unoiiual stru^Kle with iho jiuai'ilians of tho piil)li(^ purse, or have l)c<'n only preserved liy large fortunes from at)soluto ruin." .Judge Stephen says of parliament- ary impeachments : " It is hardly prob- able that so cumbrous and unsatisfac- tory a mode of precedure will ever be resorted to again. The full establish- ment i>r popular government and the I'lose siip(>rintendeni'e nnd inimcdiate control exercised over all public offl- cers whatever by [larliament, nuike it not only entirely unlik(.'ly that the sort of crimes for which men used to bo impeached should lie committed, but extremely difTlcult to comndt them." (Stephen, History of the Crim- inal Law, vol. i, p. 100.) The inil)i>!u ell's SI tlesci'il uoarly States ported rare iin his owi lieves ( tliem is the stiK States, and law to exaii Tlie « nieiit w! ernor S liy inha approve twelve I That prctendi aud cic! 1 Supr ■' Vol. APPENDIX TO VOLUME I. STATK IMPKACIIJIKNT TRIALS. The prccodinfj text contains a history of all iin])cacinTiont liiiils lu'fore tiie Soiiali! of tlie L'liitwl Stiitcs.' All of ijio iiiipoi'taut Kny .loliii Adams with his character- istic egotism ; "The pulilie had hiiij; heen alarmed with rumors and preilirlions that the Kin;;, that is *''c ininislrv, would lake iiiln their own hands the ]iay- iiient of the salaries of the jiidyes of the sii])remi' c nut believe it; the most thinkini; men dreaded il. lUll. The people would Tliev said : ' With an executive authority in a jiovernor possessed of an alisoluie lu'iralive on all the acts of the legislature, and with judjjes dependenl only on the Crown lat iiroteeliiiii have we? We for salaries as well as their eoinmissions iiiav as wel iholish all limilalions and rcsii;n our lives and liberties at once III Ihe will of a ))riine minister at St. .lames' The disiiatches at lenj'th lived, and expectation was rai.sed to its liijjhest pitch of e.xnltatioi iiid triumph on one side, and of jirief. terror, dei;radalioii. and despondency HI Hie oilier. he leLTislalnre asseni ble 11 )<• i_'overiior cntatives I IJefore whom? ]iefore the House of Lords in Kngland ? ' .Vnswcr, • No, surely ; you might as well impeach them before Lord North alone." 'Where then?' Answer, ■ Before the governor and council.' ' Is there any prece. Ill',, 117, 107, ]H2, IH;!, aia, Thomas niitehinson, pp. VM; I II ; ami 'iS'J '231!, ill. Colonial Keeords, House .lonriial for Go8 STATE IMI'KACIIMKNT TU1AL^S. API'. addrppis by ii simple iimjoi'ily of liolli lioiisos of llie loitisldtiirL' '" liiis liiH'ii foiiinl a iiioro clliciU'ioiis incaiis of liiniiMi; out of ollici' nn oli- noxiouH jiulgi". Ill IHTid, Woodlmry I):ivU. a justioi" of ilic siiiirciiio court, wus riMiioved l)y tlu; govcr )f Ihf StMlc of Miiiiic ii|)()ii address of botli liotiscs of the Icirishituiv. Tlic caiisea assiiiiii'd for llu; voiiiovid wci't' : his refusal to rocoifni/.o tliu ollicial aiitliorily of a siu'rilT who had been didy uppoiiiti'd, coniiiiissioiii'd and (jiialilied ; his deiiiid of the lawful and actual validity of the aiierilT's coinniission, which was iiidcr (he liaiid of the "rovcnior and llie seal of the State; I iw reiiioviil of tlie inisoner; di- fr il liy proceedinijs not warraiilcd liy hi ,ard of their custody by the slii'riff annllier peisoii who liad been pi'eviousli lis recoitnilion as sheriff of iful V reiiioxed lid uiidertaliiiiij; l<> issiii- tiie orders and precepts of the court to tiiat otiiir person for exenitioii. The jiKlii'e answered tlie petition for his removal, admitting!: that lie had refused to reco'inize the person iiMiiied in (he petition as sheriff, but liliiiii;^ lluit he did so because tlie hitter had not lieen lau fully lilted, and the precedin;^ sheriff li.id not been lawfully leiiioved; and deiiviii!L( that the slaliiie had aiitlioiity uiidiT the eonstitiition of the State to deteniiiiie for aiiv other department of tl "rovernnieiit the (|iiestioii who was sherilT. 'I'he jiidsie was defended by Henry W. I'aiiie and Kiifus Clioate. The proceedins^ was partisan in its charac- ter, since the locality of the ri'inoval of the former sheriff was an oi)eii i|uestioii; and .lud^e Davis was reaiipointed in)ou Ihe election of a governor of his owm pr)litical faith." NEW 'MMi'surm In li'.iii. WoimT iry I.itiigd>>ii. a jihIlii' of the Superior Court, was impeac'lw^ liy the New llaiii|>#lin'e b^mse <>f repieseiitalives. The arliclcM I'liar^ed that b< h.ul willfully and corruptly in various instances wrrtlH'Inivi-d in his olUef, and neirlccted to aUend to the duties thereof, %f HH-aiiM wlien'of th*" «r»mrts had not Uen hulden at the limes and piafes by law i-Mtablishw, and the a(*»iiii«:ialion ot jiisliee dclayc- liiiti'hellor. Ni'w liamiisliiie Stale riiUiK'r, p. lOH ; Life ot Jeremiah Papers, vol. xxl, )ip sjosl.''. ; vol. Smith, j(. 38. xxii, pi>. 719-75(1; Life of Onvornor 640 STATIC IMIMCACIIMKNT TKIALS. [AIT, and for the space of more tlum two years togi.'tlioi-, illef^'illy dolaiiicil in his own hiiiuls, and for his own private use, certain monies beloMuiiis; to the !i foresaid inhabitants of the town of Petirshani, for which he never aocDunleil to iIumii." That on a certain day '' he did ))rocMrc from the treasury of tlie Coniiiionwealth, an execution for money, whieli money lie jiad tlicn ali'eady recc'ved on a former execution." 'I'hat iui "iiad falsi'ly returned to tiie Treasurer, as ui'.satislicd, a ei'rtain execu- tion which in' liad iu ]Kii't collected." That on a day Uiiuied he did '• unjustly procure a warrant of distress to lie served lUi the iuhahitauts of l''ti'rsliaiu aforesaid for a larue sum of money, which he then well knew llicy had loiiil licl'ore [i.aid." The i-cspondeiit denuirred specially to each of the articles, and joined to these deunn'rers a plea of not .judicial Court, certified copies of which had been laid by tin' attoiney-general before the liousc, that the respondent !iad 1/eeii "convicted of extortions, bribery and <'orruplion in his otilce, afores.iid, whereby it is manifest that IIk! said .lohn \'iual, Ksq., a justice of the peace, as aforesaid, is guilty "f gross misconduct and inal-administration in that olllce." The separate articles then followed, setting forth with precision specilic charges of collecting an extortionate fee for taking l)ail, and of ri'ceiving bribes for voting to grant licenses tr, retail si)irituoiis li(|Uors. The respondent pleaded not guilty, but " consented to allow the record of the Sui)reiiie Judicial Court as conclnsive evidence against him in siiiiport of the arti- cles contained in tiie iinpeachmcnt. 11 e was unanimously proiioiiuccit guilty and sentenced to removal from olliee and a perpetual disqualili- W ;^ cation. ATI •] MASSACIIfSKTTS. 0-11 )f tlio :.r;iUy rli (it'll tlie riliiM-y i:it llio illy of )!U'iite ■LTl'S (if lirilu's jiuU'iit pioiiii' 10 urti- iiincod llKllili- Tlic next was in 18(17, the iinpi'achinent of Moses Coiioliiiid, oiu' of the justiees of the peace for the county of Lincoln. The iiilichs cliMrged that ho iiad l)rouain8t him was fifteen to six. The third cliarired that he did willfully and corruptly deinand and receive ijfivatcr fees than were by law allowed, to the amount of i?o'.Mi-, for issuiiinr ;i warrant to ajipraise an esta.fe. rcceiviiiii an inveiitoi'V and eiiteri a decree irraiitinii a comiuissioii of insolvency n|)on the same isti.te. The twelfth article charfied that upon the iireseiitnient of an ac' luiit of the guardianship of a person uan roitipas mciili.i, he over- ''■ .d a iversation lietwecii the guardian and an overseer of the poor . he ,.pwn concerniuii the wanl's estate; and that thereupon ho olVcred his I'.dvice eiuieernini>. clinrsiep for oouiist'l fees for ailvioe and other Hervioes poncerning estates wliieli were ailministered in his otiice. One of the managers for the iioLiso of representatives was Lemuel Shaw, afterwards the celelirated ciiief-jiistiee of iSIassachiisetts. Among tiie respondent's counsel were Sanniei Itoar and Daniel Webster. The trial is an excellent illnstra- tion of tlie manner in which Webster was accustomed to browbeat a court. The respondent was sentenced to removal from odice witiioiit disi|iiaiilication.'* Ill I'SJl'i, Samuel Blagge, a justice of llie peace, was iinpeaclied and tried before tlie Massachusetts senate. The articles charged that lie li.i court of the crime of willful extortion in their otiice. The oidv evidence was a certilicate of their conviction from the solicilor of the Couunonwealth. .lolui (^uincy Adams, who was then a member of the senate, entered on Iho jouriuil his ])rotest against this ]n'oceeiTiiln(( niiil iMiil;i(lniirilslrMlinn in •iIIIim'. Iiefiire I'll' Hi'iiale i>( M .-<,'irliiisetts, in the yi-iir IH"21, i\ii li iin Appemlix i-«iilaiii- UiK nn iieiimut of forni«'r liM)ii>(nh- menls In thi' same Stale By (lelaviis Ihe olll. e uf II D.'iily Ailvi-rtl-^( r." IsJI ; p|i. 225. '" A p i.nplili ' ■■enlainiiiK llin pleml- liij^s ami Ihe mil's of trial liefm ■ lln' Seniiie. may lie found in llio liliiaiy ivl 111.' Hiir .\s"i"'iatiiin of ||ie ell> ef N'l'W Villi) M> liiforMiiiiliiM as to llie result. Is lino III Uie eomtesy of Mr. Isiuii' II. Kil(»Ptl, Pepiitv Seepetniy "f IMekeririj; and WilUmn Howard Onr- the CJoinmonwoulili of MiissiK'hiisell- dlner of th.' Suffolk Itar. Vnlillshed at A :■!•.] MASSACHrSKTTO. 643 (if 11 jiirv in any ono connty of tlii' Conniiunwi'siltli ; iinil tliMt the ilcri- sion of tilt' (Sonato oiiirlit not to have liccn taken witliout pivinj; the ac- cused an oppoi'tuiiity to lie lieaid in llicir own defense."' In I'S.Vl, Kdward (ireely Loiin;;, jndixe of inoliate, as a United States comniissioner had incurred the hostility of the aliolitionists hy ills ac- tion in enforcinji the Kujiitive Slave law in the case of Anthony Hums. An address was tla^reupon i)assed in 18;'),") by the leirislatnre re(nieslin<; his removal, (ioveruor (lardner refused to remove him. Snhseciucntly, after the election of ( ioveruor IJanks, anew address for his removal was passed, and (lovernor 15anks removed him in I808, No I77, Abraham .lackson and another justice of tlie peace were re- moved liy the irovernor and eouucii upon the address of the lefiislatiire. In one ease upoTi a eonviclion of perjury; and iji the other vv !ie.i the party was a fuiiilive from justice after indictment. In l^MI an a|)plication was made to the legislature for tlie removal of ,)osepli .M. Day, judiie of probati' and insolvency for the county of r.ariistnlile, upon tlie sirounds tliat he had acted as counsel for an ex- I'ciitiii- appointed within his jurisdiction, in a suit bronuht aiJiaiusl the latliM' in his representative capacity; that lie had chariied illefial fees; that he h ;d made a wronufnl decision in an insolvent proceeding when lie had bi'cn counsel for the insoheni in another matter; tliat lie iiad acted as counsel for other jKirties who had cases pending in his court ; tliat he had been iiuilty of improper condiicl and liearinu towards jiarties in liis court ; and tliat he was accused of havini; been intoxicateuld not be removed for impi-achabie olYenses. lie resigned pending; the proceedinirs, which then wvMe dropped." '" Diur.v of .bilm t^hidu y .V^Ialll>^, xol. 1, 11. ann. " \Vi nilell I'liillips' «|ieeeh was re- (iMliliHlie I III his Speeehch and Lec- nires. 1 I KiMies, p. 154, ns woll as hi IMniiplil' t form. Dana's w;ik reimti- IIbIio.I III a |iaiii| lijei, Ddstoii. IH,")."), pp. ■Js. See C. V. Adams, Life of Diina, vol. i. pp. ;tu :u7. " .\r(,'iiiiiiviiK oi" (!()iiiisi'l in tli" Matter of .Inscph U. Johnson and others, Polilloiiers (or tho lonioviil from olTiee of .Toscpli M. Day, .Tik1,l,'0 of I'roliiie :iiiil Iii.solveiii-.v for tlio I'nualy of IJarnslfiliie, liel'ore a Joint Spe'iiil CoMiiMitlee of tile Jlassiicliu- seiis Ll•;,'i^.l;ltul•e, A. D. 1S.>-1. For I'elilioiicrs, rieorsje S. ItulllWell, (leoi}!0 \. Kill!,'. I I Respondi'Ut and R.^Mioiisi rants, D. W. (looeh, T. If. Tallioi E. W. linr.l.it. Boston: Uaiul, Avery ,fe Co., Priiitors to tho {"-oniiiioiiwealtli, 117 Franklin Street, 1881. t>44 sTATi: i.mi'KAcii.M!;nt ti;iai.s. [A..,.. RHODE ISLAM). In 178fi, under the Confcdernlion, an iiifonniition of .loliii 'I'lcvi'tt against Jolni Wceileu foi' refusing; to reccivo tlic Slatv ]);iiii'i' (Miiifucy as au equivalent to silver orjjtokl in iiaynicnl for na'at. was lnonirht lufoiellie supei'ioi' conit of jnilicalure of tlie State of i{ii()ilc islaml In |)in'.siianee of an net of the tieneral Assembly. The ea^e was clear niuler the .statute. The defendant's counsel, .lames M. X'aiiuiiu, liowcver, ari;ued that the aet was void for iei)Uiruauey lo tiie eonstitulion. "The court ndjoiuiied to next morning, upon opening of which. Judge Howell, in a lirni, sen.silile, and judicious speech, assigned the reasons wiiich incUiced him to be of the oi)iuion that the information was not cognizable by the court — declared himself iud('|iendent as a judge — tiie penal law to be repugnant," according to another authority "obnoxious."''-' " and un- constitutional, and therefore gave out as his opinion tiial llu; court could not take cognizance of the information I .Indge Devol was of the same opinion. .Judge Tillinghast took notice of the stiiking repM'iuancy of the act — without trial by jury, according to the laws of the laud — and on that ground gave his judgn\cnt the same way. .Indge Hazard voted against taking cognizance. 'I'lie chief-justice ileclared the judgment of the court without giving his own opinion."-'" Rhode Island was then governed under the colonial charier and had adopted no constitu- tion. The General Asseml)ly in the following week roiiuiicd tlu; innue- diate attendance of the judges, "to reiuler their reasons for adjudging an act of t'le (ienerai Asseinlily luicoustitutional and so void." The hearing of the judges was postponed until the October session. After three of them had been heard, the house voted upon the qui'stioii "whether the Assembly was satisfied with the reasons given by tlu^ judges in support of their judgment" ; and determined it in the nega- tive. A motion was then made to disudss the judges from tiudrollices. They were, however, alTorded a iiearing, when N'arnnm api)eared as their counsel and argued on their behalf. The Assembly then voted to take the ojiinion of the attorney-general and other members of liie bar, " wliGlher constitutionally and agreeably to law tlu> ( ienerai Assend)ly can suspend, or remove from otiice, for a mere matter of opinion without a previous charge and statement of criminality, due process, trial and con- viction thereon." " American Museum, vol. v, p. 3;)(!. ■20 Provi(leni'i) (lazette, Oct. 7, 17Ht!, <|UOteil liy Cox, .Juilieial I'owor ami Xlticonslitiitliinal Lenislation, p. 24.5; Thayer's Ckjustitutionul Cases, vol. i, p. ?;! ; Cliaailler'.s Criniinal 'trials, vel. ii, ]>p, 2li'.l 3'2fi, whic-li eontains a re- print of tlin art,'\niieiits of Varn'U]] taken fj'oni I lie |iaiiiplilel palilislieil by himsolt at rrovideuco in I7b7. A.