\ 
 
 THE UNWRITTEN CONSTITUTION OF 
 THE UNITED STATES 
 
 A PHILOSOPHICAL INQUIRY INTO THE 
 FUNDAMENTALS OF AMERICAN CON- 
 STITUTIONAL LAW 
 
 BY 
 
 CHRISTOPHER G. TIEpEMAN, A.M., LL.B. 
 
 PROFESSOR OF LAW IN THE UNIVERSITY OF MISSOURI 
 
 AUTHOR OF TREATISES ON " THK LIMITATIONS OF POLICE POWER," 4i THE LAW OP 
 REAL PROPERTY," AND " LAW OF COMMERCIAL PAPER " 
 
 G. P. PUTNAM'S SONS 
 
 NEW YORK LONDON 
 
 aj WEST TWENTY-THIRD ST. 27 KING WILLIAM ST., STRAND 
 
 ftfce flnukttbotkcr |)xtss 
 1890 
 
i 
 
 COPYRIGHT, 1890 
 BY 
 
 CHRISTOPHER G. TIEDEMAN 
 
 Ube Tknfcftcrbocficr press, new r?orft 
 
 Electrotyped, Printed, and Bound by 
 G. P. Putnam's Sons 
 
CONTENTS 
 
 CHAP. I. ORIGIN AND DEVELOPMENT OF MUNI- 
 CIPAL LAW IN GENERAL .... I 
 
 CHAP. II. THE ORIGIN AND DEVELOPMENT OF 
 
 CONSTITUTIONAL LAW l6 
 
 CHAP. III. THE ELECTORAL COLLEGE ... 46 
 
 CHAP. IV. THE RE-ELIGIBILITY OF THE PRESI- 
 DENT . . . . . . . -SI 
 
 CHAP. V. THE INVIOLABILITY OF CORPORATE 
 
 CHARTERS AND CHARTER RIGHTS . . 54 
 
 CHAP. VI. THE DOCTRINE OF NATURAL RIGHTS IN 
 
 AMERICAN CONSTITUTIONAL LAW . 67 
 
 CHAP. VII. THE CONSTITUTION IN THE WAR OF 
 
 SECESSION 83 
 
 CHAP. VIII. CITIZENSHIP IN THE UNITED STATES 91 
 
 CHAP. IX. STATE SOVEREIGNTY AND RIGHT OF 
 
 SECESSION 1 10 
 
 CHAP. X. THE UNITED STATES GOVERNMENT 
 
 ONE OF ENUMERATED POWERS . . ."129 
 
 x^X ^^ 
 
 CHAP. XI. CARDINAL RULE OF INTERPRETATION 
 
 AND CONSTRUCTION OF WRITTEN CONSTITU- 
 TIONS 145 
 
 CHAP. XII. THE REAL VALUE OF WRITTEN CON- 
 STITUTIONS 155 
 
 iii 
 
THE UNWRITTEN CONSTITUTION 
 OF THE UNITED STATES. 
 
 CHAPTER I. 
 
 ORIGIN AND DEVELOPMENT OF MUNICIPAL LAW IN 
 GENERAL. 
 
 BLACKSTONE'S definition of law has been gen- 
 erally accepted as in the main reliable, not only 
 popularly, but also professionally. Indeed, the sci- 
 entific element of the definition, viz. : that municipal 
 law is " a rule of conduct prescribed by the supreme 
 power of the state" has been so earnestly accentuated 
 and elaborated by the master-minds who have truly 
 dominated legal thought in England and in this 
 country for the past half century I refer, of course, 
 to Bentham and Austin, that the professional, as 
 well as the popular, mind has been led into the 
 adoption, as an axiomatic truth, of a most serious 
 error concerning the origin and development of mu- 
 nicipal law. 
 
2 THE UNWRITTEN CONSTITUTION. 
 
 Except in the matter of form, the statement that 
 municipal law is " prescribed by the supreme power 
 of the state " is false and misleading, unless by the 
 " supreme power of the state " is meant the aggre- 
 gation of all the social forces, both material and 
 spiritual, which go to make up our civilization. But 
 the meaning commonly attached to the words " the 
 supreme power of the state " is that of the supreme 
 power in the government, as distinguished from the 
 people who compose the body politic. Austin and 
 his followers admit that the law-making power is sub- 
 ject to moral and physical restraints, and that these 
 restraints co-operate very largely in forming and modi- 
 fying the substantive law ; but since no rule can be 
 called a lav, which is not enforced by a sanction, 
 prescribed by the law-making power, the moral in- 
 fluences at work upon society cannot be said to 
 create law. And even where a rule of law is for the 
 first time enunciated by an English or American 
 court, Austin claims that it first became a law 
 when the court announced its decision. I do not 
 suppose Austin intended to assert that the de- 
 cision of the court was purely arbitrary ; that it 
 only reflected the sentiments of the occupants of the 
 judicial bench. I cannot believe that he was uncon- 
 scious of the natural sequential development of the 
 law, operated upon by all the social forces, out of 
 which civilization is in general evolved. But the 
 
MUNICIPAL LAW IN GENERAL. 3 
 
 reader of his work on jurisprudence will have no 
 very clear conception of this scientific development 
 if he has not obtained the idea elsewhere. The rigid 
 logic of Austin is inclined to fasten upon the reader 
 the more or less popular superstition concerning the 
 omnipotence of the law-making power. . 
 
 Undoubtedly there is no living law without a * 
 sanction or penalty, and there must be somewhere 
 some one who has the power to inflict the penalty. 
 The law is intended to force upon a rebellious mi- 
 nority the observance of those rules of conduct the 
 infractions of which will inflict injury upon others. 
 Physical force is of course needed. Hence the blind- 
 folded Goddess of Justice not only holds up in her 
 left hand the scales with which she can impartially 
 mete out justice between parties litigant, but she also 
 bears in her strong right hand the sword, which she 
 must wield with effect, in order to enforce her de- 1 
 crees. If a decree of the court is to be enforced, the 
 sheriff, who is the local representative of the execu- 
 tive department of the government, summons his 
 posse comitatus, i.e., he calls upon the good and law- 
 abiding citizens of the county to support him, and 
 none can lawfully refuse to obey the call. 
 
 But granting that to make a rule of conduct a laW| 
 a penalty must be attached and imposed for its in-' 
 fraction, it does not necessarily follow that that 
 penalty must be enforced by an organized govern- 
 
4 THE UNWRITTEN CONSTITUTION. 
 
 ment, or that its enforcement by such a government 
 essentially changes the character of the rule. When 
 the English colonists first made their settlement in 
 this country, we are told they brought with them 
 [the English common-law, and enforced it among 
 themselves, so far as that law was compatible with 
 the surrounding circumstances. If one of the colo- 
 nists had made an attack upon the person or prop- 
 erty of another, before there had been any organized 
 government, armed with the power to enforce the 
 law, would the Austin school of jurists claim that 
 these colonists were without law, and hence this 
 reprehensible deed was not illegal ? Would they 
 claim that there was no law on the borders of Ameri- 
 can civilization, where the only government is the 
 vigilance committee, and where the only court of 
 justice is presided over by Judge Lynch ? If a man 
 is murdered or a horse stolen in such a community, 
 and the offender is captured by the vigilance com- 
 mittee, tried by Judge Lynch, and punished in 
 accordance with the custom of the country, he has 
 suffered the penalty of the law, as much as the 
 criminal in an orderly, more civilized community, 
 who is tried and condemned by a regularly organized 
 court, and punished by the ordinary administrative 
 officers of the government. The only difference 
 between the two cases is the degree of development 
 in the administration of the law. Lynch-law, in a 
 
MUNICIPAL LAW IN GENERAL. 5 
 
 community not possessed of a properly organized 
 government, is as much law as the enactment of an 
 American legislature or the acts of Parliament. Nor 
 is there any greater difference in the character of the 
 forces which in their operations upon the social life 
 command the formulation and enforcement of the 
 rules of conduct in the two cases. In both cases the 
 average common-sense of propriety, which is uni- 
 formly obeyed by the vast majority of a people, 
 constitutes in the main the standard after which 
 rules of law are modelled. The morality commonly 
 and uniformly practised by the masses lends its 
 character to the rule of law when it is first enunci- 
 ated. And even when the rule is first promulgated, 
 its ethical character is much lower than the standard 
 of morality set up by ethical teachers ; for only that 
 code of morality can be enforced against delinquents 
 which the people generally obey. For if it were 
 attempted to enforce a higher standard, for example, 
 to compel every one to do unto others as he would 
 have them do unto him, the sanction would be want- 
 ing, for no penalty is effective unless it is backed by 
 the posse comitatus. 
 
 Municipal law is not intended to control the ac-/ 
 tions of the masses. The great majority of a people/ 
 are a law unto themselves. And wherever this fun- 
 damental thought is lost sight of, legislation results 
 in nothing but the production of dead letters, still- 
 
6 THE UNWRITTEN CONSTITUTION. 
 
 born laws, that never did and never could have 
 become a living rule of conduct. For the life of a rule 
 of law is derived from its habitual and spontaneous 
 observance by the mass of the people. It is only 
 when its enactment is called for by a popular sense 
 of necessity, in order to compel a rebellious minority 
 to conform to the moral habits and customs of the 
 people, that a rule of conduct can become a living 
 law. Although a moment's reflection is sufficient to 
 satisfy one of the correctness of this position, it is 
 surprising what false notions of legislation do pre- 
 vail, even among scientific men. The tenets of a 
 large and influential school of economists are based, 
 confessedly or otherwise, upon the notion that the 
 living power of the law is from an extra-human 
 source ; for they are preaching the doctrine daily 
 that the ills of life, which they admit to be the con- 
 sequences of sin and ignorance, or, in other words, 
 of the frailties of human nature, may be cured or, at 
 least, lessened by legislation, even where the evil is 
 not the result of a trespass. And the call is often 
 made for fresh legislation, as a means of raising the 
 standard of morality of the people. The. stream can 
 never rise higher than its source, nor can it be ex- 
 pected that legal rules, which are but a reflection of 
 the moral habits of a people, can effect their moral 
 elevation ; least of all, the moral elevation of a people 
 living under a government " of the people, for the 
 

 MUNICIPAL LA W IN GENERAL. ^ 
 
 people, and by the people." One may just as well 
 expect by taking thought to add one cubit unto his 
 stature, as by legislative declaration to add one cubit 
 to the moral stature of the people. 
 
 The legal rule is, therefore, fashioned after the 
 prevalent sense of right. The Germans call it Rechts- 
 gefuehl. 
 
 It is not so difficult for the novice to admit this 
 doctrine in its application to judicial legislation, or 
 judge-made law, as Bentham contemptuously calls it ; 
 but it is more difficult to believe that the legislative 
 will is bound down by this prevalent sense of right to 
 a fixed line of conduct, from which it cannot success- 
 fully swerve. I do not mean to say that the legisla- 
 ture cannot make an enactment, which does not 
 reflect the prevalent sense of right ; for there are too 
 many deplorable instances of such misuse of power, 
 to admit of denial. 1 But I do assert emphatically 
 that the legislature cannot completely enslave the 
 popular will by an enactment not endorsed by the 
 prevalent sense of right. Popular opinion, for pru- 
 dential reasons, requires of the individual obedience 
 to the written .word, until the power which enacted 
 
 1 The expression ' ' deplorable misuse of power " is used in this 
 connection, because the writer is convinced that the multiplication of 
 laws which cannot be enforced tends to lessen the popular reverence 
 or respect for law, and habituates the people to the repeated viola- 
 tion, not only of those laws which do not reflect the prevalent sense 
 of right, but also those which are so sanctioned. 
 
8 THE UNWRITTEN CONSTITUTION. 
 
 it can be induced or forced to repeal it. To this ex- 
 tent can the legislative will, as a factor in the making 
 of the law, influence its development in opposition 
 ' to the popular desire. But when the law is brought 
 before the courts for enforcement, its practical 
 operation will be made by interpretation and con- 
 struction to conform to the prevalent sense of right, 
 as far as this is possible without nullifying the 
 letter of the law. It frequently happens that the 
 effect of the statute will in this manner be completely 
 changed, and will, as it is enforced, produce an en- 
 tirely different effect from what had been intended. 
 A most notable example is the English Statute of 
 Uses. This statute was enacted for the purpose of 
 abolishing uses entirely, and preventing the creation 
 of any equitable interest in lands, separate and apart 
 from the legal title. But when this statute was 
 brought before the courts, it met with the most de- 
 termined opposition from the bench and bar. They 
 reflected the prevalent sense of right in the middle 
 English classes, and gave the statute a strict techni- 
 cal construction, thus limiting its operation to such 
 an extent that, instead of being abolished by the 
 statute, the law of uses became all the more firmly 
 settled. Upon this distorting, technical construction 
 of the English Statute of Uses rests the entire law 
 of modern trusts, except so far as there have been 
 modifications by American statutes. Instances of 
 this kind may be multipled indefinitely. 
 
MUNICIPAL LAW IN GENERAL. 9 
 
 It may, therefore, be laid down as a general'propo- 
 sition that a legal rule is the product of social forces, / 
 reflecting the prevalent sense of right. It is another 
 question, what is the relative influence of individuals 
 and of classes in moulding this popular sense of right. 
 The state of the public mind may be such that it 
 maybe sair of that people, quod principi placuit habet 
 legis vigo-em; and even in the land of democratic 
 rule and of universal suffrage, only a few persons 
 really mould and fashion public opinion. The great 
 body of private law is, by common consent, usually 
 left to be developed by the legal profession. Still, 
 in every country, it matters not how or by whom it 
 is created, whatever is the prevalent sense of right is 
 the norm by which legal rules are formulated. 
 
 But the popular sense of right does not remain/ 
 stationary. In its growth and evolution it follows 
 an easily recognized law of development. The popu- 
 lar sense of right rises with the increasing enlighten- 
 ment of the ethical teachers. Although the legal 
 rule reflects the popular sense of right, prevalent 
 when it was formulated, it may not, and usually does 
 not, conform altogether to the popular sense of right 
 in its later stages of development, and very frequently 
 there is so great a variance between them as to cause 
 serious popular dissatisfaction. 
 
 Philosophical enthusiasts sometimes claim that this 
 variance is due to the imperfect formulation of the 
 legal rule, and that but for this imperfect reflection 
 
io THE UNWRITTEN CONSTITUTION. 
 
 of the prevalent sense of right by the formulated 
 rule legal rules would never conflict with public 
 sentiment in any stage of its development. Be this as 
 it may, there is such a variance which increases with 
 the ethical and spiritual development of the people. 
 
 A very good example of this variance between the I 
 existing rule of law and the popular sense of right is 
 to be found in the law of fraud. The existing rules 
 of law declare that a transaction is not tainted by 
 fraud if one of the parties is induced to enter into it 
 by a mistaken appreciation of the material facts, sim- 
 ply because the other party knew of the first party's 
 misapprehension and failed to give him the desired 
 information. For example, if A. is offering to buy 
 an article of value from B., and believing that the 
 article is worth one thousand dollars, being led to 
 that conclusion by the belief that the article has 
 merits which it does not possess, when in fact it 
 is not worth more than five hundred dollars ; if B. 
 has said or done nothing to produce that wrong im- 
 pression, he can take the excessive price, without be- 
 ing guilty of legal fraud, although he knows at the 
 time that the value of the subject-matter of the sale 
 has been greatly over-estimated by A. When that 
 rule was first formulated, I have no doubt that trades- 
 men and others habitually practised the rule of tak- 
 ing advantage of the ignorance pf others, whenever 
 they had done nothing to create the ignorance or 
 
MUNICIPAL LAW IN GENERAL. n 
 
 to prevent the acquisition of the necessary knowl- 
 edge ; and it is, without doubt, still the general rule 
 of conduct in the more subtle business transactions 
 of the day. But in the balder and more transpa- 
 rent cases of the kind described, the influence of the 
 teaching of a higher morality is being felt so as to 
 prevent a very large number, if not a majority, of 
 the people from practising upon their weaker breth- 
 ren what is certainly a moral, if not a legal, fraud. 
 This deviation of a large part of the people from the 
 directions of the existing rule of law is, however, not 
 yet strong enough to require any material modifica- 
 tion of it ; but it is sufficiently strong to involve in 
 doubt the correctness of the enunciated rule. The 
 people do not yet spontaneously and habitually fol- 
 low the higher rule. Whenever this radical change in 
 the habits of the people does come about, then, and 
 not till then, may we expect the legal rule to con- 
 form to the better teaching of morality. 
 
 So far nothing has been said to accentuate the fact 
 that this change in the prevalent sense of right is not 
 the quiet, smooth, uneventful development, which is 
 found to prevail in the growth of a language, and 
 which is claimed by the jurists of the Savigny-Puchta 
 school to prevail in the growth of a system of juris- 
 prudence. 
 
 On the contrary, the history of the law demon- 
 strates conclusively, by a host of examples, that 
 
12 THE UNWRITTEN CONSTITUTION. 
 
 every material modification of an existing principle 
 of law, as well as every new principle of law, is never 
 firmly fixed in the jurisprudence of a country except 
 after a vigorous contest between opposing forces. 1 
 
 As soon as a legal rule has been formulated, private 
 interests begin to be built up in reliance upon the 
 application of this formulated rule to all future simi- 
 lar cases. Unless there were some fixity and certainty 
 in the rules of law, there could be no material devel- 
 opment, no inducement to individual activity. These 
 private interests, thus developed, are concerned in 
 the strict enforcement of the formulated rule, and re- 
 sist all changes in word or in spirit. In obedience to 
 this popular desire for fixity and certainty, the let- 
 ter of the law, as formulated by the courts, receives 
 by popular agreement the same binding authority, as 
 is freely conceded to the statute. The rule of stare 
 decisis prevents subsequent courts from completely 
 repealing the rule of law previously formulated, even 
 though, on account of a change in popular senti- 
 ment, the law should cease to reflect the prevalent 
 sense of right. If by means of fictional construction 
 
 1 " Das Ziel des Rechts ist der Friede, das Mittel dazu der Kampf. 
 . . . Das Leben des Rechts ist Kampf, ein Kampf der Volker 
 der Staatgewalt der Stande der Individuen. Alles Recht in der 
 Welt ist erstritten worden, jeder Rechtssatz, der da gilt, hat erst 
 denen, die sich ihm widersetzten, abgerungen werden mussen, und 
 jedes Recht, das Recht eines Volkes, wie das eines Einzelnen, setzt 
 die stetige Bereitschaft zu seiner Behauptung voraus." v. Ihering's 
 Kampf urn's Recht, I. 
 
MUNICIPAL LAW IN GENERAL. 13 
 
 the letter of the law cannot be made to conform to 
 the existing sense of right, and the variance is so 
 great as to cause great discomfort or arouse the dis- 
 approbation of the people, the only remedy is a 
 change by legislative enactment. But this rule of 
 stare decisis is absolutely binding, only as it also re- 
 flects the prevalent sense of right. Cases have fre- 
 quently occurred when the variance between the law 
 and the prevalent sense of right was so distressing 
 that the courts have been justified by public senti- 
 ment in abrogating an established rule. In such 
 cases the judges have sought refuge under the fiction 
 that the prior decision was an erroneous statement 
 of the pre-existing law; and hence in every law 
 library are to be found collections of " overruled 
 cases." But it not unfrequently happens that even 
 this elastic fiction will not furnish any actual justifi- 
 cation for the abrogation of the existing rule of law ; / 
 and yet it is done in compliance with the demand of 
 private interest or the popular sense of justice. Still 
 the case must be an urgent one, in order to meet with 
 popular approval. As a general rule, public senti- 
 ment requires a rigid adherence to the rule " stare 
 decisis." 
 
 It must be further observed, that not every moral 
 rule commonly practised by the mass of people, be- 
 comes a legal rule, obedience to which is enforced 
 by a legal sanction. Unless the violation of the 
 
i 4 THE UNWRITTEN CONSTITUTION. 
 
 moral rule involves some injury to the public or 
 to other persons, there is never any public demand 
 for its enforcement by the imposition of a legal pen- 
 alty. Those wrongful, immoral acts, which are prop- 
 erly called crimes or trespasses upon the interests of / 
 others, are generally regulated by law, but, except so 
 far as they likewise have the character of trespasses, 
 vices are left to the correction of the moral influence 
 of public opinion. The world is moved and controlled 
 by two fundamentally different forces, moral suasion 
 and physical force. While different, they need not be 
 antagonistic, and only are so when the physical force 
 is employed to attain some unrighteous end. These 
 forces are supplementary to each other, and one can- 
 not take the place of the other. The effect of moral 
 suasion is to build up or reform the character of the 
 person or persons intended to be influenced. Physi- 
 cal force can only be used successfully to suppress 
 the desire and intention to do injury to others. You 
 cannot expect to make a virtuous man out of a crimi- 
 nal by sending him to the penitentiary or to the 
 whipping-post. The only end attained by such I 
 measures is the prevention of future crime by creat- 
 ing the fear of punishment. Vice therefore cannot^ 
 be successfully controlled by any measures of force ; 
 the correction must be left to the moral suasion of 
 the church, the home, and the social circle. But j 
 when the peace and good order of society are threat- 
 
MUNICIPAL LA W IN GENERAL. 15 
 
 ened by attacks upon the personal security, personal 
 liberty, and property of others there is nothing to do 
 but to repel force by force. Of course this repressive 
 force can, in an orderly community, be employed 
 only by the government, except in the few cases of 
 emergency where the right of self-defence is conceded 
 to the individual. 
 
 I believe I have succeeded in showing that the 
 same social forces which create and develop the 
 ethics of a nation create and develop its law ; that 
 the substantive law is essentially nothing more than 
 the moral rules, commonly and habitually obeyed by 
 the masses, whose enforcement by the courts is re- 
 quired for the public good, while ethics are the rules 
 of morality set forth by our moral teachers, as their 
 highest conceptions of moral development. The 
 morality of the law is commonly and habitually prac- 
 tised by the people ; the morality of ethics, if this 
 expression be allowed me, is an idealistic conception, 
 something to be striven for, and more and more ap- 
 proximated, but perhaps never to be fully realized 
 before the days of the millennium. 
 
CHAPTER II. 
 
 THE ORIGIN AND DEVELOPMENT OF CONSTITU- 
 TIONAL LAW. 
 
 THE constitution of a state may be described 
 as the definition of the order and structure of the 
 body politic, while constitutional law consists of 
 those fundamental principles and rules in accord- 
 ance with which the government is constructed and 
 its orderly administration is conducted. Constitu- 
 tional law may be described as the anatomy and 
 physiology of the body politic. 
 
 If these definitions be accepted as true, the con- 
 clusion is irresistible that the fundamental principles 
 which form the constitution of a state cannot be 
 created by any governmental or popular edict ; they 
 are necessarily found imbedded in the national char- 
 acter and are developed in accordance with the 
 national growth. This doctrine is admitted in its 
 application to the so-called unwritten constitutions, 
 like that of England, whose changes are effected by 
 ordinary parliamentary action, and which cannot be 
 found in any one written instrument, but whose prin- 
 
 16 
 
CONSTITUTIONAL LAW. 17 
 
 ciples are to be found scattered along the pathway of 
 the nation's history, and serving more or less as land- 
 marks to indicate its political growth. The English 
 Constitution is to be found in the Magna Chart a, the 
 Petition of Right, the Habeas Corpus act, and the 
 Bill of Rights. It is plain to the most superficial 
 observer that the English Constitution was not the 
 conscious and voluntary creation of the English peo- 
 ple ; that it was an evolution from the simple politi- 
 cal principles and formulae of the Teutonic race, 
 finding its beginning in the tribal government of the 
 German barbarians, so graphically described by Taci- 
 tus. But when, the so-called written constitutions of 
 America and Europe, which are promulgated by the 
 supreme power of the respective countries in the 
 form of a single instrument, and which become 
 operative from the time of their publication, come 
 under consideration, the impulse of all, and the con- 
 viction of the many, ascribe to them a very different 
 origin. Even one of the most distinguished states- 
 men, if not the most distinguished statesman, of 
 modern times, Mr. Gladstone, falls into the grave 
 error of claiming for these two kinds of constitutions 
 a different origin and a different rule of develop- 
 ment, when he says that "just as the British Consti- 
 tution is the most subtle organism which has pro 
 ceeded from progressive history, so the Americar 
 Constitution is the most wonderful work ever struck 
 
i8 THE UNWRITTEN CONSTITUTION. 
 
 off at a given time by the brain and purpose of 
 man." It is very true that the attempts to create 
 constitutions off-hand, and to establish them over a 
 people to whom the fundamental principles of the 
 proposed constitutions are an unknown tongue, have 
 been frequent ; but it will be impossible to point out 
 a single instance where such a constitution became a 
 permanent and living rule of conduct. Constitutions \ 
 are effective only so far as their principles have their \ 
 roots imbedded in the national character, and conse- 
 quently constitute a faithful reflection of the na- 
 tional will. The Japanese nation has lately adopted 
 a written constitution, after a study of the various 
 constitutional governments of Europe and America ; 
 very many principles of the constitutions of the Ger- - 
 man and English empires, as well as of the American 
 Constitution, have been incorporated into it. But 
 notwithstanding the wonderful adaptiveness of the 
 Japanese character to political and economic innova- 
 tions, it remains to be seen how much of their new 
 constitution will prove effective, and how much will 
 become inoperative. So far as the principles of their 
 constitution are an outcome of the existing Japanese 
 civilization, and consequently strike a responsive 
 chord in the national heart, will the constitution 
 prove a permanent and living rule of conduct. It is, 
 of course, to be remembered that the Japanese rever- 
 ence for the authority of the Mikado, and the long- 
 
CONSTITUTIONAL LAW. 19 
 
 established national habit of unquestioning obedience 
 to the imperial commands, will go far towards stifling 
 popular discontent, or dissipating any want of har- 
 mony with the principles and rules of the new 
 constitution, which many will consider and receive 
 as the commands of the august Mikado. But as 
 soon as the people become conscious of their own 
 power, and their reverence for imperial decrees be- 
 comes lessened by a more intimate acquaintance with 
 the principles of self-government and democratic rule, 
 the untrammelled political sentiment of the nation 
 will mould the existing constitution into harmonious 
 correspondence, or demand its complete abolition or 
 revision. 
 
 History furnishes numerous examples of fruitless 
 attempts to impose constitutions upon people whose 
 principles are not in harmony with the popular po- 
 litical sentiment. ^ Locke prepared a written consti- 
 tution for the Carolinas, whose principles were not in 
 harmony with the popular instinct ;3Napoleon Bona- 
 parte prepared paper constitutions for the nations 
 whom he conquered, and unhappy France, refusing to 
 believe that " constitutions are not made, they grow," 
 has had one constitution after another, in her effort 
 to secure an orderly and permanent establishment for 
 a republican government. And it is not difficult to 
 comprehend that the failure or success of a form of 
 constitution and government in the experience of one 
 
20 THE UNWRITTEN CONSTITUTION. 
 
 people does not indicate any inherent and universal 
 demerits or excellences, or assure a similar experi- 
 ence if they are adopted by some other people. 
 Englishmen and Americans are so infatuated with 
 the superior qualities of their constitutions that in 
 
 their canonization of them they are led to believe 
 hat their principles are of universal application, and 
 are surprised if a foreigner criticises them from the 
 standpoint of foreign needs and experience. The 
 English and American constitutions work well, and 
 challenge the admiration of political students, not 
 because of their inherent and abstract excellences for 
 it would be no arduous or insuperable task to point 
 out several glaring defects, 1 but because they are 
 in complete correspondence with the political sen- 
 timent of the respective nations, and are themselves 
 the natural products of Anglo-American civiliza- 
 tion. It is not so much what is found in the written 
 constitution, as the conservative, law-abiding, and yet 
 liberty-loving character of the Anglo-Saxon, which 
 guarantees a permanent free government to England 
 and to the United States of America. 
 
