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 American Constitutions
 
 American Constitutions 
 
 THE RELATIONS OF THE IT-IREE DEPARTMENTS 
 AS ADJUSTED BY A CENTURY 
 
 READ BEFORE THE CHIT-CHAT CLUB OF SAN FRANCISl O 
 
 BY 
 
 HORACE DAVIS 
 
 
 , C » J » > » '» 
 
 SAN KUANCISCn 
 1S.S4
 
 "'f-, t • • 

 
 ^3 
 
 «8 AMERICAN CONSTITUTIONS. 
 
 o I. 
 
 All the nations sharing our form of civilization 
 make a three-fold division of the functions of eov- 
 ernment into legislative, executive and judicial de- 
 partments. On the proper separation and independ- 
 ence of these departments rest in great measure the 
 liberties of the people. The union of all these de- 
 partments under one authority constitutes a despot- 
 ^ ism ; while in different and independent hands they 
 o5 form checks upon each other against usurpation. 
 >r To adjust carefully the balance of these powers, to 
 2 define their fields of action, to bestow on each indc- 
 — ' pendence and a power of self-defence, is the supreme 
 < effort of modern crovernmental science. Our fathers 
 5 inherited from Great Britain the idea of this ihrcc- 
 fold division of government, and introduced it, al- 
 though imperfectly, in their early constitutions. 
 
 My object in this paper is to present a brief 
 historic sketch of the change in the relations of 
 these departments, which has been silently going 
 on in the United States for the past century. In 
 the State Governments, the numerous altt-rations 
 in their constitutions since 1790 have steatlil) en- 
 larged the powers of tlie Executive, and crampetl 
 
 3U2049
 
 4 AMERICAN CONSTITUTIONS. 
 
 and limited the functions of the Legislatures. But, 
 on the other hand, in the Federal Government, with- 
 out constitutional amendments in this particular, 
 Congress, with the natural aggressiveness of popular 
 bodies, has encroached somewhat upon the field of 
 Executive power; while everywhere, in both Na- 
 tional and State Governments, the Judiciary has 
 o-ained vastly in power and importance. And now 
 let us trace these changes, beginning Avith the State 
 Constitutions. 
 
 There have been substantially three distinct strata 
 of o-overnment in the thirteen old colonies, each 
 
 o 
 
 stratum quite marked in its character, though hav- 
 in^*- many things in common with the others — first; 
 the colonial governments ; second, the revolutionary 
 constitutions adopted during the War of Indepen- 
 dence; third, the modern forms of government. 
 During the first period, " the good old colony times 
 when we all lived under the King," nearly all the 
 colonies were ruled by Royal Governors, represent- 
 ing in miniature the dignity and power of his British 
 Majesty. The Governor appointed all the officers, 
 including the Judiciary; he had command of the land 
 and naval forces, and possessed an unqualified veto 
 on all legislation. The exceptions to this type will be 
 noted hereafter. In the second period, the people, 
 stung by the exactions of an irresponsible executive, 
 nervous with fear of one-man rule, rushed to the 
 other extreme, and resolved to place all real power 
 in tlie hands of the Legislature, springing directly 
 from the people. The balance was again disturbed, 
 the pendulum swung clear to the other end of the
 
 AMERICAN CONSTITUTIONS. 5 
 
 arc. The power of the Legislature in many States 
 was ahiiost as absolute as that of the British l^arlia 
 ment, without its conservative elements. Wise men 
 trembled for the permanence of the government, and 
 Madison and Jefferson have left us the record of 
 their fears But the calm judgment of the people 
 prevailed over their alarms. Slowly they rebuilt 
 their hae^ty work, re-adjusting and poising the great 
 structure. This has been the work of the thirtl 
 period, to balance the powers of the government; to 
 limit and define the functions of the three great de- 
 partments, and establish their independence within 
 proper boundaries, so that I believe our State Con- 
 stitutions are to-day as a whole the most perfect 
 frame-work of crovernment for men livini^ in a De- 
 mocracy, that himian skill has ever devised. Return- 
 ing to the first period, a brief notice is demanded of 
 
 The Colonial Governments. 
 
 In the first volume of Story's Commentaries on the 
 Constitution can be found a sketch of them ; Ban- 
 croft's United States gives fuller details. Story 
 divides them into three classes. 
 
 1st. Charter Governments, including Massachu 
 setts, Rhode Island and Connecticut. 
 
 2d. Proprietary Governments, to which belong 
 Pennyslvania, Delaware and Maryland. 
 
 3d. Provincial Governments, comprising the re- 
 maining seven colonies. 
 
 Each colony had a Legislature (elected 1)\- lUr 
 people; suffrage being usuall)- limited to the Irci:-
 
 6 AMERICAN CONSTITUTIONS. 
 
 holders. Pennsylvania and Georgia had only a 
 single legislative body, but the remaining eleven 
 colonies had each a higher branch, usually called the 
 Council, which was appointed by the Governor, ex- 
 cept in Massachusetts, Rhode Island and Connecticut, 
 where it was chosen, directly or indirectly, by the 
 people. The Governor was appointed by the Crown 
 or the Proprietaries, except in Rhode Island and 
 Connecticut. These two colonies enjoyed the excep- 
 tional privilege of choosing their own Executive. 
 Thus the Governors in eleven colonies were inde- 
 pendent of the people, while their powers were very 
 extensive. They were commanders-in-chief of the 
 armed forces by land and by sea; they appointed all 
 officers military and civil, including judges; they ap- 
 pointed the Council and could suspend it; they could 
 assemble or dissolve the Legislature ; they had an 
 unqualified veto on all laws, except in Pennsylvania; 
 and they all had the power of pardoning offences. 
 Besides these broad restrictions on popular govern- 
 ment, the Crown claimed the right to veto all laws 
 and to entertain appeals from the Courts of last resort 
 in the colonies. In Rhode Island and Connecticut, 
 however, under their peculiarly liberal institutions, 
 the Legislatures appointed all officers, civil and mili- 
 tary, and the Governors possessed no veto power; 
 while in these two colonies and Maryland, the laws 
 need not be approved by the Crown. 
 
 Such were the general outlines of the Colonial Gov- 
 ernments, at the outbreak of the War of the Revo- 
 lution. Although the Crown claimed great power, 
 the laws were administered in a manner so liberal
 
 AMERICAN CONSTITUTIONS. 7 
 
 and humane that the people were contented, and 
 there was, on the whole, but little complaint, till the 
 effort made by the British Parliament, under Cieorg^e 
 the Third, to tax the colonies. Then came the out 
 break of the storm of rebellion, and the union of the 
 colonies in a Continental Congress. I need noi follow 
 the political history of the period farther than as it 
 bears directl\- upon my subject. The Con^^ress in 
 the fall of 1775 advised the colonies of New [Hamp- 
 shire, South Carolina and Virginia to form govern- 
 ments adapted to the necessities of the times, and 
 on the loth of May, 1776, by motion of John Adams, 
 adopted a resolution that "Each one of the United 
 Colonies, where no government sufficient to the exi- 
 gencies of their affairs had as yet been established, 
 should adopt such government, as would, in the 
 opinion of the representatives of the people, best 
 conduce to the happiness and safety of their con- 
 stituents and of America." 
 
 In accordance with the spirit of these resolutions, 
 all the colonies placed their governments on a new 
 basis. Rhode Island simply declared her independ- 
 ence, and continued under the forms of her Charter 
 Government till 1842. Connecticut adopted a brief 
 bill of rights, and continued the old form of govern 
 ment till 18 18. The other eleven colonies, in the 
 course of a very few years, adopted new constitutions. 
 Some formed provisional instruments, which were 
 soon replaced by more permanent ones ; others re- 
 jected the work of their first conventions; but by 
 1784 the entire eleven had formulated their ideas of 
 republican institutions, and adopted them as the basis 
 of government.
 
 8 AMERICAN CONSTITUTIONS. 
 
 To these instruments I would call special atten- 
 tion. Crude, ill-digested and ill-balanced as they 
 seem to the historical student of to-day, they are, so 
 far as I know, the first successful efforts to form 
 republican governments upon written constitutions. 
 The conception of an instrument creating the gov- 
 ernment, and yet restraining it, giving it life and 
 power, and yet limiting and balancing those powers, 
 an instrument which even the people cannot over- 
 ride, except by prescribed forms, this conception was 
 first made a practical success in America and in these 
 constitutions. The British Constitution is an un- 
 written code of political customs sanctioned by time 
 and protected only by the conservatism of a priv- 
 ileged class, and the loyalty of the people. " Par- 
 liament," says Cooley, '' exercises sovereign authority, 
 and may even change the constitution at any time — 
 but in America the will of the people, as declared in 
 the constitution, is the final law which governs the 
 legislative body equally with the private citizen." I 
 have said these early constitutions are marked by 
 an undue preponderance of the Legislature, entirely 
 unsettling the balance of the government. As show- 
 ing how different were the estimates then held of the 
 functions of political machinery from the notions of 
 modern times, I may add, that while the simplest 
 constitutional amendment must to-day be submitted 
 to direct popular vote for ratification, most of those 
 early instruments were both framed and adopted by 
 the Legislatures, and where they were framed by 
 special conventions, they were, with one or two 
 exceptions, adopted finally by the same conventions,
 
 AMERICAN CONSTITUTIONS. 9 
 
 and it was not held necessary to submit ihem to 
 popular vote. 
 
 The same confusion prevailed regarding tiie Con- 
 federation of the States which was formetl about 
 this same time. That government, — if sucli it could 
 be called, — consisting as it did of a Congress solely, 
 having neither executive nor judiciary, — was never 
 submitted to the people of all the States, but was 
 ratified in many of them by the Legislatures alone, 
 a fact commented on by Madison in the Federalist, 
 No. 43, in these words: " A compact between inde- 
 pendent sovereigns, founded on acts of legislative 
 authority, can pretend to no higher validity than a 
 league or treaty between the parties;" — and Edmund 
 Randolph, in his opening speech before the Consti- 
 tutional Convention at Philadelphia, in 1787, said 
 very truly : " The Confederation was made in the 
 infancy of the science of constitutions."
 
 lO AMERICAN CONSTITUTIONS. 
 
 II. 
 
 Constitutions of the Revolutionary Period. 
 
 A brief summary of those provisions relating to 
 my subject may be found in Bancroft's United States, 
 Vol. IX, Ch. 1 5, and in \\\q. Federalist^ No. 46; the full 
 text may be found in the two volumes entitled '' Char- 
 ters and Constitutions," published by the United 
 States Government in 1879. No words of mine can 
 give their spirit so well as the pointed languacre of 
 Madison in the Convention of 1787. He said " Ex- 
 perience proves a tendency in our governments to 
 throw all power into the Legislative vortex. The 
 Executives of the States are little more than ci 
 phers; the Legislatures are omnipotent. If no 
 effectual check be devised on the encroachments of 
 the latter, a revolution will be inevitable." He 
 mig-ht have derived some consolation from the fact 
 that the States which had enjoyed the most liberty 
 as colonies preserved a somewhat juster balance of 
 powers in their constitutions, while the latest-framed 
 instruments showed a positive improvement on those 
 of earlier date, as if a healthier sentiment had already 
 begun to prevail. But let us examine the documents 
 themselves. 
 
 First notice the restrictions of the power of the 
 Executive and his dependence on the Legislature. In 
 nine out of thirteen States, the Governor was chosen
 
 AMERICAN COXSTITUTIONS. I 1 
 
 by the Legislature. Only in the four New Englanti 
 States was he elected by the people ; and his term 
 was the shortest possible, being- in ten States only 
 one year and nowhere over three years. To pro\idc 
 still furdier against the designs of a cunning Execu- 
 tive, the six Southern States restricted carefully his 
 re-election, providing that he might hold office not 
 more than two or three consecutive years, when he 
 should be ineligible for three or four years. To con- 
 trol his action even more, there was an Executive or 
 Privy Council in every colony, whose advice and con- 
 sent were required to all important acts. This coun- 
 cil was usually appointed by the Legislature, and 
 sometimes required to be from its own members. 
 
 In eleven States, the Governor had no veto what- 
 ever on legislation; in Massachusetts he had the 
 usual qualified veto; in New York he, together with 
 the Supreme Court, formed a Council of Revision, 
 which wielded a veto power. In the matter of par- 
 doning- offenses, in five States the Governor had the 
 pardoning power unrestricted ; in four States he could 
 only exercise it with the consent of the Council or 
 Legislature ; in Georgia the power belonged to the 
 Legislature alone. The appointing power is one of 
 the chief prerogatives of the Executive. In not one 
 of the States did the Executive wield such a power 
 singly. In Georgia all officers were elected by the 
 people. In three States they were chosen entirely 
 by the Legislature; in four States mainly by the 
 Legislature ; in some by the Governor antl Council ; 
 in New York by the Legislature through an Ap- 
 pointing Committee.
 