-.-.] NKW YORK. 646 'I'lic attornoy-gnipral and tliroc otiicr lawycr.s oonrnrrcd in tho oiiin- ioii that, till' jiidiics could not lie siii!^[(i'iid('d oi' i-cmovcd rroiii ollicu " for a wv]\: iiiatliT of o|iinioM wiilioiit a cliai'ijc of criminalily." Two of lluni I'XpiTsscd the o])iiiioii tliat a ifirnlar iiii|»'acliiiieiit was cssiMitial I'oi- that purpose. 'l"ho li'L!:inhiliiiv tluii losolvcd, by a very hirf,'o ma- jority. " tliat as the jiid^fcs an; not cliaiiii'd wifli any criminality in n;ii- dcrini; tlio jnds^nK'nt upon tlu' information, Trt'vett ajiainst Wci'dcii, thi'y are tliuicfore iliscliarf^i'd from any fiiitiu'r ulti'ndance upon tliis Asst'ml)ly on that account." The judiics, wliose terms were aiiuiiai, wci'e not, liowcvcr, rc-elcclod, tail llic obnoxious law was sidjsciiuently re- pealed.-' NEW YORK. 'I'iie lirst New York impeachment Keenis to Lave been tiiat of .loiin C. Mather, a canal commissioner, in lis.').'!. The articles cliarLted that he had entered into a corrupt cond)ination witli his assoeialt's so to let the woili in completing the Krie (anal enhuiicment, the lilack Hiver an for iiiileani! and alloi;rd tiavilliiii; expenses when he hail not travelled those miles nor expended thai sum of money. And that, ullhoii^h dniy notilied, he had failed tu appear upon the hearing of eiaiins before the l!(Kird of Canal Appraisers for canal damages. 'l"he responilent answered by a |j;eneral ilenial. .lolin K. Porti'r, who was afterwards for n short time jiiiL^! of the Court of Ap|)eals, and who terininated a brilliant professional career by his manaijement of the prosecution of (initeau, was associated witli the nianaifers as coinisel. 'l"he celebrated .lunios T. llrady and Hufns W. Teclihain. afterwards the lirst jiidij;e of that name on the Conrt of Ajipeals, were ainonj: the respondent's counsel. They moved at the opening of lie case to (|iiasli or strike out the lirst live articles, on the {ironiid that the alleijjed violations of statute which had been held to be nncoiistilulional and conseipiciilly stated as impeachable fifl'ense. 'I'he motion was denied by the Court of Impeachment by votes of seventeen to thirteen, ei;.'litein to tliirleen and Kevenleen to fourteen jis to the articles se|)arately ; more than oiie-third in each case beini; in favor of the respondent, wlio was liiially acipiitted." In l.s()8, Kobert C. Dorn, a canal commissioner, was impeached and tried before the New York Conrt of Iinpeachiiient. The articles char.eil that there had been a conspiracy liy the contractors for re))airs of the canals to buy up and obtain possession of all liids or proposals made at rates reasonable and advantaifeons to the State, and to interline and erase and otherwise make them so inf(jriiial as to be rejected, which conspiracy had been carried into effect. That with the full knowled;4e of tliis cijiispiracy, tiie ri'S|)on(ieiit had niilawfnlly and corrii|>tly voted to award till' coiitiacis to the highest bidders, who were parties tosaidcon- "Tlie Trial uf the Hon. John C. Mather, one ol' ihn Ciiiial Coiniiii'ision- ers of the Stiilo of New York, in llio CourL tor lliij Triiil of Iiiipeiiehnii'iits, Iiekl at llio Ciipilol in tho Ciivof Al- AtliisSleain Press: 1s.j3; pp. (1."), wllli appeiulix, |ip. 7. This iniiy lio foiiail in tlie lilirary of tlio X. Y. City IJar Assoi'iatioii. IL teriniiiutes with thu ucljoiiriiiiient of tlio Court on AiiHiist baiiy, romnieuelni; WiMlnesiUiy, July 20t,h. The roniaininn proeooiUiiHS are 27tli, 1H53. Kieliard Sultoii, Short reported In tlio Jmiraal of tlio Court Haiiil Writer to tlio Court of Iiiipoaeh- of Iiiipeaeliiiieiit, wliiili is in the oHlco nieuts, Albany. Van Dyke, I'rinter — of the N. Y. Secretary of State. AIM'.] KKW VOllK. 647 s|iirm'y, aiul to reject bids which won' lower tiiiil inoic lulviiiitiij^coiio to till! Statu. That he liiitl liiiowiii^jly iiiiii c(>i'iii|itly rcji'clcil a liid I'or rc- |iairrt of a section of tlie I'lrie (anal, on tcriiin Hafc and aclvaiil;;jieoiia to the State, anil voted to award llie wuik to anotlicr liiddcr at an ex- ceptional and excessive price. That aflii- a contract to repair a section of the (haniplain (anal liad lieen duly awarded to the lowest h-fful bidder, he had moved corriiplly with ihe intent |i> defrand ihe Slate for a reconsideralion of the award, ami nsed hi.-, ollicial iiilluence to piociue ihe award of the same conliact to anolher at nn excessive and cxorbilant price of nearly ilonble the amount of the bid first ac- cepted. ••'Ihat the said Robert ('. 7)nrn, Canal (■()lnlni^'si(me|■ and nninln'r of the Uiiiird of (anal t 'llmmi>^inm■rs :md CoiitraetiiiLC lioard, diil, ;it divi'i'S times dnriuLr the years ISr.Ci ,'ind ISCiT, wi-nnLtfully, eoirnplly, and uiilaw- fnlly. and with the intention to defraud and cheat the Si:ile, let lar;.'e !inil valuable eontraels for the repairs of said canals so under his eharLfe, mid fur the fiiriiishini,' of malei'ials for the repairs as aforesaid, to various and (livers persons or parlies, at rales mihI |iriecs for the work aial repidrs to lie performed exorbitant and disadvantai,'eous to the Slate, and did unlaw- fully and corruplly let said contracts to personal favorites, with the view and inlenlion of shariiii,' in the prolits to be realizi'd from said contracts, and did so lei and award siiid conlraets to said parties, and did execute saiil contracts on the part of the Slate, without haviiii; advertised mid 1,'iveii the iiolice required by law to be ^ivcn and made prior to Ihe letting of conlraets for Ihe repair of said canals. That by reason thereof ihc Stiile was defrauded of a larf;e sum of money, to the great wroiii,' a'n, on the best terms; and olherwisi! neulected his olllcial duly. 'J'hat he had wr.in.^fully and corruplly allowed private persons and jiersonal favorites of himself to .'iiipropriato larire quautities of public propei'ty, lumlier, timber, lo.iis, fence-posts, pickets and wood without any compensation to the State, and allowed men, teams, trans- portation and machineiy, usi.'d and employed by the State and under IMAGE EVALUATION TEST TARGET (MT-3) // // .* .V4 ^ 1.0 :it«*i 12^ 12.2 a 50 1"^ m lUUt. 1.8 \25 i_U IIIIII.6 Vi v: 7 -«^ PhotDgraphJc Sciences Corporation 33 WEST MAIN STREET WEBSTgR.N.Y. US80 (716) a72-4503 Lfi ;V fi4S STATK IMPEACIIMPNT TKIALS. [A..,.. ]):iy of tlio State, to Iti' used iiiiil ciiiployt'tl for tlio use nnd bencllt of priviilc i>!irti('s. Tliiil, he had wronjifully and corniptly made oontiactH for work, lanor and materials witliout pnlilic notice as ro(iuircd liy law ; and aft) r the work and repairs had lieen completed and tlie materials furnislitd ami delivered lie had wron^ifiilly and corniptly advertised, that the work so <'onipK ted would l)e let pursuant to law to the lowest bidder, and thus deceived the contracting board and procured the con- tracts which he hail previously nnide to be duly and formally awarded. That after the a^vaitl of a contract to one man who was ready and willing to cuter into it, he had corruptly and wrongfully awarded the same contract to another and permitted the assignment of the latter contract to a third person, at an enhanced price. The accused was defended liy William A. Heacli and Henry Smith, lie was ac(|uittMl on all these articles by a majority vote, the largest minority against him being eight out of twenty-eiLrhl.-' The next New York impeachment was that of (ieorge (i. Harnanl, a justice of the supreme court for the Conuty of New York in 1H71. The proceedings were instituted at the instigation of the Har Associa- tion of New York City, uuMnbers of which acted as counsel for Mie Assembly upaii the trial. He was convicted upon the following charges : lie had assisted the counsel of James Fiskaud Jay (lould in keep- ing the control of the Erie Haihvay Company by ii number of illegal ex parte orders. In one of these he had ordered the corporation by an injunction to close its books and not to transfer certain siiaies of stock owned or represented by the ilefeiidants, in which the plaintilT did not have or claim any legjd or e(piitable interest, for the purpose of pre- venting the defendants from voting upon the stock at the ensuing election. In another luiil he had llins enjoined tlii>se defendants and others from transferring or attempting to transfer any slock of tiie rail- road stamped with the name of Heath tfc Co., or liaphael iV; Sons, anil from stamping or ])ermitting to be stain])ed with such stamp, or any other or similar distinctive stamp, any stock of the corporation not al- ready stamped, and from interfering with any of such stock, and from removing or attempting to remove any of such stamped stock in the custody of one of the defendants, or otherwise jjreseuted for transfer, or which migiit thereafter be presented for transfer for the same purpose. He had also appoinli'an.v : Vim Heinliuyscu and Sens' Trial of Impfiiilinieiits in the Case of Sioam Prliitiu); House. 1M(!H. pp Hon. llolii'rl ('. Dorn, a Cnnul Com- Usl, witli Apprmllx, pp. 1'2H. nilsslimer of the State of Now York. AIM'.] XKW VOUK. 649 with the corponitioii for traimfer; and of all Himilar stock that niiiiht liiTcaftpr bo ))rps('ntj'cl for transfor; and authorized tlio receiver to tiike IMissession and control and nianaiienient of the stock, iiiid "of nil moneys paid on account thereof for tiie stnuipinfj of tiie same," for tlie use and henellt of the Krie |{ailway Company and of all the stockiiolderB l)eiielicial!y interested tlierein. The stock eoniprehended witiiin tiio iinler, of wiiieli tiie receiver obtained jiossession under it. was of the par and actual value of many millions of dollars, and the papci's failed to sliow that tlie phiintilTs had any interest in it or that it clid not belong to the defendants, or any other Icffal jirouud for any of these onlers. Another ex parte order appointed another receiver of all the shares of stock of the defendant which had at any time been delivered by any stockholder to Heath iV Ha])liael or to tiie Krie Stockiiolilers' Protec- tion Coiniiiittce, and was endorsed to Heath & I{a|>hael. with a ])ower of attorney on the back. This was the same stock of whicli the jnevioiw receiver liad been appointed. The former action liad ])revi()iisly lieen removed to the Circuit Court of the I'nited States, and tiie Circuit Coint had made, or was about to and did presently thereafter order tiie foriner receiver to deliver up the stock to the defendants. He had aided the same persons in atteiii|)ts to secure the control of the I'liion I'acilic Hailroad Company, and had succeeded in coiiipclliii<; the removal of the principal olllcc of that railroad company out of the State of New York. He had made an ex i);>rte order enjoiniiiL!; its directors from holding an elfc'ion tiien about to lie lield pursuaiil to hiw until tlie rii;ht of the plaintifT, .lames Kisk, Jr., to tiie stock de- Bcrilied in tlie complaint was detiMiiiined. He had made an ex parte order appointin;; William M. Tweed, Jr., receiver, amoiiLrst otiicr thiii<^s, of all the bonds of the liiited Slates, and all the bonds of llie I'liinn I'acilic Hailroad Company, wliieli were in the possession oi' iiiulcr the conlrol of said company, or of any ollicer or aiient thereof, or held in trust for it; and the proceeds of all such bonds then in the jiossession or control of the railroad comiiany, which bonds and proceeds were of the value of many millions of dollars. He had SMbse(|Ueiitly, on an nn- veritieil written jiaper called a report, by the said Tweed as receiver, made an ex ])arte order authorizing and directing the receiver to open the i-ife of the said Union I'acilie Kailroad Company, either by picking the lock or ciittiuut the receivi'r in possession of them. He '.ad granted an order for the arrest of the president, secretary, conns.d and other directors and stockholders of said railroad company, directing that their bail should l)e 8"Ji>,000, for the purpose of preventing their attendance at the election. He had granted wiJhout authority of law, an order, out of favor- itism, to the attorney and counsel for the |)laintilT, enjoini.ig the Mil- waiikee and St. Paul Railway Company and its directors from buikliug, constructing, purchasing or operating any railroad or railway other than tiie road or property described in mortgages referred to in the complaint, and from removing from the State any books, jiajjcrs, docu- ments or property lielonging to or in the possession of certain directors. The only security upon the grant of said order, was an undertaking by AIT.] NEW YOI.K 651 llii" jdaiiililT ill tho sum of !f2.')l). It ilul not n])|)(':u' in (!'