 What gives color to the notion that the American 
 constitutions, both State and Federal, are the volun- 
 tary creation of man, is the fact that they are written 
 (so-called), and that these writings have been formu- 
 lated, enacted, and promulgated by representative 
 conventions. This opinion has been so prevalent, 
 1 See many passages in Bryce's "American Commonwealths." 
 
CONSTITUTIONAL L4W. 21 
 
 that the national habit is to look upon the members I 
 of the convention of 1787 as demigods, giant heroes, / 
 far surpassing the foremost men of to-day, while the 
 Constitution itself has been placed upon a pedestal 
 and worshipped as a popular idol. It is very far from 
 my purpose to deny to the heroes of the Revolution 
 their just meed of praise, or to subject the Federal 
 Constitution to any hostile or carping criticism. It 
 is, without doubt, the best political constitution that 
 the world has ever seen, and some of its fundamen- 
 tal principles are worthy of universal adoption. But 
 by making a popular idol of it, we are apt to lose 
 the very benefits which its excellences insure. It 
 is the complete harmony of its principles with the 
 political evolution of the nation, which justly chal- 
 lenges our admiration, and not the political acumen 
 of the convention which promulgated it. Instead, 
 therefore, of being the voluntary creation of the 
 American people of the eighteenth century, the Fed- 
 eral and State constitutions of the United States are 
 but natural sequential developments of the British 
 Constitution, modified as to detail and as to a few 
 fundamental principles by the new environment. 
 This claim is easily substantiated by the most super- 
 ficial comparison of the British and American con- 
 stitutions. 
 
 Without making minute reference to the close 
 similarity of the town and county organizations un- 
 der these constitutions, the lineal descent of the 
 
22 THE UNWRITTEN CONSTITUTION. 
 
 American constitutional law from the British finds 
 proof in the fact that in both nations the attachment 
 to the principles of local government challenges the 
 attention and admiration of the critic. Under both 
 systems of constitutional law we find an unvarying de- 
 termination to confine the exercise of governmental 
 power to the local authorities in every thing affect- 
 ing only the local interests ; and if there is any mate- 
 rial difference in respect to the scope of local powers, 
 it is to be found to consist of a greater localization 
 of power under the British Constitution, in this, that 
 the taxation for local purposes is in Great Britain 
 invariably within the control of the county, while in 
 the United States the taxes for the same purposes, 
 outside of corporate towns and cities, although ex- 
 pended in the county in which they are collected, are 
 imposed by the legislature, -Unless the power of taxa- 
 tion is expressly conferred upon the local authorities. 1 
 
 1 " From time immemorial the counties, parishes, towns, and terri- 
 torial subdivisions of the country have been allowed in England, and, 
 indeed, required to lay rates on themselves for local purposes. . . . 
 From the foundation of our government, colonial and republican, the 
 necessary sums for local purposes have been raised by the people or 
 authorities at home. Court-houses, prisons, bridges, poorhouses, and 
 the like, are thus built and kept up, and the expenses of maintaining 
 the poor, and of prosecutions and jurors, are thus defrayed, and of 
 late (in North Carolina) a portion of the common school fund and a 
 provision for the indigent insane are thus raised, while the highways are 
 altogether constructed and repaired by local labor, distributed under 
 the orders of the county magistrates." Ruffin, J., in Caldwell v. 
 Justices, etc., 4 Jones (N. C.), Eq., 323. 
 
CONSTITUTIONAL LAW. 23 
 
 While the spirit of local government is so far 
 obeyed, in the matter of taxation for local purposes, 
 that one county or other corporate district cannot be 
 taxed for the local purposes of another county or 
 district, and the money collected on a local tax 
 must be expended in the same county or district, yet 
 in the absence of express legislative authority, the 
 American constitutional law denies to such local 
 authorities the power to impose the tax. 1 But with 
 this exception which is accountable only on the 
 theory advanced by Mr. Taylor, 3 that this doctrine 
 of local government was lost sight of in the general 
 prevalence and application of the political notion 
 that all legislative power was limited to an express 
 grant of powers, except the power of the State Gen- 
 eral Assembly it is manifest that local government 
 in the United States is a reproduction of the local 
 government of Great Britain. And there has been 
 so little change in the character and powers of the 
 local government officers, that one can obtain a very 
 
 1 Cooley's Const. Lim. (230), 283 (488), 605 ; Litchfield v. Vernon, 
 41 N. Y., 132 ; Mobile & S. H. R. Co., v. Kennerly, 74 Ala., 574; 
 Booth -v. Woodbury, 32 Conn., 118 ; Speer v. School Dist., 50 Pa. 
 St. , 150. And the levy for local purposes may be ordered by the legis- 
 lature, not only without the consent, but against the wishes, of the 
 people concerned. Cheaney v. Hooser, 9 B. Mon., 330; Slack v. 
 Maysville, etc., R. R. Co., 1-36. Mon., I ; Cypress Pond Draining 
 Co. v. Hooper, 2 Met. (Ky.), 350. 
 
 * "Origin and Growth of the English Constitution," by Hannis 
 Taylor, p. 43. 
 
24 THE UNWRITTEN CONSTITUTION. 
 
 reliable account of the powers and duties of the 
 American sheriff, coroner, constable, justice of the 
 peace, etc., by reading Mr. Blackstone's chapter on 
 inferior administrative officers. 
 
 I The fundamental division of governmental powers 
 'into executive, legislative, and judicial, and their ex- 
 ercise by separate and independent departments of 
 the government, form a striking characteristic of both 
 the English and American constitutions. Even be- 
 fore they had emerged from the colonial state, the 
 Americans had adopted this doctrine, and divided 
 their local governments into executive, legislative, 
 and judicial departments, conceding to each depart- 
 ment the powers exercised by the corresponding de- 
 partment of the English government. The executive, 
 for many reasons other than the existence of an anti- 
 monarchical spirit, could only obtain the essential 
 powers of the English executive, without its form 
 and tenure of office. But the legislature was fashioned 
 in close imitation of Parliament, with its two co- 
 ordinate chambers, with the single variation that in 
 the upper house the elective principle was substituted 
 for the hereditary principle ; while the judiciary not 
 only exercised the same powers as the English judi- 
 ciary, but administered justice under the same forms 
 of procedure, and in courts established on the 
 English itinerant system, viz. : the holding of court 
 in each county by a judge, to whom was assigned 
 
CONSTITUTIONAL LAW. 25 
 
 a particular circuit, composed of one or more 
 counties. 
 
 When the present Federal Constitution was adop- 
 ted, the same salient features were given to the Federal 
 Government, so that one is justified in saying, that a 
 detailed review of the powers of the various depart- 
 ments of the government both Federal and State, 
 forces one to the conclusion that the American consti- 
 tutions are, in the main, an evolutionary development 
 of the British Constitution 1 ; and a closer study of) 
 the two systems reveals the fact that every principle,/ 
 brought into play by the American constitutions/ 
 that has ensured, and proved effectual in the attain- 
 ment of the ends aimed at, was either of English 
 origin, or was the direct product of the social forces 
 then at play in American life. 
 
 Nor is it surprising that the American constitutions 
 should be fashioned in imitation of the British Con- 
 stitution. Not only were the men who led and 
 formed public opinion in the colonies thoroughly ac- 
 quainted with English constitutional law, many of 
 them having been born or educated in the United 
 
 1 " When all of these elements of likeness are considered, who can 
 fail to perceive that the typical English state in America is, in a con- 
 stitutional sense, simply the English kingdom transferred to a new 
 theatre, where it has entered upon a wider destiny, with its political 
 horizon unclouded by the waning shadows of nobility, feudality, and 
 kingship." Taylor's "Origin and Growth of the English Constitu- 
 tion," p. 48. 
 
26 THE UNWRITTEN CONSTITUTION. 
 
 Kingdom, 1 but the universal political sentiment, 
 under the influence of Montesquieu, also pronounced 
 the British Constitution, if not absolutely perfect, at 
 least the best the world ever knew. 2 Blackstone's 
 Commentaries and Montesquieu's " Esprit des Lois " 
 were the two books which the students of political 
 science of that day consulted in the handling of social 
 problems. The American constitutions could not, 
 
 1 " The Virginia delegation (to the constitutional convention of 
 1787) was simply a brilliant group of English country gentlemen who 
 had been reared on the right side of the Atlantic. Alexander Hamilton 
 and Robert Morris were born English subjects ; the father of Franklin 
 was an English emigrant from Northamptonshire ; Charles Cotes- 
 worth Pinckney had been educated at Oxford and the Middle Temple ; 
 Rutledge had studied law at the Temple ; and James Wilson, the 
 most far-sighted man perhaps in the whole convention, was born near 
 St. Andrews, in Scotland. As to political training, they had all been 
 reared under the English system of local self-government which had 
 grown up alongside of the English customary law in the several States 
 which they represented. These States they had helped to transform 
 from English provinces into independent commonwealths whose con- 
 stitutions were substantial reproductions of that of the English king- 
 dom. In fine, the only practical conception of the State which they 
 possessed was that embodied in the constitution of the old land, modi- 
 fied as it had been in the new by the abolition of nobility, feudality, 
 and kingship." Taylor's " Origin and Growth of the English Consti- 
 tution," p. 62. 
 
 2 ' ' The British Constitution was to Montesquieu what Homer had 
 been to the didactic writers on epic poetry. As the latter have con- 
 sidered the work of the immortal bard as the perfect model from which 
 the principles and rules of the epic art were to be drawn, and by which 
 all similar works were to be judged ; so this great political critic ap- 
 pears to have viewed the Constitution of England as the standard, or, 
 to use his own expression, as the mirror, of political liberty." Feder- 
 alist, No. xlvii, p. 300. 
 
CONSTITUTIONAL LAW. 27 
 
 therefore, be any thing else but adaptations of the 
 British Constitution. 
 
 In the formation of the Federal Constitution other 
 forces were at work, which compelled some slight 
 and some radical departures from the English forms. 
 In the struggles of the colonies against the unjust 
 encroachments of the mother-country on their right 
 of self-government, they had united in congresses 
 called for the consideration of their common welfare ; 
 but until the actual outbreak of hostilities, the Con- 
 gress had not attempted the assertion or exercise of 
 any superior or superintending control of the colo- 
 nies. All the actions of the congresses were recom- 
 mendatory in form and fact. But with the publication 
 of the Declaration of Independence, Congress did 
 assume many of the powers of a superior government, 
 especially the general conduct of the war with Eng- 
 land and of intercourse with the foreign powers. 
 The government, thus established, was of course 
 revolutionary, and remained so until the Articles of 
 Confederation were adopted by the States and put 
 into operation. The fact that there had been no 
 legal union of the colonies, except through their 
 common subjection to England, coupled with the 
 dread and hatred of all external or superior govern- 
 ments, which had been engendered by England's 
 tyrannical exercise of her power, had accustomed 
 the popular mind to the thought that each State was 
 
28 THE UNWRITTEN CONSTITUTION. 
 
 supreme, and that their liberty depended upon the 
 retention of this state supremacy, combining with 
 each other in the capacity of sovereign states, only as 
 far as this was necessary for the common defence or 
 promotive of the general welfare. 
 
 The educated men of that day were classical 
 scholars, and were acquainted with the previous 
 attempts made to establish federal government; 
 but, according to the knowledge then had of these 
 attempts, all of them had resulted in the establish- 
 ment of nothing more than a league, while the 
 several members of the league retained their supreme 
 powers. Under these circumstances it was but natu- 
 ral that their ignorance of the great possibilities 
 of federal government should combine, with their 
 dread of foreign or external governments, to create 
 a league, instead of a centralized state. Hence the 
 Articles of Confederation contained very meagre 
 grants of powers to the general government ; and in 
 no instance was the general government permitted 
 to exercise any control over the individual citizen, 
 every decree of Congress being a requisition upon 
 the States, which Congress had not the power to 
 enforce, and which the States complied with or 
 ignored, as they pleased. 
 
 A government, so weak that it did not even com- 
 mand the respect of the people, much less their 
 obedience, could not last long. Every thoughtful 
 
CONSTITUTIONAL LAW. 29 
 
 man of the day was impressed with the gravity 
 of the situation, and looked forward to the future 
 with the most anxious forebodings. Internal dissen- 
 sions and local prejudices, intense love of local 
 government, and an implacable hatred of any su- 
 perior power, co-operated to make anarchy appar- 
 ently inevitable, and justify the claim "that the 
 most critical period of the country's history embraced 
 the time between 1783 and the adoption of the 
 Constitution in I/88." 1 The forces of disintegra- 
 tion were so strong that any more perfect union 
 was despaired of. It was only by a gradual and 
 diplomatic approach to the end in view that the 
 adoption of the present Constitution was secured. 
 The first step taken was the cession to the general 
 government of the lands in the limitless and un- 
 explored West, to be held and administered as a 
 common fund for the benefit of all the States. 
 From the necessity of the case, the general govern- 
 ment thus acquired a dignity and respectability of 
 character which it did not possess before, and the 
 necessary assumption of supreme power over this 
 vast territory, however small the practical exercise of 
 authority was, accustomed the people somewhat to 
 
 1 Trescot's ' ' Diplomatic History of the Administrations of Wash- 
 ington and Adams," p. 9. See also, to the same effect, John Fiske's 
 "Critical Period of American History, 1783-1789," which gives a 
 brilliant exposition of American struggle for national unity. 
 
3 o THE UNWRITTEN CONSTITUTION. 
 
 the possession by the general government of the 
 powers of sovereignty; while the existence of this 
 large territory as a common fund served in itself, 
 through the promptings of self-interest, to strengthen 
 the tie that bound the States together. The credit 
 of this initial step towards the establishment of a 
 permanent union of the States is due to Maryland, 
 who persistently refused to sign the Articles of 
 Confederation until she was assured of the cession 
 of these lands to the Union. 
 
 The next step was the formation by Virginia and 
 Maryland, under the inspiration of Washington, of a 
 joint commission for the mutual control of the navi- 
 gation of the Potomac River. Inasmuch as the 
 control of this river would involve more or less the 
 control of the Ohio, whose head-waters joined with 
 those of the Potomac, Pennsylvania was invited to 
 join with the other two States in this commission. 
 Other matters of common concern, such as the regu- 
 lation of the currency and other commercial regula- 
 tions, were suggested for consideration by this 
 commission. After some delay, and as a result of 
 these efforts of union for commercial and economical 
 purposes, the Virginia legislature passed a motion, 
 inviting all the States to appoint commissioners to 
 meet at Annapolis for the consideration of the best 
 method of securing a uniform regulation of com- 
 merce. The attendance at the Annapolis convention 
 
CONSTITUTIONAL LAW. 31 
 
 was not large enough to enable any effective action 
 to be taken, and, after much discussion, the commis- 
 sioners adopted a resolution urging the appointment 
 of commissioners, to convene in Philadelphia in the 
 following May, " to devise such further provisions as 
 shall appear to them necessary to render the Consti- 
 tution of the federal government adequate to the 
 exigencies of the Union, and to rep'ort to Congress 
 such an act as, when agreed to by them, and con- 
 firmed by the legislatures of every State, would 
 effectually provide the same." 
 
 Congress did not immediately agree to this propo- 
 sition for a convention, but the suffering of the peo- 
 ple, and their growing discontent, followed by fre- 
 quent riotous outbreaks of the most serious sort, 
 finally compelled Congress to take the necessary 
 action, and a resolution was adopted, recommending 
 a convention in Philadelphia, in May, 1787, of dele- 
 gates from the States " for the purpose of revising 
 the Articles of Confederation, and reporting to Con- 
 gress and the several legislatures such alterations and 
 provisions therein as shall, when agreed to in Con- 
 gress and confirmed by the States, under the Federal 
 Constitution, be adequate to the exigencies of gov- 
 ernment and the preservation of the Union." : 
 
 1 See Chapter V. of Mr. Fiske's " Crifical Period of American 
 History," entitled " Germs of National Sovereignty," for a very inter- 
 esting and graphic account of the growth of the demand for a more 
 effective national government. 
 
32 THE UNWRITTEN CONSTITUTION. 
 
 But the local pride and prejudices of the people 
 were not the only serious obstacles in the way of an 
 increase of the powers of the Federal Government, 
 which fell short of a complete extinction of the States 
 as independent bodies politic. It was idle to advo- 
 cate the absorption of the States into one composite 
 state. The people would have rejected such a 
 proposition with vehemence and indignation. And 
 yet history had never produced a federal govern- 
 ment which was not a league. The Federal Union, 
 under the Articles of Confederation, was only a 
 league, and neither claimed nor exercised any au- 
 thority over the individual citizen. The experience 
 of the people under these Articles of Confederation, 
 had demonstrated the futility of the attempt of thsr 
 Federal Government to assume the powers of govern 
 ment, without the ability and right to compel the 
 obedience of the individual to its commands ; and 
 yet the past experience of the world suggested no 
 relief or remedy. It was reserved for an American 
 to create an absolutely new political idea of the 
 most transcendent importance, and which has ulti- 
 mately solved the problem of combining a strong 
 central government with an independent local gov- 
 ernment. 
 
 In February, 17^, Pelatial Webster published "A 
 Dissertation on the Political Union and Constitution 
 of the Thirteen United States of North America," 
 
CONSTITUTIONAL LA W. 33 
 
 which was a year later followed by another of the 
 same tenor, by Noah Webster, in both of which was 
 proposed " a new system of government which should 
 act, not on the States, but directly on individuals, and 
 vest in Congress full power to carry its laws into 
 effect." When we consider for a moment the won- 
 derfulness of two separate and in many respects in- 
 dependent governmental agencies exerting their pow- 
 ers over the same territory, and each within its own 
 sphere commanding the obedience of the same peo- 
 ple, there is no occasion for surprise that it required 
 a century of experience under the new government 
 to fully appreciate its significance and effect. The 
 successful maintenance of the separate autonomy of 
 the Federal and State governments for a century, 
 through all the vicissitudes of political fortune which 
 fell to the lot of the people of the United States, 
 furnished an enigmatical contradiction of the preva- 
 lent notions of an indivisible sovereignty. 1 
 
 If there be such a thing in politics as sovereignty, 
 it is necessarily indivisible, and hence it is impossible 
 to subject a territory and people to two separate and 
 independent governments without one of them becom- 
 ing subordinate to, and the instrument of, the other. 
 And I am satisfied that the political leaders of the 
 
 1 As to the absurdities taught under the doctrine of political sov- 
 ereignty, see/w/. Chapter IX. on " State Sovereignty and the Right 
 of Secession." 
 3 
 
34 THE UNWRITTEN CONSTITUTION. 
 
 day, such as Hamilton, Madison, and Randolph, 
 who made such strenuous efforts to establish a strong 
 federal government, put no faith in the feasibility of 
 a dual government of this sort. For, upon the 
 assembling of the constitutional convention, these 
 statesmen advocated the establishment of a supreme 
 federal government, which would reduce the States 
 to subordinate provinces ; and they did not yield to 
 the demands of the advocates of State rights until it 
 was demonstrated that the convention would not 
 adopt a centralized government. They feared, and 
 the struggles of seventy-five years justified their 
 fears, that the two governmental agencies could not 
 maintain their independent autonomy. But against 
 their will and in spite of their fears this became the 
 fundamental principle of the American governmental 
 agencies, about which the pplitical forces played 
 with more or less vehemence for three quarters of a 
 century, until, as a declaration of the results of the 
 mighty crisis, the Supreme Court of the United 
 States pronounced this country to be " an indestruc- 
 tible Union composed of indestructible States." * 
 
 1 " But the perpetuity and indissolubility of the Union by no means 
 implies the loss of distinct and individual existence, or of the right of 
 self-government by the States. Without the States in union there 
 could be no such political body as the United States. (Lane County 
 v. Oregon, 7 Wall., 71, 76.) Not only, therefore, can there be no 
 loss of separate and independent autonomy to the States, through 
 their union under the Constitution, but it may not unreasonably be 
 said that the preservation of the States and the maintenance of their 
 
CONSTITUTIONAL LA W. 35 
 
 It was the adoption of this principle which changed 
 the Federal Union from a league to a composite state ; 
 or, to go to the German for apt expressions, from a 
 Staatenbund to a Bundestaat, from a union of States 
 to a state founded by the union of States. 1 
 
 In the constitutional convention of 1787, every 
 complexion of political thought was represented ; 
 and while, with the exception of a few irreconcilables, 
 the entire convention felt the need of some radical 
 change in the form or powers of the Federal Govern- 
 ment, they were by no means agreed as to the 
 proper measures for reform. They had assembled 
 under instructions from Congress for the purpose of 
 revising the Articles of Confederation, and hence 
 they were not authorized to make any organic 
 change in the character of the National Government. 
 But having assembled in convention, and placed 
 themselves under a pledge to keep the deliberations 
 of the convention secret, until the new government 
 had become firmly established, the Virginia delega- 
 tion, aided by Hamilton, Wilson, and others, declared 
 themselves boldly in favor of the revolutionary step 
 of proposing an organic change in the form of gov- 
 
 governments are as much within the design and care of the Constitu- 
 tion as the preservation of the Union and the maintenance of the 
 national government. The Constitution in all its provisions looks to 
 an indestructible Union composed of indestructible States." Chase, 
 Ch.-J., in Texas v. White, 7 Wall. 700, 725. 
 
 *See/<w/. Chapter IX. on "State Sovereignty and the Right of 
 Secession." 
 
36 THE UNWRITTEN CONSTITUTION. 
 
 ernment ; and they pointed, as a justification of 
 their extreme action, to the impotence of the Federal 
 Government as long as its fundamental character 
 remained unchanged. The Virginia plan of govern- 
 ment was then introduced, which provided for a 
 bicameral congress, both houses of which were 
 to represent the people of the United States at 
 large instead of the States. Under this plan of 
 government Congress was not only to have the 
 right to command directly the obedience of indi- 
 viduals, but also to exercise a negative upon all 
 State legislation, by declaring what State legisla- 
 tion was constitutional. The adoption of this plan 
 would have thrown the Federal Government com- 
 pletely into the control of the larger States. It is not 
 surprising that the smaller States opposed its adop- 
 tion and offered a substitute, known as the New 
 Jersey plan, which consisted only of a revision of 
 the existing articles by giving to Congress the power 
 to regulate foreign and domestic commerce, to levy 
 duties on imports, and to raise revenue by means of 
 a stamp act. By the presentation of these two 
 plans, the opposing parties were brought face to 
 face, and their contentions for the mastery came 
 near causing a disbanding of the convention. It is 
 very likely, too, that the convention would have 
 adjourned without having accomplished any thing, 
 had not the urgent necessities of the political situa- 
 
CONSTITUTIONAL LAW. 37 
 
 tion compelled some action. It will not be neces- 
 sary to give in this place any minute account of 
 the contests between these opposing forces. Suffice 
 it to say that a compromise was effected, by giving 
 equal representation to the States in the Senate, 
 while the representatives were to be apportioned 
 according to population, the Senate representing 
 the States, while the House of Representatives 
 represented the people at large. 
 
 Other compromises followed, but wherever there 
 was no contest, the English precedents were fol-\ 
 lowed, as in the formation of the State governments, / 
 so that the President of the United States, like the 
 governors of the States, was an imitation of George 
 III., with the elective principle substituted for the 
 hereditary ; while the Senate corresponded to the 
 House of Lords, and the House of Representatives 
 to the House of Commons. 
 
 It is certainly not necessary to go into detail 
 in order to prove that in the main the American 
 constitutions are an evolutionary growth out of the 
 British Constitution. There are, however, several 
 principles developed and brought into play by the 
 struggles for national life, which are not traceable to 
 the British Constitution, at least, not in the shape in 
 which they were made to operate in this country. 
 I have already alluded to the development of the 
 new form of federal government. That certainly 
 
38 THE UNWRITTEN CONSTITUTION. 
 
 finds no parallel in British history. Another new 
 principle, which first found expression in American 
 politics, and which even now to some extent escapes 
 the comprehension of European jurists, is that all 
 governmental agencies are the creatures of the will 
 of the people, and are subject to limitations imposed 
 upon them by the popular will. Parliament is / 
 legally supreme, and so is every European govern- 
 ment, whether it be republican or monarchical. No / 
 act of such governments can be unconstitutional in I 
 the American sense, for these governments have the 
 power to change the constitutions at will. But 
 inasmuch as in the United States the people them- 
 selves ordained and established their constitutions, 
 and they alone can alter and amend them, any actf 
 of the legislatures or of Congress, which transcends 
 the provisions of the Constitution, would be uncon-' 
 stitutional and void. This is the fundamental doc- 
 trine of American constitutional law, and it is only 
 feasible where there is a written constitution con- 
 taining explicit grants or limitations of power. But 
 while this principle is not to be found in the consti- 
 tutional law of any other country, it must not be 
 inferred that it was a spontaneous creation. The 
 American mind was undoubtedly prepared for the 
 development of the principle by the fact, that all, 
 or almost all, the colonial governments had been 
 established under written charters, in which the 
 
CONSTITUTIONAL LAW. 39 
 
 powers of the colonial governments were more or 
 less explicitly set forth. If the colonial government 
 transcended these powers, the act was void, and 
 could not have the force of law. The residuum of 
 power was held to be in the British Grown. When 
 the thirteen colonies were declared to be free and 
 independent States, this residuum had to be lodged 
 somewhere, and, of course, in accordance with the 
 political philosophy of the French schools, which at 
 that time had already obtained a strong hold upon 
 the American mind, it was held to be reserved to the 
 people. The people were thus held to be the mas- 
 ters, while the officials were the servants, who could 
 only lawfully do the bidding of the people.. It 
 is in this way that the fundamental doctrine of 
 American democracy became established. 
 
 The third new principle developed in the Ameri- 
 can constitutional law was the power of the 
 courts to declare an act of the legislature void 
 which contravened a provision of the Constitution. 
 But this principle is only a consequence of the 
 principle that all governmental agencies are the 
 servants of the people, who can exercise only those 
 powers which are conceded to them by the written 
 power of attorney. The courts are obliged to con- 
 strue and determine the law, whenever a question 
 is raised before them by parties litigant, and, being 
 the servant of the people, they must obey the Con- 
 
40 THE UNWRITTEN CONSTITUTION. 
 
 stitution rather than an act of the legislature which 
 violates the Constitution. For such an act of the 
 legislature is not law. It being the duty of the 
 courts to declare what is the law, they are obliged 
 to determine when legislative acts are constitutional 
 or unconstitutional. The colonial courts were habit- 
 ually exercising this power, and the novelty in its 
 exercise by the courts after the recognition of the 
 independence of the States consists simply of the 
 fact that there was then no foreign or superior govern- 
 ment whose commands were obeyed in refusing 
 to give effect to the legislation of the inferior govern- 
 ment. The charters of government were then 
 enacted by the people, instead of by a superior 
 government. 
 