 12 AMERICAN CONSTITUTIONS. 
 
 '' The Legislature," says Bancroft, " was the centre 
 of the system. The Governor had no power to dis- 
 solve it, or either branch. In most of the States all 
 important civil and military officers were elected by 
 the Legislature. The scanty power intrusted to the 
 Governor, wherever his power was more than a 
 shadow, was still further restrained by an Executive 
 Council. Where the Governor had the nomination 
 of officers, they could be commissioned only by con- 
 sent of the Council." He might have added, that 
 the Governor himself was generally elected by the 
 Legislature ; that in many States the Legislature 
 could remove any officer; that in some States these 
 bodies held or shared the pardoning power ; and, 
 most singular of all, in five States they exercised ex- 
 tensive judicial powers, generally sitting as a Court 
 of last resort. 
 
 Warnings of the Revolutionary Statesmen. 
 
 And yet the statesmen of that day had a full un- 
 derstanding of these defects. Listen to Madison, in 
 the Federalist: "The accumulation of all powers — 
 Legislative, Executive and Judiciary — in the same 
 hands, whether of one, a few, or many, and whether 
 hereditary, self-appointed or elective, may justly be 
 pronounced the very definition of tyranny." After 
 comparing at length the provisions of these State 
 Constitutions, he says : " They carry strong marks 
 of the haste and still stronger of the inexperience 
 under which they were framed, and in some instances 
 the fundamental principle under consideration has
 
 AMERICAN CONSTITUTIONS. I ^^ 
 
 been violated by too great a mixture or even an 
 actual consolidation of the different powers," * * 
 :•: * ii Yhe Legislative Department is everywhere 
 extending the sphere of its activity, and drawing 
 all power into its impetuous vortex." "■' * * 
 " The founders of our Republics seem never to have 
 recollected the danger from Legislative usurpations, 
 which, by assembling all power in the same hands, 
 must lead to the same tyranny as is threatened by 
 Executive usurpations." * * * J^^^^^ 1^^ 
 quotes from Jefferson's notes on Virginia the follow- 
 ing passage relative to the same defects in the Vir- 
 ginia Constitution : " All the powers of govern- * 
 ment — Legislative, Executive and Judiciary — result 
 to the same Legislative body. The concentrating 
 these in the same hands is precisely the definition of 
 despotic government. It will be no alleviation that 
 these powers will be exercised by a plurality of 
 hands, and not by a single one. * '''• * An 
 elective despotism was not the government we 
 fought for, but one which should not only be founded 
 on free principles, but in which the powers of the 
 government should be so divided and balanced 
 among several bodies of magistracy as that no one 
 could transcend their legal limits without being ef- 
 fectually checked and restrained by the others." 
 
 I cannot better close this part of my subject than 
 by quoting the incisive words of Bancroft, speaking 
 of the spirit which permeated the Articles of Confed- 
 eration, formed at this very period. " The Confed- 
 eracy was formed under the iniluence of political 
 ideas which had been developed by a contest of
 
 14 AMERICAN CONSTITUTIONS. 
 
 centuries for individual and local liberties against an 
 irresponsible central authority. Now that power 
 passed to the people, new institutions were required, 
 strong- enough to protect the State, while they should 
 leave untouched the liberties of the individual. But 
 America, misled by what belonged to the past, took 
 for her organizing principle the principle of resist- 
 ance to power, which in all the thirteen colonies had 
 been hardened into stubbornness by a succession of 
 common jealousies and struggles." Of all these 
 instruments, the Massachusetts Constitution of 1780 
 was by far the best, maintaining the most just 
 balance of power between its departments ; and 
 this alone survives, though it has been materially 
 amended. The Federal Constitution, fortunately, 
 was not shaped till 1787, when the evils of these 
 one-sided governments had become evident, and 
 therefore it received more harmonious proportions. 
 
 In 105 years, from 1776 to 1880, inclusive, just 
 105 constitutions, counting in the Articles of Con- 
 federation and the Federal Constitution, had been 
 adopted by the people of these United States, an 
 average of one each year. Of these, 45 belong to the 
 eleven States in Rebellion, and this excessive propor- 
 tion is partly due to their unsettled condition at the 
 close of the civil war. Throwing out these States, the 
 average age of the defunct instruments was about 27 
 years. There are, however, eight States which have 
 each lived over half a century under one constitution ; 
 five New England States under their present forms, 
 Massachusetts 102 years, New Hampshire 90, Ver- 
 mont 89, Connecticut 64, and Maine 62 ; Rhode
 
 AMERICAN CONSTITUTIONS. I 5 
 
 Island from the issuing of her charter to 1842, New 
 Jersey 1776 to 1844, and Kentucky 1799 to 1850. 
 In the above fiorures I have taken no account of con- 
 stitutions formulated by conventions and rejected by 
 the people, nor of the innumerable amendments, some 
 very important, which have been adopted or rejected. 
 
 Massachusetts bears off the palm for conserva- 
 tism, living 102 years under one instrument; Kansas 
 for the most frequent changes, having four constitu- 
 tions in five years, from 1855 to 1859; some of which, 
 however, must be credited to border wars and squat- 
 ter sovereignty. Eight States are living under their 
 orio-inal constitutions. I orive them in order of ac^e : 
 Massachusetts 1780, Maine 1820, Rhode Island 
 1842, Wisconsin 1848, Oregon 1857, Minnesota 
 1857, Nevada 1864, and Colorado 1876. Four 
 States have each had five successive constitutions: 
 Georgia, South Carolina, Texas and Virginia. Lou- 
 isiana takes the prize for number, having adopted 
 her sixth constitution in 1879. These figures do 
 not include any changes that may have taken place 
 during the rebellion, under the Confederacy, from 
 1 86 1 to 1865. 
 
 Under the early revolutionary constitutions, the 
 Legislature soon began to invade the other powers 
 of the government. Madison said, in i 787 : " The 
 tendency of republican governments is lo aggrandize 
 the Legislature at the expense of the other depart- 
 ments." The nearer the peoj^le, the greater the 
 audacity of aggression. This tendency was noticed 
 very early ; its progress is marked in the federalist. 
 No. 47. as it manifested itself in New York and
 
 I 6 AMERICAN CONSTITUTIONS. 
 
 Pennsylvania. Soon a desire for its correction began 
 to be seen ; first conspicuously in the New York 
 Constitution of 1846. This modern spirit shows 
 itself by separating- the functions of the three depart- 
 ments and making each independent, so far as it can 
 be done; it is distinguished everywhere by a restric- 
 tion of the Legislature, an increase of Executive 
 power and by independence of both Governor and 
 Judges. I cannot consider each of these instru- 
 ments in detail, but will only point out their general 
 features ; and I should add that this review includes 
 the Louisiana Constitution ot 1868, but not that of 
 1879, of which I had no details.
 
 AMERICAN CONSTITUTIONS. 
 
 III. 
 
 Modern State Constitutions. 
 
 To-day the Governor is everywhere chosen by the 
 people directl)-, instead of throuorh the Lei^islatiire ; 
 his term has generally been much lengthened, the 
 old term of one year being retained only in four 
 New Enijland States, while in fifteen States it has 
 been lengthened to two years, in two States to three 
 years, and in seventeen States, including nearly all 
 the latest constitutions, to four years. At the same 
 time, the old restrictions on con.secutive terms and 
 re-election have been generally abrogated, being re- 
 tained in onl)^ eight States to-day. The veto power 
 has been restored, and at present in thirty-four States 
 the Governor has the usual qualified veto on legisla- 
 tion. In eight of these, however, the veto may be 
 overruled- by a bare majority of each house in the 
 Legislature. Four States — Delaware, North Caro- 
 lina, Ohio and Rhode Island — have absolute!}' no 
 veto. As the Legislature is apt to crowd much busi- 
 ness into the last days of its .sessions, twenty-one 
 States, to prevent crude and hasty legislation, allow 
 the Governor some time after the adjournment to 
 consider whether he will sign or veto a bill, and four- 
 teen States permit him to veto individual items in 
 an appropriation bill ; of this I will speak j)rcscntly 
 more at length. The Privy Council has been abol-
 
 I 8 AMERICAN CONSTITUTIONS. 
 
 ished in all but five States, and in these it is no longer 
 chosen by the Legislature, but by the people, and its 
 control over the Governor is much curtailed. 
 
 The appointincr of officers has been generally 
 taken from the Legislature. Most of the officers 
 arc chosen by the people ; where this is not the case, 
 they are usually appointed by the Governor and 
 confirmed by the Council or the upper house of the 
 Legislature. The pardoning power is now every- 
 where vested in the Governor, or the Governor act- 
 ing with the advice of either the Council or the 
 Courts — except in Connecticut, where the Legisla- 
 ture retains the power. In most of die States the 
 Legislature is forbidden to increase or decrease the 
 salary of the Governor during the period for which 
 he was elected. Such are the leading points in 
 which the power and independence of the Executive 
 Department has been restored. The Judiciary has 
 also been placed upon a new footing. The Legisla- 
 tures have been stripped of their judicial functions, 
 except in cases of impeachment, and the Judges, in- 
 stead of being elected by the Legislatures, are now, 
 with the exception of four States, chosen by the peo- 
 ple, or appointed by the Governor and confirmed by 
 the Council or Senate. The relations of the Judi- 
 ciary to the other great departments of government 
 will be more fully treated hereafter. 
 
 Limitations upon Legislation. 
 
 Not satisfied with this transfer of powers to the 
 other branches of the government, a general desire
 
 AMERICAN CONSTITUTIONS. 1 9 
 
 has grown up to curtail legislation, and a new system 
 of checks upon law-making has been devised, giving 
 rise to such provisions as the following: Biennial 
 sessions of the Legislatures have been substituted 
 for annual meetings in twenty-five constitutions, 
 includinof all the later ones. The leno-th of the ses- 
 sions has been shortened in half of the States, l)y 
 limiting the pay of the members to a specified 
 period, running in different States from 40 to 90 
 days, and experience shows that their zeal to serve 
 the country as legislators dies out with their pay. 
 Special legislation is forbidden by stri;igent pro- 
 visions in many States. In special sessions, the 
 Legislatures of many States are forbidden to con- 
 sider subjects not mentioned in the call for the 
 session. 
 
 To prevent hasty legislation, some States forbid 
 the introduction of any new bill (unless, perhaps, 
 by a two-thirds vote of each house) after a certain 
 period has elapsed from the beginning of the session, 
 which period ranges in different places from 25 to 
 60 days. In other cases, new bills cannot be in- 
 troduced within a certain number of days of the 
 period set for the adjournment. Some constitu- 
 tions provide that all bills and amendments must 
 be printed or published before they can be consitl- 
 ered by either house. All bills must be read three 
 times in each house, usually on different days. In 
 nineteen States, no bill can be passed without a 
 majority of the members elected to each house, ami 
 the yeas and nays must be recorded on the hnal 
 passage of every bill. Twenly-thn^e States jjro
 
 20 AMERICAN CONSTITUTIONS. 
 
 vide that no Act shall be revised or amended by 
 mere reference to its title, but the Act revised or 
 section amended shall be set forth and published at full 
 length. And, as already stated, where the Governor 
 holds the veto power, he may usually have a certain 
 number of days to consider the bill even if the Legis- 
 lature should adjourn in the meantime. 
 
 Perhaps the most fruitful source of vicious legisla- 
 tion is found in " log-rolling," — that is, combining 
 two or more subjects in one bill, — or in '"riders" 
 upon appropriation bills, — that is, in grafting gen- 
 eral or special legislation upon some bill containing 
 the general appropriations for the support of the 
 government, — or in combining appropriations for 
 special purposes with the general appropriations. — 
 or in hurrying through some vicious measure under 
 a specious or false title. All these, except the last, 
 are direct assaults upon the independence of the 
 Executive, compelling him to give his assent to 
 objectionable measures, or in vetoing them to veto 
 measures of public necessity. The question of 
 " riders " upon appropriation bills will be more fully 
 considered in connection with the Federal Govern- 
 ment. To prevent these evils has been the object 
 of many constitutional provisions, and the practice 
 has been broken up in most of the States by clauses 
 providing that no bill shall contain more than one 
 subject, which shall be clearly expressed in the title, 
 or forbidding the insertion of private appropriations 
 in the general appropriation bills ; while in fourteen 
 States, as already remarked, the Governor has power 
 to veto any single item in an appropriation bill.
 
 AMERICAN CONSTITUTIONS. 21 
 
 Besides all the checks on unwholesome lecisla- 
 tion which I have mentioned, there are man)- others 
 much in vogue with modern constitution-makers, 
 such as the following: It is quite customary to for- 
 bid the incurring of any indebtedness by the State; 
 to forbid any loan of its credit ; to forbid any increase 
 or diminution of the pay of members of the Legis- 
 lature during their term of office (the same provision 
 is common regarding other officers of the State) ; 
 no money shall be drawn from the treasury except 
 by appropriation bills ; legislators shall not be ap- 
 pointed to any office created by them ; the order of 
 the payment of the appropriations is often pre- 
 scribed ; no continuing appropriation shall be 
 made for over two years; no extra compensation 
 shall be allowed to officers durincr their term of 
 office ; no term of office of any individual shall be 
 extended ; no legislator shall be interested in any 
 contract with the State ; no person holding any 
 lucrative office under the State or United States 
 shall sit in the Legislature ; no bill shall be amended 
 so as to cliange its purpose; no money shall be given 
 from the State Treasury to any institution of a 
 sectarian character; no special privileges shall be 
 granted to any corporation; and lastly, the Judges of 
 the Supreme Court are sometimes associated with 
 the upper house in the trial of impeachments. All 
 these provisions, and other similar ones much in use, 
 are checks upon the power of the Legislature, and 
 would have been thouijht stranire and unnatural 
 restrictions a hundred )'ears ago. Indeed, this 
 desire to control and limit the government is shown
 
 2 2 ' AMERICAN CONSTITUTIONS. 
 
 throuo-hoLit the o-eneral character of these new con- 
 stitutions. It extends in some respects, though in a 
 hmited degree, to the powers of the Executive and 
 Judiciary, and it forms a striking contrast to the 
 generous confidence which the people placed in their 
 officers a century ago, and the liberal powers 
 entrusted to them. The early instruments were 
 usually very short, being often simply a bill of rights, 
 followed by a mere skeleton of the government. 
 Those of to-day are lengthy documents, full of 
 detail, frequently more like a code of laws than a 
 fundamental instrument. The officers of the State 
 are limited and cramped in their action in every 
 direction. Two of the most remarkable for their 
 length are the constitutions adopted by Maryland in 
 1867, and by California in 1879. 
 