. • iripiis liiion wiiii'ii till' onlor WHS f^niiili'il tliiit tiiu ilufcniltiiits or f.linT of tiii'iu llnviiti'nfil to coinmil, or iuiil coinmitti'il, or wore alioiit to coiiiiiiil any act wliii'ii could produce any injury to tno plainlilf, or in violalion of Iho plaintiff's rifrlitti, or teiuliii}; to render inoiTcctuul any jii oors to secure exemption from service In the State militia. That ho allov d his law jiartner to do the s;ime and siiared tiie fees paid his partner for such services. That he discharged a prisoner held in the county jail on the charge of grand larceny ; under an arrangement l)y which the prisoner was thereupon nuistered into the military service of the I'liited States, his hoiinty paid to the respondent's law-partner, and the hail-bond kept by the respondent instead of being died in the county clerk's ollice or delivered to the district attorney as the law required. That he had been a party to a corrupt conspiracy to aid in bounty-jumping accompanied by brib. ,'y of an ollicer of the army, and that he had endeavored to procure the suppression of the evidence of the misconduct of that odlcer."' In 187'J, John II. McCmni, a justice of the Superior Court of the city of New York, was removed by the State senate upon cii.irges pre- sented in a message from Governor Hoffman. The charges were : That he acte by tho Governor. Albany: Van lioiilhiiyson A Sons, Printers, 18G0 ; pp. 580. Gr.4 STATK IMI'KAt'IlMKNT T1!IA1,S. [AIM., till' siiino poiirt wliioli i-tijoiiu'd n s:ilf, and jinintpil otlior cinlcrs tlio ic- Hiilt of wliicli wiiH lo deprive tlie luirtii's of property to iiii miiioiiiiI in oxpi'ss of 8"-'(l",(>0(i. That he conspired witii iiis brother-in-isnv to c-n!d)li> ttie liitter to make unhnvful profits oiil of the ))roper1y of parties to an action pending liefore liini, ami in piirsnanee of sncli conspiraey ap- pointed liis Ijrofher-in-law receiver of certain co-partnersliip properly, alllioni;h no application for a receivership iiad lieen made, without re- (piirinij; jiroper security, although he Icnew tlie receiver " to l)e a man williont i)ecuniary responsibility and nnlit for such trust and dependent ujion liim for support," and that he ilU-iially and without jurisdiction ordered the receiver to pay fees out of the funds iu his custody, to the counsel for plaintilT, and otlu'rs, which the receiver did in pursuance of said orders. That he ilK'gally appointed his own aj^ent and lirother-iii- law to collect tlie money due from boarders at a boarding-liouse which was maintained by liis tenant, a jjarty to the action. That in a case in whicii none of the parties wished a receiversiiip, he appointed, without security, an improi)er jjcrson receiver of a fund of 812,000 owned by ProcoodliiRB In thi> Seiiato on the Invostifiiilloii of till' clijirKi's |)nferreil ii(;iiitisl .ToliTi It. Mi'Cunn, a .Iiislico of the Sii[)erior Cunrl of tlie City of \ew York, in piirRuniice of ii nii'sH;iKe fmtn his excellency the Ooveriior, traim- mitliiit? the eliniRes and rocoinnienil- Ing his reniDval. Allinny: Weed, Parsons and roiiiimny, rrinters, 1S74 ; pp. C17. See also Charges of the Bar Association of New Yorli against Hon. .lolin H. l[iCiiiin, a .Iiistico of tlie Supremo Court of the City of New York, and Tostliiiony thereuniler taken liefore llie .luilielaiy Coniniilleo iif tlio .\' liiul iiotioe of llicir iiiHulvpiicv, (uiil ill otlitT casi's. 'I'lu' Hciiatc rofiiai'd to iciiiovt' him iifter a triiil, by II Yoto of 10 ill liis favor um\ '.'I a^aiiiHt him." In \X'x, (iovuruor Koliiimon )>rt>aciite(l to the senate of tlie Hume State cliarHeH aj^iiiiixt .loliii V. Smylh, HMpcriiitciKh'tit of tiie iiiHiiraiice (Ifpartmciit. The eiiar^jeH wci-f : the extortion from inniirance ('(nii- Iianies of exorliituiit feeH of nttorncyH and apiiraiHerH for tlie paiil examination of tlieir iisHetH made under iiin Hiipervision. 'I'lie nenate aeipiitted liim l)y ii vote of I'.l in his favor to 12 ugaiuHt him." NEW .IKKSKY. York on tho f I Trod iisllee uf Now from trans- iniond- 1, Var- pp. In imiO, Henry Millrr, a jiiHtioe of the peace, was impeaehed and tried hefore tiie lej;iBlative eoiiiieil of New .Jersey. Tlie articles i-harfjed : the trial of two eases in which the respondent was personally interested, the jiroseciitioii and collection for his own lienelit hefore another justice of the peace of a note which had liceii placed in his hands for jiiosecii- tioii and collection hefore himself for the henelit of the true owner thereof; an attempt to intimidate a defendant from ai)pealing by telliiif; him that if he intended to apjieal fn.:u the jnd^meiit about to bo rendered the respondent wonid render judgment for ?■_*.') or at least S'.'H, but if he wonld not appeal the judgment would be for S12..')(t only; and a failure to keep an accurate docket of the proceedinjis in his court and also altering entries that had been made in tlie docket upon tlic first article which charged the trial of a case in which he was jiersonally interested. The respondent was convicted upon a single article and upon the other charges was ac(iiiitted. lie was sentenced to dismissal from his ollice." -'" Tcsliinoiiy Inlji'ii lipforc tlio Sen- ate Coinriiitti'e uii Kaiiks, and the Ki'ii- ali' of tlie Slate of Nei \ orl<, in refer- eneo ti> cliarKes preferred liy Williaiii .1. llesl, Jt -iver, etc.. Kilwiiril Mai- loll and .loliii ^laeli against De Wilt <;. Kllis, Sa|ieriliteiideiit of tlie Haiik- iuii Depiuliiieiil of the Slate of New i'orli. Also .loiiraal of the Senate. I'liiited iiiiihT tlii> direelloii of the Clerli of the Senate, imrsuant to rehO- liitloii of the Si'iinte, passtKi at Sarn- to(?a, Aug. 17, 1877. Albany: Wood, rar«onn and Ooniimny, Printers, 187."). ;i volumes: vol. 1, ]i|>. (iHH, Indi'x, p|i. xvii; vol. ii, |)|i. »iH!M4(IO, Index, pp. xvii; vol iii, pp. 1401-2048, Index pp. xvii. ■^' Tho proeoedinKS aro reported in a pulilie doeuinent, eoiitainiiiK tho tostlnuony and arKUiuenl.-i. of .')2I« pn^es, aeeonipnnyiii}; the journal of the Senate in 37 pnsjes. "' ilinuti'S of till' lVoein'diiit;s of tho benislative Coiiueil of tho Staieof Now Jersey, sitting as a High Giurt n:>H STATK IMPKACIIMKXT TKIAKS. [A|. Ill iKi'iT, DuiiicI ('. CozfiiH, a juHtice of the i>rnce, wan impeached uiul ti'ifil lu'fui'it tlic lt'i;islutivc council of tlic Hamc State. The articlcH clmi'i|;(Hl : tlio isHuc <>f two Hiiminons, the entry of Judgment, and tlio iHtine of execution witliout tiie knowledge or coimcnt of the pluintill' named therein, although the execution wan afterwards withdrawn; a suliHei|uent ixsue of a Huinnions aupoii, and declarin<; he would lie hound liy it. And then ohscrved to the marsiial that he was aluuit tc throw into Mr. McClcnacliiin's hands, many thousand pounds, by •;iviii<; him the !i<.'cncy. . . 'I'hat Mr. iMcClenachnn had wroujiht him much tidiihlc in liis olllce, had never shown civility of any kind, and even f. fleeted the common eonipliment of his hat, when tliey met. That he heard much of Mr. McClenachan's politeness and tieiierosity to other persons and submitted it, whether it would not be as proper, if .Mr. .MeClenaclian should make him a ]>resent of a suit of cloaths, as well as to other |icr- sons who had not been as boiieficent to him c done him such sub- stantial favours, and tinally observed that this was a matter of delicacy and doidit. To wliieli the marshal rei)lied, that in common justice -Mr. .McClennchan ou Iloiisr of Kep- reseutativos. Uofore llie St'iuite of the Coitnnoiiwonltli of Pennsylvania. Tal4 STATE IMI'EACHMENT TKIAL8. [AIM-. Tilt' bar of tlie State of Pennsylvania stood by the justices of the court, and so did Jud this Imdy liis iiicss:;'.'c, wlu'i-ciii il !ipp(';ir-< thai tlic husiiicss I'ur wliicli il was cinivciird as arun^aid. was the iiivcslig.'itiDii of cciiaiii cliarjics of otlicial niUcoiidml, fully s( ( forth in said iiiL'ssag(\ aL;ainst Ilciirv K. JJoycr, Statu Truasiircr, "Jlioiiias McCaniant, iiudilor-fji'iuMal ; and against certain magistrates of tlic eity of Pliiladelphia, willi a view to ad. Wu ; Kx piirle Qiiarrier, 2 W. Va., 5G9, A. D. IHOr, ; cf. Kr pm-le. Qimrrior, 4 W. Va., 210, A. D. 1H70; Kx parte StruUon, 1 W. Vn., MW-,, A. I). 18Gfi; Ex parte Faulkner, W. Vn., 2fi!», A. D. 18CG. «' Ex parte Cnirhmil, 4 Wall., 333. " See tlie House Journal of Wust Virginia for 18G8, in the Now York State Liliriiry. Apiiloton's Annua!. Eneyclopiedia for 18CH, pp. 7l!3-7(;4, erroui'oiisly (lescriln'S this as an iin- poachineiit. Siibs(MiuiMit to, if not in consccincnco of this proceeding, tho West Virjciii'ii 0)url of Appeals refused to follow the decision of tlio Supremo Court of the United States. {Ex parte Quarrler, 4 W. Va., 210, A.D. 1870.) AIM'.] NORTH CAROLINA. (ICO and collection of gratuities from tlie (K'lxiHitsiries for sucii concoMliiniit ; the so negligent and cureless conduct of the Imsincss of his odlce ihiit his son, who was eni])love(l therein, was ulilo to niuko corruiit aiTaiige- nieiits witli certain .State depositaries wlicreliy the imtrimage, favors and ollicial influence of the respondent wore made and i>ecanie a source of private and personal revenue and proHt to his son. The respondent was convicted upon two articles which cliargcd liini with making a proposition to a bank throuirh its president to secine to it a certain average amount of State funds upon condition that it woidd allow and pay him for his own jjcrsonal use, interest of one or two per cent jH'r annum upon an average amount which he kept on deposit ; and an executed conspiracy with his son unill!i^o of the pulilie treasury ami roliliery of the tax-payers under the forms of law." To counteract thin, and to in- tiniidale tlie nejjroes from exercisinjj their pr)litieal rightH, a secret or- ganization known as The White lirotherhooil or the Ku-klux Klan was formed in many of the Southern States. The inendiers of this, who were itli authority to call out the power of the county), by which he is com- manded with force, if necessary, to take the petitioner out of the hands of the military authorities, will plunge the wiiole state into civil war. If the sheriff demands the petitioner of Col. Kirk, with his ])resent orders, he will refuse, and then comes war. The country has had war enough. Hut it was said by the counsel of the petitioner ' if in the asser- tion of civil liberty, war comes, let it come. The blood will not be on your hands or on ours ; it will be on all who disregard the sacred writ of habeas corpvH. Let justice be done if the heavens fall.' It would be to act with the impetuosity of youth and not with the caluniess of age, to listen to such counsels. ' Let justice be done if the heavens fall,' is a beautiful figure of speech, ([uoted by every one of the five learned counsel. .Justice nuist be done, or the power of the judiciary be exhausted, but I would forfeit all claims to prudence tempered with firmness, should I, without absolute necessity, add fuel to the flame and plunge the country into evil war, provided my duty can be fully dis- charged without th.it awful consequence. Wisdom dictates if justice can be done 'let heaven stand.' I'nless the governor revokes his orders, Col. Kirk will resist ; that appears froi;i the affidavit of service. "The second branch of the motion, that the power of the county be called out if necessary, to aid in taking the petitioner by force out of the hands of Kirk, is as difficult of solution as the first. The power of r,7i STATE IMl'EACIIMEXT TUIALH, [AI'I". the cimnty or ^ posse comitatus,' means the men of the county in which the writ is to be executed ; in tliin iiistunce Caswell, iiml timt eounty Ih ral power ; by the theory of the Consti- tution there can be no eonllict between these two branches of the government. The writ will be directed to the marshal of the .Supremo Court with instructions to exhiliit it. and a copy of this opinion, to his excellency, the governor. If he orders the petitioner to be delivered to the marshal, well ; if not. following the example of Chief-Justice Taney, in .Mcrriman's Case (.Vnnual Cydopicdia for the year lM(il, page .'i;).")), I have discharged my duty ; the power of the judiciary is exhausted, and the responsibility nuist rest on the executive."" (iovernor Ilolden replied as follows: — '■ To the Honorable 1{. M. I'earson, Chief-Justice of the Supreme Court of yorth Carolina : "Sir : — ■ I have had the honor to receive, by the hands of the Marshal of the Supreme Court, a copy of your opinion in the matter of A. G. Moore ; and the Marshal has informed me of the writ in his hands for the body of said Moore, now in the custody of my subordinate oflicer Col. (Jeorge W. Kirk. " I have declared the counties of Alamance and CnswcU in a state of insurrection and have 'akeii military possession of them — this your Honor admits I have the power to do ' under the constitution and laws,' and not only this, but ' to do ((i7 things necessary to suppress the insurrec- tion,' including the po.ver to ' arrest all simpected persons ' in the above " Ex parte Moore, CA N. C, 802. Sun the porsoiml exphuiation of t'lo Chiet-JuBtice and the approval of his conduet by his associates, 65 N. C, .3 19 ; mid see also The Green Bag, vol. iv, pp. 536-637. AIM'.] NOHTH CAIIOLINA. • m.T late of your laws,' urrec- above N. C. ig, voL iiiiiiliiiiu'il ('(luntlcs. Your Iluiior 1i:ih llioiiiilit proper iilso to declare lli:i!, llii' I'iti/iiis of tlir rounlics of Alaiuaiii'i' ami (iisvvill an- iii.tiinji ii/.i,;\i. iliu rusiilt 111' llic conxlituliniial iiiid lawful aclloii of (lie Kxi'''Ulivi', and Hint, tlicrcfdrc, yiiu will not IsMir till' writ of huluiin nirim.i fur tlic |irodilcllon of llic licidy of Mdoro ti> any of the men of tlir said coiinlics, an<; executed, and that any other means to enforce the writ would hu illegal. 