 A summary account has thus been given of the 
 development of the American constitutions, Federal 
 and State, and while there has been a rigorous 
 exclusion from the narrative of the details which 
 can be obtained in any respectable history of those 
 times, I believe no serious objection would now be 
 raised' to the claim that the constitutional law of 
 the United States, at least up to the adoption of 
 the written constitutions, was developed along the 
 same lines, as has been shown by the preceding 
 chapter to be the case with law in general, viz., * 
 that the constitutional law was the resultant of all 
 the social and other forces, which went to make up 
 
CONSTITUTIONAL LAW. 41 
 
 the civilization of the people. No serious difficulty 
 in proving this part of the proposition was anti- 
 cipated. But when the claim is made that the 
 establishment of written constitutions has not ma- 
 terially altered the law of constitutional develop- 
 ment, that American constitutional law follows and 
 registers all material changes in public opinion, as 
 unerringly as the needle follows the magnetic merid- 
 ian, we are prepared for a most vigorous opposition. 
 The commonly accepted doctrine is that unwritten 
 constitutions, like the British Constitution, reflect 
 accurately and promptly the mutations of public 
 opinion, for Parliament, being subject to no legal 
 limitations, with its hand constantly on the public 
 pulse, in every case of permanent and effective 
 legislation, simply records the decree of the people ; 
 and if that decree involves the adoption of a new 
 fundamental principle, a change is thus wrought in 
 the British Constitution. But since the American 
 constitutions are written and are established by a 
 higher power, as a limitation of the powers of gov- 
 ernment, it is impossible for any changes in the 
 Constitution to be made lawfully, except by the 
 power which created the Constitution, viz., the peo- 
 ple of the United States, or of the States, respec- 
 tively. Recognizing the necessity for changes in 
 constitutional law, in order that it may conform to 
 the changes in popular opinion and public wants, 
 
42 THE UNWRITTEN CONSTITUTION. 
 
 the framers of the constitutions have, in each case, 
 provided for the adoption of amendments. This is 
 generally accepted as the only way in which Ameri- 
 can constitutions may be changed. 
 
 If the entire constitutional law of the American 
 system of government had been reduced to writing, 
 and incorporated into one instrument, the funda- 
 mental obligation of obedience to the written word, 
 which is required by public opinion in every system 
 of jurisprudence, 1 until the power which enacted it 
 had repealed it, would bring about a practical prohibi- 
 tion of any change in the Constitution, except in 
 the prescribed way of amendment. And it is be- 
 cause the State constitutions enter more or less into 
 the details of constitutional law, that constitutional 
 conventions are called more or less frequently for 
 the purpose of revision. A convention has never 
 been called for the revision of the Federal Constitu- 
 tion ; and the probability is that there never will 
 be, as long as this government remains Federal 
 and Republican. For if such a necessity would 
 be likely to arise, it would have arisen as a result 
 of the great contest of opposing forces, which was 
 settled finally and forever by the surrender at Appo- 
 mattox. If the Federal Constitution had con- 
 sisted of any thing more than the skeleton of con-' 
 stitutional law, the same necessity for constitutional 
 
 1 See the discussion on this point in the preceding chapter. 
 
CONSTITUTIONAL LAW. 43 
 
 conventions would have been felt, as has been ex- 
 perienced in respect to the State constitutions. For 
 it is a demonstrated fact that the fragility and insta- 
 bility of a constitution are in direct proportion to 
 the multiplicity of its written rules. It is for the 
 reason that the Federal Constitution contains only 
 a declaration of the fundamental and most general 
 principles of constitutional law, while the real, living 
 constitutional law, that which the people are made 
 to feel around and about them, controlling the ex- 
 ercise of power by government, and protecting the 
 minority from the tyranny of the majority the 
 flesh and blood of the Constitution, instead of its 
 skeleton, is here, as well as elsewhere, unwritten ; 
 not to be found in the instrument promulgated by 
 a constitutional convention, but in the decisions 
 of the courts and acts of the legislature, which are 
 published and enacted in the enforcement of the 
 written Constitution. The unwritten constitutioi 
 of the United States, within the broad limitations oi 
 the written Constitution, is just as flexible, an< 
 yields just as readily to the mutations of public 
 opinion as the unwritten constitution of Great 
 Britain. But the opponents of this theory would 
 doubtless claim that the saving clause within the 
 broad limitations of the written Constitution de- 
 prives the theory of its value. That, however, is 
 only a superficial appearance. For, if by judicial 
 
44 THE UNWRITTEN CONSTITUTION. 
 
 interpretation, in obedience to the stress of public 
 opinion or private interests, the express limitations 
 of the written Constitution are made to mean one 
 thing at one time, and at another time an altogether 
 different thing, there is very little restraint imposed 
 by these written limitations. The only obstacle in 
 the way of an untrammelled popular will is the bald 
 letter of the Constitution ; and even that does not 
 chain the popular will in times of great excitement 
 and extreme necessity. 1 This is what is meant 
 and what has been attained by the doctrine of the 
 implied grant of powers, which was elaborated by 
 Chief- Justice Marshall, and without which the Fed- 
 eral Constitution would not have lasted a half- 
 century. 
 
 Mr. Jefferson was right when he said that John 
 Marshall and the Supreme Court were engaged in 
 making a constitution for the government. And the 
 Supreme Court has continued to make constitutional 
 law ever since. It is, no doubt, convenient for the 
 practical lawyer to accept the fiction that the judge 
 does not make law ; that he simply declares what was 
 the pre-existing law ; but the critical student of politi- 
 cal science repudiates it in the presence of the 
 undoubted formulation by the courts of principles, 
 never before enunciated, and which in many cases 
 conflict hopelessly with the fundamental principles 
 
 1 See>v/., Chapter VII., The Constitution in the War of Secession. 
 
: 
 
 CONSTITUTIONAL LA W. 45 
 
 of the past. No, the great body of American con- 
 stitutional law cannot be found in the written in- 
 struments, which we call our constitutions ; it is 
 unwritten, in the constitutional and legal acceptation 
 of the term, and is to be found in the decisions of the 
 courts and the acts of the National and State legisla- 
 tures, constantly changing with the demands of the 
 popular will. These mutations are not so notable or 
 so striking in the constitutional law of the States, as 
 in that of the United States, nor are they so fre- 
 quent ; but the difference is only in degree, and is to 
 be accounted for on the ground, that the State con- 
 stitutions are not so elementary as the Federal 
 Constitution, and are therefore more inflexible, and 
 hence require frequent revisions by constitutional 
 convention. 
 
 In the succeeding pages, I will give striking exam- 
 ples of the mutations of constitutional law, which 
 will, I think, incontestably prove the correctness of 
 my thesis ; and, after proving that the changes do 
 occur, I will attempt to give a logical and ethical 
 justification of the fact. 
 
CHAPTER III. 
 
 THE ELECTORAL COLLEGE. 
 
 \]As a consequence of the struggles of the State- 
 rights and National parties, in the convention of 
 1 787, the selection of a President was provided for on 
 a very unique plan. In order to keep the executive 
 separate from and independent of the other depart- 
 ments of the government, some method had to be 
 adopted, whereby his election could be had without 
 the instrumentality of Congress. In order to satisfy 
 the National party, the principle of popular represen- 
 tation had to be recognized, while State lines could 
 not be ignored without causing dissatisfaction among 
 the adherents of State sovereignty ; and there was 
 entire unanimity among the delegates of all shades 
 of political thought that the President and Vice- 
 President should be selected free from party strife, 
 so that they could faithfully represent the people, 
 irrespective of party ties and party policies. ,/To 
 meet every demand, the convention devised the plan 
 of election by electors chosen by the States, each 
 State to choose as many electors as it had senators 
 
 46 
 
THE ELECTORAL COLLEGE. 47 
 
 ^ 
 and representatives in Congress. These electors 
 
 were required to meet in their respective States to 
 cast their votes for the men whom they considered 
 best fitted to assume the responsible duties of these 
 offices. These votes, sealed up, were to be trans- 
 mitted to Congress, and to be opened by the Presi- 
 dent of the Senate and counted in the presence of 
 the two Houses assembled in joint session. Provision 
 was made for election by the Houses of Congress, 
 the President by the House of Representatives, and 
 the Vice-President by the Senate, in case no one 
 received a majority of all the votes cast. 
 
 One great object, held in view in the adoption of \ 
 this artificial system of election, was to remove the j 
 selection of the President as far away from the people 
 as it was possible. Not only was that object mani- 
 fest by the adoption of the plan itself, but it was to 
 be observed by the manner of selecting the electors, 
 viz., by the State legislatures, which at first generally 
 prevailed. In the first two elections, there was no 
 party strife, for no one appeared as a candidate for 
 the Presidency in opposition to the man who was 
 facile princeps among his countrymen. But even in 
 the second election, in respect to the Vice-Presi- 
 dency, party influence began to be felt in the actions 
 of the electoral college. The electors who leaned to 
 the Federal party were expected to vote for John 
 Adams, while the anti-Federalists were expected 
 
48 THE UNWRITTEN CONSTITUTION. 
 
 to vote for George Clinton. But in the third elec- 
 tion, party strife was fully developed ; and although 
 no pledge was exacted of the electors, party influ- 
 ence was sufficiently strong to compel most of the 
 electors to vote for the leaders of their respective 
 parties, John Adams and Thomas Jefferson. By the 
 time that the fourth election was held, party organi- 
 zations were perfected ; each party put up its candi- 
 dates for President and Vice-President before the 
 selection of the electors, and the contest was not 
 over the electors so much as it was over the respec- 
 tive candidates for President and Vice-President, 
 which the two parties had nominated. Quietly and 
 as a matter of course, apparently, the discretion ot 
 the electors, in the performance of their duty, van- 
 ished in the air, and ever since, the electors, who, 
 according to the spirit of the constitutional provision, 
 were expected to exercise a wise discretion in the 
 selection of a President and Vice-President, and who 
 were first selected, and were intended by the framers 
 of the Constitution to be selected, for their superior 
 wisdom and knowledge of the merits and qualifica- 
 tions of our public men, are called on to simply 
 register the decree of the nominating convention of 
 the party which was successful at the polls. The 
 contest is at an end, when the election for electors is 
 over. It is not necessary to wait for the meeting of 
 the electors in order to learn who would be the next 
 
THE ELECTORAL COLLEGE. 49 
 
 President and Vice-President. Public opinion is so 
 strong against the exercise of discretion by an elec- 
 tor, that if one should be rash enough to exercise the 
 discretion, which the spirit of the written Constitu- 
 tion requires him to exercise, he would be buried 
 under a public obloquy, that would be without limit, 
 for he would be considered guilty of a treachery to 
 his party, that would find condonation nowhere. 
 
 Now what is the real, living constitutional rule as 
 to the selection of a President and Vice-President ? 
 that they are to be selected after deliberation by the 
 electors, as being the men whom the electors consid- 
 ered best fitted to fill the positions ; or that they 
 must be nominated by parties, and selected by a 
 popular election, indirectly through the choice of the 
 electors of one party or of the other ? There can be 
 no hesitation in coming to the conclusion that the 
 latter is the real, living constitutional rule. 
 
 But it must not be supposed that the written 
 constitutional rule has been altogether deprived of 
 its influence upon popular action. Following the 
 fundamental rule, which requires obedience to the 
 written word, until the power which enacted it has 
 repealed it, the popular selection of President and 
 Vice-President is still required to be made indirectly 
 through the election of presidential electors. And 
 there is no better illustration of the doctrine that 
 
 constitutional law is the resultant of all the forces 
 3 
 
50 THE UNWRITTEN CONSTITUTION. 
 
 at play in society than to point out some of the 
 surprising and unforeseen consequences of the 
 existing system of election of these officers. The 
 method of selecting the electors was soon changed 
 to the popular election at the polls, and the entire 
 number of electors, to which a State is entitled, are 
 now voted for by the State at large. Consequently, 
 when the popular decree in any State is delivered 
 in favor of one party or of the other, all the chosen 
 electors of that State will be cast for the presiden- 
 tial nominees of the succcessful party, it matters 
 not how large or how small the majority may have 
 been. In consequence of the variance in the size 
 of the majorities of the different States, it has very 
 frequently happened that the candidates who are 
 elected received only a minority of the votes cast in 
 the popular election. Thus has been prevented a 
 full realization of the demand for a popular election 
 of presidential candidates. 
 
CHAPTER IV. 
 
 THE RE-ELIGIBILITY OF THE PRESIDENT. 
 
 THE written Constitution of the United States 
 
 .-<i 
 
 does not prescribe any limit to the re-eligibility of 
 the President. But Washington in his Farewell 
 Address at the close of his second term announced 
 his determination to decline re-election, on the 
 ground that the safety of republican institutions 
 demanded the imposition of a limit to the Presi- 
 dent's re-eligibility ; and that in his judgment the 
 limit ought to be placed at two terms of office. 
 The popular regrets on his retirement from public 
 life were mingled with hearty approval of the 
 patriotic reasons he assigned for his action. Of 
 the Presidents who were re-elected, down to General 
 Grant, Jefferson, Madison, Monroe, and Jackson 
 survived the expiration of their second term, and, in 
 obedience to the exalted precedent of Washington, 
 retired from the political field. Their names were 
 not proposed for re-election even by their most 
 enthusiastic friends and admirers. Mr. Lincoln was 
 re-elected, but was assassinated during his second 
 term. 
 
 51 
 
52 THE UNWRITTEN CONSTITUTION. 
 
 General Grant was elected to the presidency in 
 1868, and again in 1872. His great personal popu- 
 larity, notwithstanding the dissatisfaction with his 
 executive career, created a demand on the part of his 
 friends for a third election. Soundings were taken of 
 public opinion on the subject, and the opposition to 
 his re-election, on the general principle enunciated by 
 Washington, was so manifest from the utterances of 
 the press, that his candidacy was abandoned in 1876, 
 and Mr. Hayes became the Republican nominee and 
 ultimately the President. But in 1880, towards the 
 close of Mr. Hayes' administration, the friends of 
 General Grant pressed his claims for a re-nomination, 
 and urged that the spirit of the precedent set by 
 Washington would not be violated by the re-nomina- 
 tion of Grant in 1880, since he would not be suc- 
 ceeding himself. His supporters in the National 
 Republican Convention numbered 306, while the 
 remainder of the delegates, constituting the majority, 
 were divided among a number of strong candidates. 
 After a prolonged contest, Mr. Garfield was nomi- 
 nated, as the compromise candidate of those who 
 opposed the re-nomination of General Grant. This 
 second repulse of the attempt to re-nominate and 
 re-elect Grant is accepted as a final decision of the 
 people that no man, however distinguished or popu- 
 lar, shall hold more than two terms of the presidency. 
 For, although this condemnation was not received at 
 
RE-ELIGIBILITY OF PRESIDENT. 53 
 
 the polls, every one is satisfied that the opposition to 
 a third term was stronger outside of the Republican 
 party, than it was within that party ; and even if 
 Grant had received the third nomination at the 
 hands of his party, he would have without doubt 
 been overwhelmingly defeated at the polls. 
 
 Of course this popular decision cannot be taken as 
 pronouncing the election to the presidency for a third 
 term to be unconstitutional, in the sense that if one 
 should be elected for a third term, he could be 
 prevented from holding the office and exercising the 
 duties thereof, on the ground that he was not law- 
 fully elected to the office. For his election for a 
 third term would have to be taken as a repeal of the 
 constitutional rule previously enunciated. But if the 
 object of constitutional law is to impose limitations 
 upon the people and upon governmental agencies, 
 surely the popular limitation upon the're-eligibility of 
 the President can be taken as a constitutional limita- 
 tion ; to be sure, not to be found in the written Con- 
 stitution, but in that unwritten constitution, whose 
 flexible rules reflect all the changes in public opinion. 
 ~ This is an example of a limitation of the unwritten 
 constitution, which finds no authority whatever in 
 the written Constitution, and yet as long as public 
 opinion does not undergo a change, it is as binding as 
 any written limitation, and even more binding than 
 some of the plainest directions of the written Con- 
 stitution. 
 
CHAPTER V. 
 
 THE INVIOLABILITY OF CORPORATE CHARTERS AND 
 OF CHARTER RIGHTS. 
 
 IN Art. I., sec. 10, of the Constitution, it is pro- 
 vided that " no State shall pass any law . . . 
 impairing the obligation of a contract." 
 VThe history of the times reveals a strong and very- 
 general disposition towards repudiation of debts, 
 prompted without doubt by the sense of prostration 
 under the heavy load of indebtedness fastened upon 
 the people as a consequence of their contest with 
 England. In order to prevent such repudiation, 
 this clause was inserted in the Federal Constitution. 
 I do not believe that any one would claim for this 
 clause any other object than the prevention of 
 repudiation of public and private debts by State 
 legislation. v/Hence, if the intention of the framers 
 of the Constitution is to furnish the true construc- 
 tion, we must conclude that nothing would be 
 included within the operation of this prohibition 
 but debts and other obligations issuing out of 
 contracts. 
 
 54 
 
CHARTER RIGHTS INVIOLABLE. 
 
 But when the Supreme Court of the United 
 States was called upon, in the determination of the 
 power of the New Hampshire legislature, by an 
 amendment to its charter, to change the composi- 
 tion of the Board of Trustees of Dartmouth College, 
 to construe the meaning and effect of this clause, it 
 was held, under the lead of Chief-Justice Marshall, 
 who delivered the opinion of the court, that the 
 charter of incorporation of a private corporation was 
 a contract which could not be impaired or altered by 
 subsequent legislation, unless the power of amend- 
 ment was reserved ; and that the act of the legisla- 
 ture of New Hampshire, creating a new college 
 corporation, and directing a transfer to them of the 
 control of Dartmouth College and of its property, 
 was such an impairment of the obligation of a con- 
 tract as to be void under this clause of the Federal 
 Constitution. 1 
 
 Under the influence of the decision of the court 
 in the Dartmouth College case, it has been held that 
 subsequent legislatures are bound by legislative con- 
 
 1 " It can require no argument to prove that the circumstances of 
 this case constitute a contract. An application is made to the crown 
 for a charter to incorporate a religious and literary institution. In 
 the application it is stated that large contributions have been made 
 for the object, which will be conferred on the corporation as soon as 
 it shall be created. The charter is granted, and on its faith the prop- 
 erty is conveyed. Surely, in this transaction, every ingredient of a 
 complete and legitimate contract is to be found." Marshall, Ch. J., 
 in Dartmouth College Case v. Woodward, 4 Wheat., 518, 627. 
 
56 THE UNWRITTEN CONSTITUTION. 
 
 tracts to exempt persons and corporations from 
 liability for taxes. The decisions in support of this 
 proposition are to be found in great numbers, both 
 in the State and Federal reports. It suffices to refef 
 here to only a few decisions of the Supreme Court 
 of the United States, in which we first find intima^ 
 tion in the dissenting opinions of the future modifi- 
 cation of the ruling in the Dartmouth College and 
 other early cases. 1 In these decisions, the opinion 
 of the majority of the court seems to go the length 
 of holding to the inviolability of any contract made 
 by a legislature which was not prohibited by the 
 Constitution, even though its performance would be 
 injurious to the commonwealth ; while the dissent 
 ing opinions rest their objections to the decision ol 
 the court on the ground that the power of taxation 
 1 was political, and that the legislature cannot bartei 
 away it or any other political power. 
 
 But it was not long before the injurious effect of 
 the decision of the Dartmouth College case was ap- 
 preciated, and it became an almost universal legisla- 
 tive custom to grant charters subject to repeal and 
 amendment. But that custom did not prevent the 
 decision from working a dangerous effect in recog- 
 
 1 State Bank of Ohio v. Knoop, 16 How., 376 ; Ohio Life Ins. 
 and Trust Co. v. Debolt, 16 How., 376. 
 
 See, to the same effect, Billings v. Providence Bank, 4 Pet., 514 ; 
 Gordon v. Appeal Tax Court, 3 How., 133 ; Home of the Friendless 
 v. Rowse ; Washington University v, Rowse, Wall., 430, 439. 
 
CHARTER RIGHTS INVIOLABLE. 57 
 
 nizing the inviolability of charter privileges. The 
 dangerous consequences of this doctrine were exem- 
 plified by the facts of the case of Charles River 
 Bridge Company v. Warren River Bridge Company, 
 II Pet., 536. The Charles River Bridge Company 
 had been authorized to establish and maintain a 
 bridge across the Charles River, and to charge toll 
 for its use for a stated period, at the lapse of which 
 the bridge was to become public. This bridge was 
 constructed in pursuance of this grant, and after it 
 had been in use for some time, but before the expira- 
 tion of the period for which the Charles River 
 Bridge Company had been granted the right to 
 charge toll, the legislature authorized the construc- 
 tion of a second bridge, connecting the same places, 
 and situated within a short distance of the first 
 bridge. It is plain that the construction of the 
 second bridge could under those circumstances have 
 had but one effect upon the franchise of the Charles 
 River Bridge Company viz., an immediate serious 
 diminution in the profits of that company, and an 
 ultimate destruction of the franchise in consequence 
 of the second bridge being opened to the public 
 without charge at an earlier day. It had already 
 become public when the decision in the case was 
 pronounced by the Supreme Court of the United 
 States. The public pressure in favor of the second 
 bridge was so great that, notwithstanding it was a 
 
58 THE UNWRITTEN CONSl^ITUTION. 
 
 plain case of impairment of the charter rights of the 
 Charles River Bridge Company, the court, under the 
 lead of Chief-Justice Taney, gave judgment for the 
 Warren River Bridge Company, resting its decision 
 on the technical ground that all grants of the State 
 must be construed favorably to the State, and 
 strictly against the grantee ; that the grant of a 
 franchise will not be considered as an exclusive 
 monopoly, unless expressly declared to be so, and 
 that the incidental injury proceeding from the grant 
 of a second franchise would not be, in the constitu- 
 tional sense, an impairment of the obligation of a 
 contract. Public opinion was not yet ripe for an 
 open repudiation of the doctrine of the Dartmouth 
 College case ; and hence the end was attained by 
 the employment of a technicality. 1 
 
 But from this time to the present the power of 
 private corporations has increased rapidly, every ad- 
 vance in science and industry tending to develop the 
 proportions and the strength of corporations, until 
 there is a general popular fear of an usurpation by 
 them of control of the government. The popular de- 
 mand for a control of railroad and other corporations 
 became so great and so urgent, that it was impos- 
 sible for Congress or the courts to ignore it. Laws 
 
 1 Charles River Bridge Co. v. Warren River Bridge Co., n Pet., 
 536. See, to same effect, Richmond R.R. Co. v. Louisa. R.R. Co., 
 13 How., 71. 
 
CHARTER RIGHTS INVIOLABLE. 59 
 
 were passed subjecting railroads to all sorts of regu- 
 lations, and finally they were placed in many States 
 under the control of a railroad commission. On the 
 general principles, that corporations, like natural 
 persons, were subject to the police power of the 
 State, and that there was no impairment of the 
 obligation of a contract, if a railroad corporation 
 were subjected to reasonable special police regula- 
 tions, although these regulations increased the lia- 
 bilities of the corporations and diminished their 
 income, it was held that this police power could 
 not be bartered away by the legislature. 1 And so, 
 also, has it been held that there is no violation of the 
 constitutional prohibition of impairment of the 
 obligation of a contract where corporations are sub- 
 jected to a regulation of their charges by State 
 officers or commissions. This was held to be only 
 one phase of the police power of the State, and that 
 the charters were issued subject to the exercise of 
 the power. 2 
 
 So far in the course of this constitutional develop- 
 ment, it has been possible for the courts, by the aid 
 of technicalities and refinements of verbal meanings, 
 
 1 Thorpe v. Rutland, 27 Vt., 140; Railroad Co. v. Fuller, 17 
 Wall., 560 ; Chicago, etc., R.R. Co. v. Haggerty, 67 111., 113 ; Haas 
 v. Railroad Co. , 141 Wis. , 44 ; Pennsylvania R. R. Co. v. Lewis, 79 
 Pa. St., 33. 
 
 * Chicago, etc., R.R. Co. v. Iowa, 94 U. S., 115 ; Peck v. Chicago, 
 etc., R.R. Co., 94 U. S., 164, 176 ; Union Pac. Ry. v. United States, 
 99 U. S., 700. 
 
60 THE UNWRITTEN CONSTITUTION. 
 
 to claim that there has been no repudiation of the 
 Dartmouth College case. It is true that there is not 
 the slightest hint, in the opinion of Chief-Justice 
 Marshall, of the subjection of the corporate rights 
 to an indefinable and elastic power, called police 
 power, in the exercise of which it is possible for the 
 interests of the corporation to be jeopardized. But 
 that can be explained away by holding that the facts 
 of the Dartmouth College case did not require any 
 acknowledgment of the police power of the govern- 
 ment. There are, however, two later cases, which 
 cannot be substantially reconciled with the position 
 of the court in the Dartmouth College case. I refer 
 to the cases of Stone v. Mississippi, 101 U. S., 814, 
 and Fertilizing Co. v. Hyde Park, 97 U. S., 659. In 
 the first case, Stone v. Mississippi, the question arose 
 on a repeal of the charter of a lottery company by a 
 x new provision of the State constitution. The court 
 held that the abolition of the lottery company was 
 nothing more than the exercise of the police power, 
 and did not offend the constitutional provision under 
 discussion. After maintaining that " the doctrines of 
 Trustees of Dartmouth College v. Woodward (4 
 Wheat., 518), announced by this court more than 
 sixty years ago, have become so imbedded in the 
 jurisprudence of the United States, as to make them 
 to all intents and purposes a part of the Constitution 
 itself, " Chief-Justice Waite proceeds : 
 
CHARTER RIGHTS INVIOLABLE. 61 
 
 
 
 "The contracts which the Constitution protects are those that 
 relate to property rights, not governmental,. It is not always easy to 
 tell on which side of the line which separates governmental from 
 property rights a particular case is to be put, but in respect to lotteries 
 there can be no difficulty. They are not, in the legal acceptation of 
 the term malain se, but, as we have just seen, may properly be made 
 mala prohibita. They are a species of gambling, and wrong in their 
 influences. They disturb the checks and balances of a well-ordered 
 community. Society built on such a foundation would almost of 
 necessity bring forth a population of speculators and gamblers, living 
 on the expectation of what ' by the casting of lots, or by lot, chance or 
 otherwise,' might be 'awarded' to them from the accumulation of 
 others. Certainly the right to suppress them is governmental, to be 
 exercised at all times by those in power, at their discretion. Any one, 
 therefore, who accepts a lottery charter does so with the implied 
 understanding that the people, in their sovereign capacity, and 
 through their properly constituted agencies, may resume it at any 
 time when the public good shall require, whether it be paid for or 
 not. All that one can get by such a charter is a suspension of certain 
 governmental rights in his favor, subject to withdrawal at will. He 
 has in legal effect nothing more than a license to enjoy the privilege 
 on the terms named for the specified time, unless it be sooner abro- 
 gated by the sovereign power of the State. It is a permit, good 
 as against existing laws, but subject to future legislative and constitu- 
 tional control or withdrawal." ! 
 