 The Southern Confederacy. 
 
 The Constitution framed by the Southern Con- 
 federacy in 1 86 1, gives a curious confirmation of 
 the change in the ideas of our people regarding the 
 relations of the Executive and Legislative branches of 
 government. It follows very closely the Constitu- 
 tion of the United States, but with the following 
 differences, among others: The heads of the depart- 
 ments have seats on the floor of each House of 
 Congress. The President may veto items in an 
 appropriation bill. Congress shall appropriate no 
 money, except by a two-thirds vote of both houses, 
 taken by yeas and nays, unless the appropriation is 
 asked for by the head of some department of the
 
 AMERICAN CONSTITUTIONS. 23 
 
 government, or is to pay its own expenses or some 
 judicial award against the government. No bill shall 
 comprise more than one subject, and that shall be 
 fully expressed in its title. The term of office of the 
 Executive shall be six years, and he shall not be 
 re-eligible. The heads of departments may be re- 
 moved by the President; other officers removable 
 only for good cause, to be expressed in a report to 
 Congress. 
 
 Thus we see that in the State Constitutions there 
 has been a steady drift of popular opinion towards 
 limiting the powers of the Legislature, and, as a rule, 
 towards increasing those of the Executive. l^his 
 has arisen partly from the need of a better balance 
 between the departments, and partly from a wish to 
 check crude and unwholesome legislation. It is 
 observable, that on the whole this drift is strongest 
 in the newer communities, while the older States, 
 especially those whose people are better educated, 
 and where a more active public spirit prevails, have 
 made fewer changes.
 
 24 AMERICAN CONSTITUTTONS. 
 
 IV. 
 
 The Federal Government. 
 
 Without further discussing the State Governments 
 let us pass at once to the Federal Constitution. 
 Nothing can be more instructive than to pause a 
 moment at the threshold and trace some of the hesi- 
 tating steps by which the fathers reached this admir- 
 able form of government, and in the beginning let 
 me acknowledge my debt to Bancroft's History of 
 the Constitution, which has been my sure guide. 
 The Confederation, that " rope of sand," was rapid- 
 ly crumbling away. It was at best a Congress only, 
 without Executive or Judiciary, hardly more than a 
 league of independent States against Great Britain. 
 Its feeble vitality ended when the pressure of war 
 was removed. The memory of the galling exactions 
 of King and Parliament had made the States afraid 
 to trust even the servants of their own choosing, and 
 the impotent Congress became the laughing stock of 
 the nations of Europe. " America," in the words of 
 her great historian, " carried with her in her progress 
 the urn which held the ashes of the dead past, but 
 she had also hope and creative power." 
 
 The wise men of the day met at Philadelphia in 
 1787, to devise a plan for a more stable government. 
 We can consider only those features of the conven- 
 tion which related to the balance of powers within
 
 AMERICAN CONSTITUTIONS. 25 
 
 the proposed government. The question met them 
 on the threshold, how should the Executive be 
 chosen and of how many should it consist ? Vir- 
 ginia proposed that it should be chosen by Congress, 
 leaving the number undetermined. New Jersey pre- 
 ferred a plural Executive, to.be chosen and remov- 
 able by Congress. Williamson of North Carolina 
 proposed a triple Executive, to be chosen from the 
 Northern, Middle and Southern States. Hamilton 
 wanted a single President, chosen by electors, to 
 hold during good behavior ; others preferred a direct 
 choice by the people. At last, after weary discus- 
 sions, the convention voted — seven States to three — 
 that the Executive power should be in one man, and 
 afterwards determined that he should be chosen by 
 Congress. A little later they reconsidered the mode 
 of election, and declared in favor of an electoral sys- 
 tem something like the present one ; then they 
 placed the choice again in the hands of Congress, and 
 at last they settled down as a finality upon the pres- 
 ent system. See how narrowly we escaped having 
 the President chosen by Congress, and yet Madison 
 said in the convention it was so essential to keep the 
 three departments independent of each other, he 
 thought "a tenure of good behavior for the Execu- 
 tive a less evil than its dependence on the National 
 Legislature for re-election," and others spoke in the 
 same vein. 
 
 A strong effort was made to engraft a Privy Coun- 
 cil, to be chosen by Congress, on the Constitution, 
 which should share to some extent the duties and 
 responsibilities of the Executive, es[)ecially relating
 
 26 AMERICAN CONSTITUTIONS. 
 
 to the confirmation of appointments and ratification 
 of treaties. This effort to Hmit the power of the 
 President failed to pass the convention, and its failure 
 compelled the substitution of the Senate in the per- 
 formance of some of its functions; thus at the last 
 moment the convention invested the Senate with the 
 power to confirm appointments and ratify treaties 
 made by the Executive. "Wilson of Pennsylvania 
 was most apprehensive that the Legislature, by swal- 
 lowing up all the other powers, would lead to a disso- 
 lution of the government; no adequate self-defensive 
 power having been granted either to the Executive 
 or Judicial departments." He foreshadowed the 
 power of the Senate in these prophetic words: " The 
 President will not be the man of the people, but 
 the minion of the Senate. He cannot even appoint 
 a tide-waiter without it." Wilson's fear was well 
 founded, so far as the appointments were concerned ; 
 but it certainly would not have been prudent to leave 
 this tremendous power uncontrolled in the hands of 
 one man. 
 
 The Opposition to a Strong Judiciary. 
 
 This sketch of the sentiments of the convention 
 regarding the relative powers to be entrusted to the 
 various departments would not be complete without 
 a brief notice of their action concerning the Judiciary. 
 A strong opposition was manifested to entrusting 
 the Federal Judiciary with those ample powers neces- 
 sary for a stable government. It came from two 
 sources. The Confederation had had no Judiciary;
 
 AMERICAX CONSTITUTIONS. 2'] 
 
 and the friends of the State governments were very 
 unwilling to give the Federal Courts power to declare 
 a State statute in conflict with the Federal Constitu- 
 tion; while the advocates of legislative power main- 
 tained that it was dangerous to allow the Judges to 
 over-ride a statute enacted by Congress. It was said 
 by Mercer, of Maryland: "I disapprove the doctrine 
 that the Judges, as expositors of the Constitution, 
 have authority to declare a law void. Laws ought to 
 be well and cautiously made, and then be uncontroll- 
 able." This would have been virtually giving Con- 
 gress the sovereign control possessed by the English 
 Parliament, and illustrates well how little some of 
 these men yet understood the full meaning of the new 
 American doctrine of an instrument controlling and 
 limiting the very government established under it. 
 Fortunately there were wiser men, who thought with 
 Hamilton: "The Courts of Justice should be the 
 bulwarks of a limited constitution against legislative 
 encroachments." The good sense of the Convention 
 brushed aside these jealousies and gave the Judiciary 
 the ample powers it now possesses. Of the growth 
 of these powers by judicial construction I will speak 
 presently. Another influence, supported by such 
 men as Madison, Wilson and Morris, would have 
 combined the Judges of the Supreme Court with the 
 President in the exercise of the veto power, after the 
 model of the Council of Revision in New York, un- 
 mindful of the danger of mingling the powers of the 
 different departments. This, too, was haj^pily over- 
 ruled in the convention.
 
 2 8 AMERICAN CONSTITUTIONS. 
 
 I hcive sketched these discussions in the conven- 
 tion to show the difficulties that surrounded the 
 framers of the Constitution, even on points that seem 
 to us perfecdy clear. But the wisdom drawn from 
 ten years' experience with the Revolutionary State 
 Constitutions and the Confederation, shed a flood of 
 lio-ht on their work. The structure they raised, that 
 model of balanced powers, has outlived a century of 
 political convulsions, and yet stands alone in its just 
 proportions and harmonious outline. "As the Brit- 
 ish Constitution," said Gladstone, "is the most sub- 
 tile organism which has proceeded from progressive 
 history, so the American Constitution is the most 
 wonderful work ever struck off at a given time by 
 the brain and purpose of man." Be it remembered, 
 to the honor of the Southern States, that they were 
 in a majority throughout the entire convention. 
 
 Balance of Powers in Federal Government. 
 
 Notice the care with which the powers of the dif- 
 ferent branches are balanced and guarded in this 
 wonderful instrument. First, the power of Congress 
 is limited, by its division into two houses. Of this 
 division Judge Story says: "It is of vital importance 
 to interpose some check against the undue exercise 
 of the legislative power which in every government 
 is the predominating and almost irresistible power. 
 * * * A second branch of the Legislative Assem- 
 bly doubles the security to the people by requiring 
 the concurrence of two distinct bodies in schemes of 
 usurpation and perfidy." This principle is carried
 
 AMERICAN CONSTITUTIONS. 29 
 
 into the impeachment of the Executive; after the 
 model of the British Parhament, he must be im- 
 peached by the lower, but tried by the upper house. 
 Improper legislation on the part of Congress can be 
 checked by the veto of the Executive, but this again 
 can be overruled by two-thirds of each house; of 
 which Judge Story remarks: "There is a natural 
 tendency in the Legislative Department to intrude 
 upon the rights and absorb the powers of the other 
 departments of government. A mere parchment 
 delineation of the boundaries of each is wholly insuf- 
 ficient for the protection of the weaker branch, as the 
 Executive unquestionably is, and hence there arises 
 a constitutional necessity of arming it with powers 
 for its own defense. If the Executive did not 
 possess this qualified negative he would be gradually 
 stripped of all his authority, and become what it is 
 well known the Governors of some States are, a mere 
 pageant and shadow of magistracy." 
 
 Another provision to secure the independence of 
 the Executive is that forbidding an increase or dim- 
 inution of the President's salary during the term for 
 which he is elected ; while the Judges of the Su- 
 preme Court are protected by a similar provision for- 
 bidding the diminution of their salaries. In case ot 
 removal, death, resignation or inability of the Presi- 
 dent, a Vice President chosen by the people assumes 
 the Executive power, and not until a similar disaster 
 befalls the Vice President has Congress any power 
 to designate a successor. No Senator or Represen- 
 tative shall l)e appointed a Presidential Elector. No 
 person holding any office under the United Stales
 
 30 AMERICAN CONSTITUTIONS. 
 
 shall be a member of either house during his con- 
 tinuance in office. Under this clause no member of 
 either house can be a Cabinet officer while holding 
 his seat in Congress. On the other hand the rights 
 of Congress are as carefully guarded from invasion 
 by the Executive. The control of the public purse 
 is confided exclusively to them. "No money shall 
 be drawn from the Treasury but in consequence 
 of appropriations made by law.' 
 
 The President has no power to dissolve or ad- 
 journ Congress, except in case of disagreement be- 
 tween the two Houses. Under the Colonial Gov- 
 ernments it had been held a great grievance, so great 
 as to be mentioned in the Declaration of Independ- 
 ence, that the King had repeatedly dissolved the 
 Colonial Legislatures and refused to re-assemble 
 them, thus depriving the people of representation. 
 The Constitution provides that "the Congress shall 
 assemble at least once every year, and such meeting 
 shall be on the first Monday in December, unless 
 they shall by law appoint a different day." The 
 value to Congress of this independence was shown 
 during Johnson's administration, when Congress, be- 
 ing at war with the President, remained continu- 
 ously in session for two years, with occasional re- 
 cesses of one to four months. The appointing of 
 all leading officers is vested in the President with 
 the consent of the Senate. The appointment of in- 
 ferior officers may by law be vested in the President, 
 the Courts of Law, or the Heads of the Depart- 
 ments. The confirmation of the leading officers by
 
 AMERICAN CONSTITUTIONS. 3^ 
 
 the Senate is the only power Congress has over ap- 
 pointments. 
 
 Such great care was taken to separate the func- 
 tions of the President and Congress. But though 
 the Executive was intrenched behind much stronger 
 powers than those granted by the early State Con- 
 stitutions, it has been unable to prevent some en- 
 croachments by the Legislature upon its functions. 
 In the above enumeration I have not mentioned the 
 awkward provision for the election of a President by 
 the House voting by States, where no candidate has 
 a majority of the Electors, because it only provides 
 for a rare emergency, and is not likely to exercise 
 any permanent influence on the relations of the two 
 departments ; moreover the House can only choose 
 from the five highest candidates already voted for by 
 the Electors. The authority assumed of late years 
 by Congress to canvass the Electoral vote is a far 
 more dangerous power. 
 