1 liavi; otllcial and rcdialdc infornnitioii Hint in the eounticM nbovu named durim,' the Inst twelve months, not less than one hnmlred persons ' In the jicace of (Jod and the Slate," have heeii taken from iheir homes and sciiiirired, mainly, if nut entirely, on aceounl of their |ii)litical opinions; thai eif,'lit murders havu been cdinmitted, ineludint; that of a State senator, on the same accoinit ; that anotluir State seinitor Ini8 been compellud from fear for hist life to malce his escape to a distant State?. I have reason to believe that llio ^riivernmeiils of the said comities have been mainly, if not entirely in the blinds of the mi'li who beloie^ to the Kn-kinx Klan, whose memliers liave jicrpetratcd the atrocities refiMTcd to ; and that these county governments li;ive not merely omitted to ferret out and briiii; to justice those of this Klan. who have thus violated the law, but that they have actually shielded them from arrest and punishment. The .State judicial jiower in the s.'iid counties, iliouL;h in the hands of ener;,'etic, learned and ui)ri;,'ht m(!n, has not been able to briie,' criminals to justice ; indeed it is my opinion, based on facts that have come to my knowledi;e, that the life of the jud;.'e whose duty it is to ride the circuit to which the said counties belonj;, has not been safe, on account of the hatred entertained towards him by the Klan referred to, because of liis wish and purpose to brin;; said criminals to juslice. Tor, be it known to your Honor, that there is a wide spread and formidable secret orLrani/.ation in this State, (lartly political and partly social in its objects ; that this ori^anization is known, lirst, as ' Tlie Cidi.iU- tntiinud Vuinn Guard'; secondly, as ' The While llrntherhnii;ati(iiis that rest upon all other citizens to respect the laws and to uphold the government ; that these oaths inculcate hatred between the two vaces that inhabit this State ; that the members of this Klan are irreconcilably liostile to the great princijiles of jiolitical and civil equality on which the Rovern- ment of this Stale h.as been reconstructed ; that these Klaus meet in secret, in di.sguise, with arms, in uniform of a certain kind intended to conceal their persons and their horses, and to terrify those whom they assault, or among whom they move ; that they hold their camps in secret places, and decree judgment against their iieaceable fellow-citizens, from mere intimidation to scourging, mutilations and murder, and that certain persons of the Klan are deputed to execute these judgments ; that when the members of this Klan are arrested for violations of law, it is most difilcult to obtain bills of indictment against them, and still more ditticult 074 STATK IMT'EACHilENT TRTALS. [ai>p. Id cimvicl llipin ; first, liccijusc some of the members, or their sympiitliiz- ers. are almost always on the grand and petit juries, and secondly, because witnesses who are members or symi)athizers unblushingly commit perjury to screen their confederates and associates in crime ; that this Klan thus const iluted, and having in view the objects referred to, is very powerful in at least twenty-live counties of the State, and has had absolute control, for the last twelve months, of the counties of Alamance and Caswell. *• Under these circumstances I would have been recreant to diity and faithless to my oath, if 1 had not exercised the power in the said counties wliich your honor has been jdeased to say I have exercised constitution- ally and lawfully; especially as sinc(' October, 1(<(!S, I have repeatcilly, by proclamation and by letters, invoked public opinion to repress these evils, and warn crindnals and olTenders against the law of the State that must in the end overtake them if under the cloak of the Klan referred to, they should persist in their course. I beg to assure your honor tliiit no one subscribes more tli()roU'.;bly than 1 do to the great principles of habeas corpus and trial by jury. Kxcept in extreme cases in which, beyond all question, ' tlu^ safety of the State is the supreme law,' these privileges of habeas eori)us and trial by jury should be maintained. T have declared that, in my judgment, your Honor and all the other civil and judicial authorities are unable ((/ Ihi.t tinn' to deal with the iii.'oii-iieiits. The civil and the military are alike constitutional powers; the civil to protect life and property when it can, the military only when the civil has faileil. As the chief executive I seek to execute, not to sulivert, the judicial jiower. Your honor has do;ie your duty, and in perfect harmony with you I seek to ,lo mine. It is not I, nor the military power, that has supplanted the civil authority; that has been don<' by the insurrection in the counties referred to. I do not see how 1 can restore the civil authoritj' until 1 • suppress the insurreclion,' which your honor declares 1 have thi^ power to do; and I do not see liow I can surrender the insurgents to the civil authority until that aulbiirity is restored. It would be a mockery in nu' to declare that the civil authority was mudtle to protect tin; citizens against the insurgents and then turn the insurgents over to the civil authority. My oath tr) sup- ])ort the constitution makes it imperative on me to ' suppress the iusiu'ree- lioii," and restor<' the civil i)ower in the counties referred to. and this I must do. Ill doing this I renew to your honor expressions of my prol'ouud respect lor the civil authority, and my earnest wish that this authority may soon be reslore iniii'slml of the Supremo Court hv directed to proceed iu tlie execution of the writ directed to him. to lirinij; the body of the [irisouer lieforo him." The chief-justice denied all three motions.''* 'I'lie prisoners thereupon iippliod to.Tudf;e Hrooks, of the District Court of tile I iiited Stiites, who granted the writ. Tlie governor directed Col- onel Kirii to refuse to obey tlie writ, and telegraphed to President (J rant stating this, and that it was his purpose to detain the prisoners, unless the army of the I'nited States, under the orders of the President, should a<^t in aid of the process of the Court of the I'nited States. Tin; secre- tary of war. General lielknap, answered, forwarding an <)i)iiiion from Attornev-Gcneral Ackerman, advising •' that the State authorities yield to the United States jiidic Judge Hrooks entered an order dis iMiarging the petitioners. Pending the proceedings before tlie Federal iiidire anil tifter he had received the letter from the secretarv of war. th. iovernor or< lered Colonel Kirk to 'V the writs of habeas corpus issuetice of North Carolina. When the return was tiled, the counsel for the petitioners tiled a slateiiient in which, •' deciniug tlicmselves without remedy from the judiciary of the State, and having olitained writs of hal)eas corpus from Hon. Ci. W. Hrooks, judge of the District Court of the I'nited States for the district of North Carolina, retiiriialile before him at chambers, in Salisbury, this day. as counsel for the said jirisoners." they re(picste; Krimrlc Ki>rr, lit N.C, HIT,. ■■•■'Sliile V. Wiley, .'il! N. ('., H21 : Stale V. Tiirpley, f.l N. ('., H'iC, H'.iO. The opinion in llic> latter case ('(iii- I'huleil with u seulouco sigiillloaut of llie limes: "WeUiinliil proper to ndil tliiit (ienenil Hunt, eoiumiinilinj^ tlie V. S. tro()])8 In this Stale, wiis liivlied by 118 to take a seal on the lieiicli and hoard the whole proceedings." (mG STATK nirKACIIMENT TKIALS. [A1'1>, jiiiK'tioiis wore servi'd upon the jjovuriKjr, tiTa.iU;vi', iiiul payiimstei'. In Older to i-iiciiiiiveiit the injinu'tion, the governor renioveil tlie paymas- ter, iinil appointed in his jihiee liis own private seeretary, who eolleeteil the money from tlie treasinx-r and paid tlie troops. Governor Ilolden was inijieaehed hy tlie house of representatives in December, 1870. His trial before the senate took plaee in 1x71. The articles charged tlu^ res|iondent with uiiscomluct in proclaiming the counties of Alamance and Caswell in insurrection, and with occupy- ing the same hy military force. The respondent was ae(|uitted as to these articles, since the vote of guilty lacked two or three votes of the constitutional two-thirds. He was convicted upon the remaining arti- cles, charging him with niilawfnl arrests in a county which he had not proclaimed to lie in insurrection ; with unlawful arrests and imiirison- iiients in the proclaimed counties ; with refusal to obey the writs of ha- beas corpus ; with indawfnl conduct in sending into tin- proclaimed coun- ties troops, some of whom were brought from another State, and con- sisted "of the most reckless, desperate rulllans and lawless characters," " under the chief command of a desperado from the State p(,ny the assendily and convicted by the senate of the State of (ieorf^ia upon six articles, which charged the faisilication of returns upon an election to Congress in favor of (ieneral " Mad An- thony " Wayne, whose competitor. General James Jackson, was seated by the House of Representatives. He was sentenced to removal, dis- qualification for thirty years, and a line of six hundred dollars to defray the expenses of the iuipeaehn.ent.'*'' Apparently for his sole benelit, the following clause was inserted in the Georgia constitution of 17'.I8 : " Convictions on impeachments which have heretofore taken place are hereby released, and persons lying untler convictions, restored to citi- zenship." ^^ In \H->'i, Jolin J^oving, Samuel Jackson, and Fleming F. Adrian, connnissioners of fraction sales, were impeached and tried before the Georgia senate. The articles charged: the retention and keeping of moneys collected by them as cash paynu'Uts for sales of the fractional parts of surveys ; the withholding of a large nund)er of grants which had bi'en finnished tliem by the Static so that they might execute com- plete titles to the purchasers of said fractional surveys: the interlinea- tion and nmtilalion of a bond executed by a purchaser so as to increase the amount for which he was bound ; and, generally that by the pro- ceeding ami conduct set forth in the foregoing articles, contr:,ry to the high and important trust confided to them as commissioners aforesaid, and the sacred oath by them respectively t;dssion i... " " '^ •. erul Assemlily, c'limiiii'iiced iit Allanla, Ga., Nov. fl, 1H7K. .\tliiiila, (ta. : Jas. P. Harrison, Stale Printer. 1S79. Ap- f eudix, jip. 08a-7U8. «2 Jininial of tlie Seiiiito of (lie Stato of Tieortiia, 1878. Allaula, Ga. : .las. P. Harrison, Slnte Printer. 187'.). Ap- poudlx, pp. 71)U-818. 680 STATE nrPKACHMENT TRIALS. [app. ment, presented to the house by a senator, who it was claimed was disqualified to hold his seat, were as follows : — '• 1. He has been guilty of falsehood, and lying, while transacting busint'.ss with nienil)ers of the Legislature and otiier otticers of tiie State. "2. 1 ciiargo him witli inconiijetency, iniisiniich as lie has fdlcd com- missions to ollicers in blaulv, and otlier irresponsil)le peruons have issued tiiem. " 3. He lias issued a proclamation declaring many setits of the Legis- lature vacant, before the members duly elected and returned liad re- signed or their legal term of service expired. " 4. He has been guilty of embezzlement, having taken from tlie State Treasury securities and money, and sold such securities, and tlicn faih;d to return a portion or all of the proceeds of the sale to the Treasury. " r>. He lias been guilty of corruption and I)ril)ery, iiaving tiartered and sold prominent otiicos in tlie Stati! to sundry persons for money to iilm in liand paid, and nominated sncli persons to the Senate for conlirmation." On the same day a committee presented tiie imi)eachment at tlie bar of tlie State senate in tlio presence of eight senators ; twenty-fom- being tiie entire mimlier of the senate wiien full, but several elected lieing dis- qualified ))y tlie acceptance of inconsistent ofllces, and vacancies existing also through resignations, so that eight was a majority of the number of senators in otiice. liy the State constitution,"^ on the impeachment of the governor, lie was suspended from ollice till the end of the trial. That same evening the lieutenant-governor, William H. (ileason, issued a proclamation stating that he had taken possession of the odice of governor. On the following day the assembly adjourned to the first 3[onday of January, !«(;!), and as the senate refused to concur in the adjournment, the lieutenant-governor sent in a message as acting governor adjourning tiotli houses to that day. Jleaiiwliile fioveriior Keed refused to surrender possession of his odice, and requested the opinion of the State Supreme Court on the question whether a quorum of the senate had been present when the inipeaclimeiit was presented, and wliether the proceedings had the cfTect of suspending liiiii from ollice. The lieutenant-governor wrote tlie court cluiming that it oiiglit not to give a legal opinion nixm the questions which were within the exclusive jurisdiction of the senate and assembly. The court held unanimously tiiat no quoniiii of the senate was pi\ (^nt when the impeachment was ])resented, and that conse(iuently (Jovernor Heed had not been sus- pended from oillce."'' In December, 18(>H, the Supreme Court upon an «^ Constitution of 1865, Artiolc III, Sec. lil. M In the Matter of tlio Executive Commniiic.ition of the !)tli of Novem- ber, A. D. 18(i«, 12 Florida, 653. AIM'.] MISSISSITPI. 081 iiifonnation in the nature of a qun warranto entered judgment removing tlu> lieiitenant-govornor from otilce for ineligihiiitv ; "^ but he obtained a writ of error and nupersedeax from the Supreme Court of tlie United States, wiiich ivO])t liim in olllce a wiiile longer. Wlien tlie legislature reassembled in January, ISOK, the vaeaneies had been filled by intervening eleetions, both houses recognized (iovernor lieed as still in office, and the impeachment was abandoned. °° ALABAMA. In 187G, an information was filed by the State attorney-general in the supreme court of Alabama for the removal of Charles W. Buckley, probate judge of Jlontgomery Count}', for corruption and misconduct in odice, with specifications of the unlawful purchase of and dealing in county claims, a conspiracy to procure a contract for the support of the poor for his fellow conspirator, who was not the lowest l)idder, and the appointment of a guardian l ; that without them there was no law prescribing the mode of trial ; and that consequently it had no jurisdiction.*' Mississirpi. In 1808. the legislature of the ^lississippi Territory directed the Territorial deh'gate to impeach in Congress, Peter B. Bruin, tin; ])re- siding judge of the Territory, for drunkenness on the bench and neglect of duty. Tlie delegate, f Jeorge Poindexter. after tlie resolutions were read, obtained the appointment of a committee to investigate the charges, liut no report seems to have been made."" «' Tho Stiiti' of Florida in the Ri-lii- tlon of the At toriK'y-tii'iK'nil v. William H. aii'iison, 12 Florida, 1!I0. 80 Appleton's Annual EiicjclopEpdia for IHfiM, lip. 273 27(1. " Alabama t'linstllution, Art. VII, Sec. 3. 