 In answer to the criticism that the rulings of the 
 court, that legislative contracts of exemptions from 
 taxation are inviolable by subsequent legislatures, 
 would require the court to pronounce this action of 
 the Mississippi Constitutional Convention to be un- 
 constitutional, the Chief-Justice says: 
 
 -r 
 
 " We have held, not however without strong opposition at times, 
 
 that this clause protected a corporation in its charter exemptions 
 from taxation. While taxation is in general necessary for the sup- 
 port of government, it is not part of the government itself. Govern- 
 
 1 Stone v. Mississippi, 101 U. S., 820, 821. 
 
62 THE UNWRITTEN CONSTITUTION. 
 
 ment was not organized for the purposes of taxation, but taxation 
 may be necessary for the purposes of government. As such, taxation 
 becomes an incident to the exercise of the legitimate functions of 
 government, but nothing more. No government dependent on taxa- 
 tion for support can bargain away its whole power of taxation, for 
 that would be substantial abdication. All that has been determined 
 thus far is, that for a consideration it may, in the exercise of a 
 reasonable discretion, and for the public good, surrender a part of its 
 powers in this particular." ! 
 
 In the case of the Fertilizing Company v. Hyde 
 Park, 8 the facts were these : The plaintiff corpora- 
 tion was granted the privilege of establishing a fac- 
 tory for the conversion of offal into fertilizers 
 within a certain district in the vicinity of Chicago ; 
 and that this privilege should be enjoyed undis- 
 turbed for fifty years. The city of Hyde Park 
 sprang up around the fertilizing factory, after the 
 manner of western towns, and of course the inhabi- 
 tants complained of the factory as a nuisance. The 
 legislature of Illinois directed the closing up or 
 removal of the factory within two years. This 
 legislative action was taken before the expiration of 
 the period for which the privilege of maintaining 
 the factory in that locality had been granted. On 
 an appeal to the courts it was finally determined 
 by the Supreme Court of the United States, that 
 this legislative prohibition of the continuance of 
 the factory in the same place was not an im- 
 
 1 Stone v. Miss., 101, W. S. 820 ; Ch.-J. Waite. 
 8 97 U. S., 659. 
 
CHARTER RIGHTS INVIOLABLE. 63 
 
 , pairment of the obligation of the contract created 
 by the grant of the privilege, since it was but the 
 ordinary exercise of police-power, subject to which 
 all legislative grants are made. Mr. Justice Miller 
 concurred in the judgment on the ground that the 
 legislature could compel the removal of the factory 
 to a less objectionable location, since the contract of 
 the legislature with the company did not specify 
 any particular location in which to establish the 
 factory. But the Justice took exception to the 
 position taken by the majority of the court in 
 the opinion of Justice Swayne, saying : 
 
 "It is said that such contract as may be found in the present 
 case was made subject to the police power of the legislature over the 
 class of subjects to which it relates. The extent to which this is true 
 depends upon the specific character of the contract and not upon the 
 general doctrine. This court has repeatedly decided that a State 
 may by contract bargain away her right of taxation. I have not con- 
 curred in that view, but it is the settled law of this court. If a State 
 may make a contract on that subject which it cannot abrogate or 
 repeal, it may, with far more reason, make a contract for a limited 
 time for the removal of a continuing nuisance from a populous city. 
 
 " The nuisance in the case before us was the very subject-matter 
 of the contract. The consideration of the contract was that the com- 
 pany might and should do certain things which affected the health 
 and comfort of the community ; and the State can no more impair 
 the obligation of that contract than it can resume the right of taxa- 
 tion which it has on valid consideration agreed not to exercise, 
 because in either case the wisdom of its legislation has become 
 doubtful. 
 
 ' ' If the good of the entire community requires the destruction of 
 the company's rights under this contract, let the entire community 
 pay therefore by condemning the same for public use." J 
 
 1 Pp. 670, 671. 
 
64 THE UNWRITTEN CONSTITUTION. 
 
 Mr. Justice Strong dissented from the judgment 
 of the court, criticising the ground taken by Mr. 
 Justice Miller as well as that taken by the majority 
 of the court : 
 
 " It has been suggested that the charter did not precisely designate 
 the place where the rendering works might be established, and to 
 which the city offal might be carried ; and hence it is argued that, 
 notwithstanding the contract, it is within the power of the legislature 
 to order the removal of the works to another locality, and that this 
 may be done mediately by the municipal corporation empowered by 
 the State.. The inference I emphatically deny. It is true the char- 
 ter empowered the company to select a location within certain geo- 
 graphical limits, and did not itself define the exact point ; but when 
 under this power a location was made by the company and hundreds 
 of thousands of dollars were expended upon it, it was beyond the 
 power of the other contracting party to change it. The location was 
 lawful when made, and if lawful then, it cannot be unlawful after- 
 wards. ... It must be, therefore, that the location of the com- 
 pany's works at the places where they were located, recognized as a 
 proper location by the act of the legislature of 1869, is one which 
 cannot be changed without the consent of both parties to the 
 contract." l 
 
 " That the charter granted by the legislature, March 8, 1867, 
 and accepted by the company, is a contract protected by the Consti- 
 tution of the United States, cannot be denied, in the face of the 
 Dartmouth College v. Woodward (4 Wheat., 518), and the long line of 
 decisions that have followed in its wake and reasserted its doctrines. 
 And if the company holds its rights under and by force of the con- 
 tract, those rights cannot be taken away or impaired, either directly or 
 indirectly, by any subsequent legislation." 2 
 
 It has also been held by the same court that there 
 is no impairment of the obligation of the contract 
 
 made with a brewing or distilling corporation, that 
 \ 
 
 1 Page 677. 
 
 3 Strong, J., p. 672. 
 
CHARTER RIGHTS INVIOLABLE. 65 
 
 its business is subsequently destroyed, and its prop- 
 erty rendered valueless, by a general prohibition of 
 the manufacture and sale of intoxicating liquors. 1 
 
 It is impossible for one to read between the lines 
 of these decisions, and to compare the facts of the 
 cases, without reaching the conclusion that there has 
 been a decided shifting of the position of the court 
 since the case of Dartmouth College v. Woodward. 
 In that case, the Supreme Court prohibited a simple 
 change in the personnel of the college board of trus- 
 tees, although this change would not deprive the 
 real beneficiaries, the students, of any advantage de- 
 rivable under the old charter. In these later deci- 
 sions, the court has permitted the practical destruc- 
 tion of corporate property and privileges, guaranteed 
 by legislative grant, on the ground that corporations, 
 as well as natural persons, are subject to the control 
 of the police power of the State. The welfare of the 
 communities required these interferences with prop- 
 erty and franchises, since their enjoyment threatened 
 or actually inflicted evil. But the same reason might 
 have been urged in favor of the New Hampshire in- 
 terference with Dartmouth College. Nowhere can 
 one man exert a more powerful influence over the 
 minds and hearts of others than in the professor's 
 chair. The legislature may have had reason to fear that 
 
 1 Beer Company v. Massachusetts, 97 U. S., 25 ; Mugler v. Kan- 
 sas, 123 U. S., 623 ; Powell v. Pennsylvania, 127 U. S., 678. 
 5 
 
66 THE UNWRITTEN CONSTITUTION. 
 
 the presence of so many tory representatives on the 
 old board of trustees of the college would exert a 
 baneful influence upon the minds of the youths who 
 would attend the college. If they truly thought this 
 danger was imminent, they would have been justified 
 in stamping this evil out of existence. Other nations 
 have for the same reason banished a hostile popula- 
 tion, or expropriated their land. 
 
 The facts of these cases do not vary materially : 
 the difference in the opinions cannot be accounted 
 for on this ground. The contradiction arises out of 
 a change in public opinion, and a consequent change 
 in the constitutional rule. Nothing but a profound 
 respect and reverence for the great Chief-Justice who 
 penned the decision in the Dartmouth College case 
 has compelled this show of indorsement of its prin- 
 ciples in the later decisions of the Supreme Court, 
 while the rule is substantially modified, if not abro- 
 gated altogether. 
 
CHAPTER VI. 
 
 THE DOCTRINE OF NATURAL RIGHTS IN AMERICAN 
 CONSTITUTIONAL LAW. 
 
 ^PERHAPS no product of the Roman law has exerted 
 so potent an influence upon the development of 
 modern jurisprudence as the Roman doctrine of jus 
 naturaleJ^ When Rome was in its infancy, the 
 national dominion was in its character personal, and 
 not territorial; i.e., the governmental power was ex- 
 erted over the individuals who composed the Roman 
 people, and not over the country which they occu- 
 pied. The tie of nationality bound the Romans to 
 each other, and not to the land ; hence the early Ro- 
 man law did not take into consideration strangers 
 who might be resident within the Roman territory. 
 The jus civile, the name given to the early Roman 
 law, was designed to determine the legal relations 
 and rights of Roman citizens only, and did not take 
 cognizance even of the claims of Roman citizens 
 against these resident strangers. The stranger had 
 no right which the Roman was obliged to respect, 
 nor was he under any obligations to the Romans 
 
 67 
 
68 THE UNWRITTEN CONSTITUTION. 
 
 with whom he may have had dealings. But this 
 anomalous state of affairs could not last long. With 
 the increase of Rome's international intercourse, the 
 demand for rules of law, which could apply to trans- 
 actions with foreigners, became greater and greater 
 until, finally, the Roman government provided a 
 special judge for the hearing of all causes of actions 
 arising between strangers and between strangers and 
 Romans. The jus civile, like the beginnings of all 
 systems of jurisprudence, was extremely technical 
 and symbolical ; and to apply this law in all its 
 strictness to the adjudication of the rights of stran- 
 gers, who could not be presumed to know any thing 
 of this law, would have resulted often in the inflic- 
 tion of wrong, rather than the dispensation of justice. 
 Instead of deciding these causes of action according 
 to the jus civile, the Roman praetor, who was given 
 charge of them, rendered his decisions in accordance 
 with those rules of law which obtained generally 
 among all nations. The law, thus developed along- 
 side of the jus civile, became known as the jus gen- 
 tium, or the law of nations. 
 
 On account of the general and almost universal 
 character of its rules of conduct, the jus gentium 
 became much less technical and more rational than 
 the jus Civile ; and when the time arrived for the 
 transformation of Roman law from its crude em- 
 pirical character into a science, the jus gentium was 
 
NATURAL RIGHTS. 69 
 
 found to be of far greater importance than the jus 
 civile, although originally the former was intended 
 to play a subordinate part in the development of 
 the system. 
 
 About the same time the Roman lawyers, to- 
 gether with other serious and thoughtful men of 
 the day, revolting from the prevalent profligacy, 
 became infatuated with the stoic philosophy, and 
 drew from that philosophy the Greek idea of natural 
 law. Instead of the jus gentium being received as a 
 body of rules found to be generally enforced by all 
 nations, it became, in its reduction to the forms of a 
 science, the jus naturale, an ideal law which one in 
 his imagination would conceive to be in force in a 
 state of perfect nature. Jus naturale is the scientific, 
 idealized form of the jus gentium. 
 
 It is impossible for one to suppose that the 
 accomplished Roman jurists really believed that by 
 their labors they were taking the world back to the 
 legal relations of the aboriginal peoples, who knew 
 no state, no legislator, and who were supposed to 
 have lived in a state of nature. It is conceivable 
 that poets may imagine the perfection of legal rela- 
 tions under such a natural law ; but the hard com- 
 mon-sense of the Roman lawyer, would without doubt 
 have revolted at the thought of finding the perfection 
 of legal reasoning in the chaos which precedes organ- 
 ized national life. In the same way that these jurists 
 
70 THE UNWRITTEN CONSTITUTION. 
 
 yearned for a release of the world from its habits of 
 profligacy and gross indulgence, by the adoption of 
 simpler and more rational modes of living, so did 
 they strive to strip the law of its barbarous and 
 gross technicalities, and make it approximate the 
 perfection of reason, by reducing it to the compara- 
 tive simplicity of form, which one may well conceive 
 to be the character of a natural law, enforced among 
 the most rational, the most highly developed people. 
 It was the simplicity of form, rather than the 
 rational content of the law, as projected by them, 
 and its development without the active interference 
 of the state, which made them compare it with law 
 in a state of nature. 
 
 But the cruder form of this doctrine obtained a 
 stronghold upon the legal thought of the middle 
 ages, and men really believed that we had fallen 
 from a more glorious state of nature, and that were 
 we able to retrace the steps taken in the progress of 
 the world, we could regain that natural state, where 
 law was the perfection of reason, and barbarous 
 technicalities and injustice were unknown. The 
 doctrine reaches the extreme limits of absurdity in 
 the social contract, in the claim that all govern- 
 mental authority, and hence the binding force of 
 law, is. derived from the agreement or consent of the 
 governed ; and that all men are possessed of certain 
 natural rights, rights enjoyed by them in a state of 
 
NATURAL RIGHTS. 71 
 
 nature, and which no government can rightfully in- 
 fringe or take away. This doctrine of a social con- 
 tract has dominated modern thought in a more or 
 less modified form to the present day, and even now 
 resists tenaciously the heavy onslaughts made upon 
 it by jurists of the Bentham-Austin school. 
 
 In the reaction from the all-powerful influence of 
 this doctrine of a social contract, and of absolute 
 natural rights, the pendulum of modern scientific 
 thought has swung too far in the opposite direction. 
 A large and influential school of English jurists, 
 whose chief apostles and expounders have been Ben- 
 tham and Austin, repudiate entirely the Roman 
 doctrine of jus naturale. Defining law to be the 
 command of a sovereign to a subject, and recognizing 
 the will of the sovereign to be the only standard of 
 right, they push their doctrine to the extreme of 
 denying that the consideration of any so-called natu- 
 ral rights could properly fall within the province of 
 jurisprudence, and confining it strictly to the realm 
 of ethical questions. 
 
 Technically, this criticismjof the Roman doctrine 
 jus naturale is sound ; for there can be no legal right 
 which is not recognized or created by the sovereign 
 power of the state. The commands of the sover- 
 eign are always law, and hence legally right, it 
 matters not how many so-called natural rights are 
 thereby violated. But the error of the Austinites, 
 
THE UNWRITTEN CONSTITUTION. 
 
 in this case, as in the general question of the origin 
 and development of law, 1 lies in failing to take note 
 of the fact that popular notions of rights, however 
 wrong they may be from a scientific standpoint, do 
 become incorporated into, and exert an influence 
 upon, the development of the actual law. Every legal 
 principle is the resultant of some two or more social 
 forces ; and popular notions are usually more power- 
 ful than physical facts. So far, therefore, as the 
 doctrine of natural rights has moulded the principles 
 of the law, a recognition of the doctrine will be 
 necessary to a comprehension of the law ; and to 
 that extent would a study of the doctrine of natural 
 rights fall within the province of jurisprudence. 
 
 So far as the jus naturale of the Romans became 
 a part of the existing Roman law, it belonged to the 
 province of jurisprudence. The adoption and pro- 
 mulgation of its rules by the proper authorities simply 
 indicated that they were habitually and spontane- 
 ously obeyed by the masses, and needed only to be 
 enforced against the rebellious minority. But so far 
 as the rules of the jus naturale did not meet with 
 popular obedience, whose indorsement was advocated 
 only by the more advanced thinkers, because they 
 approximated their highest ethical conceptions, we 
 must? concede that the jus naturale has no place in 
 the province of jurisprudence. When, therefore, 
 
 1 See Chapter I. 
 
NATURAL RIGHTS. 73 
 
 a modern writer attacks an existing rule of law, on 
 the ground that it offends the principles of natural law, 
 or violates some natural right, the statement would 
 have been the same if he said that the law was ethically 
 indefensible. In the province of jurisprudence there 
 is, therefore.,- no room for the assertion of natural 
 rights, except so far as they are recognized and pro- 
 tected by the existing law. The same difference exists 
 between natural rights and legal rights, as was recog- 
 nized as existing between the morality of law and 
 the morality of ethics. 1 
 
 But even as a part of ethics, there is no fixed, in- 
 variable list of natural rights. *^hese natural rights 
 vary and their characters change with the develop- 
 ment of the ethical conceptions of the people, the 
 development of the legal rights keeping pace with, 
 and following behind, the development of natural or 
 ethical rights. Indeed, the natural rights with which 
 all men are proclaimed in the American Declaration 
 of Independence to be endowed by their Creator, 
 have been developed within the historical memory 
 of man. /xPersonal rights of all kinds were unknown 
 in the dawn of history. Tn all the Aryan races the 
 individual was originally deemed to be possessed of 
 no rights. The family was the legal unit, and the 
 patriarch, as the representative of the family, auto- 
 cratically determined the fate and destiny of his 
 
 1 See Chapter I. 
 
74 THE UNWRITTEN CONSTITUTION. 
 
 wife, children, and slaves. His despotic will knew 
 no limits but those imposed by the softening influ- 
 ence of love. There was no legal or moral limit to 
 his power. Disobedience to the husband, father, or 
 master was declared to be the gravest crime, and 
 subjected the offender to the possible loss of his life. 
 As long as the patriarch lived the members of his 
 family remained under his power ; when a woman 
 married she passed from the dominion of her family 
 patriarch to that of her husband's patriarch, and of 
 course the children of the marriage were under like 
 subjection. The patriarch also had the absolute 
 disposition of all the property acquired by the differ- 
 ent members of the family. 
 
 A little later, a change in the law was demanded 
 by the prevalent sense of right, so far as to enable 
 sons, upon their arrival at a certain age, to acquire 
 an independent legal position, and to possess and 
 enjoy the rights of life, liberty, and property, free 
 from the interference of the father. But females of 
 all ages remained under the dominion of their 
 fathers until their marriage, when they passed un- 
 der the dominion of their husbands. All persons 
 under age were held to be incapable of having any 
 independent legal rights. 
 
 Latf r on, single women were placed upon the same 
 footing with men, and married women and minors 
 were conceded independent rights of property ; but 
 
NATURAL RIGHTS. 75 
 
 it was still considered a natural right for the father 
 to restrain and control the actions of his minor 
 child, and the husband those of his wife. This was 
 the condition of the law of domestic relations at the 
 beginning of the present century. Since then there 
 has been a gradual emancipation of the wife from 
 the control of the husband in this country, in the 
 more advanced States the married woman having 
 the same freedom from restraint as the single 
 woman. We are also on the eve of witnessing the 
 abrogation of the supposed natural right of the 
 parent to control the actions of his minor child, and 
 to educate it spiritually and intellectually as he 
 should see fit. Instead of recognizing in the parent 
 a right to exercise this control over the minor child, 
 the latest judicial opinion treats this control of the 
 child as a trust, reposed by the State in the parent 
 for the benefit of the child ; and that whenever the 
 State should determine that the trust is not being 
 properly executed, or that the public interests or 
 the interests of the child require the execution 
 of the trust by the State itself, there is no limit 
 to the power of the State to interfere with the 
 parental control. The confinement of minor chil- 
 dren in reformatory schools, and compulsory educa- 
 tion by the State, to the exclusion of private 
 education, can alone be justified by a denial of any 
 right in the parent to determine the destiny of his 
 
76 THE UNWRITTEN CONSTITUTION. 
 
 child. 1 Thus we see, according to the earliest law 
 of the Aryan races, the individual had no legal 
 standing, and was the subject of no rights, unless 
 he happened to be the head of a family. In this 
 representative capacity, he was the autocratic pos- 
 sessor of all the rights of the family. At the 
 present time, each individual stands free before the 
 law, the independent possessor of his own rights, 
 except when tender age or mental imbecility re- 
 quire him for his own good to be placed under 
 tutelage. 
 
 There is, therefore, no such thing, even in ethics, 
 as an absolute, inalienable, natural right. The so- 
 called natural rights depend upon, and vary with, 
 the legal and ethical conceptions of the people. As 
 presently developed, the doctrine of natural rights 
 may be tersely stated to be a freedom from all legal 
 restraint that is not needed to prevent injury to 
 others; a right to do any thing that does not 
 involve a trespass or injury to others ; or, to em- 
 ploy the language of Herbert SpencerH: " Every 
 man has freedom to do aught that he wills, provided 
 he infringes not the equal freedom of any other 
 man." The prohibitory operation of the law must 
 be confined to the enforcement of the legal maxim, 
 sic utere tuo, ut alienum non ladas. This right of 
 
 1 See Tiedeman's "Limitations of Police Power," 165, 166, 
 i66a, 167. 
 8 "Social Statics, "p. 121. 
 
NATURAL RIGHTS. 77 
 
 freedom from needless restraint has been guaranteed 
 to the British subject by the Magna Charta, the 
 Petition of Right, and the Bill of Rights. And 
 while these several state papers, which in the main 
 constitute the English Constitution, are in fact acts 
 of Parliament, repealable by any Parliament, yet 
 their contents are so highly esteemed by public 
 opinion that they have been raised above ordinary 
 enactments, and practically operate to restrain the 
 power of Parliament. An act of Parliament, which 
 would flagrantly violate the fundamental principles 
 of the Magna Charta, could not be enforced, and 
 the political future of the party and persons re- 
 sponsible for its enactment would be irretrievably 
 damaged. But there is no binding force in the 
 prohibitions of the Magna Charta, except so far as 
 they are now voiced by public sentiment. The 
 solemn enactment of this celebrated statute un- 
 doubtedly does check the growth of public sen- 
 timent away from its principles ; but if an act of 
 Parliament should be passed in accordance with 
 some great public demand, the fact that it violated 
 these principles would not prevent its enforcement 
 by the courts. Mr. Austin, therefore, is justified in 
 saying that English constitutional law belongs to 
 the province of ethics, and cannot be called a branch 
 of jurisprudence. 
 
 These same declarations of natural rights have 
 
78 THE UNWRITTEN CONSTITUTION. 
 
 been incorporated into the American constitutions, 
 both State and Federal. The Federal Constitution 
 contains specific and general limitations upon the 
 power of both State and Federal governments, 
 while the State constitutions impose limitations 
 upon the respective State governments. Most of 
 the State constitutions also contain formal declara- 
 tions, called Bills of Rights, enumerating somewhat 
 in detail the rights of the citizen which the State 
 government must respect. Thus the prevalent doc- 
 trine of natural rights was formulated and made 
 a part of the organic law of the land, to be respected 
 and enforced until repealed or changed by the 
 proper authority. All the American constitutions 
 make it the duty of the courts to prevent any 
 violation of these rights by the other departments 
 of the government by refusing to enforce laws which 
 contain such violations of constitutional rights. 
 
 With the general growth and spread of popular 
 go.vernment, there appeared a political philosophy 
 whose central thought and fundamental maxim was, 
 that society, collectively and individually, can attain, 
 its highest development by being left free from gov- 
 ernmental control, as far as this is possible, provision 
 being made by the government only for the protec- 
 tion of the individual and of society by the pun- 
 ishment of crimes and trespasses. The so-called 
 laissez-faire philosphy has, until lately, so controlled 
 
NATURAL RIGHTS. 79 
 
 public opinion in the English-speaking world, that no 
 disposition has been manifested by the depositaries of 
 political power to do more than to control the crimi- 
 nal classes, provide for the care of the unfortunate 
 poor and insane, and make public improvements. 
 Hence in the early days of our national life, the 
 discussions in constitutional law were chiefly confined 
 to a consideration of the more formal provisions, 
 which determined the methods of governmental 
 procedure, and defined the limits of each branch of 
 the government, the all-important question being the 
 relative superiority of the National and State govern- 
 ments. In those days little was thought of those 
 " glittering generalities," as they were called, which 
 made it a part of our constitutional law that man is 
 possessed of certain inalienable rights, that cannot be 
 denied to him by government, and which denied to 
 government the power to do more than to prevent 
 the infliction of injuries upon others. These general 
 declarations of private rights were not then consid- 
 ered as important in controlling the power of gov- 
 ernment, because the government manifested no 
 disposition to violate them. But a change has since 
 then come over the political thought of the country. 
 Under the stress of economical relations, the clashing 
 of private interests, the conflicts of labor and capital, 
 the old superstition that government has the power 
 to banish evil from. the earth, if it could only be 
 
80 THE UNWRITTEN CONSTITUTION. 
 
 induced to declare the supposed causes illegal, has 
 been revived ; and all these so-called natural rights, 
 which the framers of our constitutions declared to be 
 inalienable, and the violation of which they pro- 
 nounced to be a just cause for rebellion, are in 
 imminent danger of serious infringement. The 
 State is called on to protect the weak against the 
 shrewdness of the stronger, to determine what wages 
 a workman shall receive for his labor, and how many 
 hours he shall labor. Many trades and occupations 
 are being prohibited, because some are damaged in- 
 cidentally by their prosecution, and many ordinary 
 pursuits are made government monopolies. The 
 demands of the Socialists and Communists vary in 
 degree and in detail, but the most extreme of 
 them insist upon the assumption by government of 
 the paternal character altogether, abolishing all 
 private property in land, and making the State the 
 sole possessor of the working capital of the nation. 
 
 Contemplating these extraordinary demands of the 
 great army of discontents, and their apparent power, 
 with the growth and development of universal suf- 
 frage, to enforce their views of civil polity upon the 
 civilized world, the conservative classes stand in con- 
 stant fear of the advent of an absolutism more tyran- 
 nical and more unreasoning than any before experi- 
 enced by man, the absolutism of a democratic 
 majority. 
 
"8 ' 
 
 NATURAL RIGHTS. 81 
 
 In these days of great social unrest, we applaud 
 the disposition of the courts to seize hold of these 
 general declarations of rights as an authority for 
 them to lay their interdict upon all legislative acts 
 which interfere with the individual's natural rights, 
 even though these acts do not violate any specific 
 or special provision of the Constitution. These gen- 
 eral provisions furnish sufficient authority for judicial 
 interference. As Judge Cooley ' has forcibly said 
 in respect to the regulation of trades and professions : 
 
 ' ' What the legislature ordains and the constitution does not prohibit 
 must be lawful. But if the constitution does no more than to provide 
 that no person shall be deprived of his life, liberty, or property, 
 except by due process of law, it makes an important provision on this 
 subject, because it is an important part of civil liberty to have the 
 right to follow all lawful employments." 
 
 The cases in which these general provisions of the 
 Constitution have been declared by the courts to be 
 binding upon the government, are numerous. At an 
 early day, it was judicially decided in Massachusetts 
 that slavery was abolished in that State by a provi- 
 sion of the State constitution, which declared that 
 " all men are born free and equal, and have certain 
 natural, essential, and inalienable rights," etc. 8 
 /Daily the courts are declaring acts of the legisla- 
 ture to be unconstitutional, because they violate pri- 
 
 1 Cooley on Torts, p. 277. 
 
 * See Draper's " Civil War in America," vol. i., p. 317 ; Bancroft, 
 "Hist, of U. S.," vol. x., p. 365 ; Cooley's "Principles of Const.," 
 p. 213. 
 6 
 
82 THE UNWRITTEN CONSTITUTION. 
 
 vate rights, guaranteed by no other provisions of the 
 constitutions, but these general declarations of 
 rights. To quote from a late decision of the New 
 York Court of Appeals 1 : 
 
 11 The main guaranty of private rights against unjust legislation is 
 found in that memorable clause in the bill of rights, that no man shall 
 be deprived of life, liberty, or property without due process of law. 
 This guaranty is not construed in any narrower technical sense. The 
 right to life may be invaded without its destruction. One may be 
 deprived of his liberty in a constitutional sense without putting his 
 person in confinement. Property may be taken without manual 
 interference therewith, or its physical destruction. The right to life 
 includes the right of the individual to his body in its completeness and 
 without dismemberment ; the right to liberty, the right to exercise his 
 faculties, and to follow a lawful avocation for the support of life ; the 
 right of property, the right to acquire property and enjoy it in any 
 way consistent with the equal rights of others and the just exactions 
 and demands of the State." 
 