 Encroachments of Congress. 
 
 Smythe, in his Lectures on Modern History, writ- 
 ten in 1811, from an English standpoint, says: "It 
 there results to America a grand calamity and failure 
 of the whole, it can only accrue from the friends of 
 liberty not venturing to render the Executive power 
 sufficiendy effective — the common mistake of all 
 popular governments." Wherever the limits of ihc 
 President's power and that of Congress overlapi)ed 
 one another. Congress has usually tried to occupy 
 the debateable ground. I shall notic(' but three
 
 32 AMERICAN CONSTITUTIONS. 
 
 points of conflict; first, the treaty-making power; 
 second, coercive legislation, or, to use the ordinary 
 term, "political riders" on appropriation bills, and 
 third, the power of appointing and removing officers. 
 The treaty-making power is vested by the Consti- 
 tution in the President and the Senate, in these 
 terms, "He [the President] shall have power, by 
 and with the advice and consent of the Senate, to 
 make treaties, provided two-thirds of the Senators 
 present concur." In the face of this provision. Con- 
 gress has assumed the power by the form of an ordi- 
 nary statute to abrogate treaties, as was done in 1 798, 
 when our treaty relations with France were termi- 
 nated by statute, and to abrogate portions of treaties 
 so far as they relate to internal domestic matters. 
 This action was sustained by Judge Curtis, in Tay- 
 lor V. Morton, 2 Curtis, 454, which established this 
 point, that an Act of Congress may supersede a 
 prior treaty, so far as it is a municipal law, provided 
 the subject matter is within the legislative power of 
 Congress. This position has been repeatedly sus- 
 tained by the Courts. But further, the House of 
 Representatives claims the right to pass upon all 
 treaties affecting the revenue, by virtue of that clause 
 in the Constitution giving the House the right to 
 originate all bills for raising revenue. In acknowl- 
 edgement of this claim the terms of the Hawaiian 
 Reciprocity Treaty provided that it should not go 
 into effect until the passage of an Act by Congress 
 to carry it into effect. The Act was passed and 
 approved August 15th, 1876, and the convention 
 proclaimed September 9th.
 
 american constitutions. 33 
 
 Political Riders. 
 
 The expedient of "tacking," as it is called in 
 England — that is, of legislating on appropriation 
 bills — first appeared in the American Congress about 
 1846. Nine years later, in 1855, it was first tried 
 as a means of compelling legislation. There was a 
 difference between the Senate and the House on the 
 tariff question; the House put a tariff clause on the 
 Civil and Diplomatic Appropriation bill. The Senate 
 promptly protested against it as improper legislation 
 and rejected it, in which the House concurred, and 
 the bill was passed without the rider. In 1856 
 a similar attempt was made, and met the same 
 fate. So far, it will be observed, the "political rider" 
 only appeared as a weapon in a contest between the 
 two Houses of Congress. From 1865 to 1869 took 
 place the great struggle between Congress and Pres- 
 ident Johnson. During this, in 1867, the famous 
 bill, virtually depriving the President of the command 
 of the army, and placing its management in the hands 
 of General Grant, was passed as a rider upon the 
 Army Appropriation Ijill. Johnson protested, but 
 signed the bill ; a veto would have been useless, as 
 his opponents had over two-thirds of both Houses, 
 and would have passed the bill over his veto. From 
 this time forward the practice of legislating on ap[)ro- 
 priation bills became more and more common, mainly 
 as a matter of convenience. The number of bills intro- 
 duced into Congress is so large, sometimes reaching 
 8000 or 10,000, that it is almost impossible to obtain 
 a hearing for any measure. Ihit the appr()[jrialioM
 
 34 AMERICAN CONSTITUTIONS. 
 
 bills ??zzis^ be passed, and It has become very common 
 to place on them provisions enacting necessary laws 
 which otherwise could not be reached on the calendar. 
 Judge Reagan, of Texas, said in the House of Rep- 
 resentatives, that between 1862 and 1875, 387 meas- 
 ures of general legislation had been passed as pro- 
 visos upon appropriation bills. Ten years ago the 
 practice had become so objectionable that General 
 Grant, in his Message, December i, 1873, advised an 
 amendment of the Constitution which would prevent 
 it, and this recommendation was recently renewed 
 by President Arthur, in his Message of December 
 5, 1882. The House of Representatives also recog- 
 nized the faulty nature of the practice, and amended 
 its Rules so as to forbid legislation on appropriation 
 bills, except when it is germane to the subject of the 
 bill and in the interest of economy. 
 
 President Hayes and Congress. 
 
 The practice continued, however, in a modified 
 form, and when in the 46th Congress the dominant 
 party in both houses wanted to compel the assent of 
 President Hayes to certain political legislation, they 
 had recourse to this expedient, and tacked the obnox- 
 ious measures upon the bills appropriating money for 
 the support of the army and for the payment of 
 United States Marshals. A struggle ensued be- 
 tween the two parties in Congress lasting three 
 months, which will be famous in history as defining 
 one of the great landmarks of the government. The 
 bills at last passed both Houses with the riders, and
 
 AMERICAN CONSTITUTIONS. 35 
 
 were vetoed by President Hayes. After seven suc- 
 cessive vetoes, five of which were upon appropria- 
 tion bills with riders attached, and two upon the 
 riders detached from the appropriations, the two 
 Houses gave up the struggle and passed the bills 
 without the riders. 
 
 The veto message of April 30, 1879, on the Army 
 Bill, discusses the question at length. I quote a few 
 passages from it: "The practice of tacking to appro- 
 priation bills measures not pertinent to such bills, 
 did not prevail until more than forty years after the 
 adoption of the Constitution. It has become a 
 common practice. All parties when in power have 
 adopted it. Many abuses and great waste of public 
 money have in this way crept into appropriation bills. 
 The public opinion of the country is against it. The 
 States which have recently adopted constitutions 
 have generally provided a remedy for the evil by 
 enacting that no law shall contain more than one 
 subject, which shall be plainly expressed in its title. 
 The constitutions of more than half the States contain 
 substantially this provision." =* * * " The prin- 
 ciple [maintained by Congress] is that the House of 
 Representatives has the sole right to originate bills 
 for raising revenue, and therefore has the right to 
 withhold appropriations upon which the existence of 
 the government may depend, unKtss the Senate and 
 the President shall give their assent to any legisla- 
 tion which the House may see fit to attach to appro- 
 priation bills. To establish this principle is to make 
 a radical, dangerous and unconstitutional change in 
 the chareicter of our institutions." * * *• "'|"hc
 
 36* AMERICAN CONSTITUTIONS. 
 
 new doctrine, if maintained, will result in a consolida- 
 tion of unchecked and despotic power in the House 
 of Representatives. A bare majority of the House 
 will become the Government. The Executive will 
 no longer be what the framers of the Constitution 
 intended, an equal and independent branch of the 
 Government." * * * "The House alone will be 
 the judge of what constitutes a grievance and also of 
 the means and measure of redress." * * * "Be- 
 lieving this bill is a dangerous violation of the spirit 
 and meaning of the Constitution, I am compelled to 
 return it to the House in which it originated without 
 my approval." 
 
 There was a vast difference between the position 
 of President Hayes and that of President Johnson. 
 In 1867 the dominant party in Congress had the 
 requisite strength to pass the bill over a veto ; while 
 in 1879 they had only a bare majority in each House, 
 and could only control the Executive by threatening 
 to refuse the supplies necessary for the maintenance 
 of the Government, or, as it was tersely put by Gen- 
 eral Garfield, they threatened to "starve the Gov- 
 ernment," unless their demands were complied with. 
 It was an entirely new line of attack upon the 
 Executive, and having met with absolute defeat, it 
 is not likely to be renewed by either political party 
 in our day. 
 
 Appointment and Removal of Officers. 
 
 But the most direct assault on the power of the 
 President is the Senate's encroachment on his power
 
 AMERICAN CONSTITUTIONS. 37 
 
 of appointment and remov^al. The terms of the ap- 
 pointing power are distinctly stated in the Constitu- 
 tion, but nothing is said of removals. The question 
 came up in 1 789, under Washington's administra- 
 tion, whether Cabinet officers appointed by the Pres- 
 ident with the consent of the Senate could be re- 
 moved by the President alone, or whether their re- 
 moval should require the consent of the Senate. 
 Congress, influenced perhaps by the exalted charac- 
 ter of Washington, passed the bill allowing the Pres- 
 ident the power of removal in these cases. This 
 action was opposed by many of the wisest men of 
 that day ; a powerful minority resisted it in the 
 House, and it passed the Senate only by the casting 
 vote of the Vice President. Of course it carried 
 with it the acknowledgment of the principle, that 
 the power of removing officers lay in the Executive, 
 though I do not suppose that any man then imagined 
 the terrible abuse which would inside of half a cen- 
 tury follow the use of that power. The action of 
 Congress in this matter is spoken of by Story as 
 " the most extraordinary case in the history of the 
 government, of a power conferred by implication on 
 the Executive by the assent of a bare majority of 
 Congress, which has not been questioned on many 
 other occasions." Very soon, however, after the 
 publication of this opinion, this "legislative con- 
 struction," as it was called, of a constitutional pro- 
 vision, became the subject of a very spirited debate 
 in Congress during Jackson's first term of office:. 
 Story's Commentaries on the Constitution contain an 
 interesting discussion of the original debate in Con-
 
 38 AMERICAN CONSTITUTIONS. 
 
 gress in 1789, while a careful review of the Presi- 
 dent's side of the question may be found in John- 
 son's Message, March 2, 1867, vetoing the Tenure 
 of Office Act. 
 
 To THE Victors Belong the Spoils. 
 
 No marked result followed from this policy adopted 
 in 1789, till Jackson became President in 1829, when, 
 as is well known, a general removal of civil officers 
 took place for the first time. This created a great 
 outcry and much bitter feeling. A very able debate 
 on the President's course took place in the Senate, in 
 which the Whigs censured him for exceeding his 
 rightful powers ; no further action, however, ensued, as 
 the House of Representatives was friendly to Jackson. 
 But from this time forward a change came over the 
 policy of the Government in these matters. "To the 
 victors belong the spoils," was recognized as the gov- 
 erning motive of each party when in power. Each 
 President in turn, on taking his seat, removed his ene- 
 mies from public office and appointed his friends. At 
 last there came a time in 1S67, when the opposition 
 to the President was strong enough in Congress to 
 control his policy, and over-ride his vetoes, for the first 
 time in the history of the country; and under John- 
 son, the Tenure of Office Act was passed, which re- 
 versed the precedent, and forbade the displacement 
 of an officer appointed with the consent of the Senate, 
 unless removed by a similar formality. President 
 Johnson vetoed the bill, but it was passed over his 
 head, and, in a modified form, it is the law to-day.
 
 AMERICAN CONSTITUTIONS. 39 
 
 On the accession of General Grant to the Presidency, 
 the law was amended, but the Senate have never 
 parted with the power. Thus the power of removal, 
 without the consent of the Senate, was taken from the 
 Executive. 
 
 But great as this loss was to the President, he has 
 sustained a still greater one in the virtual depriyal of 
 the power of appointment. Already in the days of 
 Jackson, the party leaders in the Senate began to 
 claim the appointment of their supporters to public 
 office, and this practice was steadily gaining ground 
 with each Administration. The contest with Presi- 
 dent Johnson expanded the power and the ambition 
 of the Senate still more, and the Senators now de- 
 manded, as the price of their support of the Ad- 
 ministration, that the more important Federal ap- 
 pointments in their respective States should be made 
 from their adherents. The Executive was obliged 
 to yield — even Grant could not resist — and so the 
 modern "boss" was established. To-day the Sena- 
 torial "boss" controls the large majority of Presiden- 
 tial appointments, in unquestionable violation of the 
 intent of the Constitution. 
 
 There is a curious triOe in the matter of social 
 etiquette at Washington, which marks the rising tide 
 of Senatorial dignity at the time we have been speak- 
 ing of. In Washington society, as is well known, 
 social precedence follows strictly the order of political 
 rank; before Johnson's time, the Cabinet officers 
 out-ranked the Senators; but, under Grant, the Sena- 
 torial dignity claimed a place at the dinner table 
 above the Secretary, and the- claim was recognized.
 
 40 AMERICAN CONSTITUTIONS. 
 
 This seems laughable, but the demand was backed 
 by real power. 
 
 This vicious and unconstitutional practice of dic- 
 tating Executive appointments has grown, until now 
 the "courtesy of the Senate," so called, that is, the 
 tacit agreement with each other to divide the spoils, 
 often over-rides all considerations of individual fit- 
 ness or of public interest. The climax was reached, 
 when two United States Senators resigned their 
 seats, because they could not have their share of the 
 patronage. The world moves on, and there is a high- 
 water-mark for every iniquity. The Dred Scott 
 case marked the full swell of the tide of the power 
 of slavery ; the veto of the Army bill in 1879 sounded 
 the decline of "political riders." The resignation of 
 the New York Senators was the dawn of a new era 
 without "bosses." It brings the hope of something 
 better than a restoration of the power of removal to 
 the Executive. We want no more Jacksons; the 
 concentration of all this power in one man would be 
 more dangerous than in a Senate of 76 members; 
 but we look forward for that better time when there 
 shall be no appointment except for fitness, and no 
 removal but for just cause. 
 