0' Tho State c.c ret, Attorney-Gen- eral V. Buckley, r)4 Ala. 599. " American State I'npers, vol. xx, pp. 921, 922; House Journal, Tenth Cimjf., First Sess., pp. 50.1, 5G2, 589, (108. Ill IKV.), the House Committee on the Judieiary reported their opin- ion that II territorial judge was not an oHleer of the United States and so eould not li<< impeached (Hoiiso Re- jioris, 22(1 CongresB, 2d Sess., No. 88). lu 1HH9, Felix Grundy, tho Attoiney- (ieiieral, (^avo a similar opinion (Ex. Doe., 25th ConR., 3d Sess., vol. Iv, No. 154). For those references tho 682 STATE IMl'EACHMENT TIJIALS. [Al'l'. Ill 187(1, Aik'Uiert Ames, governor of Mmsiasippi, was iiiipeiichcd uiul tried lu'fore tlic Stiite suiiiite. The articles cliai-gecl a failure and refusal to t'oniply with the request of the county treasurer to suspend a sheriff aud tax eolle'jtor who liad failed aud refused to make iiioiUhly ri'|K)rt8 and payments of the taxes collected ; the appointment of justices of the peace aud constables for partisan purposes ; the approval of an olllcial bond filed by the State treasurer, which was defective in form and signed by iusulllcient sureties ; permitting the State treasurer to n>- liiiiiu in ollice and in iiossession of the treasury after the State attorney- general had notilied the governor that the bond was insudieient ; insti- gating and directing a forcible removal of a sheriff l)y soldiers of tlie I 'nited States ; defrauding the State of §33,750 l)y granting contracts to personal and partisan favorites for convict labor without any fair and ojjcn competition or public bidding, and at less than other persons would have paid for the same ; conspiring to slander and liliel a citizen of the State in order to prevent his appointment to the ofllce of district attorney of the United States ; permitting, conniving at anil assisting in an ex- change of ollices between a diancellor and a district attorney ; neglect- ing and refusing to nominate diancellors to the senate while in session, and appointing them in vacation, with tliirteen specifications of sucli offenses ; endeavoring to persuade the chief-justice to interfere with, direct and control the judicial action of the hitter's son, who was then a chancellor in a certain cause ; when he failed in this, arbitrarily and corruptly removing the said chancellor, and failing to report to the sen- ate at its next succeeding session his appointment, in the recess, whicii consequently lapsed; unlawfully removing three other chancellors; aj)- pointing to the olHce of chancellor in six specified cases men who were notoriously incompetent, immoral and dishonest, of whom one had been publicly charged with forgery, and two others, one a physician, had never practiced law and had been admitted to the bar only a few days prior to their apjiointment, with the understanding that they should re- ceive their appointment upon admission; inciting a riot and conflict of arms between the whites and l)lack8 in a certain county, by calling out a company of black militia in the charge of dangerous, turbulent and obnoxious officers, causing them to march and parade with the purpose of thus provoking bloodshed ; making intemperate and in- flammatory speeches with a design to bring out an armed conflict between the white and colored citizens of tlie State, in whicli he said amongst other things : " 1 and other white men have faced the bullets to free the authoi is Indebted to the pourtesy of Melville E. Ingalls, Jr., £»[., of the New York bar, who has made un ex- haustiyo study of the Bubject of Ameri- can Impeachmeiite. AI'l'.] ilISSl.SiSll'1'1. (kSS t'olijivtl pecpk', and now if Ilicy uir not willing' lo light to iMiiinUiin \.,i\t freeiloni, tliuy aro unwcjrtliv of it." •■ What if it doi's cost lilon.' ; tliL- lihxxl of the niartvr i.t tin' si't'd of the fhui'cli." '■ Tli:il very likely lil'- teen or twenty ncgroi's may lie killed, but that it would icsiilt to the benefit of the Repiibliean party " ; making an intemperatt' and inllanmia- tory speech and giving unlawful advice to a ijorsoii claiming the oflicu of shei'itf, thus causing riot. Iiloodslu'd and death, through the at- tempt of the claimant to take possession of his olliee hy force of arms ; in consideration of the payment of three thousand dollars to a third person, granting u par(U>n to a person imprisoned after conviction of the crime of rape upon a child ; ami grossly, willfully ant'iicliccl bufore ami convicted l)y tlie senate of tlie State of Ten- nessee in IsCiT. Tlie proceedings grc.v out of the ratification of tiie Fourtecntli Amendment to tlie Constitution of tlie United States l)y tlie legislature of that State. An attempt was made in 1H(!G to block the ratilicalion by preventing a quorum of the house of represen- tatives. The State constitution provided that "Two-thirds of eacli House shall constitute a (luoruin to do business, but a smaller number may attend from tlay to day and may be authorized by law to compel the attendance of absent members." Another clause provided that '•each lloust! iiiiiy determine the rules of its iiroceeiliiigs, punish its members for disorderly behavior, and with the concurrence of t\vo-tliirred that he had conspired witli the niemhiM's of tiie State sii|)reine court to maliciously anustitutionally electiMl ; that lu; had directed, enconraMs of the State, to and in favor of tla; Memphis and I.iltle Hock K'ailioad Company and the Little Koek and Fort .Smith IJailroad (,'ompaiiy. in litter violation of law and disrcfiard of his ollleial duty; tiiat he had issued bonds or obligations of the State, to the Mississiiipi, Ouaeliita, and Hed Hiver liailroad Company when tiiat company was notoriously not entitled to the same under the laws ; and that he iiad been fruilty of other misconduct and malfeasance in ollice, and high crimes and mis- demeanors. At the same time a resolution was passeil that the respondent be sus- pended from exercising the functions of governor, and the members of the house of representatives proceeded by force to lock hin> into the executive chamber or nail the door in order that he might not escape and act. The governor notified the assembly on the following day that he had been unollicially informed that the articles had been ap- proved and a resolution of suspension jiassed ; but that he Inul been advised by counsel that the constitution did not confer the ])ower of suspension from ofHce on the assembly. The next day a resolution ■' ProeoeilinRs of the Hi^li Court of ImiH>aehiiieul, iu the C'lise of People of the State of Tennessee" r. Tlionias N. Frnzior, Jiidne, etc. Bi'^^un niiil held at Nashville, Teunessoe, Monday, May 11th, Ib'.T. Nashville : S. C. Meri'Pr, PriDter to t.ho State, 1807. iip. 124. Form of Siitipiena and Summons with Report iif Houfie Conmiittee, p|i. 8. Appendix; conlainin}; llin Eviden<'© and .Vriiinnont of Counsel in the ease (if The People of Tennessee r. Frnzior, Judge, &c., Inipeaelied. pp. 207. I ()8t) HTATK IMI'KACIIMl'.NT TIIIALS. [atp. w;iH piiHucil inipcacliin;^ .loliii .McCliirc, V,w cliicf-jilHlu'i' of tin- State, wliit'li cliarjii'd : that he liait I'liiraircil in a fi)iis|iira<'V with tlic {{ovci'iior and ollu'i's, to unlawfully and maliciously dciirivo IjiMitcnant-Ciovciiior .lanu's M. Johnson of his ollico to which lu; had Iioimi duly elected and to which he had duly (|Uulilied ; that he had liarjiained for pay and hrihes to inthiciice his actions and decisions as a justice of said court, at divers times and on various occasi(jiis, all (contrary to law and the constitution of the State of Arkansas; that he hud, as chief-justice of the supreme coiirl . wilhoiil authcjrity and in violation of law and the Constitution of the Stati' of Arkansas, issued a writ of mandamus upon Lieutenant-(iovernor .lames M. .lohnson. " now aetinji jjovernor of the State of Arkansas." hy reason of the impeachment of (iovernor I'owell Clayton hy the house of representatives, and said Clayton sulTerinj; under said disaliililies, and prctendinsi; to restrain the said lieutenaut-sfovernor from peiforminj; the functions of said ollice, thus presenlin ' tlirect, and liy which more than two of the managers wore piuMi/i^d fiom making a (inal argument on the merits, and tin; liiial argiuiieiii, of each was limited to thirty mim.tes. unless the senate should extend iiie time. Thereupon the committee of managers reported to the house that in their opinion no fair and impartial trial of the impeachment of (ioverncir Clayt(jn could he had hefore the senate under those rules, and that any trial under them would he a farce. They also stated tliat they were willing to again appear at the liar of the senate and aiuiounce the impeachment of the governor uiion the follow- ing conditions : That they should he assured that any articles of im- peaciinient pn^ferrod hy the committee against the said governor wi'l not he considered invalid, set at nauglit, or dismissed hy the senate, because notice was or has not heen given to them within the time re- quired by law. That the senate would give the connnittee at least twenty days in which to prefer particular articles of impeachment against the governor and at least thirty days from the second announce- ment or notice of the impeachment in which to produce the evidence to [AI'I'. AI'I'.J A li KANSAS. fiST Hiistiiin thp Hnmo, and nlso all contintmncen necrssary to ohtaiii iiii])()rt- niit ti'sliiiioiiy which Iht'v ii!t(l ftiili<(! tu olitain after thu imc u( i-ciihoii- iilili' ililif{{'iieo ; mill that the senate rejical the rules adopted for iin- peMciiiiii'Ut trials and lliee.'^ " Arkansas House .lournal for 1S71 ; Arkansas Senate .lowrnal for 1H71 ; Trhil of Johu McClure, f'liicf-Justico of Arkansas, Lilllo Itm! , Arkansas: I'ric e & llrClin-e, Sliitc I'rinti-rs, 1h71. The BrooUs-Uaxter "War. A Ilisloiy of tlii'ltecoustriirtion I'l'riocl in .\rkiinsns, l)y .Tolin M. Hairdl. The Alniij;hty Dollar. 1S1)3 ; Slawsou Printing Co., 81. Louis. ■» Oniclul Report of llin niph Court of IrnpcachMienl of the State of Loui- siana, on tli<> Trial of Ueiijnniin C. Elliott, .Tnituo of thn City Court of the City of Liif.iyi'Ki'; Hc^inn anil liolilon at tlic^ City of Niiw DrlcHiis, tlio 2:lil of March, 1814. (rnlilislicd liy Author- ity.) New Orli'iins: Vrinted at tlio olTlcn of tlio JIorninK Herald, 34 St. Charles Street, 1844 ; pp. 40. A1'I>.] i.onsiAXA. G89 In 1H70, Gnorgo 'M. ■WicklitTc, niiditor of the pul)lio ncconnts. wiis iiiipuiiclu'd and trii'd licfoi-c tlic soiiatc of the same Slate. Tlie artiilcs oliai'fi;i'd a default iinoii an application for a niandannis to eoniixd the issue of warrants l)y him to whieh ho and the State had n legal defense ; tlie milawful issue of warrants on tiie State treasury, — in one case for his own use, in another, in consideration of a bribe : — extorting the iiayuient of large sums of money for auditing accounts for printing, and for cutting up warrants into smaller warrants, which were more easily negotiable; failing to make a report retpiired by the constitution ; issuing a new war- rant in ph., of one which liad been issued when the State was under the control of the Confederate government ; employing more clerks than the law allowed ; and keeping his odice in such a state of confusion that it was impossililo for him to report to the governor or tiie general assem- bly tiie condition of tin' State linances. or for the committee of the gen- eral assembly to ascertain the State's linancial condition in any reasonable time, thereby proving himself to be incompetent to perform the duties and functions of his high ollice. 'I'he respondent answered, denying or justifying all the matters charged. He set up as a defense to several of the artieles that he had been indicted, tried, and ac(iuitted of the matters therein charged by a court and jui-y. After the evidence was concluded and a jiidgiiiciit was jjronounced, the counsel for the respondent ])resented his resignation from his ollice. t hief-.lustice Ludeling, at the re(|Uest of a si'uatcir, stated his o])inion tliat the resignation did not de|)rive the court of juris- diction. .V vote was taken on but one article, which charged : 'I'hat the respondent had issued a warrant on the State coni]itroller for $lll.s(t, anil induced the ])ayee to .idorse and negotiate it for his own lienclit, although he knew tiiet it was uiuiuthorized and issued in i>ayTneiil of an illegal cl.'dm. lie was unanimously convicted, and seiiti-nccd to removal from otiice and discpuilification from holding any ofllce in the State."" In lH7i, (iovernor Ilemy C. AVarmotii w!is impeached and tried before the State senate. The articles charged ; the forcible expulsion from ollice of the secretary of state and the issue of a connnission to another in his place; the unlawful aiiiiointinent after the adjournment of the senate of a tax-collector whose nomination the senate had rejected ; the issue of connnissions to the ollices of attorney-general, judge, sherilf and other ollices to candidates who had not been I'lected ; connivance in the forcible ejection of a judge from his otiice in order to obtain posses- sion of the court and use the same in a scheme to remove an0,000 to the Lieutenant Governor, P. B. S. Piuchback, at two o'clock ia tlie morning, if tlie latter would on that day organize the State senate in Wannoth's interest, break down the opposition to the Fusion party in the legislature, and place himself under the respondent's direc- tion and control ; the inducement and procurement of the supervisors of registration by the promise of patronage, threats of dismissal from olli e and bribery, to refuse and fail to register a large number of legal "otci-s an' >n ; the offer of an oflice as a bribe for similar misconduct at a State ekv. oi\ , the issue after his iinpeachmeut and suspension from oflice of two proc- lamations whicli refused to recognize tlie legislature wliicli impeached him and recognized another body as the lawful legislatm-e. The re- spondent appeared by counsel and filed exceptions disputiig the legality of the court and the lower house on the ground that they were not law- ful bodies. The court rejected these and refused to permit them to be filed. Hel'ore any further proceedings the setuite requested tiie advice of the chief-justice whether the trial could proceed after the resiKjiident's term of ollice had expired. Chief-Justice Ludeling delivered an oijiiiiou that it could not, saying : '■ I (piestion the policy of kicking a dead lion." The senate adopteil this opinion and adjourued.'" TEXAS. In Texas, 1871, charges against .lames 1{. liurnett, a judge of the thirtieth judicial district, were presented to the legislature, witii an ap- plication for his removid. The charges were : An illegal arrest on a charge of minder, after tiie grand jury iiad failele to execute the laws in a certain county, which causae i |)roclaniation of martial law, arrest, fine and im|)ris(inment in the execution of the same, and increased taxation ; refusal to enjoin the military autlmritii'S from taking forcible jio-ssession of corn without comiiensation ; atleuipt- ing to assassinate, and procuring to be assassinated, one of the counsel in a case that was tried before him, by an assault on the part of the judge, who was then protecteil by an armed Ixxly of State police, wiiile the attorney was alone and unarmed ; lualiciously and through revenge causing the arrest of ir.any citizens while martial law prevailed ; con- '" Prot'iHMliiiKs of thi' Souiito KiltiiiR as a Coiiildf IjiipeiichMK'nt in tliiM'u.s() ofllii' Slate (if Ijoui.siana r. Houry C. Wurniolh. By Aulliority. New Or- leans: Printed at the olIl<'o of tho Ucimliliciin, lU Cump Street, 1873; pp. 14. Soo Hupra, § 118. i» f- APP.] OHIO. 691 {ri'iUiiliiting, ir,)on his acquittal, one of the persons whom he had arrested for inunler as above charged, and to whom lie iiad refused hail, and an accompanying apology for such refusal, upon the plea that he