L1BR.-Y ^ UNIVERSITY Of^ CALIFORNIA SAN DIEGO _> TK e CONSTITUTIONAL STUDIES, STATE AND FEDERAL. WORKS OF PEOP. SOHOULEE, A HISTORY OF THE UNITED STATES UNDER THE CONSTITUTION. 5 vols., 8vo. Cloth. $11.25. THOMAS JEFFERSON. 12mo. Cloth. .^l.OO. HISTORICAL BRIEFS, WITH BIOGRAPHY. 8vo. Cloth. $2.00. CONSTITUTIONAL STUDIES, STATE AND FED- ERAL. 8vo. Clotli. S1.50. DODD, MEAD AND COMPANY, Publishers. CONSTITUTIONAL STUDIES, STATE AND FEDERAL. BY JAMES SCHOULER, LL.D., PROFESSOR OF LAW, AND AITTIIOR OF "HISTORY OF THE UNITED STATK3 UNDER THE CONSTITUTION." NKW YDIUv: DODD, MKAI) AND COMPANY. 1S07. Copyright, 1S97, By James Schouler. University Press: John Wilson and Son, Cambkidgk, U.S.A. PREFACE. This volume contains the substance of lectures delivered Ijcforc the graduate students of Johns Hopkins University during the years 1893-1896. The author, pursuing his own investigation of the primary documents, has sought to trace tlie origin and progress of those political ideas which have be- come dominant and fundamental in American gov- ernment. His order of study embraces : (1) Early colonial charters and the constitutions of the old thirteen States ; (2) documents of Union, whose full fruition is the Constitution of the United States ; (3) State constitutions since the adoption of this full Federal system. Such a study brings many important facts into new relief which pertain to American de- mocracy and its progression,' and should be found both interesting and suggestive. Even in the more trite and familiar analysis of our Federal Constitution, the author has sought to impart some freshness of treatment by employing historical illustration drawn from the national experience of a century. J. S. Adoust 10, 1897. • See, *". 7-, M to mpthods of conntitutional adoption, p. 21 1 rf seq. ; oral voting and the hullot, p. 231 e< $€q. CONTENTS. PAKT I. EARLY CHARTERS AisD CONSTITUTIONS. Page Introductory 1 Modern American Institutions. — The Coinniou or Consue- tudinary Law. — Legislative Enactment. — Fuiidaiueutal Charter or State Constitution. — Federal Constitution and Pursuant Acts of Congress and Treaties. II. The Colonial Governments. 1607-1776 9 Tliirtecn Colonies cl;uegislature, Execu- tive ami Judiciary. — Miscellaneous Provisions. viii CONTENTS, PART II. THE FEDERAL UNION. I. Pagb Early Tendencies to Union. 1609-1764 70 E Pluribus Umim. — New England Confederacy. — Colonial Boards of Commissioners. — Albany Convention of 1754 and Fraulilin's Plan of Union. n. Independence and Revolution. 1765-1780 .... 79 Stamp Act Congress of 1765. — Continental Congress (1774) and Resistance. — Declaration of Independence. — Conti- nuity of Union in these States. III. Articles of Confederation. 1781-1789 84 Revolutionary Government (1776-1780). — Adoption of Arti- cles (1781). — Nature and Incomplete Scope of Confederacy. — Congress and its Authority. — Delegated Power from States. IV. The Federal Constitution; its Nature and Estab- lishment. 1787-1789 93 Fatal Defects of Old Confederacy. — Convention of 1787 and New Plan of Union. — New Government operating upon the People. V. Federal Constitution Analyzed; Structure and Distribution of Powers; Legislature ... 99 Nature of Federal Government as to States. — Pules of Inter- pretation. — Preamble and Purpose. — Congress and its Structure. — Course of Legislation. CONTENTS. ix VI. Page Federal Constitution Analyzed; Fundamental poweks ok conguess 115 Fundameutal Powers and Prohibitious, State aud Federal. — Power to Tax. — To Borrow Money. — To Kegulate Commerce. — Naturalization aud Bankruptcies. — Power to Coin Money, aud Regulate, etc. — Post-Offices aud I'ost- Koads. — I'atcnts and Co])yrights. — Federal Crituiual Offences. — War aud Peace Power. — Armies and Navies. — Calling forth the ililitia. — Federal Capital aud Sites reserved. VII. Federal Constitution Analyzed; Federal and State Prouibitions 148 Express Prohibitions upon Congress aud tlie United States. — Express Prohibitions upou States, together with the United States. — Unqualified Prohibitions upou States. — State Prohibitions unless Congress asseuts. — Implied Prohibitious. VIII. Federal Constitution Analyzed; The Executive 156 Chief Federal Executive newly created. — President and Vice-President. — How Chosen. — Term and Qualifica- tions. — Powers and Duties, Domestic and Foreign. — Conclusion. IX. Federal Constitution Analyzed; The Judiciaky . 169 Former Judicial Kstablishment Indi.