 Jackson's Extraordinary Claims. 
 
 / 
 
 In reviewing the political history of the country, 
 we find that while Congress and the Executive have 
 often been at variance, they have three times openly 
 joined battle on the extent of their prerogatives. 
 The first fight was between Jackson and the Whigs
 
 AMERICAN CONSTITUTIONS. 4^ 
 
 in 1834, the second between Johnson and the Repub- 
 Hcans in 1867. and the third between Hayes and the 
 Democrats in 1879. I have already referred to 
 Jackson's wholesale decapitation of the Federal offi- 
 cials, upon his accession to the Presidency, and the 
 indignation expressed by his opponents at this new 
 departure in political w^arfare. Towards the end of 
 his first term, he became involved in a war with the 
 United States Bank, and vetoed the bill extending 
 its charter, alleging among other objections, that the 
 charter was unconstitutional, although the Supreme 
 Court had sustained the original Act. In his veto 
 message occurs this remarkable passage: "If the 
 opinion of the Supreme Court covered the whole 
 ground of this Act, it ought not to control the co-or- 
 dinate authorities of this Government. The Con- 
 gress, the Executive, and the Court, must each for 
 itself, be guided by its own opinion of the Constitu- 
 tion. Each public officer who takes an oath to sup- 
 port the Constitution, swears that he will support it 
 as he understands it, and not as it is understood by 
 others. It is as much the duty of the House of 
 Representatives, of the Senate, and of the President, 
 to decide upon the constitutionality of any bill or 
 resolution which may be presented to them for passage 
 or approval, as it is of the Supreme Judges, when it 
 may be brought before them for judicial decision. 
 The opinion of the Judges has no more authority 
 over Congress than the opinion of Congress has over 
 the Judges, and on that point the President is inde- 
 pendent of both. The authority of the Supreme 
 Court must not, therefore, be permiiled to coiilrol
 
 42 AMERICAN CONSTITUTIONS. 
 
 Congress or the Executive, when acting in their 
 legislative capacities, but to have only such influence 
 as the force of their reasoning may deserve." 
 
 Jackson was an exceedingly positive, self-willed, 
 arbitrary man, of remarkable tenacity of purpose. 
 He was dear to the people as the hero of New Or- 
 leans, and was universally respected as a man of 
 sturdy honesty, integrity of purpose and inflexible 
 patriotism. His fight with the bank increased his 
 popularity, for it made him the champion of the poor 
 as against the rich, of the laboring classes as against 
 the moneyed interests, and shortly after the veto, he 
 was re-elected President. Jackson's re-election should 
 not be regarded as a verdict by the people in favor 
 of the spoils system, or of his despotic assumption of 
 power, but as an expression of their love for him as 
 a soldier, and their prejudice against what they con- 
 ceived to be the moneyed rule as represented by the 
 Whigs. Emboldened by his re-election, he deter- 
 mined to remove the Government deposits from the 
 United States Bank, although Congress had declared 
 in favor of their retention there. Duane, the Secre- 
 tary of the Treasury, refused to do it, Jackson re- 
 moved him and appointed Taney, afterwards Chief 
 Justice of the Supreme Court, as his successor, and 
 Taney removed the deposits in September, 1833. 
 When the new Congress met in December, the House 
 was favorable to Jackson, but the Senate resolved 
 March 28, 1834, that "the President, in the late pro- 
 ceedings in relation to the public revenue, has as- 
 sumed upon himself authority and power not conferred 
 by the Constitution and laws, but in derogation of 
 both."
 
 AMERICAN CONSTITUTIONS. 43 
 
 Jackson replied by the famous " Protest," which 
 he demanded should be entered on the journal of the 
 Senate. He justified his removal of the Secretary 
 of the Treasury by the bold claim that " the power 
 of removal, which like that of appointment, is an 
 original Executive power, is left unchecked by the 
 Constitution, in relation to all Executive officers for 
 whose conduct the President is responsible;" as 
 though, instead of his being invested only with 
 granted powers, there were original Executive powers, 
 part of which only had been removed by the Consti- 
 tution, while the rest remained. In another part of 
 the Protest, he declared " the President is the direct 
 representative of the American people, elected by the 
 people and responsible to them," while ''the Senate 
 is a body not directly amenable to the people," 
 thus assuming a kind of patriarchal duty to stand 
 between the Senate and the people. The Senate 
 passed a second series of resolutions, to the effect 
 that the Protest "ascribed powers to the President 
 irreconcilable with the authority of the two Houses 
 of Congress and with the Constitution," and they re- 
 fused to enter the Protest on their journal, and here 
 the matter ended for a while. The House being 
 friendly to Jackson, the Senate could do no more. 
 In the next Congress, however, Jackson's friends 
 controlled the Senate and expunged the obnoxious 
 resolution of March 28th, 1S34, from the Senati- 
 journal. When I was a child, the memory of this 
 expunging resolution was fresh, and 1 well remember 
 the indignation of the Whigs at what they called a 
 mutilation of the records. The student ol political
 
 44 AMERICAN CONSTITUTIONS. 
 
 history will find a masterly statement of the position 
 of Jackson's opponents in Webster's speeches on the 
 Veto of the Bank Bill, the Removal of the Deposits, 
 the President's Protest and the Expunging Resolu- 
 tion, No President after Jackson ever dared to take 
 the stand he had occupied as to the relative functions 
 of Conofress and the President. 
 
 His claim of original Executive power, his assump- 
 tion of a peculiarly close relation to the people em- 
 powering him to stand between them and the Senate 
 as the champion of popular rights, and his declara- 
 tion of his right to be the judge of the constitution- 
 ality of laws, would, if allowed, have made him little 
 less than dictator. Von Hoist quotes Story as say- 
 ing of Jackson : "I confess that I feel humiliated at 
 the truth, which cannot be disguised, that though we 
 live under the form of a republic, we are in fact under 
 the rule of a single man." Jackson's unbounded 
 popularity sustained him in these arbitrary measures. 
 The people admired him for his military glory, the 
 masses looked up to him as their champion against 
 the rich, all patriots respected him for the stand he 
 took against nullification, while even his enemies 
 gave him the credit of positive convictions and fear- 
 lessness in carrying them out. Fortunately for the 
 country, he had no successor able to wear his mantle. 
 Congress resumed its accustomed functions, and 
 throughout the Presidency of Van Buren, was in har- 
 monious relations with the Executive. 
 
 But in Tyler's administration, the President was 
 once more in open conflict with both Houses of Con- 
 gress, a conflict embittered by the fact that he had
 
 AMERICAN CONSTITUTIONS. 45 
 
 been elected Vice President by the dominant party. 
 Twice he vetoed the bill re-establishing the United 
 States Bank, and twice he vetoed the Tariff Bill, on 
 which had been tacked a bill for the distribution of 
 the proceeds of the public lands. By this time, the 
 indignation of the Whigs was thoroughly aroused ; 
 the committee of the House, to which the veto had 
 been referred, with John Quincy Adams at Jft head, 
 denounced this wholesale exercise of the veto power 
 as tyrannical, and declared they would impeach the 
 President, were there any prospect of his conviction ; 
 and Henry Clay introduced a proposition to amend 
 the Constitution so that a majority vote in both 
 Houses of Congress would over-ride a veto. This 
 proposition received a majority of the votes of the 
 House, but not the necessary two-thirds. The Presi- 
 dent replied to these violent attacks by a Protest, 
 much in the spirit of Jackson's; and here the matter 
 ended, as the Whigs had only a bare majority in each 
 House, and could follow it no farther. 
 
 Congress and Andrew Johnson. 
 
 There was no open breach after this between the 
 President and Congress till 1866 and 1867. Johnson, 
 who was as positive as General Jackson, but without 
 his support, either in Congress or by the people, had 
 resolved upon a plan of restoring the rebellious States 
 to the Union. The Republican leaders disapproved 
 of the President's measures, and having control of 
 both Houses, by over two-thirds of c^ach, th(>y re- 
 solved upon a policy of their own. In pursuance of
 
 46 AMERICAN CONSTITUTIONS. 
 
 this policy Congress passed the following four bills, of 
 vital importance in the matter of reconstruction: The 
 Civil Rights Bill, conferring Federal citizenship on 
 all persons born in the United States, and ensuring 
 them full and equal benefit of all laws; the Recon- 
 struction Bill, reversing the President's policy and 
 defininof the terms and methods under which the 
 States lately in rebellion could resume their places in 
 the Government; the Civil Tenure Act, stripping 
 him of the power of removing civil officers without 
 the consent of the Senate; and the Electoral College 
 Bill, defining what votes should be counted foi" Presi- 
 dent. All these Johnson promptly vetoed, and they 
 were immediately passed over his veto. Congress 
 also added to the Army Appropriation Bill a provis- 
 ion, which virtually deprived him of the use of the 
 army in aid of his policy of reconstruction, and dis- 
 banded the militia of the rebellious States. The 
 President protested against this provision, but signed 
 the bill. Thus Congress rejected the President's 
 plan for the restoration of the Southern States to the 
 Union, and adopted one of their own, while at the 
 same time they stripped him of the power to thwart 
 their policy. 
 
 The contest ended in the impeachment of the 
 President, which failed of success by a vote of 35 to 
 19; one vote more would have deprived him of his 
 seat. It is the most dramatic scene in the history of 
 our country, this mighty struggle for mastery be- 
 tween these tw^o grand powers of the Government. 
 I am not concerned here with the right or the policy 
 of these measures, but simply rehearse them to show
 
 AMEBIC AN CONSTITUTIONS. 47 
 
 the tremendous power of Congress, and the feeble- 
 ness of the Executive making war upon it. Con- 
 gress has absolute control of the Treasury, and when 
 the dominant party numbers two-thirds of each House 
 it holds the absolute power of legislation, within the 
 Constitution, and the power of impeachment, John- 
 son appealed to Jackson's policy, but was powerless 
 to follow his example. 
 
 The third battle, that between Hayes and the 
 Democrats, has been related in sufficient detail al- 
 ready. Thus I have sketched the leading features 
 of encroachment, whether by President or Congress 
 upon its co-ordinate power, since 1789. Jackson's 
 protest in 1834 was the climax of Presidential claims. 
 Johnson's impeachment marks the summit of self- 
 assertion by Congress. Since the accession of Grant, 
 the political pendulum has been slowly swing- 
 ing towards a limitation of the relative power of 
 Congress. Hayes' victory over the political riders, 
 and the steadfast refusal of both Hayes and Garfield 
 to listen to the dictation of Senatorial leaders, are 
 marked features of the last six years. Two bills re- 
 cently before Congress emphasize this tendency. 
 One, which has become the law of the land, is the 
 Civil Service Reform Bill, which is really a bill to 
 limit the patronage of Senators; the other is the 
 proposition to change the order of succession, sub- 
 stituting after the Vice President, the members of 
 the Cabinet, in place of the President of the Senate 
 and the Speaker of the House.
 
 48 a3febican constitutions. 
 
 The Veto Power. 
 
 The use of the veto power demands a brief no- 
 tice here, for an impression prevails that it is be- 
 coming more common in these latter days. This 
 is not true relatively, when we consider the enor- 
 mous increase of legislation by Congress. I have 
 been at considerable pains to gather, not only all 
 the vetoes, but so far as possible all the bills re- 
 tained by the Presidents, after the adjournment of 
 Congress, or to use the common phrase, "pocketed." 
 My list may not be absolutely complete, but is very 
 nearly so. I find from Washington to Arthur, in- 
 clusive, seventy-seven vetoes of both kinds. Forty- 
 three of these emanated from four Presidents, viz: 
 Jackson, eleven, Tyler, ten, Johnson, thirteen, Hayes, 
 nine. All these administrations were periods of 
 fierce conflict with a hostile Congress, Add Madi- 
 son, six. Pierce, five, Buchanan, seven, and Grant, 
 six, and we have sixty-seven out of seventy-seven 
 vetoes; and only ten remain to the other twelve 
 Presidents, covering ten full and four fractional terms. 
 
 Dividing the administrations into four consecutive 
 periods, we have this result: From Washington to 
 John Quincy Adams inclusive, a period of forty 
 years, there were nine vetoes; from Jackson to Tyler, 
 in sixteen years, there were twenty-one vetoes ; from 
 Polk to Lincoln, twenty years, eight vetoes; from 
 Johnson to Hayes, again sixteen years, twenty-eight 
 vetoes. Five subjects comprise the majority of 
 all the vetoes: Internal Improvements, seventeen, 
 United States Bank, four; Reconstruction Acts,
 
 AMERICAN CONSTITUTIONS. 49 
 
 seven; Rebel Claims, four; Interference at Elections 
 by marshals and soldiers, seven, in all thirty-nine 
 out of seventy-seven. Ten bills have been passed 
 over vetoes, one under Tyler, seven under Johnson, 
 one under Hayes, and one under Arthur. 
 