was cora- pi'lled so to act, — meaning therel)y that he wouhl have lost his otHce hud lie granted bail. Testimony was taken before a committee of the legislature in support of and against the petition." OHIO. In 1806, Calvin Pease, president judge of the third circuit of Ohio, held that so much of the .State law of February 12th, IKO;"), as attempted to give to ju.stice8of the peace jurisdiction of claims for more than twenty dollars, and to i)reveiit plaintitTs in other courts fnjin recovering costs when they recovered jiidgmeut for more than twenty and less than lifty dollars, was repugnant to both the State and • ederal Constitutions, and consc(iuently void. This, which was the first decision in that State wliich held an act of the legislature unconstitutional, was followed by the [ires- ident judge of the third circuit, George Tod, and .ludge Huntington also of the supreme court ; but it created g'-eat piiblic excitement, and led to the si'iiurate impcacliiiieiit of .Iiidgcs J-ease and Tod at the session of the legislature in l.SOS. .Iiidge Ilmitington had in the meantime been elected governor; and for that reason the charge against him was aban- doned. The articles against .bulge Pease charged : '•F(r.s^ That on ap- peal Iroiii the judgment , .liidijo Pease was acquitted, throuij;h the lack of a two-ltiii'ds vi*" M':'ust hiui. The vote Oil tlie first charge was unanimous for ac- qi' 1 the second, fifteen for conviction against nine for a((iuittal. The I, . charge was decided, liy a vote of sixteen to eight, to lie insuf- ficient to sustain an iuii)eachnient. At the same session, Judge Tod was previously tried and aciiuitted upon similar articles. At the following session, the legislature, hy a majority of less than two-thirds, adoi)te(l the "sweeping resolution" which declared to be vacant all judicial ollices that had been liUed by appointment before the adoption of the constitutional ])rovision giving to the legislature the right to elect juhl In the town of Chillieotho, in the county of Hoss, on Jlouday, the sixth day of CitO STATK IMPEACHMENT TUIALS. [a PP. ILLINUIS. In l'-*33. Theophilus W. Siiiitli, a justice of the supreme court, was iinpeaclii'd iiuil tried before the senate of tlie State of Illinois. The articles cluirLrcd : Ills permitting; his son. then a minor, to barjjain off the ollice cl' iloik of the circuit court of .Madison county and to liire anil employ another to do and perform the duties thereof at twenty-five dol- lars a mouth, reserving the fees and emoluments of the said otiice to himself, whicii contract the respondent ratified and contirmcd, reserving the fees and emoluments of the oflice less the twenty-live dollars per month to himself witli the intention of reserving a future appointment to the olliee for his son ; api)ointments to the olllee of clerk of the cir- cuit court within his circuit witliout reipiiriiig bonds as the law directed, with the corrupt intention of rendering said olliee subject to his will ; bringing a suit in which he was interested in a court in wliich he presided, and causing tlie defendants therein to be held to bail in an excessive sum ; susi)ending an attorney from practice because he had instructed his client to consent to any change of veinie which wouUl remove the cause to any court where the respondent did not preside ; conniiitting a quaker to jail and certifying that he was inconi])et<'nt to serve as a juror by reason of a want of soundness of mind, because he presented him- self to the court with his hat on ; and rendering an opinion involving the rights of a county with the intent to pri judice it on an ngreed case made up between the sheriff and county treasurer, although lie well knew that the rights of tiie county might lie, and tliey in fact were, afterwards submitted to his decision, which was then made in accor- dance with the [)receding opinion. Tlie respondent was ae(iuitted on all the charges, the senate being nearly equally divided. " MICHIGAN. In 1872, Ch.irlos A. Edmonds, conmiissioner of the State land-office was impeached and tried before tlie senate of Micliigan. 'I"he articles charged him with corruiitly withholding land from sale for tin; benefit of certain land-dealers in return for money [laid to himself and deputies and clerks : with engaging in the purc'hase of State lands, sold in his olliee ; with deciding that certain lands which were in the possession of actual settlers who had failed to file proofs of their settlement and occu- Dccenilior, 1813, and in tlio twelfth '- Appi'iulix to Illinois Soaate .Tour- year of the salil Slate. Publislieil by iial fur ISifJ. Vaiidulia : PriiiloU by ttuthnrity. Cliillicotfie : iTiUt'^d by Gioimr .V- Slierniaa, 1833. pp.!)!. James Barnes, 1813. AIM'.] WISCONSIN. 697 piiiKT ill liis ofllce wore subject to sale, and witli fiirnisliing secret informa* tion foiiceriiinj; siicli IiuuIm to laml-dt'ak'rs, in wlioso (iroflts lie Khared ; witli eufrafriiij;; in tlie .sale of swaiiip-laiid scrii) ; wifii ajuiointing and la'ep- ing in iiis ollicf as cleiks men of dissolnti' liabits and cliaracter, unwoi'tliy of tiieir jHjsiUon, and ailowinji tin'in to iiurelia.se and to l»e interested in the pnrciia.se of land in lii.s olllee, and to corruptly sell to land-dealers valuable information therein contained ; witli keeping for iiis own use, tiie pureliase mouev from (State lands and depositing in the .State treasury swamp-land scrij) in place thereof ; with depo.sitiiig in a post- olllce of the United States, in the State of Indiana, an obscene news- papiT entitled " Every Saturday Night." in violation of the statutes of the United .States regidating matter transmitted tiirongh tlie mails; with |)ublishing and circulating the same news]iaper in the .State of Michigan; with disgracing his odice by drunkenness during his ofllcial term at the City of Lansing ; and with committing adultery at the city of Lansing, during his olllcial term, he then being a married man. The res|)on('.ent was actpiitted on all these charges, in most instances by a majcrity or nnaiiimous vote in his favor ; and on three articles by a bare majority which was less than two-thirds against him. He was ably defended by .lohn 15. .Shipiiian, whose arginiicnts contained the most learned disciuisition on the law of impeachment that the writer has ever seen."" WISCONSIN. In 1853, Levi Ilnbbell. judge of the second judicial circuit of the State of Wisconsin, was impeached r.nd tried before the State senate. The articles cluirged : that he consulted with one of the eoinisel in a case pending liefore him during the tiial. aii I!.v Authority. Liini-iiifj : W. S. 'ieorge of Kiiiil State, oil nil iiiipeiieliiiieMt pre- .V ('o..St.i1e I'rintcrsnnd Binders, 1872.. pared by the House of Keiireseuta- Vols, i ami ii. pp. 1891. OitS STATK IMI'KACHMENT TKIALS. [ai'P. niid lU'nyin;; a motion to disHolvc an injunction granted upon a creditor's liill hroujilit to collect the same in tlic name of a third party wlio held t!io jiidfi;incnt for his uhc ; of his rcnderinfj; jud<^ment in a unit to colh'ct a jiromissory noti^ held for his use and lienefit liy another, and of his sub- BC{(uent confirnnition of a sale of real estate under said judjiment, wliicli had been sold to his brother for his use and benefit. That lie had will- fully, arbitrarily, partially and illejially sentenced persons convicted of crime to punishment ditTerent from the punishment prescribed by law ; with speeilications of the sentence of ii man convicted of an assault with intent to kill to a line of two hundred dollars and costs, and to the sentence of a nu\n coLvicted of grand larceny to a fine of five dollars and costs. That he had presided and adjudicated in causes, in the subject whereof he hac been retained and connsellod with as attorney, solicitor and counsellor by the parties to such causes, and had acted as attorney, solicitor aii'i counsellor in such causes ; with specifications. That he had takei'. and used moneys paid into his court in the progress of the suits titer jin, to the manifest scandal and unnger of the atlminis- tration of justi'je ; with specifications of his taking from the sherilT and clerk money collected in civil and criminal i)roceedings, and keeping and using the same for a considerable period of time. That he had im- properly and collusively given judicial advice and made jud' •ial promises to suitors and persons likely to become suitors in the courts of tlie State on the subject-matter of tiieir suits ; with three s])ecifications, the last of which charged that he gave the advice concerning a divorce suit which was afterwards l)rought before him, and after granting a decree for divorce, solicited a present from the plaintilT. That in the exercise of his judicial functions he had conducted himself with undue and unjust partiality and favor to particular suitors in his court; with specifications of his refusal to hold a special term for the purpose of confirming a sale, becau.se a party interested was his oiiponent, and afterwards holding tlie same for the benefit of another party who was his friend. That contrary to public decency he had a private and indecent interview witli tiie wife of a party against whom an indictment was pending in his court, wliereiu she solicited him on behalf of her husband in the matter of said indictment, and that he afterwards brought about an acquittal of her husband. That against public decency he had a private and in- decent interview with a woman who was living apart from her husband, when he advised her in relation to a divorce ; afterwards permitted the husband, who also desired a divorce from his wife, to exhibit allldavits to him in support of such an ai)plication, advised the latter that the papers did not establish grounds for a divorce, and that he could obtain his end by permitting his wife to obtain it, to which the husband assented ; and AIM'.] SIIXNKSOTA. 699 aftcrwanls knowiiii; of this collusion, iiijide a dccrci' pi'jintiiiir tlio (livoicd iigiiiimt tlu^ liiisliiiiKi in tin; wife's favor. 'I'liiit iu' iiiikK: an onlcr stayin];; an execution on a jiid^rTnent until the finliu'r ordur of tlio court, lu'cause it was int'orivi'nii'nt and dilliv'ult f artich'S were presented to tlie st'iiiili', Se('ii>'r sent to the };overnor liin reHifjnation in a letter statin;;: tiiat '• lie lieiieved Iiiniself already acquitted in the minds of all fairly dispo.sed men" ; hut tiiat tiie pritieipal reason for his resi^ination was the informal ion he had recently received, that his counsel fees and other expenses, if he defended the inipeaclinient, would amount to five or nix thousand doliars, which would reduce his family to penury. The governor acei'pted the resignation, liut the senate voteil — twenty-six yeas to ten nays — "that this court will receive uo evidence concerning tile resignation of William Seeger. Seeger's counsel then tiled a plea r guilty to each of the articles " in the manner and form as in said eiiars and 8i)ecilications alleged," wiiich concluded with a statement that " i... same were done witlaait any corrupt or willful intent." The senate thereupon by a vote of more than two-thirds found the respondent guilty and sentenced liim to removal from ollice."'^ In 1878, Sherman Page, .ludge of the Tenth Judicial District, was imiieached and tried liefore the senate of the same State. The articles charged him with maliciously adjourning for four years the trial of an indictment for a liln'l against hiin, jx'nding the adjoin'nments, holding the accused under heavy liail, the excuse for the jiostponenient heing, that he did not care to try the case himsi'lf, and neglecting to pro- cure the attenilancu of any other judge of the district court to hold the term at which the case could he tried; with appearing before the board of county commissioni'rs, and in an angry and threatening man- ner asserted tiiat it would be illegal for them to pay the bill of a deputy slieritT for sulpp(enaing certain witnesses, thus inducing the board to disallow tlie bill, and afterwards on an appeal from the judg- ment of a justice's court in favor of the deputy sheritT against the said board for tiie amount of the bill, falsely and erroneously deciding that the issue of the snb|)ienas was unauthorized by law, and that an order had previously been made, directing that none of tiie costs or fees for issuing or serving tlie sulip(eiias should lie paid by the county, although tlie contrary was the fact; with refusing at the conclusion of a term to make an order lixing tiu^ nuniber of dei)utiea which were nocessiiry for the sherilf to have for attendance nixm such term, although he had previously I'l'coyini/.ed and actjuiesced in the attendance of a deputy; with publicly insulting in open court the sptcial deputy when he applied " Appleton's Aunual EncyolopuDilia for 1873, pp. 508, 509. APT.] MINN'KSOTA. 701 for ilio order, !uv\ with thus pri'vc'ntiiijr tlie pnyinent of tho ()(|Hiiy; willi ixMt'iiiptorlly and thronteniiijily ('0111)111111(1111^1; a dcpiiiy hIici ill. in the pri'sciici' of llu' irniiid jury imd a iiiiinlior of otlicr persons in alliiui- iiiice upon 11 torin of court, to pay over to the clerk of the court tiie huiii which lio Imd letaliicd for his fees, without jiivliij; liliii a hoarliii;, and thus coinpellinti; hlui to pay over siioli fees, al the same time repriiuand- iii;; tlie deputy and ■.ircusinii him of hnViim retained ille;;al fees, ami threatening!; that he would Heriou^ly punish lilni if he took any llieijal fees a}{aln ; "with needlessly, nialieioiisly and uiiiawfuUy, and with iateut thereliyto foment dlsturha nee among the iiihaliltants"of a certain county, and in particular amoiij: tiiose of a certain villaire in sail county, and with a furtlier Intent to insult and huiiiiliale the sheriir, writing and causing to be delivered to the sheriff two orders, one direding lilni to "disperse any noisy, tuinultuous or riotous assemblage of iiersons nunibering thirty or more, or a less number, if any of them are arii'ed, found anywhere within tlie limits of your county," also a letter repriinanding him for not having acted sooner in tho matter ; witli maliciously attempting to persuaile a grand jury to Indict a county treasurer who had comiiiltted no crime, and when he failed in that pur- pose, directing the county attorney to prefer a charge against the county treasuver, arresting him upon such charges, coni])elliiig him to give bail, to apiiear at the next term of court; and "during tlie proceedings the said Page, as such judge, maliciously and without ijrovocatloii .spoke to and treated the county treasurer in a very Insulting and uiibecoin- ing manner, and in partienlar accused the said county treasurer of having in other places and upon other occasions talked .f himself, the said I'age, in a derogatory way ;" with reprimanding tho grand jury for falling to liriug in an imlictment against tlie said county treasurer; with unlawfully Issuing a warrant to arrest a pia'ty for contempt of court oil account of publicly attacking him ; with requiring the attend- ance during the contempt jiroceediiigs, of aiiumberof persons to testify as to matters wholly irrelevant to said charges for the purpose of ascer- taining what jiersons other than the accused had written and published attacks upon the judge, and with asking and compelling the answer of a number of irrelevant questions designed for this purpose; and with habitually demeaning himself towards the ollicers of his court and towards the other ollicers of the said county of Mower in a malicious, arbitrary and oppressive manner, and habitually using the powers vested in him as such judge, to annoy and oppress all other persons who had chanced to incur the ilispleasure of him, the said I'age. The respondent was acquitted by a majority vote in his favor on all 702 STATK IMPEACHMENT TIJIALS. [AI'P. tlie tli!iri)riating to his own use the sum of 810.881. 