^tinct. — Independence of Present .Judiciary, and Permanence of Siijircnio Court. — Tenure, Recom|)enso, etc. — Functions exercised and .lurisdictiim. — Questions r to I'ardon, N'^cto, and Appoint. — Chief Suhordinatos of State. — Failure of Early Expedients. — Popular Control lucreasiug. xii CONTENTS. vn. • Pagb TuE Judiciary 283 State Judicial Establishments. — Modern Tenure for Years with roj)ular Choice. — Other Constitutional Provisions. — Court Uthcers. — Constitutional Interpretation by Judi- ciary. — Conservators of Organic Law. VIII. Miscellaneous ; Conclusion 296 Impeachment and its Substitutes. — Modern Qualificatiuns for Office, etc. — State Capitals, and their Location. — Commissions. — Education and Philanthropy. — Muni- cipal Government. — Growth of the Popular Referendum. — Anglo-Saxon Temperament prevails. — Federal and State Constitutions compared. — Strength of American Democracy. Constitution of the United States 309 Index 327 CONSTITUTIONAL STUDIES. PART I. EARLY CHARTERS AND CONSTITUTIONS. I. INTRODUCTORY. If we examine the Revised Statutes of any well- ordered coninionwealth, — a work prepared and pul> lished under authority of the legislature as the full and systematized expression of written law at a given date, — we shall find printed there the State constitu- tion, followed or preceded by the great mass of gen- eral enactments condensed and arranged by titles and chaptera. And the same may be said coiTespondingly of the Revised Statutes of our Federal Union. In such a Imge bound volume, which exhibits only what still remains enforceable in the community a.s a code, we perceive that the constitution occupies but a few pages comparatively, while perhaps nineteen-twen- tieths of the whole ])ulk comjjrise public statutes, the periodical elllux of legislation. Here and thens per- haps, if tlie codifying work be scholarly, we shall lind citiitions from the judicial repoits, indicating that this vast array of mandatory t<'xt hits received from time to time the comment and construction of the courts as to its fundanientid force and meaning. Sovereign precepts are in these modern days pul)- licly set foith ; and from .such an open book we 1 2 CONSTITUTIONAL STUDIES. gather in detail the institutions of a modern Ameri- can State, so far as the people's organic text, supple- mented and expanded by the variable bat consistent enactments of popular representatives in the legisla- ture from time to time, may display them at a certain epoch. To the former, and more constant as well as more comprehensive class of written institutions in America, this volume will confine itself. Charters and constitutions, the framework and fundamental expression of American goverimient, whether in a State or Federal sense, furnish, in fact, the primary ideas of our political system, the organic institutions to which legislation, and, indeed, the whole practical conduct of public affairs, must be purely subsidiary, like water conducted through some prearranged channel. Every statute, every act of the legislature, must conform to the basic mould of our local constitution, else the judiciary, when invoked, will check its operation. Not that American consti- tutions and legislative acts progress historically to- gether and change together, but that the constitution of any given date acquires supremacy, and each con- stitutional change is radical. Herein consists the great difference between constitutional government in the mother country and our own. In Great Brit- ain the struggle of centuries has been between King and Parliament, the predominance of executive or legislature ; in tlie United States of to-day, public authority^ whether of executive or legislature or judiciary, is but representative in theoiy, an autliority of co-ordinate departments, and tlie people alone are sovereign and predominant. Thus, men learned in British law assert to-day that Parliament has at length triumphed, by virtue of a representative pop- ular authority irrevocable ; and that throughout the realm of Great Britain no fundamental limit can be INTRODUCTORY. 