 Fierce attacks have been made from time to time 
 in Congress upon the veto power, charging the Presi- 
 dents with despotic use of it, and claiming that the 
 intention of the founders of the Government was to 
 limit its use to hasty or unconstitutional legislation; 
 but the Constitution itself makes no such limitation, 
 nor does the early practice under it; the second veto 
 of Washington being based solely on expediency and 
 the maintenance of the public faith. The veto power 
 may be dangerous, as all power is in the hands of 
 bad men, but this review does not justify the common 
 impression of its growing abuse. It comes into 
 prominence when the President is brought face to 
 face with a hostile Congress, eager to cross swords 
 with him, but when the two great powers are on 
 friendly terms, as is usually the case, the knowledge 
 of its hidden power acts only as a check upon crude 
 legislation. 
 
 Our examination has thus far shown that the 
 disposition of Legislatures is aggressive. Every 
 popular body tries to overstep the bounds of its 
 lawful power, from the American Congress down to 
 the County Committee. The Revolutionary fathers 
 recoiling from the tyranny of royal Governors gave 
 too much scope to legislative authority. We have 
 been steadily hemming in that authority in our State 
 Constitutions for a century, and (•xj)an(Ung the j)ow- 
 ers of our Governors.
 
 50 AMERICAN CONSTITUTIONS. 
 
 The Federal Constitution, fortunately framed later, 
 in the light of ten years' experience, was much better 
 balanced. But a different principle comes in here, 
 Cooley thus defines the distinction: "It is to be 
 borne in mind that there is a broad distinction between 
 the Constitution of the United States and the Con- 
 stitutions of the States, as regards the powers which 
 may be exercised under them. The Government of 
 the United States is one of enumerated powers; the 
 Governments of the States are possessed of all the 
 general powers of legislation. When a law of Con- 
 gress is assailed as void, we look in the National 
 Constitution to see if the grant of specified powers 
 is broad enough to embrace it; but when a State law 
 is attacked on the same ground, it is presumably valid 
 in any case, and this presumption is a conclusive one, 
 unless in the Constitution of the United States or of 
 the State, we are able to discover that it is prohibited. 
 We look in the Constitution of the United States for 
 grants of legislative power, but in the Constitution 
 of the State to ascertain if any limitations have been 
 imposed upon the complete power with which the 
 legislative department of the State was vested in its 
 creation. Congress can pass no laws but such as the 
 Constitution authorizes, either expressly or by clear 
 implication; while the State Legislature has jurisdic- 
 tion of all subjects on which its legislation is not pro- 
 hibited. ' The law-making power of the State,' it 
 is said in one case, ' recognizes no restraints and is 
 bound by none, except such as are imposed by the 
 Constitution. That instrument has been aptly termed 
 a legislative act by the people themselves in their
 
 AMERICAN CONSTITUTIONS. 5 I 
 
 sovereign capacity, and is therefore the paramount 
 law. Its object is not to grant legislative power, but 
 to confine, and restrain it. Without the constitu- 
 tional limitations, the power to make laws would be 
 absolute.' " 
 
 This clear distinction suggests to us that the State 
 Legislatures, inheriting the paramount power of the 
 people, need stricter limitations than the Federal 
 Congress, which acts only by virtue of granted 
 powers. On the other hand, the State Executive 
 can be safely trusted with much broader powers 
 than the President, because he is only a local officer; 
 his term is generally shorter than the President's; he 
 is more directly responsible to the people, and if his 
 powers are found by experience to be too full, it is 
 comparatively easy to amend the Constitution, from 
 which he derives them. His administration may be 
 corrupt or inefficient, but would never be fatal to 
 the liberties of the people, for he is restrained by the 
 Constitution of the United States, which guarantees 
 republican government and the equality of all men 
 before the law. But the President of the United 
 States, controlling the military power of the country, 
 and backed by an army of 100,000 civil officers, 
 wields a power which menaces the liberties of the 
 people, unless controlled by a faithful Judiciary, and, 
 above all, by a watchful Congress. His influence is 
 not to be measured by the boundaries of the Federal 
 power as expressed in the Constitution. His army 
 of civil officers often gives him almost absolute con- 
 trol of State politics. He may enter a State, and 
 control its political action, manage its conventions
 
 52 AMERICAN CONSTITUTIONS. 
 
 and dictate, its local nominations, as we have too 
 often seen done. His power is tremendous, and our 
 safety lies in the shortness of his term and the jeal- 
 ousy and watchfulness of Congress. 
 
 Government by parties, which has become the 
 form of our political life, has, however, brought one 
 dangerous feature of legislative encroachment, the 
 right claimed by Congress to determine the valid- 
 ity of the electoral vote of any State in a Presi- 
 dential election. We have had one narrow escape 
 from civil war through this source. Such a contin- 
 gency may never arise again, but so great a peril 
 must be guarded against. If Congress can by this 
 means make a President, the system so carefully 
 devised to maintain the independence of the Execu- 
 tive is broken down, and we are drifting upon the 
 shoals so much feared by the fathers of the Consti- 
 tution. The same spirit which is always ready to 
 unseat a member in a nearly-balanced House of 
 Representatives, for the purpose of increasing the 
 working majority of the party, would not scruple in 
 a closely contested Presidential election to grasp at 
 any technicality to win the grander prize, the control 
 of the Federal Government. These fears may 
 never be realized, but they threaten the most serious 
 invasion of the independence of the Executive ever 
 yet attempted. 
 
 If we pass by these dangers as belonging to the 
 future rather than the past, we may conclude as the 
 result of our inquiry into the changes in the Federal 
 Government that there has been no great alteration 
 in the relative powers of Congress and the Presi-
 
 AMEBIC AN CONSTITUTIONS. 53 
 
 dent since 1789. The bold position assumed by 
 Jackson was abandoned by his successors, and the 
 power of appointment and removal which he wielded 
 with such success, the later Presidents have been 
 compelled to surrender or share with their political 
 supporters in Congress. In this respect and in some 
 others Congress has encroached somewhat upon the 
 powers formerly possessed by the President, but 
 there has been no material change.
 
 54 AMERICAN CONSTITUTIONS. 
 
 V. 
 
 The Judiciary. 
 
 So far our attention has been mainly occupied 
 with the struggles for power between what may be 
 called the two great political departments of the 
 State, those who make the laws and those who exe- 
 cute them, and the efforts of the people to curb them 
 both. The relations of each of these powers to the 
 Judiciary, the interpreters of the law, now remain to 
 be considered, and it will be clearly seen that the 
 Courts have increased steadily in power and inde- 
 pendence, so far as their relations to the two co- 
 ordinate branches of government are concerned. 
 This steady growth of the authority of the Judiciary 
 is, to my mind, the most remarkable and unique feat- 
 ure in the history of our system of government. 
 Fifty years ago the power of the Courts excited the 
 wonder of De Tocqueville, and the lapse of time since 
 then has only increased the marvel. The change has 
 been silent but steady; being outside the storms of 
 active politics, it has been little observed and little 
 spoken of, but it has certainly transformed the gov- 
 ernments within themselves, and to the Federal 
 Union it has furnished the main bulwark of its power. 
 If there be an essential difference between our system 
 and the other popular governments of the world, it 
 lies in the unusual authority given to the Courts.
 
 AMERICAN CONSTITUTIONS. 55 
 
 The changes resulting in this increase of judicial 
 authority I will now trace; first considering the 
 method of appointment of the Judges and their 
 tenure of office; and to avoid repetition, wherever 
 the Judges are spoken of, unless otherwise qualified, 
 the word will be understood to mean the highest 
 Court, the Court of last resort, whether of Colony, 
 State or United States. 
 
 Referring to what has already been said of the 
 colonies, it will be remembered that they were 
 divided into three forms of government; seven were 
 Royal Provinces, three were Proprietaries and three 
 were Charter Governments. In the Provinces the 
 King named the Governor, and the Governor ap- 
 pointed the Judges. In the Proprietary Govern- 
 ments the proprietors were the feudal representatives 
 of the King, and they or the Governors chosen by 
 them named the Judges. Under the Charters, in 
 Massachusetts the Governor appointed the Judges, 
 while in Rhode Island and Connecticut they were 
 chosen by the Legislatures. In some of the colonies 
 the Governor's nomination required confirmation by 
 the Council, but as that body was generally named 
 by the Governor, it altered the case but little. The 
 Judges usually held office for life, but in every colony 
 the Crown claimed the right, as a Court of last resort, 
 to receive appeals from the Colonial Courts. It will 
 be readily seen that where the King, or his direct 
 representative, appointed the Judges, and at the 
 same time exercised an appellate jurisdiction over all 
 their decisions, both the power and the independence 
 of the Judges were much circumscribed.
 
 5^ american constitutions. 
 
 The Revolutionary Constitutions. 
 
 In the Constitutions formed during the Revolu- 
 tion for the government of the infant States, the 
 Legislative branch, as already stated, swallowed up 
 the power of the Executive. In pursuance of the 
 same trend of popular policy, the Legislatures in 
 most of the States controlled the appointment of the 
 Judges. In six States, Connecticut, Rhode Island, 
 New Jersey, Virginia, North Carolina and South 
 Carolina, the Legislature appointed the Judges di- 
 rectly; in four States, New Hampshire, Massa- 
 chusetts, Pennsylvania and Maryland, they^ were 
 appointed by the Governor, with the consent of the 
 Council; in New York, by the Governor, with the 
 consent of a special council chosen by the Legisla- 
 ture from their own number solely to supervise the 
 appointments of officers ; in Delaware, by the Execu- 
 tive and Legislature; but in Georgia they were 
 chosen by popular election, the first instance proba- 
 bly in America of an elective Judiciary. The Judges 
 could everywhere be impeached for misdemeanor by 
 the lower house of the Legislature, and tried by the 
 upper. In addition to this, in five States they could 
 be removed by the Governor, on an address from 
 both branches of the Legislature, a provision retained 
 in many State Constitutions to-day. 
 
 Besides this control over the Judiciary, the Legis- 
 latures of five States, Rhode Island, Connecticut, New 
 York, New Jersey and South Carolina, exercised dis- 
 tinct judicial functions apart from the usual right of 
 trying impeachments. This practice took different
 
 AMERICAN CONSTITUTIONS. 57 
 
 forms in different States, usually the upper house, to- 
 gether with either the Governor or Lieutenant Gov- 
 ernor, sat as a Chancery Court or as a Court of Appeals. 
 In Delaware, on the other hand, while the Leg- 
 islature exercised no judicial functions, the Chief 
 Executive, called the President, was ex officio a 
 member of the Court of Appeals. This confusion 
 of duties has disappeared with a clearer understand- 
 ing of tlie bounds of the different departments, and 
 survives nowhere in the United States at present. 
 These early constitutions provided that the Judges 
 should have adequate salaries, sometimes fixing the 
 amount ; two of them providing that their compensa- 
 tion should not be diminished during their term 
 of office, a provision very generally adopted now; 
 but they were left everywhere dependent on a legis- 
 lative appropriation for their salaries. 
 
 In the instruments under review, the Judges 
 usually held office during good behavior; this 
 was certainly so in eight States, New Hampshire, 
 Massachusetts, New York, Delaware, Maryland, 
 Virginia, .North Carolina and South Carolina; New 
 York alone limiting their tenure to sixty years of age. 
 In Pennsylvania and New Jersey the term was seven 
 years, while in Georgia the Judges were chosen by 
 the people every year. In Rhode Island and Con- 
 necticut, according to Bancroft, they were appointed 
 by the Legislature annually. The Judges were usu- 
 ally forbidden to hold other offices, especially of a 
 legislative character, which is a very common pro- 
 hibiticjn in modern constitutions.
 
 5^ american constitutions. 
 
 Modern Constitutions. 
 
 The experience of a century under written consti- 
 tutions has led our people to a constantly clearer 
 perception of the natural boundaries of the three co- 
 ordinate powers of government and a constantly 
 sharper limitation of their functions, each to its own 
 field. The Legislature has been shorn of its unjust 
 supremacy and confined to its rightful limits; the 
 power of the Executive has been restored to a proper 
 degree, and the judicial powers of the Legislature, 
 except the trial of impeachments, have been placed 
 in the hands of the Judges, where they belong, mak- 
 ing the balance of power in the State Constitutions 
 far more perfect to-day than ever before. 
 