20 which he had collected in the name of the State from the I'nitcd States ; with attemiits to olitain bribes; with the receipt of l)ribes for iiis ollicial aciiiin as ofHcial member of certain State boards and in the exercise of his executive powers; with falsely approjjriating to his own "nc the sum of one thousand dollars for which a warrant had been issued to pay the fees due an attorney for tlie Stat with unlawfully and corruptly entering into a contract with an insoh\ .re for the comple- tion of the State lunatic asylum, and with willfully and recklessly assenting and becoming a party to a contr"ct for the erection of the State university antt agricultural college, at jirices greatly in ex- cess of the sums appropriated for the said buildings ; with a false com- munication to the house of representatives concerning the investment of the UK ',ey collected from the United States which he was charged with having approiiriated to his own use; with unlawfully and willfully advising and consenting to the loaning of the State funds and causing the same to be loaned, inii)n)vidontly and willfully, without good author- ity of the law ami regard to tin pulilic inteicsts. upon totally insudicicnt and ina(le(|U:ite security, and without the concurrent action thereon by the treasurer and auditor of the State, as was recjuired by law: with api)ropri:iting to his own use the sum of $0 IM. b'i a balance in tiie hands of the treasuier of the board of innnigration, which was the propeity of the State ; w'th unlawfully executing and causing to be delivered to the Sioux ( ity and Pacific Uailroad Company a patent or patents for lands !■« Twentieth Session, 1H7K. .Touriml of the Senate of Minnesota, silting as a. HiK'i Coiiit ot Iin|H'ii('linieJit for IIik Trial ot Hon. Slieniiiin I'aj,'!", Juilj,'!' (it Tendi JiiiliiMal Pistrict, Vol. i. Printed bv Aiitlioiity. Itainnli'v mid C'linnint,'- liani, Siiiiit Piiiil. 3 vdliiiiies. Vol. i, pp. 784 ; vol. il, pp. 549 ; vol. ill, pp. 3H\). '' Journal of the Soiialn of Mliiiie- Hotn, siltinn as a HiKli Court of Iin- ])eai'liiiHMiL for the Trial ot lion. E. St. .Tiilii'Pi Cox, .Iiid){i' of tlie Ninth .ludl- I'idl District. Printed liy Authority. SI. Piiul Printing House, (). ft. Slilli'r, ;!C E. 3d St. 1HH2. 3 volumes, jip. 1000. AIM-.] NKllIIA.SKA. 70^ of tlu! Stiite ; and with selling certain State lands and appropriating to his own usi! part of tile piircliase uiont-y. Governor liutler was ao(|iiittod In* citliur a majority vote of not jiiiilty or a vote of less than two-thirds of ifuilty MS to all tlio artii'los cxct'pt tlie lirst, wliicii chsirgcd iiiiii with api)nipriatinji; to liis own use SKJ.HKl.iO wliicli liad heon collected for the state of Nebraska from the United States. As to that his defense was an attempt to prove that the money had been paid into the State treasinw and afterwards loaned to liim upon honds and mortgages on his own property. Tiie testimony shows a remarkable metliod of keep- ing the public funds. The .State treasurer was a member of a Iiimking firm and at lirsl ki^pt the trcasiu'y in an old-fashioned fire-proof safe, but afterwards, in i)Mrstiance of an iict of the legislature, bouglit a Her- ring luuglar-iiroof safe at a cost of one tliousand dollars. In tiiat he kept both tlie private funds of his firm and the public funds. The "uliiic funds were supposed to be kept in separate envelopes ; but a large part of tiiem wiM'c mingled with tlie ])rivate funds of the firm and credited upon its books to tiie fictitious name of Joim Hix. Tlie ollicial books of the treasury showed no trace of the money which the governor had coUectcil from the United States. The governor chiimed, however, that it had lieeu duly ]):ii(l to the treasurer, credited to the name of .John Uix, and subseipiently loaned to him. This defense wus overruled by the senate, which by a majority of more than two-thirds found him guilty under the first article of impeachment. The sentence was renif)val from ollice. Members of both the political parties voteil for conviction."' In ilie same year that (Jovernor Butler was impeached, the Nebraska house of representatives voted to iini)each John Gillespie, State auditor of Nebraska. The articles charged him with delivering warriuits against the State funds williout having first received the leg;d vouchers then.'for, and in cases in which the State was not indebted, giving as a specifica- tion the jiayment to Governor Butler of the State warrants for the fees of an attorney which was the subject of one of the ar*i"les of Butler's impeaciiment ; with unhiwfidly, corruptly, and in violatio.; of a section of the State constitution, agreeing and consenting to the iiayment of extra compensation to a contractor for the erection of the State lunatic asylum above the amount slipuliited to be pai:<\ over or deliver tlie same, and also to give information in writing to cilliL'r house of tlie Icgislaliire iii regard to any duty of iiis olliee. giving as a speeilieation tlie failure to collect the sum «)f •Sl'i.'^'^l •-', wliich was col- lected and retained by (ii)veruor ISutlcr. as charged in the hitter's im- peaelnnent : with unlawfully ordering and ajiproviug cif certain loans of the school-money at less interest than might have lieen collected for the use of the same : with opening ime of the sealed bids fur the public print- ing, and disclosing to another bidder the estimates of the saiue, so as to enable him to so alter his liid as to secure the contract; with being in- ihieneed by pecuniary motives to agree Iti his olllcial capacity to an nn- siiitable location for the State hiiatic asylum ; and with making a false entry in his accounts, stating tlie ree 'ipt of 810^2.10, and the jiayment thereof il|)on a warrant for trees for the >■•<•':!. /l grounds, when in fact no such money was received or ]iaid. but the trees were furnished for the indi- vidual benefit of the respondent, (ioveruor Hiitler and another olliccr, so as to make up the deficiency in the proceeds of the sale of certain public lands. This imiieachment was never tried, hut in the following year, 1S72, was withdrawn by the succeeding house of representatives."'' In IHli;!. the legislatin'e of Nebraska presented to the supreme court articles agaii; t William l.eese. who had been formerly attorney-general. They were dismissed uixin the ground that no impeachment could be sustained against a man who was not in ofllce."" In the same year, the legislature presented articles against (Jeorge Hastings, !ittorney-gen- eral, .IdIiii C. .Mh'ii. secretary of state, and Augustine \l. Iliiniphrey, commissioner of i)ublie lands and buildings. Tiiev charged misconduct by (he respoiiih'iits when actir.g as a hoard of public lands and buildings liy th' \,:iste and misappropriation to their own use of public funds ai- ' ne^ligeiiee ill the payment of fraudulent claims for supplies, cliieliy in connection with the construction of a cell-house in a penitentiary and the sii|iervision of the maintenance of an insane asyhini. It api)eared that they hacl by the advice of the attorney-general used live hundred dollars of an aiipropriation for the construction of a ci'll-house in pay- ment of their own expenses u|ion a junketing trip to visit prisons in otiier States, and two hundred dolhi's to ])ay the expenses of the v.arden and chaplain of the prison as delegates to the National Prison Congress at »» House Jdiirnal of the (teiionil m Stale of Nelmiska r. William Assenilily of (iie Stiile of Nelirasltii, Leese, Ex-.\ttoniey-Gonerul, 37 Neb., for 1871-1872. pp. 828. U2. ATI'.] KANSAS. 705 IMiiliulolphia. A majority, two of tho court, acquitted all the respon- dents for lack of proof of a criminal intent. The chief-justice dissented in a strong opinion."' KANSAS. A painful exposure of the corruption which existed during the civil war was ni.ide on the trial of the governor, secretary of state, and auditor of the .State of Kan.sas lieforo the senate on their impeachment by the house of representatives in 18(;2. The first legislatnre of the State a\ithorizcd the issue of bonds to the amount of SloO.OOO to defray tlie current expenses. Tiieso olllcers were a\ithorized to negotiate for their sale. The only probable customer at tliat time, the summer of 1H()1, was the government of tho United .States, who were authorized to invest certain sums of morey held l)y it in trust for Indians under different treaties " in safe and profitaole stocks." The Kansas secretary of state and auditor employed Robert Stevens, a leading Kansas poli- tician, to negotiate tlie sale of these bonds. His employnn lit was ad- vised by senator Pomeroy of Kansas, because of his business relations with Caleb H. Smith, secretary of the interior of the United Stales. "' Tlie accused secretary of state testified : '• I bad di'linite informa- tion, but owing to the character of those assistii,;;; Mr. Stevens, 1 thought his expenses nuist be heavy indeed. Any gi iitlenmri who will go to Wasliington on similar Imsiness will be satisfied of that I'm'I.' ' Stevens first attempted to sell tiie bonds to tlie United States lluoiigh the secretary of tlie interior, but failed. lie then employed to assist liii' in the negotiation, R. (i. Corwin of Dayton, Ohio, who was conuccti'd by marriage with the secretary of the interior. Corwin was then en- gaged as a claim-agent in Washington iiofore the War and Interior De- partments.'* Corwin succeeded in arranging that the bonds should be bought, provided the entire Kansas delegation at Washington advised the purchase in writing."'* All of tiie delegation with one exception were persuaded to recommend the purchase. Senator Lane refused to sigii, s.'iying that he exi)ected to be a candidate for a re-election to the Semiie before the State legislature ; that he had a majority of one in the Stite senate, and he feared lest, if Stevens had the money, the lalti'r "' Slate of Nolirnska r. GenrRe H. Hastings, Altiinicy-Geni'rnI, .Tnhn C. Allen, Secretary of Slnte, and Augus- tine L. Huinplirey, roniinissioiHM' of Piililic Liiuds anil I5iiiWlugs, ;)7 Neb., 96. 9- Proi.'oedlngs In easos of tin' Iin- peaehmcut of Charles llobiusou, Gov- ernor; .John W. Ttoliinson, Secretary (ifSlnto; (ri'orgcS. lliUycr, Aiulitorof State of Kansas. Lawrence: Kansas State .lournal Stenni Press, 1H02. pp. 484. M Ibid., p. 38fi. 9< Ibid., i>p. a.')!!, 2.")S, iG'i. »» Ibid., pp. 154. 107. Ul 1 06 STATK .SiPEACHMENT TKIALS. [app. would liiu- uj) enough votes to defeat him and elect himself." One tliousiuid dollars were paid to Lane's private secretary to procure tlie senator's sii;natiire to a letter reeoinmendiug the purchase, which sig- nature was .subscciuoiitly procured through the private secretary, by a misrejjrcsentatiou as to tiie character of the letter signed." Bonds to tile amount of $5G,000 were sold to the United States accordingly at eighty-live per centum on their amount. The State only received sixty iier cent. Tlie remainder was retained by Stevens. With whom he divided did not appear. At the same time certain State bonds held by tlie auditor and secretary of state were sold to the government of the United States in tlie same lot, at the same i)rice, and seventy cents on the dollar was paid to their owners for the same. John W. l{ol)inson, state secretary of state, and (leorge S. Ilillyer, statu auditor, were convicted on the article of impeaehniont charging these facts, and sentenced to a 'cnioval from otiice, but not to disiiuali- fication."