 1 Bertholf v. O'Reilly, 74 N. Y., 509. 
 
CHAPTER VII. 
 
 THE CONSTITUTION IN THE WAR OF SECESSION. 
 
 IT is very common to hear that, in the effort to 
 save the Union from dismemberment, the provisions 
 of the Constitution for the protection of the individ- 
 ual against tyranny and oppression were set aside, 
 and interferences with personal liberty were com- 
 monly practised, in violation of express provisions 
 of the written Constitution. This charge is true in 
 two important particulars. In the first place, the 
 President, by his proclamation and without the con- 
 sent of Congress, suspended the right to the writ of 
 habeas corpus, and authorized military commanders 
 to arrest and imprison any person reasonably sus- 
 pected of treasonable practices, instructing such 
 commanders to reply to any writ of habeas corpus to 
 the effect that the imprisonment was by order of the 
 President. 
 
 An attempt was made to prevent the enforcement 
 of this proclamation, by an appeal to the Chief- 
 Justice of the United States, Mr. Taney. A writ of 
 habeas corpus was issued by him, while sitting in 
 
 83 
 
84 THE UNWRITTEN CONSTITUTION. 
 
 chambers at Baltimore, commanding the body of 
 one Merryman to be brought before him. Merry- 
 man had been arrested and imprisoned by order of a 
 military commander, under these directions of the 
 President ; and in obedience to these instructions he 
 made return to the writ, refusing to deliver up his 
 prisoner, stating the reason for his detention, and 
 the authority of the President to suspend the writ of 
 habeas corpus. Chief- Justice Taney filed an elaborate 
 opinion, in which he maintained that the power to 
 suspend the writ of habeas corpus was vested by the 
 Constitution in Congress, and not in the Executive. 1 
 This opinion was ignored by the President, and 
 arrests were made whenever the public safety was 
 supposed to require it. This collision between the 
 executive and judicial authority naturally caused 
 a great deal of discussion, and numerous were the 
 pamphlets, which were at the time issued to prove 
 the true constitutional rule in the case. The most 
 noteworthy of these arguments was that of Mr. 
 Horace Binney, who took the side of the President, 
 holding that he must of necessity possess the power 
 to suspend th,e writ, since reason as well as experi- 
 ence proved that to be of value in the suppression 
 of rebellions and insurrections, the right of suspen- 
 sion must be exercised promptly, more promptly at 
 
 1 See Ex parte Merryman, Taney 's Circuit-Court Decisions, Camp- 
 bell's Rep., 246. 
 
THE CONSTITUTION. 85 
 
 times than Congress can be expected to act. Public 
 opinion remained divided on the question, and, 
 finally, in order to remove all doubt from the 
 legality of the suspension of the writ, Congress 
 passed a law which authorized the President to 
 suspend the writ by proclamation whenever the 
 public exigencies required it. 
 
 The second case of supposed violation of constitu- 
 tional limitations was in the establishment of military 
 commissions to try, convict, and punish any one 
 found guilty of treasonable practices. The power of 
 these commissions was made to apply to those who 
 were neither members of the military and naval 
 forces of the United States nor prisoners of war. 
 One Milligan was found, by one of these commis- 
 sions, guilty of treason in attempting, in Indiana, to 
 render aid to the Southern cause, and he was con- 
 demned to be hung. There was apparently no 
 doubt of his guilt, and the sentence was approved by 
 the President and Secretary of War. But the claim 
 was made in his behalf, that since he was a civilian, 
 and was living in a part of the country in which the 
 ordinary courts, both State and Federal, were open 
 for the administration of justice, the military com- 
 missions had no jurisdiction over his case ; and that 
 he was about to be deprived of his life, without due 
 process of law, and in violation of the constitutional 
 provision which guarantees the right of trial by jury. 
 
86 THE UNWRITTEN CONSTITUTION. 
 
 The claim was made on the part of the United 
 States that these constitutional provisions were only 
 operative in time of peace, and that in time of war 
 martial law must necessarily take the place of the ordi- 
 nary law. That claim being conceded, it was held 
 that the President, being intrusted with the prosecu- 
 tion of the war, must of necessity determine the time 
 when, and the extent, both as to territory and the 
 provisions of the law, to which the ordinary adminis- 
 tration of the law must be superseded by the estab- 
 lishment of martial rule. That that was the con- 
 stitutional rule Qf conduct during the war cannot be 
 doubted. But after the cessation of hostilities, when 
 the Milligan case was carried on appeal to the Su- 
 preme Court of the United States, it was held that 
 the constitutional guaranties of trial by jury, etc., 
 were in force during the war as well as in peace, and 
 that the military commissions could not assume 
 jurisdiction over offences which were not committed 
 on the actual theatre of war, but in places away from 
 the battle-fields, and where the ordinary courts were 
 administering the law without obstruction. The 
 chief-justice, and three associate justices concurred 
 in the judgment of the majority of the court, but 
 filed a separate opinion, in which the judgment was 
 placed on the ground that Congress, and not the 
 Executive, had the power, in the prosecution of the 
 war, in order to suppress treasonable practices, to 
 
THE CONSTITUTION. 87 
 
 establish military commissions over territory not in- 
 cluded within the actual military operations, Mr. 
 Justice Davis expresses the conclusion of the court 
 thus: 
 
 " It follows from what has been said on this subject that there are 
 occasions when martial rule can be properly applied. If, in foreign 
 invasions or civil war, the courts are actually closed, and it is 
 impossible to administer criminal justice, according to the law, then, 
 on the theatre of active military operations, where war really prevails, 
 there is a necessity to furnish a substitute for the civil authority, thus 
 overthrown, to preserve the safety of the army and society ; and as no 
 power is left but the military, it is allowed to govern by martial rule 
 until the laws can have their free course. As necessity creates the 
 rule, so it limits its duration ; for, if this government is continued 
 after the courts are reinstated, it is a gross usurpation of power. 
 Martial rule can never exist where the courts are open and in the 
 proper and unobstructed exercise of their jurisdiction. It is also 
 confined to the locality of actual war. Because during the late 
 Rebellion it could not have been enforced in Virginia, where the 
 national authority was overturned and the courts driven out, it does not 
 follow that it should obtain in Indiana, where that authority was never 
 disputed and justice was always administered. And so in the case of a 
 foreign invasion, martial rule may become a necessity in one case, 
 when in another it would be mere lawless violence." l 
 
 I think the claim is readily substantiated that the 
 extraordinary powers exercised by the President of 
 the United States during the civil war are sanctioned 
 by the customs and usages of nations, and are em- 
 ployed in every war by the military commandants, 
 as necessity requires. 3 And it is very probable, 
 almost certain, that in any similar emergency the 
 
 1 Exparte Milligan, 4 Wall., I, 127. 
 
 9 See the arguments of counsel for Milligan and for the United 
 States, in Exparte Milligan, 4 Wall., I. 
 
88 THE UNWRITTEN CONSTITUTION. 
 
 same powers will be claimed and exercised by the 
 President, although they virtually make him a dic- 
 tator, bound by no constitutional limitations which 
 his discretion does not sanction, or the popular will 
 does not impose. For, although the decision of 
 the court in ex part e Milligan is a denial of these 
 powers, and proclaims the President to be subject 
 during the war to the same constitutional limita- 
 tions which are strictly enforced in times of peace, it 
 furnishes no constitutional rule for the emergencies 
 of war, since the decision was rendered after the war 
 had been brought to a close, and the pressure of 
 military necessity had been removed. If the de- 
 cision had been rendered during the war, when the 
 Executive was actually exercising these extraordinary 
 powers, and the Executive had submitted to the 
 judgment of the court, a precedent would have then 
 been established, from which the claim might have 
 been deduced, that in all future wars the President, 
 as commander-in-chief of the military forces, must, 
 in dealing with dangerous persons, observe the same 
 constitutional limitations which are enforced in times 
 of peace. It is very likely that the decree of the 
 court in the Milligan case would have met with the 
 same treatment as did the decision of Chief-Justice 
 Taney in the Merryman case, if it had been rendered 
 during the prosecution of the war. But it is still 
 more likely that the court would, under those cir- 
 
THE CONSTITUTION. 89 
 
 cumstances, have yielded to the sense of military 
 necessity, and have justified, instead of condemning, 
 the employment of such powers. 
 
 The explanation of the apparent contradiction is 
 not to be found in the maxim, inter arma silent 
 leges. The laws are not silent in the presence of 
 arms. In the substitution of martial rule for the 
 civil authorities, there is only a change in the form 
 of the administration of the law. The prevalent 
 sense of right furnishes, in war as well as in peace, 
 the norm for the formulation of rules of law. The 
 military commander is not an arbitrary dictator and 
 law-maker, although there is then no trial by jury, 
 and no appeal to the ordinary courts of justice. 
 Even though there be an inexplicable contradiction 
 between the practices of military rule and the ex- 
 press limitations of the written Constitution, the 
 rule which is actually enforced in time of war is the 
 true constitutional rule, and not that which in time 
 of peace the Supreme Court of the United States 
 declares to be the proper rule. The history of the 
 civil war teaches that the ordinary provisions of the 
 written Constitution cannot be as rigidly enforced 
 in times of great national emergencies as when the 
 ordinary routine of governmental action meets with 
 no serious obstruction. Whatever may be the proper 
 deduction from the written Constitution, it is an 
 established rule of the unwritten constitution that 
 
9 o THE UNWRITTEN CONSTITUTION. 
 
 the President, in the exercise of his war powers, may 
 substitute martial law for civil law as far as the pub- 
 lic exigencies may in his judgment require. For 
 the time being, the written limitations upon his 
 power are completely laid aside, and he appears in 
 the role of an almost absolute dictator. 
 
 But Mr. John Quincy Adams voices the opinion 
 of many, when he claims that these extraordinary 
 powers are necessary implications of the authority to 
 declare and carry on war : 
 
 " In the authority given to Congress by the Constitution of the 
 United States to declare war, all the powers, incident to war, are by 
 necessary implication conferred upon the government of the United 
 States. Now, the powers incidental to war are derived, not from 
 any internal municipal source, but from the laws and usages of 
 nations. There are, then, in the authority of Congress and the 
 Executive, two classes of powers, altogether different in their nature, 
 and often incompatible with each other the war power and the 
 peace power. The peace power is limited by regulations and re- 
 straints, by provisions prescribed within the Constitution itself. The 
 war power is limited only by the law and usages of nations. The 
 power is tremendous. It is strictly constitutional, but it breaks down 
 every barrier so anxiously erected for the protection of liberty, property, 
 and fife." 1 
 
 1 From a speech delivered in 1836, and quoted by Mr. B. F. 
 Butler in his argument for the government in the case of Ex parte 
 Milligan, 4 Wall., 104. 
 
CHAPTER VIII. 
 
 CITIZENSHIP IN THE UNITED STATES. 
 
 THE claim has already been made ' that, while 
 most of the principles entering into the composition 
 of the American Constitution are neither original nor 
 novel, the American constitutions being evolution- 
 ary forms of the British Constitution, yet, there are 
 a few principles which first found expression and full 
 realization in our constitutional history. It was also 
 claimed that the novel principles of our constitu- 
 tional systems have not been fully realized and 
 properly appreciated, until years of experience re- 
 vealed their true character and effect. 3 One of these 
 new principles was that of subjecting the same terri- 
 tory and the same people to the jurisdiction and 
 control of two separate and autonomous govern- 
 ments, which, while they are bound together into one 
 federal system of government, and divide the powers 
 of government between them, are yet, in their own 
 spheres, supreme and independent of each other, and 
 
 1 See ante Chapter II., p. 37. * See ante Chapter II., p. 33. 
 
 91 
 
92 THE UNWRITTEN CONSTITUTION. 
 
 both have the power to directly command and 
 compel the obedience of the individual citizen. 
 
 It is hardly necessary to assert that this is the 
 chief fundamental principle of the American consti- 
 tutional system, the adoption of which radically 
 changed the character of the Union, from a league of 
 States to a composite State of States, or, to borrow 
 the language of Chief-Justice Chase 1 : " An inde- 
 structible Union composed of indestructible States." 
 Before the adoption of the principle, there was no 
 Federal State, only a league, whose very life depended 
 upon the grace and favor of the States ; but, with its 
 adoption, a Federal State was formed in such a mould, 
 as it was thought and hoped, that it would not have 
 the power to absorb, and destroy the autonomy of, 
 the States. Therefore, with the adoption of the 
 present Constitution of the United States, two sepa- 
 rate governments came into being, the Federal and 
 the State, each having its own separate sphere of 
 action, and each in its sphere independent of the 
 other. The Constitution does not explicitly make 
 this declaration ; but it is a necessary consequence of 
 the grant or reservation to each government of the 
 power to act directly on the individual. The rela- 
 tions thus established between the individual and the 
 two governments respectively, logically and neces- 
 sarily make of the individual a citizen of each govern- 
 
 1 Texas v. White, 7 Wall., 700, -725. 
 
CITIZENSHIP. 93 
 
 ment, so that a citizen of this country would be a 
 citizen of the United States, as well as a citizen of 
 the State in which he has his legal domicile. 
 
 The Constitution of the United States does not 
 define or expressly recognize this dual citizenship, 
 although both are inferentially recognized and re- 
 ferred to. It recognizes State citizenship in the 
 clause, 1 which declares that " citizens of each State 
 shall be entitled to all the privileges and immunities 
 of citizens in the several States." Federal citizen- 
 ship, however uncertain may be the view then enter- 
 tained of its character, is nevertheless recognized in 
 those clauses which provided, thalrno one is eligible 
 to the position of President " excepting a natural- 
 born citizen, or a citizen of the United States at the 
 time of the adoption of the Constitution " a ; of sena- 
 tor, unless he has been " nine years a citizen of the 
 United States " 8 ; or to the position of representative 
 in Congress, unless he has been " seven years a 
 citizen of the United States." 4 Like every other 
 question which was raised before, and which divided, 
 the constitutional convention, this was laid aside 
 with a compromise, which constituted a partial and 
 unsatisfactory recognition of the claims of both 
 parties, the final settlement and adjustment of those 
 claims being left to the future. It does not surprise 
 
 1 Art. IV., sec. 2. 8 Art. I., sec. 3. 
 
 Art. II., sec. i. 4 Art. I., sec. 2. 
 
94 THE UNWRITTEN CONSTITUTION. 
 
 one, therefore, to learn that a definite settlement of the 
 limitations of this dual citizenship was not attained 
 until there had been seventy-five or eighty years of 
 contention, when the dream of the Websters l was 
 first fully realized, by the judicial recognition of the 
 dual citizenship, with all its attending consequences. 
 
 For forty years after the adoption of the Constitu- 
 tion, party strife over the fundamental questions of 
 our constitutional system was not active, and hence 
 a clear definition of citizenship was not then attained. 
 Justice Story, in his commentaries on the Constitu- 
 tion, said, concerning citizenship : " It has always 
 been well understood among jurists in this country, 
 that the citizens of each State constitute the body- 
 politic of each community, called the people of the 
 States ; and that the citizens of each State in the 
 Union are ipso facto citizens of the United States." 
 It had also been held by Chief-Justice Marshall, 8 that 
 a person, naturalized under the acts of Congress, 
 became a citizen of the State in which he happened 
 to reside. 
 
 But the question was not permitted to remain 
 quietly in this unsettled condition, after the agita- 
 tion in respect to slavery began. The State Rights' 
 party were very plain in their claim of the limita- 
 
 1 It will be remembered that the idea of a composite Federal State, 
 with an independent autonomy for both Federal and State governments, 
 originated with Pelatiah and Noah Webster. See ante Ch. II., p. 32. 
 
 9 In Gassies v. Ballon, 6 Pet., 761. 
 
CITIZENSHIP. 95 
 
 tions of federal citizenship, holding that no one can 
 be a citizen of the United States, except as a conse- 
 quence of being the citizen of some State or Terri- 
 N tory of the Union ; that citizenship of the State was 
 the primary fact, while the citizenship of the United 
 States was secondary and consequential. 1 The State 
 Rights' doctrine of federal citizenship received judi- 
 cial indorsement from the Supreme Court of the 
 United States in the famous Dred Scott 2 case, in 
 which it was held that while each State had the 
 power to invest any one with State citizenship, not 
 contemplated by the provisions of the Constitution, 
 for example, negroes, to whom citizenship was 
 denied by the existing general constitutional rules, 
 yet such a person did not thereby acquire the 
 equal participation in the rights and privileges of 
 citizens in the several States, as was provided by 
 the Constitution. Says Chief-Justice Taney : 
 
 1 " If by citizen of the United States he [Senator Clayton, of 
 Delaware] means a citizen at large, one whose citizenship extends to 
 the entire geographical limits of the country without having a local 
 citizenship in some State or Territory, a sort of citizen of the world, 
 all I have to say is that such a citizen would be a perfect nondescript ; 
 that not a single individual of this description can be found in the 
 entire mass of our population. Notwithstanding all the pomp and 
 display of eloquence on the occasion, every citizen is a citizen of some 
 State or Territory, and as such, under an express provision of the 
 Constitution, is entitled to all the privileges and immunities of citi- 
 zens in the several States ; and it is in this and no other sense that 
 we are citizens of the United States." Mr. Calhoun's argument on 
 the " Force Bill." See his Works, II., 242. 
 
 1 Scott v. Sanford, 19 How., 393. 
 
96 THE UNWRITTEN CONSTITUTION. 
 
 ' ' We must not confound the rights of citizenship which a State may 
 confer within its own limits, and the rights of citizenship as a member 
 of the Union. . . . He (such a person) may have all the rights 
 and privileges of a citizen of a State, and yet not be entitled to the 
 rights and privileges of a citizen in any other State. . . . Each 
 State may . . . confer them (i.e., the rights and privileges of 
 State citizenship) upon an alien or any one it thinks proper, or upon 
 any class or description of persons, yet he would not be a citizen in 
 the sense in which that word is used in the Constitution of the United 
 States, nor entitled to sue as such in one of its courts, nor to the 
 privileges and immunities of a citizen in the other States. The rights 
 which he would acquire would be restricted to the State which gave 
 them. . . . No State, since the adoption of the Constitution, 
 can, by naturalizing an alien, invest him with the rights and privileges 
 secured to a citizen of a State under the Federal Government, al- 
 though, so far as the State alone was concerned, he would undoubtedly 
 be entitled to the rights of a citizen and clothed with all the rights and 
 immunities which the Constitution and laws of the State attached to 
 that character." 
 
 Mr. Justice Curtis dissented from the conclusion 
 of the majority of the court, and held that 
 
 " it is left to each State to determine what free persons born within 
 its limits shall be citizens of such State and thereby be citizens of the 
 United States. ... It must be remembered that, though the 
 Constitution was to form a government, and under it the United 
 States of America were to be one united sovereign nation to which 
 loyalty and obedience on the one side, and from which protection and 
 privileges on the other, would be due, yet the several sovereign States, 
 whose people were then citizens, were not only to continue in exist- 
 ence, but with powers unimpaired, except so far as they were granted 
 by the people to the national government. Among the powers un- 
 questionably possessed by the several States was that of determining 
 what persons should, and what persons should not, be citizens." 
 
 Judge Curtis was supposed to voice the sentiment 
 of the opponents of the State Rights' party, and it 
 is to be observed that, in this dissenting opinion, as 
 
CITIZENSHIP. 97 
 
 well as in the opinion of the court, it was held that 
 the citizenship of the United States was dependent 
 upon, and proceeded from, citizenship of the State, 
 the only point of difference being the power of the 
 State to invest persons, who were not generally 
 conceded the rights of citizens, with the citizenship 
 of the United States by making them citizens of the 
 State, the State Rights' party denying such a power 
 to the State, and the opposition claiming for the 
 State that right. The great hue and cry raised by 
 the decision of the court, if it were not directed al- 
 together against the dicta of the court, was certainly 
 not caused by the subordination of national citizen- 
 ship to State citizenship, but by the denial of 
 national citizenship as a necessary consequence of 
 State citizenship. 
 
 But a change was soon to be wrought in the views 
 entertained on this constitutional question, by the 
 arbitrament of the sword.. When President Lincoln, 
 by his proclamation, emancipated the slaves of the 
 Southern States, he not only increased the relative 
 strength of the National Government, but rendered 
 necessary a radical change in the theories prevalent 
 as to citizenship in the United States. If the Na- 
 tional Government had the power to abolish slavery, 
 in other words, to regulate the legal status of the 
 individual, surely national citizenship must be para- 
 mount, while State citizenship is subordinate and 
 7 
 
98 THE UNWRITTEN CONSTITUTION. 
 
 incidental, and this was the claim of Senator Lymar. 
 Trumbull, and his supporters, in the presentation of 
 the famous " Civil Rights Bill," in which it was de- 
 clared that " all persons born in the United States : 
 and not subject to any foreign power, excluding 
 Indians not taxed, are citizens of the United 
 States/' and, as such, are entitled to the privileges 
 and immunities of white citizens in the several States. 
 But very many believed that the constitutional 
 views on the subject, declared in the Dred Scott 
 case, would be an obstacle to the procurement of a 
 judicial recognition of the post-bellum doctrine, and 
 hence the fourteenth amendment was proposed and 
 adopted, in which it was declared that "all persons 
 born or naturalized in the United States, and sub- 
 ject to the jurisdiction thereof, are citizens of the 
 United States and of the State wherein they reside." 
 Not only does this amendment define national and 
 State citizenship, and make the State citizenship a 
 derivative of the national, but it proceeds to make a 
 declaration concerning the rights and privileges of a 
 citizen of the United States. It declares that " no 
 State shall make or enforce any law which shall 
 abridge the privileges and immunities of citizens of 
 the United States ; nor shall any State deprive any 
 person of life, liberty, or property without due pro- 
 cess of law ; nor deny to any person within its juris- 
 diction the equal protection of the laws." 
 
CITIZENSHIP. 99 
 
 This constitutional declaration has been frequently 
 brought before the court for construction ; but, be- 
 fore giving the view taken by the Supreme Court of 
 the United States of its effect, I will attempt to show, 
 by analogy from other congressional action, as well 
 as by the language of the amendment, that the 
 framers and enactors of it intended to place the 
 negro, in his daily life, completely under the control 
 of the National Government. First, as to the language 
 of the amendment. Not content with denying to 
 the States the authority to abridge by legislation 
 " the privileges and immunities of citizens of the 
 United States," which, by the way, was a useless 
 prohibition, if by the privileges and immunities were 
 not meant those fundamental privileges and immuni- 
 ties which inhere in the definition of citizenship, the 
 amendment proceeds to declare in effect what those 
 privileges and immunities are, viz. : " Nor shall any 
 State deprive any person of life, liberty, or property 
 without due process of law ; nor deny to any person 
 within its jurisdiction the equal protection of the 
 laws." A literal interpretation of this amendment 
 would give to the United States Supreme Court the 
 power at any time to inquire into the effect of State 
 legislation on the fundamental privileges and immu- 
 nities of the citizen, which, before the adoption of 
 the amendment, were exclusively within the control 
 and protection of the State governments. That that 
 
ioo THE UNWRITTEN CONSTITUTION. 
 
 was the intention of the political leaders is easily 
 shown by the speeches in Congress. Senator Trum- 
 bull, in the debate on the Civil Rights bill, said : 
 
 " But, sir, what rights do citizens of the United States have ? To 
 be a citizen of the United States carries with it some rights ; and 
 what are they ? They are those inherent fundamental rights which 
 belong to free citizens or freemen in all countries, such as the rights 
 enumerated in this bill [to make and enforce contracts, to sue, be 
 parties and give evidence, to inherit, purchase, lease, sell, hold, and 
 convey real estate and personal property, and to full and equal benefit 
 of all laws and proceedings for the security of person and property, 
 as enjoyed by white citizens] ; and they belong to them in all the 
 States in the Union. The right of American citizenship means 
 something." 
 
 And in another place : 
 
 " What are they [i.e., the rights of a citizen of the United States] ? 
 The right of personal security, the right of personal liberty, and the 
 right to acquire and enjoy property." l 
 
 We would likewise be forced to take this view of 
 the operation of this amendment by the conviction 
 that any other construction would make this part of 
 the amendment "a vain and idle enactment."* 
 
 1 Congressional Globe, 1st Sess., 3gth Cong., p. 1757. 
 
 2 " It [the Fourteenth Amendment] assumes that there are . . . 
 privileges and immunities which belong of right to citizens, as such, 
 and ordains that they shall not be abridged by State legislation. If 
 this inhibition has no reference to privileges and immunities'of this 
 character, but only refers, as held by the majority of the court in their 
 opinion, to such privileges and immunities as were before its adop- 
 tion specially designated in the Constitution or necessarily implied as 
 belonging to citizens of the United States, it was a vain and idle 
 enactment which accomplished nothing, and most unnecessarily ex- 
 cited Congress and the people on its passage. With privileges and 
 immunities thus designated or implied, no State could ever have 
 
CITIZENSHIP. 101 
 
 Flushed with a decisive victory over the State 
 Rights' party, obtained in the highest court of 
 appeals known to politics, and inflamed by the 
 enactment of the so-called Black laws by several of 
 the Southern legislatures, which were intended to 
 repress and oppress the negro in every sphere of 
 life ; without thought of the far-reaching effect of 
 their proposed legislation, the Republican party pro- 
 ceeded to make laws, which would be strong enough 
 to protect the negro in his freedom. If the consti- 
 
 interfered by its laws, and no constitutional provision was required to 
 inhibit such interference. . . . But if the amendment refers to 
 the natural and inalienable rights which belong to all citizens, the 
 inhibition has a profound significance and consequence." Mr. Jus- 
 tice Field's dissenting opinion in Slaughter-house cases. 
 
 " The privileges and immunities of a citizen of the United States 
 include, among other things, the fundamental rights of life, liberty, 
 and property, and also the rights which pertain to him by reason of 
 his membership of a nation . . . without authority (to secure 
 such rights and privileges) any government claiming to be national is 
 glaringly defective. The construction adopted by the majority of my 
 brethren is, in my judgment, much too narrow. It defeats by a 
 limitation not anticipated the intent of those by whom the instrument 
 was framed, and of those by whom it was adopted. To the extent of 
 that limitation it turns, as it were, what was meant for bread, into 
 stone." Justice Swayne's dissenting opinion in Slaughter-house cases. 
 