 At the same time the people by a natural jealousy 
 have taken into their own hands the power of chos- 
 ing their officers, which before they had delegated to 
 their representatives. The Governors are no longer 
 chosen by the Legislatures, but by the people. The 
 Judges are no longer chosen by the Legislatures nor 
 appointed by the Governors, but in twenty-six States 
 they are elected directly by the people. The twelve 
 exceptions are as follows: In Delaware the Governor 
 appoints; in Massachusetts and New Hampshire the 
 Governor with the consent of the Council; in Florida, 
 Georgia, Mississippi, Louisiana and New Jersey, the 
 Governor with the consent of the Senate; in Connec- 
 ticut, Rhode Island, South Carolina and Virginia, 
 the Legislature elects. It will be noticed these are 
 all old States, though in some cases under new Con- 
 stitutions. The only States retaining the tenure
 
 AMERICAN CONSTITUTIONS. 59 
 
 of good behavior are New Hampshire (Hmited to 
 seventy years of age), Massachusetts, Delaware, 
 Florida and Rhode Island ; in the last named State the 
 Judges holding office till the place is declared vacant 
 by a majority of the Legislature. In the remaining 
 thirty-three States the term is fixed, running from two 
 years in Vermont to twenty-one in Pennsylvania, the 
 average term being eight and one-half years, though 
 in New Hampshire, Connecticut and Maryland the 
 tenure of office is limited to seventy years of age. Pub- 
 lic opinion seems of late to lean towards longer terms. 
 In Pennsylvania the Judges are not re-eligible, and in 
 Michigan, Ohio and California they are not eligible 
 for any except judicial offices during the term for 
 which they were elected. If the Judiciary ought to 
 be independent of politics, this is certainly a wise 
 provision. It will perhaps surprise the casual 
 reader to learn that in thirty States, the Judges may 
 be removed by the Legislature, or by the Governor 
 on an address from the Legislature, which usually 
 requires two-thirds of each House. This is inde- 
 pendent of the right of impeachment which prevails 
 in every State except Oregon. 
 
 So much for the methods of appointment and the 
 tenure of office. The tendency is certainly towards 
 placing the Judges on a footing independent of the 
 other departments of the Government, and directly 
 dependent upon the people. Whether an elective 
 Judiciary is an improvement on the old methods of 
 appointment, is a mooted question ; but one thing is 
 certain, no inclination is manifested by the people to 
 . return to the old-fashioned method of appointment
 
 6o AMERICAN CONSTITUTIONS. 
 
 in those States where the Judges are chosen directly 
 by popular vote. There is, however, a decided lean- 
 ing towards longer terms of office for Judges in the 
 States; and a longer tenure of office with more ade- 
 quate compensation, would certainly go a long way 
 towards correcting any alleged deterioration in the 
 quality of the elective Judiciary. 
 
 The direct relations of the Bench to the Executive 
 will next occupy our attention, and after that the 
 power assumed by American Judges to declare a 
 statute to be in conflict with the Constitution. 
 
 Relations of the Judiciary to the Executive. 
 
 The power of the Judiciary to control the action 
 of the co-ordinate powers of the Government, espec- 
 ially the Executive, either by mandamus or injunc- 
 tion, involves some of the most delicate and difficult 
 questions in the machinery of our governments. 
 Most of the cases concern its relations to the Execu- 
 tive, and the Courts, with admirable discretion, have 
 tried to steer clear of a collision with the rival 
 authorities. "In many cases," says Justice Story, 
 "the decisions of the Executive and Legislative 
 Departments become final and conclusive — being 
 from their very nature and character incapable of 
 revision. Thus, in measures exclusively of a politi- 
 cal, executive or legislative character, it is plain that 
 as the supreme authority as to these questions be- 
 longs to the Executive and Legislative Departments) 
 they cannot be re-examined elsewhere." 
 
 As early as 1802, the Federal Courts, in Marbury's
 
 AMERICAN CONSTITUTIONS. 6 1 
 
 case, laid down the rule that "questions in their nature 
 political, or which are by the Constitution and laws 
 submitted to the Executive, can never be made in 
 this Court." Johnston's Political Cyclopaedia cites 
 several unsuccessful attempts to involve the Presi- 
 dent and the Supreme Court in conflicts of authority. 
 In 1807 ^^ effort was made to compel the personal 
 attendance of the President as a witness in Burr's 
 case, but it did not succeed. In 1861 the Chief 
 Justice ordered an attachment to issue against an 
 army officer for disregarding the writ of habeas 
 corpus which had been suspended, but when the 
 attachment was returned unsatisfied, the Chief Jus- 
 tice abandoned all proceedings. In October, 1S65, 
 and until martial law had ceased in the South, the 
 Court refused to hold sessions in that section. In 
 1867 the State of Mississippi applied to the Supreme 
 Court for an injunction forbidding the President to 
 execute the Reconstruction Acts, but the injunction 
 was refused. In this case Chief Justice Chase said: 
 "The Congress is the Legislative Department of the 
 Government; the President is the Executive De- 
 partment; neither can be restrained in its action by 
 the Judicial Department, though the acts of both 
 when performed are, in proper cases, suljject to its 
 cognizance." The "proper cases" are such as are not 
 political in their nature. 
 
 But while the Courts will not interfere in cases of 
 a purely political nature, whatever that may mean, 
 they claim the right to compel lIk^ perfonnanct; b)- the: 
 Executive of duties of a purely ministcnial character. 
 The position is thus stated by Chancellor Kciil:
 
 62 AMERICAN CONSTITUTIONS. 
 
 "The principle settled in Marbury's case was that 
 the official acts of the heads of the Executive De- 
 partment as organs of the President, which are of a 
 political nature, and rest under the Constitution and 
 laws, in Executive discretion, are not within judicial 
 cognizance. But when duties are imposed upon such 
 heads, affecting the rights of individuals, and which 
 the President cannot lawfully forbid, — as for instance, 
 to record a patent, or furnish a copy of a record, — 
 the person in that case is the officer of the law and 
 amenable thereto in the ordinary course of justice." 
 This power of the Courts to compel the performance 
 of an act merely ministerial in its nature, was denied 
 by President Jefferson, but it has been repeatedly 
 affirmed by the Supreme Court, and acquiesced in as 
 established law. In Kendall's case it was decided 
 by the Supreme Court of the United States that the 
 Circuit Court of the District of Columbia had author- 
 ity to issue and enforce obedience to a mandamus 
 requiring the performance of a mere ministerial act 
 by the Postmaster General, which neither he nor the 
 President had any authority to deny or control ; for 
 the Postmaster General is not subject to the direc- 
 tion and control of the President with respect to the 
 execution of duties imposed on him by law. The 
 President has no dispensing power over the law. 
 And more recently, in T/ie United States v. ScJmrz, 
 the Secretary of the Interior was compelled by man- 
 damus to deliver a patent for lands to the relator. 
 There are many other cases in which the same doc- 
 trine has been affirmed in the Federal Courts. 
 
 With respect to the Executive officers of the States
 
 AMERICAN CONSTITUTIONS. 6t, 
 
 J 
 
 there is a difference of opinion, the Courts being 
 about equally divided. In several of the States a 
 mandamus will lie to compel performance of purely- 
 ministerial duties by the Executive, while in others it 
 has been thought to be subversive of the balance be- 
 tween the three great departments. 
 
 Interference with the Independence of the 
 
 Courts. 
 
 It might be expected in the violent changes of 
 political complexion constantly occurring in our gov- 
 ernments, that the other departments must sometimes 
 be tempted to lay hands upon the Judiciary, and try 
 to mould it to their purposes, but such instances are 
 rare. This is remarkable, for the Courts inevitably 
 reflect to a certain extent the dominant public senti- 
 ment in their decisions, as for example, the strong 
 centralizing drift of the Federal Courts in the time of 
 the first Presidents, the Dred Scott decision under 
 Taney and the Granger cases of 1876. And when 
 that sentiment changes, and Congress and the Presi- 
 dent find themselves representing a public feeling 
 and a public policy at variance with the Courts, as 
 was the case under Jefferson and his immediate suc- 
 cessors, and again under Lincoln, we might reason- 
 ably look for some effort to control its action, but the 
 Courts are so strongly intrenched behind their con- 
 stitutional independence that very few assaults have 
 been made upon them. 
 
 In 1 80 1, at the expiration of the Presidential t(.'nn 
 of Adams, a system of sixteen I-'ederal Circuit Courts
 
 64 AMERICAN CONSTITUTIONS. 
 
 was established by Congress, and the Judgeships 
 were filled by men of the Federal party. Great in- 
 dignation was expressed that these appointments 
 were made at the very close of Adams' term, and 
 the appointees were nicknamed the " Midnight 
 Judges," because it was said that Adams signed 
 their commissions at midnight of his last day in 
 office. Party feeling ran so high that at the next 
 session of Congress, Jefferson being President, the 
 Courts were abolished and the "Midnight Judges" 
 were ousted. 
 
 In 1866, during President Johnson's term. Con- 
 gress reduced the number of Justices on the Supreme 
 Bench from ten to seven, to prevent his filling the 
 vacancies with his political friends. By the statute 
 of 1863 t^s Court was composed of a Chief Justice 
 and nine Associate Justices. Justice Catron died in 
 1865, and Congress passed the singular statute, pro- 
 viding that "no vacancy in the office of Associate 
 Justice of the Supreme Court shall be filled by ap- 
 pointment until the number of Associate Justices 
 shall be reduced to six, and thereafter the said Su- 
 preme Court shall consist of a Chief Justice and six 
 Associate Justices," etc. Justice Wayne died in July, 
 1867, and Justice Grier resigned in February, 1869. 
 Grant was inaugurated President March 4, 1869, and 
 in April of the same year Congress raised the number 
 of Associate Justices to eight, one less than under 
 the statute of 1863, ^^'^^ Bradley and Strong were ap- 
 pointed to the vacancies. These appear to be the 
 only instances in which Congress has interfered with 
 the Federal Courts.
 
 AMEBIC AN CONSTITUTIONS. 65 
 
 The President, however, has a direct influence on 
 the Bench in his power of appointment to vacancies, 
 which he always fills with men in sympathy with his 
 own political views. In this way the political com- 
 plexion of the Court is constantly changing. But it 
 should be said that though many appointments have 
 been made of men active in politics, as, for example, 
 Taney and Chase, no stain has ever been cast upon 
 the integrity or honesty of their decisions after being 
 placed upon the Bench. Probably the most re- 
 markable instance of a change in the tone of the 
 Court brought about by new appointments, was 
 regarding the Legal Tender Question. In 1869 
 the Court held, five to three, that United States 
 notes were not a legal tender for debts existing 
 before the passage of the law of 1862. In 1871 the 
 Court reversed this decision, by five to four, having 
 in the meantime received two new Judges. 
 
 The limits of this paper forbid any more extended 
 examination of the relations of the Judiciary in the 
 State Governments to the other departments. It 
 has already been shown that in nearly every State 
 the Supreme Court has JDeen placed by the Constitu- 
 tion on an independent footing, and apparently there 
 is little disposition at the present time to interfere 
 with the inferior Courts for selfish or political ends. 
 
 Great Power of American Courts. 
 
 We have seen in the course of this sketch the 
 most radical changes in the relations of the three 
 co-ordinate powers of Govermnciii. The JLxecutive,
 
 66 AMERICAN CONSTITUTIONS. 
 
 all powerful at the beginning, was reduced to a mere 
 shadow of its former glory, and in these later days is 
 regaining some of its lost power. The Legislature, 
 at first weak, afterwards absorbed the powers of the 
 other departments, but is now much reduced again. 
 Throughout all these changes the dignity and power 
 of the Judges have steadily increased. Their inde- 
 pendence has been spoken of, and their claim to 
 control even the conduct of the Executive in purely 
 ministerial acts, but their greatest power, most amaz- 
 ing to Europeans, is the authority to set aside a 
 statute which they hold to be in conflict with the 
 written Constitution. No other Courts in the world 
 possess this unique power. The Supreme Courts 
 of the States may pronounce upon the constitution- 
 ality of the statutes of the State Legislature, while 
 the Supreme Court of the United States may sit in 
 judgment upon the laws of Congress, the official acts 
 of the President to a certain extent, upon the statutes 
 of the States, nay, even upon the State Constitutions 
 themselves. ' ' The Supreme Court, " said De Tocque- 
 ville, "is placed higher than any known tribunal, 
 both by the nature of its rights and the class of justi- 
 ciable parties which it controls." 
 
 This increase of the judicial power in America 
 results first from the steady growth of the idea that 
 the Constitution, the fundamental law of the State, 
 should be an instrument emanating directly from the 
 people, and controlling the acts of the Government 
 instituted under it ; next, as the natural corollary of 
 this, it was recognized that the power must lie some- 
 where to compare the acts of the Executive and
 
 AMERICAN CONSTITUTIONS. 67 
 
 Legislature with the Constitution, and it could only 
 lie properly in the Courts. 
 
 We are so accustomed to-day to the machinery of 
 a Constitutional Convention, chosen solely to frame a 
 go\'ernment, and when it has completed its work, 
 submitting the instrument to ratification by popular 
 vote, that we forget there was a time when these 
 forms were new, a time when the Legislatures claimed 
 these powers, and made and unmade Constitutions. 
 Our Revolutionary fathers were colonial English- 
 men before they were Americans, and they inherited 
 the love for English institutions and that reverence 
 for Parliament, which clothes it with absolute power. 
 So in the early days of the Revolution, we find 
 our Legislatures claiming the same wide stretch of 
 authority that belonged to the British Parliament. 
 When the Colonies in 1775 and 1776, threw off the 
 yoke of Great Britain, it was in every case an act 
 of the Legislature, and in no instance were the peo- 
 ple consulted directly. The new forms of govern- 
 ment then adopted, were not submitted to direct rati- 
 fication by popular vote, except in New Hampshire 
 and Massachusetts. In Rhode Island and Connec- 
 ticut, the Legislatures simply declared their inde- 
 pendence, and re-affirmed the forms of government 
 already existing under their charters. In South Car- 
 olina, a Constitution was framed and adopted by the 
 Legislature; while two years later, in 1778, the same 
 body by a mere statute repealed this fundamental 
 instrument and adopted a new one. In Virginia a 
 Convention composed of 45 members of the House of 
 Burgesses framed and adopted a Constitution which
 
 68 
 
 AMERICAN CONSTITUTIONS. 
 