3 set to whatever Pailiiiment may choose at any time to ordain. Settlers from the old country, at an age when the old struggle for royal prerogative merged into civil war, regicide, and the protectoi-ate of Crom- well, our early American colonists ripened in the belief that there existed, even in the parent country, an English constitutional law, a " law of the land " for the people, wliich such documents as magna charta had formulated for individual protection in life, liberty, and property, and which neither a mon- arch nor Parliament could rightfully transgress. Such views had been upheld at home by the sturdy Coke, that Gamaliel of our pre-Revolutionary law- yers. For America, for these United States, at all events, no law, no system, can, since 1776, be deemed obligatoiy in a connnonwealth Init what originates in convention with the popular sanction ; and upon the solid pillars of such law, such a system, rests the whole fabric of sovereignty. A written constitution, therefore, wliethcr rigid or elastic in expression, de- termines and defines the scope of all departments of government, of all government. That idea sprang from the primitive condition of American settle- ments, which was settlement under the constraints of a written chailer. It is fit, tlicn, that those written institutions should be studied and undei"stood whicli are at the very base of American life and manners. But equally basic, by prosuin])tion, at least, in the spread of tlie Anglo-Saxon race, is that accretion of customs, shrouded as to origin in tlu* darkness of the middle ages, wliich Rlackstoiic jiroriouncos " tlie first ground and chief corner-stone of the laws of England." ' Tliis English common law was brought from Great > Bl. Com. 73. 4 CONSTITUTIONAL STUDIES. Britain to America, and propagated by our early col- onists wherever their settlements extended. Some famous men of our Revolutionary era contended that such consuetudinary law existed in these colonies only by force of early colonial legislation which ex- pressly recognized its operation ; others, with perhaps the better reason, that as originally liege subjects of Great Britain we brought that law to the new world, subject only to such express changes as might after- wards be found needful for adapting it to our new condition.^ But all have agreed that by the time independence of Great Britain was declared in 1776, the English common law, with some such local variance and adaptation, had overspread the surface of American society, for the presumptive regulation of private rights ; and one great patriot, at least, is said to have declared that he would never have drawn sword against King George had he not believed that the common law still remained his birthriglit.^ Hence originates case-law, as it is termed, which, in its mighty accumulation of judicial precedents his- torically preserved for reference through the authentic reports of England and America, constitutes the first layer, so to speak, of our common State and Fed- eral jurisprudence. Unwritten law, it was formerly termed, as distinguished from the written law of positive enactment, which we first discussed, — unenacted, we should rather term it to-day, since in modern times reports of the appellate courts are nearly as accessible and as widely printed and circu- lated as statutes or the organic constitution itself. Modern reports are not, strictly speaking, the tech- nical transcripts of court records ; but prepared in a more readable shape, they supply, by way of narra- 1 And see the lantrua^c of coloniiil cliarters on this point, II. post. 2 A remark altiiliuted to John Adams. INTRODUCTORY. 5 tive, a summary of the facts, in each decided case (which narration is often the court's own statement in tlie opinion rendered), together with a judicial opinion at full length disclosing the grounds upon which the decision was rendered. Leges et consuetu- dines regni was the accepted title of the English com- mon law in early times. No body of law can have developed so easily and so smoothly ius that founded upon the customs of a homogeneous people by the gradual accretion of precedents. Customs make manners and shape mannei-s. Custom or usage, in business or the household, for determining private rights and wrongs, precedes usually the law, though fundamenti\l maxims were earlier ; a test case in the courts determines the full scope and legality of such usage ; and the precedent as recorded and published gives force and expansion to the custom, or else de- nies it on consideration of sound policy. Legislation, to be sure, may inteipose with moie violence and radical effect to change that custom, and with it the existing course of judicial precedents or procedure ; but, whether it ])e under court or legislative direc- tion, innovation or its suggestion must liave begun usually in the ingenuity of society, fcoling its own way f)V('i' the surface of human existence and among the pitfalls of public sovereignty, towards some new combination of circumstances where former analogies are to bo aj)plicd. And thus do judicial precedents, which, l)y their sequence, confirm principles in the coni'se of an extended and novel application, come to supply society with a jurisj)rudencc so wise, so tolerable, and so