 " I think sufficient has been said to show that citizenship is not an 
 empty name, but that, in this country, at least, it has connected with 
 it certain rights, privileges, and immunities of the greatest import- 
 ance, and to say that these rights and immunities attach only to State 
 citizenship, and not to citizenship of the United States, appears to me 
 to evince a very narrow and insufficient estimate of constitutional his- 
 tory and the rights of men, not to say the rights of the American 
 people." Mr. Justice Bradley 's dissenting opinion in Slaughter-house 
 
102 TH% .l?NW.fTTN CONSTITUTION. 
 
 tutional amendment had been allowed to have its 
 full literal effect, the end obtained v/ould be what 
 Madison, Randolph, and Hamilton proposed, in the 
 constitutional convention of 1787, to accomplish by 
 the Virginia plan of government, viz. : the establish- 
 ment of a strong national government and the sub- 
 jection of the States to the condition of provinces, 
 and this government would have very soon ceased 
 to be a federal government, save in name. I do not 
 suppose that the majority of those, whose votes 
 brought about the adoption of this amendment, in- 
 tended it to have this effect in general ; but it is 
 very certain that they desired and intended to de- 
 prive the Southern people of all legal opportunity to 
 keep the negro in political and social subjection, and, 
 thus, to frustrate the realization of what they con- 
 sidered the legitimate results of the war. But this 
 special end could not be attained without putting 
 an end, everywhere, to local self-government in the 
 American sense. 
 
 That disastrous result was, however, happily 
 averted by the bold and courageous stand taken 
 by the Supreme Court of the United States, when 
 this amendment was brought before them for con- 
 struction. Feeling assured that the people in their 
 cooler moments would not have sanctioned the far- 
 reaching effects of their action ; that they lost sight 
 of the general effect in their eager pursuit of a special 
 
CITIZENSHIP. 103 
 
 end, the court dared to withstand the popular will as 
 expressed in the letter of this amendment ; and, by 
 giving it a narrow and close construction, to cut off 
 its injurious consequences, although in doing so, as 
 was stated by Justice Swayne, " it turns what was 
 meant for bread, into stone," and in very large 
 measure prevented the realization of the end ex- 
 pressly had in view, viz. : the transfer of all the 
 rights of the negro, as a citizen, to the protection of 
 the United States Government. 
 
 The opinion of the court in the Slaughter-house 
 cases 1 was delivered by Mr. Justice Miller, and con- 
 curred in by a majority of the court, but dissented 
 from by four justices of the court, of whom three 
 justices, Field, Swayne, and Bradley, wrote dissent- 
 ing opinions. 
 
 The argument of the court was that this amend- 
 ment, when considered in the light of history, recog- 
 nized two separate citizenships, the citizenship of 
 the United States and the citizenship of the States, 
 and each citizenship had its corresponding and differ- 
 ent privileges and immunities. The privileges and 
 immunities of the citizens of the States were defined 
 to be " those privileges and immunities which are 
 fundamental, which belong of right to the citizens 
 of all free governments, and which have at all times 
 been enjoyed by citizens of the several States which 
 
 >i6Wall., 37, 57- 
 
104 THE UNWRITTEN CONSTITUTION. 
 
 compose this Union, from the time of their becoming 
 free, independent, and sovereign. What these funda- 
 mental principles are it would be more tedious than 
 difficult to enumerate. 1 They may all, however, be 
 comprehended under the following general heads : 
 protection by the government, with the right to 
 acquire and possess property of every kind, and to 
 pursue and obtain happiness and safety, subject, 
 nevertheless, to such restraints as the government 
 may prescribe for the general good of the whole/' 2 
 
 After stating that "it would be the vainest show 
 of learning," to show that up to the adoption of the 
 post-bellum amendments these privileges were not 
 under the protection of the United States govern- 
 ment, the court say 
 
 " Was it the purpose of the fourteenth amendment, by the simple 
 declaration that no State should make or enforce any law which shall 
 abridge the privileges and immunities of citizens of the United States, 
 to transfer the security and protection of all the civil rights which we 
 have mentioned, from the States to the Federal Government ? And 
 where it is declared that Congress shall have the power to enforce that 
 article, was it intended to bring within the power of Congress the 
 entire domain of civil rights, heretofore belonging exclusively to the 
 States ? 
 
 "All this and more must follow, if the proposition of the plaintiffs 
 in error be sound. For not only are these rights subject to the 
 
 1 See Tiedeman's " Limitations of Police Power," for a detailed 
 discussion and application of them to the daily experiences of the 
 individual. 
 
 a Washington, J., in Corfield v. Coryell, 4 Wash. C. C., 371 ; and 
 adopted by the Supreme Court of the United States, in Ward v, 
 State of Maryland, 12 Wall., 430. 
 
CITIZENSHIP. 105 
 
 control of Congress, whenever in its discretion any of them are sup- 
 posed to be abridged by State legislation, but that body may also pass 
 laws in advance, limiting and restricting the exercise of legislative 
 power by the States, in their most ordinary and usual functions, as, in 
 its judgment, it may think proper on all such subjects. And still 
 further, such a construction, followed by the reversal of the judgment 
 of the Supreme Court of Louisiana in these cases, would constitute 
 this court a perpetual censor upon all legislation of the States on the 
 civil rights of their own citizens, with authority to nullify such as it 
 did not approve as consistent with those rights as they existed at the 
 time of the adoption of the amendment. The argument we admit is 
 not always the most conclusive which is drawn from the consequences 
 urged against the adoption of a particular construction of an instru- 
 ment. But when, as in the case before us, these consequences are so 
 serious, so far-reaching and pervading, so great a departure from the 
 structure and spirit of our institutions, when the effect is to fetter and 
 degrade the State governments by subjecting them to the control of 
 Congress, in the exercise of powers heretofore universally conceded to 
 them of the most ordinary and fundamental character ; when in fact 
 it radically changes the whole theory of the relations of the State and 
 Federal governments to each other, and of both these governments to 
 the people, the argument has a force that is irresistible, in the absence 
 of language which expresses such a purpose too clearly to admit 
 of doubt." l 
 
 The court then proceed to eumerate what are to 
 be considered as the privileges and immunities of the 
 United States which the States cannot abridge, and 
 which are as follows : 
 
 " To come to the seat of government to assert any claim upon that 
 government, to transact any business with it, to seek its protection, to 
 share its offices, to engage in administering its functions. 
 
 ' ' Free access to its seaports, through which all operations of foreign 
 commerce are conducted ; to the sub-treasuries, land-offices, and courts 
 of justice in the several States. 
 
 " To demand the care and protection of the Federal Government 
 over life, liberty, and property, when on the high seas or within the 
 jurisdiction of a foreign government. 
 
 1 Pp. 77, 78. 
 
io6 THE UNWRITTEN CONSTITUTION. 
 
 " To peaceably assemble and petition for redress of grievances. 
 
 " The writ of habeas corpus. 
 
 " To use the navigable waters of the United States, however they 
 may penetrate the territory of the several States. 
 
 ' ' To become a citizen of any one of the several States by a bona- 
 Jide residence therein." 
 
 The judgment of the court was that these were the 
 only privileges and immunities whose protection is 
 provided for in this amendment, and that the ordi- 
 nary and relatively more important privileges and 
 immunities of citizenship " are not privileges and im- 
 munities of citizens of the United States within the 
 meaning of the clause of the fourteenth amendment 
 under consideration." 
 
 The noble fundamental purpose of the court in 
 checking the literal operation of the fourteenth 
 amendment is to be found 'expressed in the closing 
 paragraphs of the opinion. 
 
 " But however pervading this sentiment [the desire for a strong 
 national government] and however it may have contributed to the 
 adoption of the amendments we have been considering, we do not see 
 in those amendments any purpose to destroy the main features of the 
 general system. Under the pressure of all the excited feeling growing 
 out of the war, our statesmen have still believed that the existence of 
 the States, with powers for domestic and local government, including 
 the regulation of civil rights the rights of person and of property 
 was essential to the complex form of government, though they have 
 thought proper to impose additional limitations on the States, and to 
 confer additional power on that of the nation. 
 
 " But whatever fluctuations may be seen in the history of public 
 opinion on this subject during the period of our national existence, 
 we think it will be found that this court, so far as its functions re- 
 quired, has always held with a steady and an even hand the balance 
 
CITIZENSHIP. 107 
 
 between State and Federal power, and we trust that such may con- 
 tinue to be the history of its relation to that subject so long as it shall 
 have duties to perform which demand of it a construction of the Con- 
 stitution or of any of its parts." 
 
 This instance furnishes one of the most striking 
 proofs of the thesis, that political constitutions are a 
 growth, evolved from all the forces of society, both 
 material and spiritual. 
 
 We find first a novel principle of politics, />., that 
 of a dual government, with separate autonomies, 
 proposed and adopted by a nation, but its conse- 
 quences yet unknown. There is a faint recognition 
 at once even in the written Constitution of one con- 
 sequence, viz., a dual citizenship, but the relative 
 strength and obligation of the two separate citizen- 
 ships are not referred to. After remaining in doubt 
 for many years, it is claimed by the State Rights' 
 party and the claim is indorsed and pronounced to 
 be the supreme law of the land by the Supreme 
 Court of the United States that the citizenship of7 
 the United States is an incident of, and depends forf* 
 existence upon, the citizenship of the States. This 
 decision of the Supreme Court was practically over- 
 ruled by the findings of the court of war, but in 
 order to provide a technical repeal, an amendment 
 to the Federal Constitution was adopted, declaring 
 the federal citizenship to be the primary and all- 
 important thing, while the citizenship of the States 
 was subordinate and incidental to it. While it is 
 
io8 THE UNWRITTEN CONSTITUTION. 
 
 very likely that the people did not wish to do more, 
 except possibly in the South, than to establish the 
 perpetual supremacy of the National Government 
 and of national citizenship over State governments 
 and State citizenship, the literal scope was such, that 
 a strict enforcement of the amendment would have 
 resulted in a complete reduction of the States to the 
 condition of provinces, and a grant to the United 
 States Government of a supervisory control over the 
 smallest concerns of life. 
 
 Alarmed at the peril in which the people stood, 
 and deeply impressed with the necessity of providing 
 a remedy, the Supreme Court of the United States 
 averted the evil consequences by keeping the opera- 
 tion of the amendment within the limits which they 
 felt assured would have been imposed by the people, 
 if their judgment had not been blinded with passion, 
 and which in their cooler moments they would ratify. 
 The so-called strict-constructionists may assert that 
 this was an unwarranted exercise of the judicial 
 power, and one that could become the effective in- 
 strument of tyranny; this may be so. But if by 
 constitutional law we mean those rules which serve 
 to define and limit the powers of government, we 
 must pronounce the decision of the court in the 
 Slaughter-house cases to be a successful modifica- 
 tion of the rule found in the fourteenth amendment. 
 That this reflected the prevalent, but perhaps then 
 
CITIZENSHIP. 109 
 
 unexpressed, sense of right, is proven by the fact 
 that no attempt was made to overrule it by additional 
 legislation ; nor was there any outcry against it, after 
 the people had recovered from their surprise at this 
 bold limitation of their written commands. Although 
 there have been some material but minor modifica- 
 tions of the rule in subsequent decisions, the ruling 
 of the court in these cases is still a part of the con- 
 stitutional law of the United States, serving as a 
 bulwark to the States in their struggle for autonomy 
 and self-government. 
 
CHAPTER IX. 
 
 STATE SOVEREIGNTY AND RIGHT OF SECESSION. 
 
 FROM the adoption of the Kentucky resolutions of 
 1798, until the hard logic of war placed the stamp of 
 illegality upon the doctrine, there had always been 
 a strong and influential party, whose fundamental 
 tenets were that the Union was a confederation of 
 sovereign States, which are bound by the laws and 
 the Constitution of the United States, as long as 
 they remain in the Union ; but which may, separately 
 and at their own discretion, withdraw or secede from 
 the Union, whenever they consider the confederation 
 detrimental to themselves. Each State, as a sover- 
 eign, was conceded this power. There were, of 
 course, parties which asserted the sovereignty of the 
 United States, and denied to the States this right of 
 secession. 
 
 This contest of principle was another consequence 
 of the failure of the constitutional convention to 
 settle definitely the true relation of the States to 
 each other and to the Federal State. I do not 
 believe that the arguments for and against the right 
 
 no 
 
STATE SOVEREIGNTY. in 
 
 of secession, which are to be found in the speeches 
 of Webster and Calhoun, and of Clay and Hayne, 
 and in histories and other books without number, 
 present the matter in its true light. It is not incon- 
 sistent with the highest respect for the great men, 
 who participated with so much effect and power in 
 these political debates of the Senate, for the claim to 
 be made that there was a failure on both sides to 
 appreciate and bring to light the real scientific facts 
 of the situation, which justify logically the ultimate 
 settlement of the question. It is with some hesita- 
 tion that I proceed to present what I consider the 
 true view ; but if there is no defect in my major 
 premise, as explained and developed in the first and 
 second chapters, the conclusion, to which I come in 
 the discussion of the doctrine of State sovereignty 
 and the right of secession, is irresistible. 
 
 In this contest, the South was the aggressive 
 party, while the North only resisted the extreme 
 conclusion of the South in respect to the right of a 
 single State to secede, whenever it was to its interest 
 to do so. The Southern claim was that this Union 
 was a confederation of independent, sovereign States ; 
 that the Federal Government was the creature of the 
 States, having only that power which the States del- 
 egated to it, and that it may be shorn of its power 
 over any single State, whenever that State, in conse- 
 quence of the violation of the constitutional limita- 
 
H2 THE UNWRITTEN CONSTITUTION. 
 
 tions by the United States Government, of which the 
 State is to be the final judge, decides to secede 
 from the Union, and establish itself as an independ- 
 ent nation. 
 
 Without undertaking to present any lengthy 
 statement of the arguments pro and con, it may 
 be pithily stated that the Southern claim of secession 
 rested upon two fundamental principles. One was 
 that of the Declaration of Independence, that " all 
 governments derive their just powers from the con- 
 sent of the governed " ; the general conclusion being 
 that the governed may legally withdraw that consent, 
 whenever the powers have been tyrannically em- 
 ployed for the oppression of the people. The 
 second principle was that sovereignty was reposed 
 under our constitutional system in the States ; and 
 that, in consequence of this fundamental fact, the 
 Union was, under this Constitution as under the 
 Articles of Confederation, only a league or confed- 
 eration of sovereign States, which combined for 
 purposes of mutual protection, and which consented 
 to a grant to their general agent or government of 
 those powers which were necessary to the promotion 
 of their general welfare ; but that any one of these 
 sovereign States, under an application of the first 
 principle (i.e., government by consent of the gov- 
 erned), may withdraw from the Union, whenever it 
 considers itself wronged by the General Government 
 
STATE SOVEREIGNTY. 113 
 
 or its interests prejudiced by remaining in the Union. 
 The opponents of the Southern theory have uni- 
 formly admitted the correctness of the principle, that 
 the just powers of government are derived from the 
 consent of the governed ; but claim that this Consti- 
 tution changed the Union from a league into a 
 nation, and vested the sovereignty in the people of 
 the United States. 
 
 Both principles are so far false as to be misleading, 
 and the general prevalence of these misconceptions^ 
 has, in my judgment, been the chief cause of the 
 greatest civil war history has ever recorded. I do 
 not wish to be understood as losing sight of the de- 
 mand for the abolition of slavery as a cause of the 
 war. On the contrary, I recognize it as the imme- 
 diate occasion of the war ; but I claim that the war 
 might have been averted if the entire Southern peo- 
 ple had not been educated in the political faith which 
 rested upon these two misleading principles. 
 
 The natural and uncontrollable impulse of the 
 human mind is to demand a satisfactory basis for 
 the exercise of governmental authority. The funda- 
 mental query of political philosophy is, By what 
 right do those in authority command your and my 
 obedience ? This query has at all times required an 
 answer, but it has never been so difficult to give a 
 satisfying answer as now. In the days when the 
 belief in the divine right of kings was general, and 
 
ii 4 THE UNWRITTEN CONSTITUTION. 
 
 perhaps universal, a satisfactory answer to the ques* 
 tion was readily obtained. No one questioned the 
 right of the Creator of all things to command our 
 obedience ; and if the kings were the vicegerents of 
 God upon earth, their authority was derived from 
 God. But when faith in the divine right of kings 
 weakened, and was finally repudiated by the leaders, 
 and perhaps also by the mass, of the civilized people 
 of the world as a fundamental basis for governmen- 
 tal authority, the philosophical minds of the world, 
 under the lead of the English Hobbes and the 
 French Rousseau, developed as a substitute the doc- 
 trine of a social contract. If governmental power 
 was not derived from God, it must be derived from 
 the people, who by common agreement established 
 the societies in which we live. This social contract 
 involved, when the people entered into the social 
 organization, the surrender of rights which were 
 enjoyed by individuals in a state of nature, so far 
 as such a surrender may be necessary to the common 
 weal. None of these dreamers actually believed 
 that while the people, in prehistoric times, were 
 living without social organization of any kind, they 
 suddenly came to the conclusion that it was good 
 for them to organize into political bodies and to sub- 
 ject themselves to certain rules for the common 
 good. They did not believe any such marvellous 
 tale. Starting out with the declaration of the mutual 
 
STATE SOVEREIGNTY. 115 
 
 equality of all men, they could not justify in reason 
 the acquisition by the few of a control of the many, 
 except upon the hypothesis that this subjection of 
 the mass to the few was voluntary. But that 
 hypothesis is not consistent with any other theory 
 than that all governments are founded upon a social 
 contract. They knew that the contract was a fiction, 
 but they had become so accustomed, as we still are, 
 to the use of fictions in the administration of the 
 law, that they were not conscious of the violence 
 done to the facts of the case. The only way of 
 solving the metaphysical difficulty that confronted 
 them was in the use of this fiction, and if the facts 
 did not fit and support the hypothesis, they were in 
 a frame of mind to pronounce it all the worse for the 
 facts. 1 This doctrine was in the air everywhere when 
 the Government and Constitution of the United 
 States were established, and although political scien- 
 tists have generally repudiated it, it still has a hold 
 upon the popular mind, and dominates the legal 
 thought of this country. 8 
 
 1 " All men have one common original : they participate in one 
 common nature, and have one common right. No reason can be 
 advanced why one man should exercise any power or pre-eminence 
 over his fellow-creatures more than another, unless they have volun- 
 tarily vested him with it. Since, then, Americans have not, by any 
 act of theirs, empowered the British Parliament to make laws for 
 them, it follows they can have no just authority to do it." " Hamil- 
 ton's Works," I., 6 (Lodge's edition). 
 
 'Not many months ago (1890) the Senate of the United States 
 adopted a resolution congratulating the people of Brazil on the estab- 
 
u6 THE UNWRITTEN CONSTITUTION. 
 
 The form which the theory generally assumes in 
 the United States is that " governments are insti- 
 tuted among men, deriving their just powers from 
 the consent of the governed " (Declaration of Inde- 
 pendence). 
 
 While that doctrine is true in the sense that all 
 governments rest upon the acquiescence in their 
 decrees of the great mass of the people whom they 
 rule, it is not true that the power is derived from the 
 consent of all the governed. Confessedly, the power 
 to control the actions of women and children is not 
 derived from their consent, not even in the land of 
 so-called universal suffrage. And where the suffrage 
 of male adults is limited to those who possess an 
 educational and property qualification, the fallacy 
 of the doctrine becomes still more manifest. It is 
 absurd to say that the thieves and thugs who infest 
 society ever subscribed their consent to the criminal 
 laws of the land. They have not even acquiesced 
 in their establishment, except so far as an over- 
 powering force has compelled them to yield partial 
 obedience. 
 
 But it may be urged that by this doctrine is meant 
 not that the consent of each and every individual to 
 
 lishment by them of a government depending for its powers upon the 
 consent of the governed ; and the decisions of the courts and the 
 practical treatises on constitutional law still teem with references to 
 the natural rights of man, and a surrender of a part of them upon 
 entry into organized society. See ante Ch. VI. 
 
STATE SOVEREIGNTY. 117 
 
 the laws of the country must be obtained before 
 they can be rightfully enforced, but that the govern- 
 ment derives its just powers from the consent of the 
 majority of the people whom it rules. But, granting 
 that this is a proper limitation upon the meaning of 
 the postulate, and forbearing to do more than make 
 the claim that the limitation is a fatal admission of 
 the insufficiency of the theory, since it would not 
 then furnish any justification for the control of the 
 minority by the majority, even then the theory will 
 not fit in with the facts. It is to be supposed that 
 no one would question the truth of the proposition 
 that only those rule who have the right to exercise 
 the electoral franchise. If one cannot vote in the 
 elections of the country, he cannot be said to have 
 given his consent to the enactment and enforcement 
 of the laws. 
 
 Now the population of the United States was in 
 1880 fifty millions, and it would not be too liberal 
 an estimate to put the population in 1888 at sixty 
 millions. I believe the census of 1890 will show a 
 still greater increase. It will without doubt be con- 
 ceded that the presidential canvass of 1888 was a 
 very warm contest, and brought out the full strength 
 of both parties ; and that almost every one voted in 
 that election who had a right to vote. The total 
 number of votes cast at that election for all the pres- 
 idential candidates was 1 1,388,038. The eleven mil- 
 
n8 THE UNWRITTEN CONSTITUTION. 
 
 lions, therefore, determined among themselves who 
 shall exercise governmental authority over the sixty 
 millions. On what theory of consent can it be ex- 
 plained that the eleven millions had a right to com- 
 mand the obedience of the forty-nine millions ? The 
 authority of the eleven millions and of their govern- 
 mental representatives, to control the actions of the 
 silent, non-participating forty-nine millions, rests 
 upon no other legal basis than that which supports 
 the right of the law-makers to compel the thieves 
 and thugs of society to render obedience to their 
 edicts. It is because the eleven millions have the 
 power to compel the obedience of any one of the 
 forty-nine millions, that he renders obedience to the 
 laws of the country. The moral influence of the 
 eleven millions over the mass of the forty-nine mil- 
 lions, rather than the possession of the superior 
 physical force, is what secures the subjection of the 
 many to the commands of the few. But still the 
 proposition remains true, that the exercise of political 
 power by the few does not rest upon the consent of 
 the subject and silent majority, but upon the posses- / 
 sion by the few of the superior strength, both moral 
 and material. And the commands of these few con- 
 stitute the law, whatever may be their inherent 
 viciousness or inequity. Moral reasons may be 
 assigned for pronouncing a particular exercise of 
 authority by the ruling power to be unrighteous or 
 
STA TE SO VEREIGNTY. 1 19 
 
 unjust ; but no exercise of authority by the ruling 
 power in the land can ever be called illegal. 
 
 Not only is it true as a fact, that governments do 
 not derive their just powers from the consent of the 
 governed, but it is not even believed in by the peo- 
 ple, except as a part of their philosophy. It is not 
 a part of their practical politics, as the following 
 clipping from a current number of a leading journal 
 will show : 
 
 ' ' We shall never go back to the crude attempt of the Puritans to 
 secure the purity of the ballot by confining the suffrage to church 
 members ; but we may well question whether we have not gone quite 
 too far in the opposite direction, in giving the suffrage to everybody 
 regardless of either moral or intellectual qualifications, and whether it 
 is not high time we took some measures to make conscience more 
 powerful at the polling-booth." l 
 
 Who is meant by " we " in this extract ? Until 
 our attention is directly called to it, it does not ap- 
 pear strange to us that the distinguished editor should 
 refer to some aggregation of tlie people, as having in 
 them the totality of governmental power, by the 
 personal pronoun " we," without any other descrip- 
 tion. And it is very likely that the great majority of 
 the readers of this editorial, if they had been ques- 
 tioned, would have stated that the writer was refer- 
 ring to the power of the people to regulate their con- 
 cerns for the general welfare. But that could not 
 have been the thought of the writer; nor did the 
 
 1 Christian Union, editorial, " Political Puritanism," Jan. i, 1890. 
 
120 THE UNWRITTEN CONSTITUTION. 
 
 readers, whether they indorsed or disapproved the 
 proposition, base their conclusion upon the funda- 
 mental principle that the people en masse were 
 referred to under the personal pronoun "we." For 
 it is manifestly absurd to urge that the mass of the 
 people, in whom it is claimed is reposed all political 
 power, should confine the exercise of suffrage to the 
 few. Whether consciously or unconsciously, the 
 writer must have had in mind the antagonism of 
 good and evil in politics, and under the personal pro- 
 noun " we " he was referring to those individual 
 units of the political world, which constituted the 
 good elements, and which had the power to control 
 the evil elements. And it does not need to go to any 
 length to show that the good elements in the body 
 politic are not always in a numerical majority, eveix 
 when they effectively control the actions of the 
 vicious and evil. We have in this casual instance, 
 taken from a journal noted for its carefully prepared 
 and well-digested editorials and news-matter, a 
 striking proof of the practical want of faith in the 
 people in the doctrine of universal or popular suf- 
 frage. They do not really believe that political 
 power resides in the mass of the people. When we 
 lay aside our political dreaming, and come down to 
 a consideration of the plain facts of political science, 
 we are forced to the conclusion that there is no com- 
 munity in the world whose inhabitants stand on an 
 
STATE SOVEREIGNTY. 121 
 
 absolute equality before the law, and hence no com- 
 munity in whose entire population the supreme 
 power may be said to be vested. All governments 
 are either monarchies or oligarchies. 1 
 
 The fallacy of the doctrine that the government 
 "derives its just powers from the consent of the 
 governed," is still further exposed when it is remem- 
 bered that most of the laws now in force were 
 enacted before the present generations were born. 
 They acquiesce in their enforcement, or rather the 
 laws are enforced against the rebellious, because the 
 present generations in the mass have acquired the 
 habit of voluntarily obeying them, and desire their 
 enforcement against others, in order to prevent 
 injury to themselves. And it is also true that the 
 laws will cease to be enforced as soon as public 
 opinion, under the operation of the social forces, 
 undergoes a change, and those who form public 
 opinion generally justify the doing of the things for- 
 bidden by the pre-existing rules of law. But it can- 
 not be said that the enactment of any law rests for 
 
 1 " Nor, again, can sovereignty be said to reside in the entire com- 
 munity an error to which French writers on public law seem 
 especially liable. Their meaning may perhaps be that no body of 
 individuals except the entirety of the people ought to be recognized as 
 superior ; but a dogma like this is something very different from the 
 statement of a fact ; and the truth is that no government correspond- 
 ing with the description exists in the world. All politics are either 
 monarchies or oligarchies, since even in the most popular women and 
 minors are excluded from political functions." Sir Henry Maine, in 
 " Papers," etc. (1855), vol. i., pt. i. f p. 30. 
 
122 THE UNWRITTEN CONSTITUTION. 
 
 its authority upon the consent of the governed. The 
 living part of municipal law having no reference to 
 the dead letters consists of those rules of human 
 conduct which the great mass of people habitually 
 and spontaneously obey, and which they compel the 
 rebellious minority to obey, in order to prevent 
 injury to the law-abiding individual or to the com- 
 monwealth. If that be the true definition of the 
 law, then all governmental authority rests upon the 
 commands, not of a dead generation, but of a living 
 generation. And even the treaties and other com- 
 pacts which a past generation makes, leaving the 
 ethical element out of consideration, are legally 
 binding upon the present generation only so far as 
 they acquiesce in their observance, or are required 
 by a superior force to observe them. 
 
 The binding authority of law, therefore, does not 
 rest upon any edict of the people in the past ; it rests 
 upon the present will of those who possess the politi- 
 cal power. 
 