 Stood till 1830, In Delaware, Georgia, Maryland, 
 New Hampshire, New Jersey, New York, North 
 Carolina and Pennsylvania, Conventions elected for 
 the purpose, framed and adopted Constitutions. In 
 Massachusetts alone, the work of the Convention 
 was submitted to the people for ratification, which 
 took place in 1780. In Delaware, Georgia, New 
 Hampshire and Pennsylvania, new Constitutions to 
 supersede the temporary instruments first adopted, 
 were framed by Conventions within a few years, but 
 only in New Hampshire was it thought necessary to 
 ratify the work of the Convention by popular vote. 
 The object of entering thus into detail on this 
 point was to show the growth of the idea that the 
 Constitution is the direct legislative act of the people, 
 and as such it must of course control any acts of their 
 agents, the Legislature; for on this point rests the 
 tremendous power exercised by the American Judi- 
 ciary to declare laws unconstitutional. Of course the 
 authority to compare this fundamental instrument 
 with the statutes enacted by the Legislature meeting 
 under it, can only lie in the Judicial Department. 
 
 Resistance to the Claims of the Courts. 
 
 This novel claim of power was not surrendered to 
 the Courts without a struggle. In i 786, the Supreme 
 Court of Rhode Island pronounced an act passed 
 by the Legislature to be in conflict with the Colonial 
 Charter which had then become the Constitution of 
 the State. This case is peculiarly interesting as 
 being the first instance in which a legislative enact-
 
 AMEBICAN CONSTITUTIONS. 69 
 
 ment was declared void on the ground of incompati- 
 bility with a State Constitution. The next Legisla- 
 ture refused to re-elect these Judges when their 
 terms expired at the end of the year, and filled their 
 places with men more in harmony with the Legisla- 
 ture. 
 
 In 1820 Webster made an appeal to the Massa- 
 chusetts Constitutional Convention in behalf of an 
 independent Judiciary, and in opposition to a pro- 
 posed amendment whereby the Governor might re- 
 move Judges on an address from a bare majority of 
 the Legislature. During his argument, he said that 
 if the records of neighboring States were examined, 
 " it might be found that cases had happened in which 
 laws known to be at best very questionable as to 
 their consistency with the Constitution, had been 
 passed, and at the same session, effectual measures 
 taken under the power of removal by address, to 
 create a new Bench." We have no means of know- 
 ing to what State he referred, as he cited no instances; 
 but the practice had evidently been common enough 
 to excite his alarm, and that the Legislatures should 
 have recourse to this indirect method of impeachment 
 in order to maintain their authority, and c:ven antici- 
 pate an adverse decision by removal of the obnox- 
 ious Judges, shows how reluctant they were to submit 
 to restraint, 
 
 But the most remarkable struggle took place in 
 Ohio in 1807, where a Circuit Judge declared a law 
 unconstitutional, and on appeal his decision was sus- 
 tained by a majority of the Supreme Court ol the 
 State. Upon this the Circuit Judge and the two
 
 70 AMERICAN CONSTITUTIONS. 
 
 members of the Supreme Court sustaining his de- 
 cision were impeached by the lower house of the 
 Legislature, and actually brought to trial for daring 
 to declare a statute unconstitutional. They were not 
 however convicted. The right to pronounce a law 
 void from incompatibility with the Constitution was 
 asserted by the Supreme Court of the United States 
 for the first time in the great case of Marbttry v. 
 Madison in 1802. The same ground had been 
 previously taken by the Federal Circuit Courts as 
 early as 1797, and by the Supreme Courts of some 
 of the States. 
 
 In the heat of great political excitement, the ques- 
 tion has been sometimes raised, how far the decision 
 of the Supreme Court of the United States on the 
 constitutionality of a measure is binding as a prece- 
 dent upon Congress and the President. Jefferson, 
 who was jealous of the claims of the Court, says in 
 his correspondence: "My construction is that each 
 department of the government is truly independent 
 of the others, and has an equal right to decide for 
 itself what is the meaning of the Constitution in the 
 laws submitted to its action, and especially when it is 
 to act ultimately and without appeal." He then pro- 
 ceeds to give examples in which he disregarded, when 
 President, the decisions of the Judiciary, and refers 
 to the Alien and Sedition Laws, and the case of 
 Marbury v. Madison. Jackson made the same claim 
 in his famous Veto Message, in even stronger lan- 
 guage, which has already been quoted. Lincoln al- 
 luded to it in his first inaugural, referring to the Dred 
 Scott case, which affirmed the right of the slave-
 
 AMERICAN CONSTITUTIONS. 71 
 
 holder to hold his slaves in the Territories; and 
 during Johnson's impeachment trial his counsel, es- 
 pecially Mr. Evarts and Mr. Stanbery, re-asserted 
 the doctrine in its full force. Jackson's position was 
 opposed with great earnestness by Madison in his 
 correspondence, and by Webster in his famous speech 
 upon the Veto of the Bank Bill. It may safely be 
 said that to-day the doctrine is abandoned, and is 
 never likely to appear again, unless in the furnace of 
 extreme political heat, when the passions of men 
 warp and twist everything to their purposes. 
 
 The scope of this power to declare a law unconsti- 
 tutional is much broadened by the modern tendency 
 to limit legislation, which has already been spoken of. 
 The early Constitutions were very brief, containing 
 usually little more than a bill of rights and a skele- 
 ton of the government, leaving all details to the dis- 
 cretion of the Legislature. Now all this is changed, 
 the bounds of the different departments are carefully 
 defined, and the power of the. Legislature is jealously 
 curbed, particularly in the domain of special legisla- 
 tion. It will be seen at a glance, that this enlarges 
 the relative power of the Courts. It limits the Legis- 
 lature, and widens the field of the Judiciary at one 
 stroke. 
 
 What, then, is the sum of our examination regard- 
 ing the Judiciary ? History teaches us it has grown 
 steadily in importance during the entire centiir)-. 
 This change is both safe a;id wise; because- the 
 Courts are the weakest of the three departments ; they 
 hold neither the purse nor the sword; they have no 
 patronage; to dispense; their |)ower is passive rather
 
 72 AMERICAN CONSTITUTIONS. 
 
 than active, and in case of resistance to their decrees, 
 they must depend on the other departments to give 
 them vitaHty. If at any time they show an inchna- 
 tion to abuse their power, the right of impeachment 
 still remains, and behind that the right of removal 
 in most of the States. There can be little danger 
 then from this increase in the authority of the Judges; 
 it has strengthened the weak and not the strong, 
 and made a juster and more even balance of power 
 between the three branches of government. 
 
 Conclusion. 
 
 We have passed in review the drift of popular 
 opinion on these subjects, as crystallized into in- 
 stitutions, during a period reaching back into 
 colonial times. In the State governments we 
 have seen the Governor, once the august symbol 
 of royalty, shorn of his strength and reduced to 
 a mere shadow of power; then later still, by a 
 re-action, endowed again with much of his orig- 
 inal authority. We have seen the Legislature, at 
 first weak and limited, spring, at one bound, under 
 the stimulus of a revolt against royal oppression, 
 almost into the omnipotence of a British Parliament; 
 then afterwards, gradually stripped of its greatness, 
 cramped and fettered in its movements by a revulsion 
 of popular sentiment, which singularly enough shows 
 a greater distrust of the, legislators, the popular body, 
 than of either Governor or Judges. And last of all, 
 the authority of the Judiciary, both Federal and 
 State, has constantly increased throughout the cen-
 
 AMERICAN COXSTITUTIOXS. 7 C^ 
 
 tury. We. as Amer.icans, do not feci its influence, 
 for we are used to it from childhood, but the foreisfner 
 who comes fresh to the study of our institutions, is 
 amazed at its extent, and at the reverence with which 
 our people submit to the decrees of the Courts, even 
 the sovereign States bowing their heads in submis- 
 sion. The century has wrought marvellous changes 
 in our country, in its breadth, in its nearness to the 
 old world, in the character of its people, in the power 
 of the Federal Government, and in its relation to the 
 States; but with all these changes, the type of pop- 
 ular government has drawn nearer and nearer to the 
 ideal of a perfect balance of co-ordinate powers. 
 
 Looking back over the whole field, the points 
 that have surprised and impressed me are the distrust 
 and consequent depression of the legislative power 
 in the States, and the steady elevation of the Judi- 
 ciary, in both State and Federal Governments, The 
 first surprised me. for I had been told so often the 
 voice of the people was the voice of God that such 
 a distrust seemed at first almost like a confession of 
 failure of. popular government; but may we not more 
 justly say it is a mark of wisdom in the people, that 
 knowing their own passions and frailties, they guard 
 against them by putting bits in the mouths of their 
 own representatives ? On the other hand, while doing 
 this, they have enlarged the field of the Judges, who 
 represent the deeper and more abiding p()j)ular sense 
 of order and justice; that stream of feeling which 
 Hows with steady volume, deep and strong, hardly 
 moved by tho.se tempests of |)opular lur\' which lash 
 the surface for a time, .ini.] then as rapidl) subside.
 
 74 AMERICAN CONSTITUTIONS. 
 
 The Court is the instrument of the people no less 
 than the Legislature; but it represents the popular 
 sentiment in a deeper, calmer, more lasting form 
 and embodies their aspirations after an ideal of perfect 
 order; the law expresses the conscience of the people. 
 
 The Courts the Conscience of the People. 
 
 Why, then, should the Judiciary so often be excepted 
 when we speak of popular institutions? It is some- 
 times spoken of as though it were almost antagonistic 
 to the people. Possibly this arises from the fact that 
 the law is the field occupied exclusively by a separate 
 guild of men, whom De Tocqueville terms the only 
 real aristocracy in America. Possibly it is because 
 the function of the Court is so often to bring back the 
 people from a state of excitement and fury to a calm 
 sense of right. But whatever may be the causes of 
 this sentiment, it has no ground in fact. The Judi- 
 ciary is as really a part of the people's government 
 as any department. The interpretation of the law 
 represents the popular sentiment of order and justice 
 as fully as the written statute. The Court can go 
 no farther towards absolute right than it is sustained 
 by popular opinion, and its decisions must represent 
 the average public sentiment ; not in the froth and fury 
 of a political campaign, but the calm, settled conviction 
 of thinking men. If the popular conscience is quick- 
 ened, the judicial interpretation, as well as the statutes, 
 must reflect its increased sensitiveness, and it, too, 
 , becomes more liberal and humane. So that to clothe 
 the Courts with these unusual powers indicates no
 
 AMEniCAN CONSTITUTIONS. 75 
 
 distrust of democratic institutions, but rather an ap- 
 peal from the passions to the better judgment, to the 
 calm conscience of the people. 
 
 This exaltation of the Judiciary in our scheme of 
 government should excite our patriotic pride, for it is 
 a positive advance in the art of government. We 
 may justly lay a bolder claim, and say it marks 
 a higher civilization, a reverence for law itself as 
 above the men who make the statute or those who 
 are the instruments of Its execution. In the simpler 
 and ruder forms of government, the Executive ab- 
 sorbs the other powers. The despotic autocrat makes 
 the laws, interprets, and executes them. As the 
 world advances and the nations become more en- 
 lightened, the people claim a share in the public af- 
 fairs; this idea culminates in the supremacy of the 
 Parliament, where both Executive and Judiciary may 
 be made and unmade at the will of the popular body. 
 Our own country, in its brief history, has passed 
 through both these stages. The colonial period was 
 marked by the overshadowing power of the Execu- 
 tive; while at a later stage, in the heat of the Revo- 
 lution, the temper of our people would bear nothing 
 short of the absolute supremacy of the Legislature- 
 But the ripened fruit of our experience is this modern 
 idea of government, which lifts up the Judiciary to an 
 exalted and independent position, and places law. im- 
 personal, impassive, and serene, in the innermost 
 shrine of th(^ tempk;. jealously guard(;(l from ])rofuK- 
 intrusion. 
 
 What confidence this ins[)irc;s in the wisdom and 
 integrity f)f human nature, in the i)ower of the pe<)i>Ic
 
 76 AMEBIC AN CONSTITUTIONS. 
 
 for self-government. A century of experience, check- 
 ered by foreign and domestic wars, with marvellous 
 growth of power and wealth, ends in a more perfect 
 realization of the type of popular government. A 
 century of various trials leads to the elevation of the 
 Judiciary, the conscience of the people, for the first 
 time in the history of the world, to its true place as 
 an independent, co-ordinate department of the gov- 
 ernment. 
 
 We have not fully realized our ideal. Our forms 
 are in many respects crude; our practice under them 
 is blurred by the imperfections belonging to human 
 nature; but the grand plan has been outlined, and 
 we are struggling to its attainment. Incomplete as 
 it is, it stands in unique majesty, as the outline of 
 perfect human government, culminating neither in 
 the selfish will of the autocrat, nor in the turbulent 
 ambition of a popular body, — but where the calm 
 majesty of law crowns the great work.
 
 9 8 2
 
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