methodically progressive, that we of England and the United States may well wonder how civilized nations, professing popular institutions, couhl ever have got on well withont them. Scholars have asserted that there was more of the a 2}riori 6 CONSTITUTIONAL STUDIES. assertion of law in the Roman methods of Justinian's age ; but, be that as it may, our Angio-Saxon system prevails readily in modern application. Foreign jur- ists tell us that in colonies such as Canada, which have come from other nations under English influence and authority, the English system of reporting judi- cial cases and of developing the law from such re- ports has come into easy predominance. So is it, we might add, with Louisiana, Florida, Texas, and those other annexations to the United States where the law of continental France or Spain once shaped the rights of society. Precedents, like cobble-stones, pave the pathway of our common law, and that pathway stretches far back into time immemorial. So natural is the habit of relying upon precedents for smoothing out consist- ently the broadening avenue of human achievement that we find them, not for judicial development alone, but in ceremonial observances, in holiday celebrations and memorials, whether as concerning the State, the community of neighbors, or the family circle. Prece- dents take strong lodgment in the simplest mind; and the simpler the people, the more conclusive, as well as irrational, becomes their expression. Sir Frederick Pollock, in one of his essays on jurispru- dence, observes how readily a young child will cite precedents to justify conduct for which he is yet unable to allege a sound motive. " Why, father (or A) did so," is his excuse ; or, if pushed still more closely for a plea, " I did so yesterday, and you let me." Tribes and families living remote from civi- lized society pursue their peculiar customs, because such was the tribal or parental custom before ; as we see in tlie quaint dress or festivities which keep up old manners. With some simple village peasantry who have seen little of the enlightened world, novel- INTRODUCTORY. 7 ties find little favor ; such folk are content to bake and brew and to pursue their sports as the genera- tions did before them. Precedents thus relied upon are of course not conclusively just and reasonable. Hut those precedents which in our own mosaic-work of the common law become esUiblished by the judg- ment of some intelligent tribunal, learned in what has been judieiall}' established already, and skilful to ap[)l3', — of a tribunal fairly and honestly disposed to do justice according to the merits of each case, and composed of men selected for their superior legal wisdom and aptitude, who hear the arguments of both sides before deciding, and who have power to enforce the decision, — ought surely to carry the greatest weight as authority for a custom in any specified jurisdiction. Of public institutions, therefore, in an American modern State, any comprehensive study must take a threefold range : (1) There is tiie common or consue- tudinary law as the fii-st stratum, that most particu- larly whicli prevailed at the original colonization of this country ; (2) There is the legislative enactment or positive statute which disi)laces such conmion law, regulating and modifying so far as may be; (3) Theie is tijo further written fundamenUil SUite constitution, primitive enough in charter origin to control com- mon law at the colonial outset, which " as the act of the people si)eaking in their original character " ^ overrules and superecdcs whatever in eitlier custom or contemporaneous statute law proves inconsistent with its mandate, giving to local government and society a new progression. To this may Ix} added (4) that the constitution of the riiited Stat<'s ajid the acts and statutes of Congress and treaties pursuant » 1 l\.iit ('..in. W'i. 8 CONSTITUTIONAL STCfDIES. thereto are the supreme law of this hmd, and para- mount in authority to custom, State statutes, or even the State constitution itself. American institutions, both State and Federal, we now proceed to examine in their consecutive order so as to trace out American ideas of government in their historical origin and development, as embodied in these third and fourth classes only of fundamental law. It should be ob- served, however, in passing, that many of those ideas which State constitutions usually put forward to-day as fundamental have in certain other States, whose organic law comprises less detail, Avorked into practi- cal expression as the less positive fiat of a State legis- lature, exercising its own unfettered discretion over the subject. II. THE COLONIAL GOVERNMENTS. 