 The other political fallacy is wrapped up in the 
 notion of sovereignty. Political writers of all shades 
 of opinion speak of the sovereignty of the state, the 
 sovereignty of the king, the sovereignty of the people ; 
 and our own history is filled with the discussions con- 
 cerning the location of sovereignty in a federal state. 
 The advocates of the State Rights' theory maintain 
 that, since the Federal Government was the creation 
 
STATE SOVEREIGNTY. 123 
 
 of the States, sovereignty must reside in the States 
 as separate bodies-politic, while the National parties 
 claim that sovereignty resides in the people of the 
 United States as one body-politic. Notwithstanding 
 the looseness which characterizes the use of the term 
 " sovereignty " in these discussions, the elements of 
 personality and of omnipotence are always present, 
 more or less, in the meaning attached to the term, 
 showing a close adherence to its original meaning, 
 when there was one individual who claimed to be 
 the omnipotent ruler of the people by divine right. 
 Hence the claim is made that sovereignty is indivisi- 
 ble and subject to no legal limitation. As long as 
 this definition of sovereignty is applied to an abso- 
 lute monarchy for example, like the Empire of 
 Russia no serious difficulties are experienced in 
 making use of* the notion of sovereignty in the prac- 
 tical explanations of the phenomena of political life. 
 But when the notion is applied to a popular govern- 
 ment, a government which, whatever its form, is 
 founded upon a recognition of the repose of the 
 ultimate political power in some part of the people, 
 the most painful sort of confusion results. I will not 
 attempt to give in this connection a summary of the 
 views entertained by the political writers of Europe 
 and America concerning the location and character 
 of the sovereignty in a country ruled by a popular 
 government. Such explanations are to be found in 
 
124 THE UNWRITTEN CONSTITUTION. 
 
 many books and need not be repeated. For it seems 
 to me that if the reader has up to this point con- 
 ceded the correctness of my propositions concerning 
 the origin and development of law, both public and 
 private, he will have no need for these political ab- 
 stractions. To him sovereignty has no practical 
 meaning which does not make it synonymous with 
 supreme power ; and the sovereign or sovereigns are 
 the individual or individuals who together constitute 
 the repository of the supreme power of the land ; 
 not the aggregation of individuals which have been 
 declared by a past generation to be the repository of 
 the supreme power of the land, but that aggregation of 
 individuals which do now possess the supreme power 
 of the land. Hence the written Constitution cannot 
 locate the sovereignty of this country. It may be 
 claimed, without the fear of successful contradiction, 
 that prior to the present Constitution sovereignty 
 resided in the States ; because we know that the 
 Federal Government had not the power to compel the 
 obedience of the States, and was under the Articles 
 of Confederation denied all control over the individ- 
 ual citizens. And it may also be claimed that the 
 present written Constitution contains nothing which 
 might serve as a transfer of sovereignty from the 
 States to the people of the United States. But that 
 Constitution did make a transfer possible by giving 
 to the Federal Government direct control of the indi- 
 
STATE SOVEREIGNTY. 125 
 
 vidual. Then began a contest for the supremacy 
 between these two forces, the forces of disintegration 
 and the forces of centralization. According to the 
 definition of sovereignty here given, its location re- 
 mained doubtful and could not be settled until the 
 result of the civil war demonstrated the superiority 
 of the forces of centralization. 
 
 It would seem plain, therefore, that the right of 
 secession cannot be proved or disproved by reference 
 to the written words of the Constitution, or to the 
 opinions and intentions of those who helped to frame 
 the Constitution and found the government. For, 
 since all law derives its binding authority from the 
 present commands of those who now control and 
 mould public opinion, and not from any original 
 compact or consent of the governed, the supreme 
 power is in that aggregation of individuals, which 
 now has the ability to enforce obedience to its com- 
 mands. The people of the United States exercised 
 supreme power over the State of South Carolina and 
 prohibited its secession from the Union for the same 
 reason and on the same ground as they exercised 
 supreme power over the Mexicans, who became 
 American citizens, in consequence of a cession by 
 Mexico to the United States of the territory in which 
 they lived. It was because in both cases the United 
 States had the ability to assert supreme power over 
 the objecting individuals. The fact that the United 
 
126 THE UNWRITTEN CONSTITUTION. 
 
 States hold these peoples in subjection makes the 
 people of the United States the depositary of 
 sovereign power ; and whenever that fact ceases to 
 exist, and the supreme power has in fact been trans- 
 ferred to some other aggregation of individuals, 
 sovereignty will no longer be in the people of the 
 United States. 
 
 But if that be the case, one might ask what be- 
 comes of that clause of the Declaration of Indepen- 
 dence, in which it is claimed " that, whenever any form 
 of government becomes destructive of these ends 
 (z.^, the guaranty of the inalienable rights of man), 
 it is the right of the people to alter or abolish it, and 
 to institute a new government, laying its foundation 
 on such principles, and organizing its powers in such 
 form, as to them shall seem most likely to effect their 
 safety and happiness " ? What is the meaning of 
 this declaration, if it be true that that aggregation of 
 individuals is sovereign, which has the actual ability 
 to enforce obedience? 
 
 The difficulty is occasioned only by a confusion of 
 abstract moral and actual legal claims. A claim is 
 abstractly moral or immoral, rightful or wrongful, 
 according to its inherent character and its good or 
 bad effect upon the general welfare, independent of the 
 ability to assert and compel its recognition ; but it is 
 legal or illegal, right or wrong legally, as it accords 
 with, or opposes, the commands of those who pos- 
 
STATE SOVEREIGNTY. 127 
 
 sess the political power of the country. It is evident, 
 therefore, that the exercise of the right, claimed in 
 the American Declaration of Independence, to alter 
 or abolish any government which fails to secure to 
 the individual protection to life, liberty, and the pur- 
 suit of happiness, however justifiable in morals it 
 might be at times, is never legal, always illegal ; for 
 the aim of those who exercise this right is to over- 
 throw those who are the existing sovereigns, and whose 
 commands are the law. Revolutions are nothing 
 more than successful rebellions, while rebellions differ 
 from revolutions only in the fact that the former are 
 unsuccessful. Both have their beginning in unlawful 
 acts, even though the cause be righteous. But just 
 as soon as the rebellion becomes a revolution, the 
 former sovereign power is overthrown, and another 
 power, represented by the revolutionists, takes its 
 place. With this shifting of the supreme power, a 
 radical change is effected in the character of the 
 actions of the opposing parties. The acts of the 
 \ revolutionists then become legal, while the acts of the 
 \ supporters of the old government become illegal. 
 
 We are now prepared to state the conclusion of the 
 argument. If the powers of government are derived 
 from the ability of those who command to enforce 
 obedience, and the sovereignty of a nation resides in 
 those who for the time being possess the political 
 power, the right of secession is nothing more than 
 
128 THE UNWRITTEN CONSTITUTION. 
 
 the right of revolution, morally justifiable or unjus- 
 tifiable, according to the character of the causes 
 which induced its exercise, but never legal, until its 
 successful exercise has wrought a transfer of the 
 political power from one aggregation of individuals 
 o another. 
 
CHAPTER X. 
 
 THE UNITED STATES GOVERNMENT ONE OF ENU- 
 MERATED POWERS. 
 
 FREQUENTLY, during the first century of our 
 national existence, the government of the United 
 States has assumed powers, which were highly essen- 
 tial to the promotion of the general welfare, but 
 which were not expressly delegated to the Federal 
 Government. The exercise of such powers has always 
 met with the vehement objection of the party in 
 opposition although each of the great national 
 parties has in turn exercised such questionable pow- 
 ers, whenever public necessities or party interests 
 seemed to require it the objection being that the 
 Constitution did not authorize the exercise of the 
 power, since there was no delegation of it by the 
 Constitution. Popular opinion, concerning the fun- 
 damental character of the Federal Government, which 
 had been lately established, was formulated in the 
 adoption of the tenth amendment to the Constitu- 
 tion, which provides that " the powers, not delegated 
 to the United States by the Constitution, nor pro- 
 9 129 
 
1 3 o THE UNWRITTEN CONSTITUTION. 
 
 hibited by it to the States, are reserved to the States, 
 respectively or to the people." Relying upon this 
 amendment as the authority for it, it has become the 
 generally recognized rule of constitutional construc- 
 tion, that, adopting the language of an eminent 
 writer on constitutional law, " the government of 
 the United States is one of enumerated powers, the 
 National Constitution the^instrumGnt which 
 
 specifies, and in which the authority should be found 
 for the exercise of, any power which the national 
 government assumes to possess. In this respect it 
 differs from the constitutions of the several States, 
 which are not grants of powers to the States, but 
 which apportion and impose restrictions upon the 
 powers which the States inherently possess." 1 
 
 The so-called " strict constructionists " have main- 
 tained that the United States can exercise no power 
 but what is expressly granted by the Constitution. 
 But this rule was at times applied so rigidly by the 
 party in opposition, whenever it was proposed to 
 prevent the enactment of a law which was obnoxious 
 to them, that the right was denied to the United 
 States Government to exercise even those rights 
 
 1 Cooley, Const. Lim., 10, n. See, also, to the same effect, Mar- 
 shall, Ch.-J., in Gibbons v. Ogden, 9 Wheat., i ; Story, J., in Martin 
 v. Hunter's Lessee, I Wheat., 304, 326 ; Waite, Ch.-J., in United 
 States v. Cruikshanks, 92 U. S., 542 ; Calder v. Bull, 3 Dall., 386; 
 Trade Mark Cases, loo U. S., 82 ; Briscoe v. Bank of Kentucky, n 
 Pet., 257; Oilman v. Philadelphia, 3 Wall., 713; and numerous 
 judicial utterances of the same import in the State reports. 
 
UNITED STATES GOVERNMENT. 131 
 
 which, although not expressly delegated, were so 
 necessary to the effectuation of the express powers, 
 that it cannot be supposed that the framers of the 
 Constitution did not intend to grant them. In 
 numerous instances this question, of constitutional 
 construction has been brought for settlement before 
 the Supreme Court of the United States ; and it is 
 now firmly settled that the Federal Government can 
 exercise, not only the powers which are expressly 
 granted, but also those powers, the grant of which 
 can be fairly implied from the necessity of assuming 
 them, in order to give effect to the express grant of 
 powers. " The government of the United States can 
 claim no powers which are not granted to it by the 
 Constitution ; and the powers actually granted must 
 be such as are expressly granted, or given by neces- 
 sary implication." ' 
 
 Although the United States Supreme Court has 
 never, in its numerous decisions on constitutional 
 construction, departed from the doctrine that the 
 United States Government may exercise powers 
 which are implied from the express grant of powers, 
 it is worthy of note that for nineteen years one 
 justice Mr. Justice Daniel of Virginia consistently 
 dissented from every judgment of the court which 
 was based upon the recognition of any implied 
 
 1 Story, J., in Martin v. Hunter's Lessee, I Wheat., 304, 326; 
 Marshall, Ch.-J., in Gibbons v. Ogden, 9 Wheat., I, 187, etc. See 
 preceding note. 
 
i 3 2 THE UNWRITTEN CONSTITUTION. 
 
 power. His persistent claim was that " the Consti- 
 tution itself is nothing more than an enumeration of 
 general abstract rules, promulged by the several 
 States for the guidance or control of their creature or 
 agent, the federal government, which for their ex- 
 clusive benefit they were about to call into being. 
 Apart from these abstract rules, the Federal Govern- 
 ment can have no functions and no existence." 1 
 
 This doctrine of implied powers gave to the Fed- 
 eral Constitution that elasticity of application without 
 which the permanency of the Federal Government 
 would have been seriously endangered. 9 But at the 
 same time it produced the very effect, in a greater 
 or less degree, the fear of which urged the strict con- 
 structionists to oppose its adoption, viz. : that it 
 would open the way to the most strained construc- 
 tion of express grants of power, in order to justify 
 the exercise of powers that could not be fairly im- 
 plied from the express grants. Indeed, the country 
 
 Opinion of Justice Daniel in Marshall v. B. & O. R. R. Co., 16 
 How., 346. 
 
 3 ' ' While the principles of the Constitution should be preserved 
 with a most guarded caution, it is at once the dictate of wisdom and 
 enlightened patriotism to avoid that narrowness of interpretation 
 which would dry up all its vital powers, or compel the government-^ 
 as was done under the Confederation to break down all constitu- 
 tional barriers, and trust for its vindication to the people, upon the 
 dangerous political maxim that the safety of the people is the supreme 
 law (sains populi suprema lex), a maxim which might be used to justify 
 the appointment of a dictator, or any other usurpation." Story on 
 Constitution, 1,292. See Chapter VII. on The Suspension of the 
 Writ of Habeas Corpus during the Civil War. 
 
UNITED STATES GOVERNMENT. 133 
 
 has often been presented with the spectacle of 
 United States, as well as State, judges and legisla, 
 tors engaged in justifying questionable but necessary 
 assumptions of power by the general government, by 
 laboriously twisting, turning, and straining the plain 
 literal meaning of the constitutional provisions, seek- 
 ing to bring the powers in question within the opera- 
 tion of some express grant of powers. For illustra- 
 tion I will refer only to two extreme cases the 
 Louisiana purchase, and the issue of treasury notes 
 with the character of legal tender. 
 
 In the case of the Louisiana purchase, the exercise 
 of the questionable power was so plainly beneficial 
 to the whole country that it was generally acquiesced 
 in. But the claim of an express or implied power to 
 make the purchase was so palpably untenable that 
 the transaction has been tacitly admitted to have 
 been an actual but necessary violation of the Consti- 
 tution. Even Mr. Jefferson, to whom the credit of 
 effecting the purchase of Louisiana was justly and 
 chiefly due, was of the opinion that there was no 
 warrant in the Constitution, for the exercise of such 
 a power, and recommended the adoption of an 
 amendment to the Constitution ratifying that pur- 
 chase. In speaking of the objections which were 
 urged against the project Judge Story says : 
 
 " The friends of the measure were driven to the adoption of the 
 doctrine that the right to acquire territory was incident to national 
 sovereignty ; that it was a resulting power, growing necessarily out 
 
i 34 THE UNWRITTEN CONSTITUTION. 
 
 of the aggregate power confided by the Federal Constitution, that the 
 appropriation might justly be vindicated upon this ground, and also 
 upon the ground that it was for the defence and general welfare." 1 
 
 An equally remarkable case of a strained construc- 
 tion of constitutional provisions is the exercise by 
 Congress of the power to make the United States 
 treasury notes legal tender, in payment of all debts, 
 public and private. 
 
 The exercise of this power is not so plainly bene- 
 ficial ; on the contrary, it has been considered by 
 many able publicists to be both an injurious and a 
 wrongful interference with the private rights of the 
 individual. For this reason, the assumption of this 
 power by the National Government has not met with 
 a general acquiescence ; and the constitutionality of 
 the acts of Congress, which declared the treasury 
 notes to be legal tender, has been questioned in 
 numerous cases, most of which have found the way 
 to the Supreme Court of the United States. In 
 Hepburn v. Griswold, 8 the acts of Congress of 1862 
 and 1863 were declared to be unconstitutional, so 
 far as they make the treasury notes of the United 
 States legal tender in the payment of pre-existing 
 debts. 
 
 1 Story on Constitution, 1,286. I do not wish it to be inferred 
 that I am unaware of the opinion of Chief-Justice Marshall, that the 
 power to purchase foreign territory is to be implied from the power 
 to make treaties with foreign nations. See Am. Ins. Co. v. Canter, 
 I Pet., 511, 542. But the claim is made that this is one of the cases in 
 which the doctrine of implied powers has been improperly applied. 
 
 9 8 Wall. ,603, 
 
UNITED STATES GOVERNMENT. 135 
 
 In the Legal-tender cases, 1 the opinion of the 
 court in Hepburn v. Griswold was overruled, and 
 the acts of 1862 and 1863 were declared to be con- 
 stitutional in making treasury notes legal tender, 
 whether they applied to existing or subsequent 
 debts, the burden of the opinion being that Con- 
 gress has the right, as a war measure, to give to 
 these notes the character of legal tender. In 1878 
 Congress passed an act providing for the reissue of 
 the treasury notes, and declared them to be legal 
 tender in payment of all debts. In a case arising 
 under the act of 1878, the Supreme Court of the 
 United States has finally affirmed the opinion an- 
 nounced in 12 Wallace, and held further that the 
 power of the government to make its treasury notes 
 legal tender, whenever the public exigencies require 
 it, being admitted, it becomes a question of legisla- 
 tive discretion when the public welfare requires the 
 exercise of the power. 8 A perusal of these cases 
 will disclose the fact that the members of the court 
 and the attorneys in the causes have not always 
 referred to the same constitutional provisions for 
 the authority to make the treasury notes legal 
 tender. Some have claimed it to be a power im- 
 plied from the power to levy and carry on war ; 
 some refer it to the power to borrow money, while 
 others claim it may be implied from the grant of 
 
 1 12 Wall., 457. 9 Juillard v. Greenman, no, U. S., 421. 
 
136 THE UNWRITTEN CONSTITUTION. 
 
 power to coin money and regulate the value of it. 
 It will not be necessary for the present purpose to 
 demonstrate that this power is not a fair implication 
 from the express powers mentioned. A careful read- 
 ing of all the opinions in the cases referred to will at 
 least throw the matter into hopeless doubt and 
 uncertainty, if it does not convince the reader 
 that in assuming this position violence has been 
 done by the court to the plain literal meaning of 
 the words. 
 
 The cases are not rare in which forced construc- 
 tion has been resorted to, in order to justify the 
 exercise of powers which are deemed necessary by 
 public opinion. 'Nor can we expect to prevent alto- 
 gether this tendency to strain and force the literal 
 meaning of the written Constitution, in order to 
 bring it into conformity with that unwritten consti- 
 tution, which is the real constitution, and which 
 embodies the living rules of conduct ; for this un- 
 written constitution is steadily but slowly changing 
 under the pressure of popular opinion and public 
 necessities, checked only by the popular reverence 
 for the written word, f But it is wise to eliminate 
 every thing which is calculated to increase this 
 strain ; and if the strain is increased in any case by 
 an erroneous interpretation of the grammatical 
 meaning of the written Constitution, it is a public 
 benefit to point this error out, even though it be- 
 
UNITED STATES GOVERNMENT. 137 
 
 comes necessary to claim that the framers of the 
 Constitution did not understand the literal meaning 
 of their own enactment. The attempt will be made 
 to show that this was the case with the accepted in- 
 terpretation of the Tenth Amendment to the Federal 
 Constitution. 
 
 A stable and enduring government cannot be so 
 constructed that no branch of it cannot exercise a 
 given power unless it is granted by the Constitu- 
 tion, expressly or by necessary implication, unless 
 one escapes from the dilemma by claiming any 
 valuable power as implied from the power to pro- 
 mote the general welfare. A government, as a 
 totality, may properly be compared to a general 
 agent, who does not require any specific delegation 
 of power to do an act, provided it falls within the 
 scope of the agent's general authority. A govern- 
 ment, like a general agent, may have express restric- 
 tions or limitations upon its general powers. But in ^ 
 the absence of a prohibition, the right to exercise a 
 given power, which falls within the legitimate scope 
 of governmental authority, must be vested in some 
 branch of the government. 'As a general proposi- 
 tion, I believe the foregoing statement that all gov- 
 ernments can exercise any governmental power, 
 which is not prohibited, as of necessity, would pass 
 without question. Criticism is to be expected only 
 when the attempt is made to apply the doctrine to 
 
138 THE UNWRITTEN CONSTITUTION. 
 
 the composite federal state. Undertaking the proof 
 of the correctness of this rule, in its application to 
 the federal state, in order to put the whole matter 
 clearly before the reader, I wish, with the aid of a 
 diagram, to classify and distinguish the powers of 
 government in the division of them between the two 
 great parts of the federal state. It is as follows : 
 
 Outer circle represents totality of governmental powers. 
 Circle A = powers delegated to the United States. 
 
 B = powers reserved to the States. 
 Segment C = concurrent powers. 
 
 " D = powers prohibited to both branches of government. 
 " E = " " the States, but neither pro- 
 
 hibited nor delegated to the United States. 
 
 v/ The question for discussion is whether the United 
 States Government may exercise a power which is 
 prohibited to the States, but which is neither pro- 
 hibited nor delegated to the General Government. 
 The claim is made, on the general principle enunci- 
 ated above, that from the necessity of the case the 
 
UNITED STATES GOVERNMENT. 139 
 
 United States Government can exercise such a power, 
 for it would be impossible to construct a government, 
 no branch of which can exercise a necessary power, 
 unless it has been granted. As a proposition of fact, 
 I need only refer to the two cases of governmental ac- 
 tion without express authority, heretofore explained, 
 in order to establish its truth. Whatever the writ- 
 ten Constitution may provide on this question, the 
 fact is that the United States Government does exer- 
 cise powers which are not delegated to it by the written . 
 Constitution. I do not mean to say that constitu- 
 tional conventions never attempt to lay down a dif- 
 ferent rule. On the contrary, if the great men who 
 have contributed to the building up of the American 
 constitutional law have been free from error in their 
 construction of the tenth amendment of the Federal 
 Constitution, the adoption of that amendment was 
 an attempt to do this impossible thing, and the at- 
 tempt has resulted in repeated violations of the 
 Constitution, as construed by them, by the assump- 
 tion by Congress of powers which were not expressly 
 delegated nor fairly inplied. The Louisiana pur- 
 chase and the Legal-tender cases, already referred 
 to, furnish sufficient illustration of the truth of the 
 statement. Cases of the same character will surely 
 arise from time to time, and each repetition will 
 diminish the popular reverence for the written Con- 
 stitution, an evil to be deprecated by every earnest 
 
i 4 o THE UNWRITTEN CONSTITUTION. 
 
 jurist. The difficulty in many of the cases lies in 
 the accepted interpretation of the tenth amend- 
 ment. 
 
 According to the prevailing interpretation of that 
 amendment, in order that the United States may by 
 treaty make a purchase of foreign territory, or de- 
 clare by act of Congress that the treasury notes shall 
 be legal tender in payment of all public and private 
 debts, the power must be granted by the Constitu- 
 tion. It is clear that the State governments cannot 
 exercise these powers, for the exercise of them is 
 expressly prohibited to the States. But if it can be 
 shown that this interpretation of the tenth amend- 
 ment does not bring out the true grammatical mean- 
 ing ; that the tenth amendment does not apply to 
 such cases, it must be conceded that the United 
 States may exercise these and other like powers, al- 
 though they are not expressly or impliedly granted. 1 
 
 There is no reason why the real meaning of that 
 amendment should not be given effect in construing 
 the constitutionality of such acts. For no rule of 
 construction is binding upon the courts and other 
 departments of the government which does not rest 
 for its authority upon some provision of the written 
 Constitution. The intentions of the framers of the 
 
 1 It is claimed, however, by the author elsewhere, that the power 
 to make treasury notes legal tender is prohibited by the Constitution 
 to both the United States and the States. See Tiedeman's " Limita- 
 tions of Police Power," 90. 
 
UNITED STATES GOVERNMENT. 141 
 
 Constitution are not at all binding upon the present 
 generation, except so far as they have been em- 
 bodied in the written word. 1 
 
 The tenth amendment reads as follows : " The 
 powers, not delegated to the United States by the 
 Constitution, nor prohibited by it to the States, are 
 reserved to the States respectively or to the peo- 
 ple." It is clear that, if a given power is not prohib- " 
 ited to the States, the General Government cannot 
 exercise it, unless there is an express delegation of 
 the power. The amendment declares that such 
 powers are reserved to the States or to the people. 
 But if a given power is prohibited to the States, but 
 not delegated to the United States the right to 
 purchase foreign territory, for example, can it be 
 said that under this amendment the exercise of this 
 power is reserved to the States ? The very prohibi- 
 tion to the States forbids this construction. It may 
 be claimed that in such a case the power would be 6 
 reserved "to the people." But that claim cannot 
 be sustained. The reservation of the powers (re- 
 ferred to in the amendment) in the alternative " to 
 the States respectively or to the people," evidently 
 involves a consideration of the possibility that the 
 
 1 " As men whose intentions require no concealment generally em- 
 ploy the words which most directly and aptly express the idea they * 
 intend to convey, the enlightened patriots who framed our Constitu- 
 tion, and the people who adopted it, must be understood to have 
 employed words in their natural sense, and to have intended what 
 they have said." Marshall, C.-J., in Gibbons v. Ogden, 9 Wheat., I. 
 
142 THE UNWRITTEN CONSTITUTION. 
 
 State constitutions may prohibit to the States the 
 exercise of a power which is reserved to them under 
 the Federal Constitution, and in that case the power 
 would be reserved to the people. What powers 
 " are reserved to the States respectively, or to the 
 people"? The answer is, those powers which are 
 " not (neither) delegated to the United States by the 
 Constitution, nor prohibited by it to the States." 
 These two clauses, which contain the exceptions to 
 the operation of the amendment, are not in the 
 alternative. In order that it may be claimed under 
 this amendment that a power is " reserved to the 
 States respectively or to the people," it must avoid 
 both exceptions, />., it must be a power, which is 
 neither delegated to the United States nor pro- 
 hibited to the States. It cannot be successfully 
 claimed that a power is reserved, which is pro- 
 hibited to the States, but which is not delegated to 
 the United States. The conclusion, therefore, is 
 that the United States Government is one of 
 enumerated powers, so far that it cannot exercise 
 any power which is not prohibited by the Constitu- 
 tion to the States, unless it is expressly or impliedly 
 delegated to the United States. But those powers, 
 which are prohibited to the States, and which fall 
 legitimately within the scope of governmental 
 authority, may be exercised by the United States, 
 unless they are also prohibited to the United States. 
 
UNITED STATES GOVERNMENT. 143 
 
 There need not be any express or implied grant 
 of such powers to the United States. 
 
 It is not claimed or implied that the interpreta- 
 tion of the tenth amendment here advocated con- 
 forms more nearly to the intentions of the framers 
 of the Constitution than that which has been gen- 
 erally accepted by writers upon the constitutional 
 law of the country. Indeed, the revelation of the 
 presence in the early history of the United States, of 
 forces of disintegration in the politics of the coun- 
 try, equal or almost equal to the forces of consolida- 
 tion, would incline one to suppose that the inten- 
 tions of the law-makers in the formation of the 
 Constitution were properly reflected in that con- 
 struction of constitutional limitations which would 
 most effectively hamper and curtail the powers of 
 the national government. The great struggle of the 
 wise men of those days was to secure for the Fed- 
 eral Government the delegation of sufficient power 
 to establish an independent government ; and it 
 may be said with equal truth and force that the 
 Federal Constitution was wrested from an unwilling 
 people. It would therefore be impossible to show 
 that this construction of the tenth amendment was 
 in conformity with the intentions and/ expectations 
 of those whose votes enacted it. -It is freely ad- 
 mitted that the prevailing interpretation is without 
 doubt what the framers of the amendment intended. 
 
i 4 4 THE UNWRITTEN CONSTITUTION. 
 