^ The ifDvernor, Cliarlcs Robin.son, was acquitted upon tlie grounJ that there was no evidence of his complicity in the act."" Other articles of impeachment were presented against the same three ollicers, charging other offenses coniiocted with tiie sale of the same bonds, and in the case of the secretary of state, cliargiiig him with autliorizing a public advertisement in a pretended county newspaper which was not in fact pulilislied in such county, in countersigning certain lioiids, and in authorizing the witiidrawal of a bid fur public i)riiitiiig after its acceptance. They were acipiitted on all of these. After the conviction of the .secretary of state, it was charged tliat one of the senators had endeavored to obtain a bril)e of three thousand dollars in return for his vote for an acquittal. An investigation was ordered. The editor of the 'i' ipcka "Tribune " testilied that on the (biy before tlie final vote he was ajiproached by a member of the senate who told that there were seventeen senators ready to vote to impeach Joim W. Uobinson ; that if the speaker votoil iii favor of the ac(iuittal, other senators would go with liiin ; and tliat if he was paid ;<,"), 000 in cash, he would vote " not guilty." The witness had in his poci;et about 8 1.5(i0 iu scrip and offered the senator S'2,000. SulisiMpiently, the witness talked to one of the respondent's attorneys, saying: '• I had offered so much money on my own responsibility, antuined thnjugli Senator I.ane. The witness refused to state tlie name of tiie senator with whom he had the conversation. Each of the senators who was present testified tl'-ii, ha had no sucii conversation. Thereupon it was v(jted, "that it was the opinion of the senate tiiat the chai'iics against the meniljers of this body of corruption are untrue, and that no further action be taken in the premises." Tiie witness was then dischsirged, without any at- tempt to compel him to disclose the senator's name."" In 18111, Tlieodosius Hotkin, judge of the thirty-second judicial district, was impeached by the house of representatives and tried before the senate of Kansas. The articles charged him witli habitual and re- peated drunkenness both on and off tlie bencli ; witii tiie ilU'gal purchase of intoxicating liquors and frequenting " drug-stores " wiiere he knew that liquor was sold in violation of the law ; with blasphemy in a so- called "drug store"; with unlawful imprisonment in a proceeding to punish as a contempt the circulation of a petition for liis impeach- ment which made similar charges to tliose contnined in the otiier articles ; with issuing " a lictitious or fraudulent warrant of arrest," witliout any sworn coni|)laint such as tlie law recpiired ; witii ordering a court ste- nogr:ii)iier to erase from liis notes an excejition t;iken on a trial; and with being party to a corrupt conspiracy for tlie robbery of a city treas- ury, wherein, without any statutory authority, he appointed " a receiver of tli(! city treasury, which contained less than S7,7;')i)-j9fij," recom- mended the city council to employ a certain attorney to represent them in the litigation, at midnight signed an order directing the payment by the receiver of 81,000 to the attorney, which the council had voted an hour before to pay him for his services' exhausted the balance left in the treasury by other illegal warrants -vliich he approved, and then dis- charged the receiversliip. The trial is interesting from the picture it gives of the State of civilization in Kansas and the condition of drug- stores in a prohibition State. Demurrers were sustained to the articles which charged drunkenness when not engaged in his olilcial duties, the illegal purchase of intoxicating li(iuor, and the frequenting of places where he knew that liquor was illegally sold."" The acts charged were s'lbstantially proved, leaving the intent of the accused the sole question in issue, except as regards the drunkenness and blasphemy, concerning which the evidence was contlicting. The main point on which the counsel for the respondent relied, wliich was reiterated I IbiU., pp. 3.54-370. Supra, § 93. 708 STATE niPEACHMENT TRIALS. [APP. tlii'oiit!;liout tlie exainiuiition of wituosses anil the arguments, was that Botkin was a Republican, as were also a majority of the senate, anil that the inipoachiiieut was voteil by the members of the Farmers' Alliance in the liiv.cr lioiisi'. The attorney to whom the judge gave the four thou- saiiil iliilhiiii from the city treasury was not only a witness but the lead- ing coiiiisi!l for the respondent, and the coarseness of his cross-examina- tions and speeehea throughout tlie case, which were unchecked by the senate, illustrate the character of the court. The respondent was ac- quitted by a majority, and in some cases by a unanimous vote of " not guilty " on the articli's cliarijing drunkenness and blasphemy. On the other articles the votes stood eighteen to sixteen and eighteen to seven- teen against him ; and as two-thirds failed to vote for conviction he was finally acquitted.'" IOWA. In 1880, ,Iohn L. Brown, auditor of the State of Iowa was impeached, tried and acquitted by the State senate. The articles charged a failure to keep proper accounts and to make reports of the fees collected by him from insurance coinpanies, banks and others; iuducemeut by a bribe of one hundred dollars to omit to direct the attorney-general to Institutfc oroceedings for the appointment of a receiver of an insolvent bank ; certifying that that bank was solvent ; drawing and collecting and issuing warri.uts on the treasurer without vouchers; refusing to obey au order by \he governor suspending him from olllce; continuing to exercise the f notions of his olllce after such suspension ; refusing to allow the gov ;rnor to inspect bis books ; allowing to act as his (le[iuty a man whose appointmei\t the governor had refused to approve ; p.aying such deputy a salary and money beyond his salary by warrants on the State treasury; and compelling the payment to himself and his deputy of illegal fees by banks and insurance companies which were subject to his suspension. '"^ MISSOURI. In Missouri there h.ave been three impeachments. In 182C, Richard S. Thomas, a circuit judge, was impeached, convicted and removed. '"■i Daily .T.iuraal of the Si-iinte Trial of TlicodosiiiB IJolkiii, .Iiiil},'!^ of tlio 32r Charles IT. Hardin, in Jack- son's Iiu|i(.'iichiiii'nt Trial, riiblio Prin- ter, JofCt'rsou City ; pp. 33G-337. 710 STATE nil'KAOFtMENT TUIALS. [Al'f. worth rea(liu;j;. 'I'lio jiiilni! defeiitU'd himself in person. His answer is ii model of tcehnicid pleading;. Jt even contained this traverse : '• Said .laekson does not know that the experience of ages has demonritratcd that the writ of huOfds Cdrjiiai is one of the chief bidwarks of the lilierty of the people ; joins issue and takes the negative of that proposition." The i)rincipal facts alleged in the articles were proved by uncoutradictetl evidence, leaving the intention of the accused the main matter in doubt. His evidence consisted mostly of laymen on his circuit who had not thought his judicial manners oppressive, contumelious and insidting. His defense was able, but his language throughout the trial showed that his temper unfitted him for a judicial position. A majority, l)ut less than two-thirds, all of whom apparentlj' were Democrats, voted for his conviction on the principal articles. The minority was almost, if not quite entirely, composed of the members of the political party in oppo- sition, to which he apparently belonged ; and they attempted to prevent the pulilication by the State of the proceedings."" In 1872, Philander J^ucas, judge of the fifth judicial circuit iu Mis- Bouri, was impeached and tried before the State senate. The articles charged that he had certified to bills of costs in blank against a county in his circuit, allowing the clerk to fill them in; that he had certified to fraudulent charges in othc- bills of costs ; had with a reckless disre- gard of the public interests iiii'i for the purpose of assisting a friend, dismissed at the defendant's costs a prosecution for selling liquor with- out a license ; and had connived at and i)erinitted a practice Ity the circuit attorney of multiplying indictments against insolvents who were unable to pay the costs, and iu permitting and ordering attachmenta against witnesses whom lie knew to be present, for the purpose of niulti- plyiiig the attorney's fees. The respondent answered and defended. The articles were withdrawn at the conclusion of the evidence offered in their support.'"' CALIFORNIA. In 18,51, Stephen J. Field, afterwards a .Justice of the Supreme Court of the United States, and other members of the bar, presented to tlie ""* OffU-inl Report of the Trial of the Hon. Albert Jackson, JiuIko of tlie Fift-eonlh Juilioial Circuit, bcfuio the Senate, composing llio Ilifjh Couitof Iinpoiicliiiieiitof tlie Stntoof Jlisj-omi. Reported bv Thomas .T. HeiulerHon. Jefferson City : W. G. Cheoney, Public Printer, 1859; pp. 480. '»» omclal Report of tlio Trial of rhilaiider Lucas, Judge of the Fifth Judicial Circuit, before tlio Missouri Slate Senate, silting as a High Court of Iinpeachiiient, Juno, 1872. Jeffer- son City : Regan & Edwards, Public Printers, 1872 ; pp. 323. Al'l'.] CALIFORNIA. 711 ('iiliforiiia assembly charn;ps nj^ainst William R. Turner, jiulfje of the c'iv'lilli juclieiiil district of that State. The char<;es arose out of the ctJiiimitiTiont of Mr. Field for contempt of court to an iinprisoiiineut of f()rty-i'ij;iit hours nccompanicd by a fine of five luindred dollars, his disbiirtnent for protesting and takiii}; \viin\ proceedings to set aside this profci'ding ; and the similar treatment of two other members of the bar who assisted him in the matter. jNIr. Field was released by habeas corpus immediately after his arrest, but .Judge Turner had him arrested again, threatened with commitment the judge who granted the writ, and after the attorneys had been restored to the bar by a mandamus from a higher court, attempted to again disbar tliem. The matter was com- promised by tiie passage of a, law redividing the State into judicial dis- tricts and assigning Judge Turner to another part of the State. He subsequently re tigned to avoid an impeachment for habitual drunkenness and other charges."" 1 1 is experience in this matter undoubtedly aided iu impressing on the mind of the sufferer from judicial tyranny the public importance of the protection of the rights of the bar which he afterwards established by his own decisions on the bench."" In the same State, in 1857, Henry Hates, the State treasurer, was im- peached. The articles charged : a conspiracy with another to defraud the State, by which in violation of the statutes he deposited part of the State funds with private bankers, who allowed his confederate the use of the money, and he loaned another part directly to his confederate, who failed to repay the same to the State ; the loss of other funds of the State through negligence without an allegation of a corrupt intent; the pur- chase by himself and others with his connivance of State scrip and 107 ProceodiuKH of Iho Assi-nilily of the Slate of California. Si'imhuI Si's- Bion, 1851, on the pi-Ulion of cilizcus of Yuba nuil Nevada t'oiinlii's I'oi- the Impenchniontof Win. It. Tinner, . J iiilgo of tho Eighth .Iiidieial Di.sl liel of Cali- fornia. Jos. L. Pearson. I'rinlur, 187S. StateiniMit of tlio Controversy be- tween Judge William 11. Turner, of the Eighth Judicial Distiiet of Cali- fornia, and members of the Maryvillo Bar, and their Reply to his violent Attaeks upon them. Second edition, with an apiiondi.\. Doeunieiits in relation to charges preferred liy Stephen J. Field ami olliers, before tlie House of Assem- bly of the State of California, against Wni. R. Turner, District Judge of the Eighth Judieial Distriet of Cali- fornia. California, IH.Il. "Trut.i Is omnipotent, annry Clay. Sau Francisco: Wliitton, Towne & Co., printers. Ex- celsior Steam Presses, No. 151 Clay Street, throe doors below Montgomery. lH5(i. Pooi)lo V. Turner, 1 Cal., 113; s. c, 1 Cal., ir.2; Kxparli: Viola. 1 Cal., 187; People V. Turner, 1 Cal., 1H8 ; People w. Turner, 1 Cal., !)0. i'|» S(>o Ex parte Garland, i Wallace, 333 ; hit parte Bradley, 7 Wallace, 364 -^ Bradley v. Fisher, 13 Wallace, 335; Ex parte Robinson, 19 Wallace, 506. 712 STATE IMPEACHMENT TRIALS. [aI'P. warrnnts with the coin of the State; the substitution of controllci-'s wurnuits for roin paid him liy county treusuiers ; connivance at sinii- hir Biilistitiitions liy anotiicr olllccr; lioi rowing money on tlie cieilit of tiie Slate to conceal tiic (Iclicicncy in llie trcasiu'y ; and a failure to re- deem Stale lionds uh re(|uired liy hnv. Tlie resijondent plerided to tiie jurisdiction in an auHwer; wliicli alleged that his resii^nation had been accepted by the {jovernor, and that lie was no longer in olllce when the articles were adopted by the assembly, and also that two indictments had been found against him by a grand jury on the charges alleged iu the articles. The managers lllcrt a replication, which alleged that the respondent was treasurer of the State at the time of bis impeachment, and that if he had been indicted as alleged, the indictments were found after the articles had bei-n presented. To this, Kates filed a plea which claimed that the allegations in his answer which were not denied by the rei)lication were sullicient to show that the court had no jurisdiction and prayed judgment accordingly. The senate overruled the objections to the jurisdiction and ordered a further answer, which the respondent refused to nu\ke. He was thereupon convicted by default by a vote of thirty-two to one ; and was sentenced to perpetual disqualification from odice in a judgment which recited the fact that he had resigned after his impeachment.'™ In 1862, James II, Hardy, jndge of the sixteenth judicial district, was imiieaclied before and convicted liy the senate of the State of Cali- fornia. The articles charged him with a number of corrupt decisions for the benefit of his friends, no charge of bribery being made. The principal ones were alleged to have been made for the purpose of de- laying litigation, and thus enabling the defendants to compromise. He was abo charged with having advised counsel outSiide of court as to the couise which they should take, and the decisions which be expected to make; thus in one case misleading a counsel so far as to prevent him from tiling an argument against a motion for a new trial which the judge said jirivately to him would be denied, but afterwards granted. The most serious charge was his action when presiding over the trial of David 8. Terry, a former chief-justice of the State, for the murder of senator David C. Iboderiek in a duel. In that case, through the collu- sion of the district-attorney, a jury was impanelled between nii.3 and ten o'clock in the morning, at which hour the witnesses for the State had been 8ubp(enaed to appear. The witnesses were in a sail-boat and 1"' Ciilifornia Senate Journal, 8th Sess., 1837, j)|). 297-303, 407-410, 424, 425, 457, 463. Tlio aeeount of this case is taken from the notes of Mel- ville E. Ingalls, Jr., Esq., of the New Yoi'k bar, wlio courteously loaned them to the author. Air.] (■Al.llollMA. •13 were dPtiiiniMl liy a foijr, uh wiih ficncrilly luinwii lit the pliiofi of tri:)',. 'I'lio I'iirto WUK siiliinill.'d to till' jury in llic iiliscnce of the witnesses lor iLe State, and a verdict of not suilty allowed liefore ten o'l'lock tliiU niorninji. The witnesses arrived one or iwo hoiirs al'ti'rwards. One of tile jiiiynien iiad pn^vioiisly sut on imollier jury on llie trial of (ie(uye I'en .loliiisl< Onielal Report of the Proceed- Califoniiii, sitting as a HIkIi Court of ings, Tostimoii.v and Arguments, In Impeacluuent. Snimier .V Cutter Ofll- the Trial of .James H. Ilarily, Distriet eiiil Keportors. Saeramento: Benj. P. Judge of the SixteiMitli .luilieinl Dis- Anthony, State Printer, 1862. i)p. trict, before the Senate of the State of 712.