 But the intentions of our ancestors cannot be per- 
 mitted to control the present activity of the govern- 
 ment, where they have not been embodied in the 
 habits of thought of the people we have seen that 
 the interpretation has been practically ignored in 
 the two illustrative cases or in the written word of 
 the Constitution. Where the written word is equally 
 susceptible of two constructions, one of which re- 
 flects more accurately the intentions of the power 
 that speaks through the word, that construction 
 must prevail. Now the living power, whose will is 
 given expression in the written word, is not the men 
 who framed or voted for the written word, but the 
 present possessors of political power. The present 
 popular will must indicate which shade of meaning 
 must be given to the written word. And that inter- 
 pretation becomes the only possible one, when it 
 may be shown by the experience of a century, that 
 the alternative construction, which reflects the in- 
 tentions of the original enactors of the written 
 word, is pernicious to the stability of the govern- 
 ment, and in violation of the soundest principles of 
 political science. 
 
CHAPTER XI. 
 
 CARDINAL RULE OF INTERPRETATION AND CON- 
 STRUCTION OF WRITTEN CONSTITUTIONS. 
 
 ' 
 
 IT is a noteworthy fact, that in the earlier stages 
 of development of a system of jurisprudence, when 
 the knowledge of the meaning of words is crudest 
 and least certain, greater stress is laid in interpreta- 
 tion upon the letter of the law than in the more 
 advanced judicial age. The written word is held in 
 reverential awe, and is treated as containing every 
 element of the law. 1 This tendency, in the inquiry 
 into the operation and meaning of writings, to con- 
 fine one's attention to the written word, is without 
 doubt caused by a popular ignorance of the real 
 
 1 " A close adherence to the letter is a mark of unripeness every- 
 where, and especially so in law. The history of law might write 
 over its first chapter, as a motto, ' In the beginning was the word.' 
 To all rude peoples the word appears something mysterious, whether 
 it be written or solemnly uttered as a formula, and their simple faith 
 fills it with supernatural power." v. Ihering, " Geist des R. Rechts," 
 Bd. II., Theil 2, p. 441. In the subsequent pages Prof. v. Ihering 
 undertakes an elaborate explanation of the metaphysical origin of the 
 two kinds of interpretation, which is not only attractive for its beauty, 
 but also for its value to the jurist. 
 10 145 
 
146 THE UNWRITTEN CONSTITUTION. 
 
 character of words as " vehicles of thought." The 
 object of all communications is to enable one mind 
 to learn the thoughts of the other; and the popular 
 notion is that the spoken or written word is literally 
 the " vehicle of thought " ; that the thought is actu- 
 ally conveyed by the word from one mind to an- 
 other. Of course this is altogether false. Thought 
 is a mental operation, and the intended effect of 
 words is to reproduce the same operation in the 
 brain of another. But the word does not impart or 
 transmit the movement from one brain to the 
 other. It is also true that words are not the 
 only means of communication of thought. Smiles, 
 frowns, nods of the head, winks, and all kinds of 
 gesturing, serve to communicate thought often as 
 well as words ; and where the words are accom- 
 panied by such gestures, their meaning is often 
 materially modified, and sometimes completely 
 changed. To take note under such circumstances 
 simply of the spoken word would give to the mind 
 of the hearer a very wrong impression of the thought 
 of the speaker, and hence the actual thought would 
 not have been communicated. In other words, the 
 movements in the brain of the writer or speaker 
 would not be accurately reproduced in the brain 
 of the reader or hearer. Words, therefore, when 
 considered separate from surrounding circumstances, 
 do not always act as reliable vehicles of thought. 
 
RULE OF INTERPRETATION. 147 
 
 To secure at all times a correct appreciation of 
 the meaning of the writer or speaker, one must 
 take into consideration every fact, external and 
 internal, which exerted an influence upon him at the 
 time of writing or speaking his characteristics as 
 well as his environment, for a word used by one 
 man does not necessarily have the same shade of 
 meaning which it might have when used by another. 
 But every word must be understood roughly to have 
 a certain and common meaning ; else it would be 
 impossible for one mind to communicate with 
 another. But within the limits of the general mean- 
 ing of a word, there may be, and usually are, various 
 shades of meaning, which the word alone cannot un- 
 fold, and which must be learned from other sources. 
 Now the literal or grammatical interpretation can 
 only disclose this rough general meaning ; while the 
 finer shades of meaning are only brought out by a 
 liberal or logical interpretation, i.e., by a considera- 
 tion of every fact, having more or less connection 
 with, and influence over, the writer. It is needless 
 to add that the latter interpretation is alone relied 
 upon by educated peoples. 
 
 Applying these fundamental principles to the 
 interpretation of constitutional and statutory law, it 
 may be stated that in the pursuit of the meaning of 
 the law, every fact or circumstance, surrounding the 
 lawgiver, when the law was promulgated, is required 
 
148 THE UNWRITTEN CONSTITUTION. 
 
 by our rules of interpretation to be inquired into; 
 so that the cardinal rule of interpretation of laws 
 may be said to be, that the intention of the law- 
 giver, when the law was enacted, must prevail. The 
 same rule of interpretation is made to apply to 
 statutes and constitutions, as is applied to private 
 contracts. 
 
 In recognition of the soundness of this rule, as ex- 
 plained by our books upon constitutional and statu- 
 tory construction, we expect a law to be enforced 
 in the sense in which the legislators intended, 
 whether the legislators be members of a constitu- 
 tional convention or of an ordinary legislature ; and 
 the student is directed, in his effort to ascertain the 
 meaning of a statute or clause of a constitution, to 
 read the history of the times, the journal of the 
 convention or legislature, and the speeches of its 
 members. From these extraneous sources one ex- 
 pects to learn every thing necessary to an under- 
 standing of the exact meaning of the lawgiver. 
 
 But would a strict observance of this rule enable 
 a student to get an accurate knowledge of what the 
 law is now? If the illustrations heretofore given in 
 support of my thesis teach any one thing with pre- 
 cision, it is that the intention of the legislator, 
 whether he be Congressman or a member of a con- 
 stitutional convention, is only effectuated, so far as it 
 has found lodgment in the written word. The writ- 
 
RULE OF INTERPRETATION. 149 
 
 ten word stands alone as the embodiment of his in- 
 tention ; and if it is possible for the court, in the 
 enforcement of the law, to find in the written word 
 two or more shades of meaning, it does not enforce 
 that shade of meaning which was intended by the 
 lawgiver, but that shade which best reflects the 
 prevalent sense of right. And, in securing that con- 
 cordance of the written law and the prevalent sense 
 of right, all these rules of interpretation as generally 
 understood are thrown to the winds. 1 Even the 
 ordinary and plain meanings are twisted out of the 
 words ; and, although public opinion usually com- 
 mands an adherence to the word, if the case should 
 be distressing, and the necessity for a repudiation of 
 the written word be great, in obedience to popular 
 demands, it is done by governmental authority. 
 Still, as explained in the first chapter, the cases are 
 rare in which a court safely disregards the written 
 word of the legislature, for the prevalent sense of 
 
 1 " No statute ever resisted, in the end, the unfavorable opinion of 
 the profession. Whether he intends it or not, the judge's hand grows 
 weak, the arm of justice loses its power, acute interpretation lends all 
 its means to evade and undermine such a statute, to introduce condi- 
 tions not found in the text or to contract its language, and, as it were, 
 by a silent conspiracy, to invent and recommend the most forced 
 constructions, till even the rules of logic bend to the claims of inter- 
 est. This silent war of the profession against the positive law is re- 
 peated wherever that law becomes out of date without being formally 
 repealed. It is in this manner that our instincts of right naturally 
 react against the legislator's disregard of them." Lieber's " Herme- 
 neutics," Appendix, by Dr. Hammond, pp. 272, 273. 
 
150 THE UNWRITTEN CONSTITUTION. 
 
 right usually requires a strict observance of the 
 written word, however much violence is done by 
 interpretation to the plain intention of the legislator. 
 Is it a sufficient explanation of the common disre- 
 gard of legislative intention to say that it is due to 
 the influence of the imperfections of human nature 
 on the administration of the law ? To my mind the 
 fault lies in the cardinal rule of interpretation, as 
 given by all our writers. It is true that a true inter- 
 pretation of the law must disclose the real and full 
 meaning of the lawgiver ; but in countries in which 
 popular governments are established the real law- 
 giver is not the man or body of men which first 
 enacted the law ages ago ; it is the people of the 
 present day who possess the political power, and 
 whose commands give life to what otherwise is a dead 
 letter. No people are ruled by dead men, or by the 
 utterances of dead men. Those utterances are only 
 law so far as they are voiced by some living power. 
 Hence, since under a popular government govern- 
 mental authority rests upon the voice of the people, 
 or the voice of that part of the people which moulds 
 public opinion, that interpretation, in strict con- 
 formity with the fundamental rule of interpretation, 
 must prevail which best reflects the prevalent sense 
 of right. For the present possessors of political 
 power, and not their predecessors, are the lawgivers 
 for the present generation. While, therefore, as a 
 
RULE OF INTERPRETA TION. 151 
 
 general rule, the written word remains unchanged 
 and confines the operations of the popular will to a 
 choice of the shades of meaning, of which the written 
 word is capable until the written word has been 
 repealed or modified by the proper authority, the 
 practical operation of the law will vary with each 
 change in the prevalent sense of right ; and the judge 
 or practitioner of the law, who would interpret the 
 law rightly, i.e., ascertain with precision the rule of 
 conduct in any case, need not concern himself so 
 much with the intentions of the framers of the Con- 
 stitution or statute, as with the modifications of the 
 written word by the influence of the present will of 
 the people. Or, in other words, he must find out 
 what the possessors of political power now mean by 
 the written word. 
 
 This is not a philosophical speculation, having no 
 foundation in fact. Notwithstanding its apparently 
 radical contradiction of the commonly accepted rules 
 of interpretation, it is acted upon and recognized by 
 all the leading American authorities. Dr. Lieber re- 
 cognizes this factor unconsciously, it is true, when, 
 in distinguishing between the interpretation and con- 
 struction of constitutional provisions, he says that a 
 constitutional " sentence, then, must be interpreted, 
 if we are desirous to ascertain what precise meaning 
 the framers of our Constitution attached to it, and 
 construed, if we are desirous of knowing how they 
 
152 THE UNWRITTEN CONSTITUTION. 
 
 would have understood it respecting new relations, 
 which they could not have known at the time, and 
 which, nevertheless, fall decidedly within the province 
 of this provision." ' And the same may be said of 
 Chief-Justice Marshall, where, in his opinion in the 
 Dartmouth College case, he claims that a case may 
 come within the operation of a constitutional pro- 
 vision, even though the framers of the Constitution 
 did not anticipate it, provided there is nothing in the 
 written word to indicate that they would have ex- 
 cluded it if it had been anticipated. 3 
 
 If a law or constitutional provision can by con- 
 struction be made to cover a case, which the enacter 
 
 1 " Hermeneutics," p. 168. 
 
 2 " It is more than possible that the preservation of rights of this 
 description was not particularly in the view of the framers of the 
 Constitution, when the clause under consideration (the provision 
 against impairment of obligation of contracts) was introduced into 
 that instrument. It is probable that interferences of more frequent 
 occurrence, to which the temptation was stronger, and of which the 
 mischief was more extensive, constituted the great motive for impos- 
 ing this restriction on the State legislatures. But although a particu- 
 lar and rare case may not, in itself, be of sufficient magnitude to 
 induce a rule, yet it may be governed by the rule when established, 
 unless some plain and strong reason for excluding it can be given. It 
 is not enough to say that this particular case was not in the mind of 
 the convention when the article was framed, nor of the American 
 people when it was adopted. It is necessary to go further and to say 
 that had this particular case been suggested the language would have 
 been so varied as to exclude it, or it would have been made a special 
 exception. The case being within the words of the rule, must be 
 within its operations likewise, unless there be something in its literal 
 construction so obviously absurd or mischievous, or repugnant to the 
 general spirit of the instrument, as to justify those who expounded the 
 Constitution in making it an exception." 4 Wheat., pp. 644, 645. 
 
R ULE OF INTERPRETA TION. 153 
 
 of the law or provision did not and could not antici- 
 pate, and which he consequently cannot be said to 
 have intended to include within the operation of the 
 rule, then by what will power is the law or constitu- 
 tional provision made to apply to that case? Is it 
 not the present will of the people? And is not, 
 then, in accordance with the rules laid down by 
 Marshall and Lieber, a law or constitutional rule 
 made to mean what the popular will intends by the 
 written word ? The real character of the rule cannot 
 be changed by giving it the name of construction. 
 Construction, as defined by the authorities and dis- 
 tinguished from interpretation, is nothing more than 
 that logical interpretation, whereby the real meaning 
 of the living lawgiver, i.e., the present possessors of 
 political power, is ascertained. 
 
 This fallacy in interpretation of laws is the result 
 of holding on to a rule, after a change of circum- 
 stances has confused its meaning or made its appli- 
 cation misleading; and its retention, after it has 
 ceased to be true, is due to the general acceptation 
 of the groundless doctrine of the social contract. 
 Under this doctrine, as well as under the doctrine of 
 the divine right of kings, the popular conception of 
 law was, as indicated in Blackstone's definition, that 
 it emanated from some power above and beyond us, 
 from God in the one case, and from our ancestors in 
 the other case. That being the source of the law, in 
 
154 THE UNWRITTEN CONSTITUTION. 
 
 order to ascertain what the law is, we must discover 
 what the governmental representatives of God, or of 
 our ancestors, meant by the words used in their 
 enactments ; in the same manner as we endeavor to 
 ascertain the intentions of parties to a private con- 
 tract, in order to determine their contractual rights. 
 But as soon as we recognize the present will of the 
 people as the living source of law, we are obliged, in 
 construing the law, to follow, and give effect to, the 
 present intentions and meaning of the people. 
 
CHAPTER XII. 
 
 THE REAL VALUE OF WRITTEN CONSTITUTIONS. 
 
 / 
 IF it be true, as the .foregoing pages indicate, that 
 
 all political constitutions undergo a constant and 
 gradual evolution, keeping pace with the develop- 
 ment of civilization, whether there be a written 
 constitution or not ; that these changes generally 
 take place without formal amendments to the writ- 
 ten constitution, the question would naturally arise : 
 Of what value then is a written constitution which 
 demonstrates its superiority over an unwritten con- 
 stitution ? The student who has been in the habit 
 which is still very common, if not universal, with 
 practical lawyers and judges of beginning his in- 
 quiry injx^ Constitutional law with the fundamental 
 postulate that all constitutional rules have their root 
 in the written declarations of the sovereign power, 
 and that these declarations must be observed and 
 obeyed in the spirit and meaning with which they 
 were first promulgated, such a student is apt, if he 
 concedes the truth of the present thesis, to conclude 
 that the superiority of written over purely unwritten 
 constitutions has been dissipated altogether. 
 
 X55 
 
156 THE UNWRITTEN- CONSTITUTION. 
 
 Not so. There is still room for the claim that the 
 written constitution has in it elements which funda- 
 mentally change the character of the government, 
 and which the unwritten constitution cannot possi- 
 bly claim. Not only this, but the further claim may 
 be substantiated that, with a full understanding of 
 the real value of written constitutions, and a differ- 
 entiation of that real value from its supposed but 
 fictitious value, the superiority of written over 
 purely unwritten constitutions is enhanced rather 
 than diminished. 
 
 In the pursuit of this inquiry, it is necessary, as 
 elsewhere, to take cognizance of the existence and 
 effect of the two opposing social forces, which are 
 present everywhere in bodies-politic, and which were 
 prominently distinguishable at the time when the 
 present Federal Constitution was adopted, viz. : the 
 force of consolidation or centralization, and the 
 force of disintegration. In every body-politic, in 
 the effort to reconcile the claims of legal order and 
 personal freedom from restraint, there are those who, 
 on the one hand, are willing to sacrifice personal lib- 
 erty to the cause of law and order, only as far as this 
 sacrifice is absolutely necessary to the public safety ; 
 while, on the other hand, there are those who place 
 so high a value upon law and order, that they are 
 willing and are clamorous for the sacrifice of personal 
 liberty, whenever that sacrifice promotes the public 
 
WRITTEN CONSTITUTIONS. 157 
 
 welfare. The first class of political units translate 
 the Latin maxim, salus populi suprema lex, the safety 
 of the people is the highest law ; while the second 
 class understand by that maxim that the welfare of 
 the people is the highest law. The first class are 
 therefore always afraid of the tyranny of officials ; 
 while the second class dread the power of the demos. 
 The first class are anxious to impose restraints upon 
 the power of the officials ; while the second class are 
 anxious to dimmish as far as possible the influence of 
 the people on legislation. The first class are thor- 
 oughly democratic in spirit ; the second class, thor- 
 oughly aristocratic. 
 
 It is needless to state that both of these political 
 classes were present in full force during the first 
 years of our national existence. In the sense in 
 which the terms have here been explained, George 
 Washington, Alexander Hamilton, James Madison, 
 John Randolph, and others, who took the same view 
 of politics, were Aristocrats ; while Samuel Adams, 
 George Clinton, Thomas Jefferson, Patrick Henry, 
 etc., were Democrats. The Aristocrats, dreading the 
 absolutism of a democratic majority, sought to 
 establish a government, which, although representa- 
 tive and popular in character, could be conducted 
 and controlled by the better elements of society, 
 and whose actual administration would be as free as 
 possible from the influence of the masses. Hence, 
 
158 THE UNWRITTEN CONSTITUTION. 
 
 in the constitutional convention, they proposed the 
 establishment of a strong national government, with 
 such checks and safeguards thrown around the 
 exercise of the power of amendment, as to give 
 permanency to the form and character of the govern- 
 ment, and to prevent radical changes in response to 
 every popular clamor. The Democrats were, on the 
 other hand, in constant fear of the establishment 
 in this country of another George III., under the 
 guise of a popular executive. They fought for their 
 liberties step by step, the result of the contest being 
 that the Federal Constitution became a collection of 
 compromises. But, in order that the opposing ele- 
 ment may not easily or inadvertently secure any 
 increase of power for the Federal Government, the 
 Democrats were likewise anxious to impose restraints 
 upon the power of amendment. Both parties then 
 concurred in the same conclusion, proceeding from 
 opposite standpoints, and resting the conclusions 
 upon different reasons. 
 
 But in their desire to impose restraints upon the 
 exercise of official and popular power, respectively, 
 they did not stop with making it difficult to amend 
 the Constitution. Legislation was also made difficult 
 by dividing the legislative power between three dif- 
 ferent independent bodies or departments of the gov- 
 ernment, the President, the Senate, and the House 
 of Representatives, and requiring the concurrence of 
 
WRITTEN CONSTITUTIONS. 159 
 
 all, in order to make new laws, or to change existing 
 ones, except that the two houses of Congress were 
 permitted, by a two-thirds vote in each house, to 
 pass a law over the veto of the President. 
 
 The further provision is made, in the procurement 
 of the same ends, that the President, the members 
 of the Senate, and of the House of Representatives, 
 shall not all be elected at the same time. Taken as 
 a whole, it was the most ingenious device for the pre- 
 vention of legislation that the world has ever known ; 
 and after the adoption of the Constitution, both par- 
 ties, from their respective standpoints, extolled these 
 features of the Constitution, perhaps beyond their 
 true value, losing sight of the great loss which en- 
 sues from unwise legislation, because of the supreme 
 difficulty to secure its repeal or modification. 1 
 
 But all these checks and balances, set down in a 
 written constitution, would be unavailing, if the 
 
 1 John Adams has enumerated these checks and balances as fol- 
 lows : "First, the States are balanced against the general government. 
 Second, the House of Representatives is balanced against the Senate, 
 and the Senate against the House. Third, the executive authority is 
 in some degree balanced against the legislature. Fourth, the judici- 
 ary is balanced against the legislature, the executive, and the State 
 governments. Fifth, the Senate is balanced against the President in 
 all appointments to office, and in all treaties. Sixth, the people hold 
 in their own hands the balance agajnst their own representatives by 
 periodical elections. Seventh, the legislatures of the several States 
 are balanced against the Senate by sexennial elections. Eighth, the 
 electors are balanced against the people in their choice of President 
 and Vice-President." Letter of John Adams to John Taylor, 
 "Works," vi., 467. 
 
160 THE UNWRITTEN CONSTITUTION. 
 
 means of securing their observance were not likewise 
 provided in the exalted and extraordinary power of 
 the courts to declare when a law, passed by Congress, 
 or an act, committed by an official, is in contradic- 
 tion of some provision of the Constitution. There 
 is no express grant to the courts of such a power ; it 
 is simply deduced from the necessity of determining 
 when there is a conflict which law they must apply 
 to the cause of action, the law of Congress or the 
 rule of the Constitution. Hence the courts have no 
 authority to pass upon the constitutionality of legis- 
 lation, except when the settlement of this question 
 is necessary in deciding the issue of a bona-fide cause 
 of action, brought before the court by bona-fide liti- 
 gants. But whenever it becomes in this way neces- 
 sary to pass upon the constitutionality of national 
 and State legislation, the decision of the court is 
 binding upon all the parties to the suit, and upon all 
 others whose rights are in any way affected by the 
 judgment of the court. 
 
 The same dread of the possession of absolute 
 power by any department of the government is to be 
 observed in the limitations of this extraordinary 
 judicial power. The Supreme Court of the United 
 States is not placed by the Constitution above the 
 other departments of the government, with the 
 power to prohibit any unconstitutional exercise of 
 power by them. Not at all. This power to pass 
 
WRITTEN CONSTITUTIONS. 161 
 
 upon the constitutionality of a law or official act is 
 only acquired by the court as an incident of its duty 
 to enforce the law between parties litigant. The 
 judgment of the United States Supreme Court on 
 a constitutional question is not binding upon the 
 President or upon Congress. Each department is 
 required to obey the Constitution, according to 
 the light in which the question under discussion is 
 viewed by it. Andrew Jackson vetoed the bill pro- 
 viding for the maintenance of a system of banks by 
 the Federal Government, on the ground that the bill 
 was unconstitutional, although the Supreme Court 
 had pronounced a similar bill to be within the con- 
 stitutional power of Congress. Furthermore, Mr. 
 Jefferson refused to obey the order of the court in 
 Marbury v. Madison (i Cranch, 137'), while Mr. 
 Lincoln ignored the opinion of Chief-Justice Taney,* 
 that the presidential proclamation of the suspension 
 of the writ of habeas corpus was an unconstitutional 
 exercise of authority. This is not all. The Supreme 
 Court is still further shorn of its power by giving 
 
 1 In this case, Mr. Madison, as Secretary of State under President 
 Jefferson, had refused to issue the commission of one Marbury, who 
 had been appointed to a judicial position by President Adams on the 
 last day of his term of office, but who had not received his commis- 
 sion of the retiring President. The Supreme Court undertook to 
 compel the new Secretary of State to issue the commission, but the 
 mandamus was ignored by the President and his Secretary. 
 
 6 In Ex parte Merryman, Taney's Circuit Decisions, Campbell's 
 Rep., 246. 
 II 
 
162 THE UNWRITTEN CONSTITUTION. 
 
 to Congress the power to increase the number of 
 the Supreme Court judges, and thus, with the aid of 
 the President, to change the composition and ten- 
 dencies of the court. If at any time the Supreme 
 Court should too persistently withstand any popular 
 demand in a case in which the people will not sub- 
 mit to the judicial negative, by an increase in the 
 number of the judges and the appointment to the 
 newly created judgeships of men who will do the 
 people's bidding, the popular will may be realized. 
 
 I do not think there can be much doubt that the 
 danger of official tyranny has been successfully dis- 
 sipated in the American constitutional system, 
 except so far as such tyranny may be demanded by 
 a popular majority, by the frequency of the elec- 
 tions and the short terms of service. Officials of all 
 classes are too anxious to secure popular approval to 
 make the administration of their offices a popular 
 menace. They have their fingers constantly upon 
 the public pulse, and every expression of popular 
 approval and disapproval is noted. Indeed, the 
 direct and constant responsibility of almost all classes 
 of officials to public opinion, through frequent popu- 
 lar elections, goes very far towards nullifying any 
 superior merit which the written constitution pos- 
 sesses over an unwritten constitution. For these 
 officials, instead of attempting to throttle the popu- 
 lar will, are too ready to obey every popular caprice, 
 
WRITTEN CONSTITUTIONS. 163 
 
 it matters not how grievously the written Constitu- 
 tion may be thereby violated. And were the judges 
 of the federal bench elected for short terms of ser- 
 vice, and by popular election, as is the case in many 
 of the States with respect to the State judiciary, the 
 written Constitution would serve very little purpose. 
 It is not needed for the protection of the people 
 against the tyranny of the officials ; its only value is 
 to serve as a check upon the popular will in the 
 interest of the minority. By making the federal 
 judiciary hold office during good behavior, and by 
 providing in the Constitution for one Supreme Court, 
 which cannot be abolished by congressional action, 
 the means have been provided, in ordinary times of 
 peace, of protecting the minority against the abso- 
 lutism of a democratic majority. It enables a small 
 body of distinguished men, whose life-long career 
 is calculated to produce in them an exalted love 
 of justice and an intelligent appreciation of the 
 conflicting rights of individuals, and the life-tenure 
 of whose offices serves to withdraw them from all 
 fear of popular disapproval ; it enables these inde- 
 pendent, right-minded men, in accordance with the 
 highest law, to plant themselves upon the provisions 
 of the written Constitution, and deny to popular 
 legislation the binding force of law, whenever such 
 legislation infringes a constitutional provision. This 
 is the real value of the written Constitution. It 
 
164 THE UNWRITTEN CONSTITUTION. 
 
 legalizes, and therefore makes possible and success- 
 ful, the opposition to the popular will. 
 
 But this opposition, when most successful, does 
 not serve as a complete barrier to the popular will. 
 Not only do the judges themselves fall under the 
 influence of the prevalent sense of right, and ordi- 
 narily give in their decisions an accurate expression 
 of it, but the various checks upon this veto power 
 of the courts also serve to make their action only 
 a dilatory proceeding ; or, to adopt the happy 
 expression of James Russell Lowell, 1 this over- 
 ruling power of the Supreme Court of the United 
 States is but an obstacle " in the way of the 
 people's whim, not of their will." But with this 
 limitation, extensive as it is, the written Constitution 
 serves a most beneficent purpose. If one professes 
 any faith at all in popular government, he must 
 confess to a desire that the popular will shall prevail, 
 and that the danger to the commonwealth lies not 
 in the people's will but in their whims and ill-con- 
 sidered wishes. And even if the student does not 
 have any faith in popular government, he must 
 admit that, with an enlightened and spirited peo- 
 ple, who know their strength, and who know that 
 the living power in all municipal law proceeds from 
 them, it is an absolute impossibility to suppress the 
 popular will. Happy is that country whose consti- 
 
 1 "Democracy, and Other Addresses" (1887), p. 24. 
 
WRITTEN CONSTITUTIONS. 165 
 
 tutional system enables it to enjoy the blessings of 
 popular government, while at the same time it is 
 protected from the evils of hasty and passionate 
 legislation. And while, perhaps, the constitutional 
 system of this country has not developed exactly in 
 accordance with the wishes and expectations of 
 Washington, Hamilton, Madison, and their co-work- 
 ers, yet if it were possible for them to know the 
 results actually achieved, they would be satisfied 
 with the knowledge that they had in a measure 
 succeeded in establishing, what exists nowhere else, a 
 popular government without democratic absolutism. 
 
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