1607-1776. Blackstone has classified the governments of our American colonics as follows : (1) Provincial ; (2) Proprietary'; (3) Charter Governments-^ Such was doubtless their condition when he published liis Commentaiics, or shortly before the Revolution. Seven of these colonics, and in fact the majorit}^ were of the first or Provincial class, — New Hampsliire, New York, New Jersey, Virginia, North Carolina, Soutli Carolina, and Georgia ; that is to say, in each of them a royal governor who was appointed by the British Crown served as royal deputy within the jurisdiction, under instnictions which usually accompanied or fol- lowed his commission. Of Propriet 1 Bl. Com. 10«; 1 Story Commontarios, § 159. 10 CONSTITUTIONAL STUDIES. a parchment basis of government ; most of their in- habitants had become habituated to a written funda- mental polity to which all local legislation had to conform, very much as in the by-laws of a chartered business corporation of to-day ; nor did the primitive government in such cases differ very greatly from that of our modern private coi-poration in committing the main general management of affairs to a President or Governor with a Board of Directors or Assistants, all of whom, under the most favoring circumstances, were chosen by the body of freemen or stockholders. In fact, the complaint against the Winthrops and Dud- leys of Massachusetts Bay and their followers had been that what the Crown originally intended as a mere civil corporation within the realm had been per- verted across the ocean by the corporators into a full political establishment. Proprietary governments, moreover, were conducted by virtue of royal grants or charters. During the eighteenth century and for a long time prior to 1775, we find only Connecticut and llhode Island possessed of charters which con- ferred a liberal autliority upon the people, while Massachusetts lived under a royal charter which made its government scarcely less in practice of the provincial sort than that of Virginia. '■ Both Virginia and Massachusetts luid, in fact, experienced various charter vicissitudes since their earliest settlement; and the Massachusetts charter from William and Mary, dated 1691, was reserved and cautious in its allowance of self-government. .On the other hand, the charters of Connecticut and Rhode Island from Charles II. — the one granted in 1662 and the other in 1663 — were so manifestly liberal in popular privi- leges that each served essentially through the Revo- lution and even beyond the eighteenth century as the fundamental constitution of an American State, THE COLONIAL GOVERNMENTS. 11 though not democratic enough to stand long the pop- ular test of this nineteenth centuiy. These early American chartera afford a curious and interesting study. In the earliest of them we shall find ideas and expressions which have immensely influenced the development of manners and politics in this new world, not through the colonial era alone, but for all time. The idiosyncrasies of the several British monarchs who granted them appear moreover in their composition. James I. leads the list of grantors with that prolix, diffuse, and wordy style of expression so common in his age, recounting mar- vellous " providences " of a special cast ; Charles I. follows with a more concise st3'le, as befitted a mon- arch of greater personal dignity ; tlu-ough the times of Cromwell and the Commonwealth we find these colonies singularly neglected ; after wliicli Cliarles II., — from whose reign, frivolous though he was, so mucli excellent legislation takes its rise, — granted pres- ently the most lil^eral, and indeed the only thorougldy liberal and popuhir, American charters of this whole colonial age. (r'rom the final expulsion of the Stuarts, British policy held tlie American colonies well in check, 80 as to afford a rich market for Britisii manu- factures and commerce, and, while encouraging colonial resources, to repress all tendencies to indi'iK'n| All tliese cliartors or grants for American colonization were English in expression, except for the Maryland charter of 1G32, which employed the Latin tongue, — a royal recognition, most likely, of rank and scholarship in Lord Baltimore, the lx;neficiary of Charles L, who was a devout Roman Catliolic' ' Sir fifiirgo Tnlvort, first I.or'l I'altimuro, wax the applirant for tliis rhartcr, but, .is ho died before its execution, it wa."* intrusted to bin son, Cecil Calvert, the second Lord Daltiraore. 12 CONSTITUTIONAL STUDIES. The first charter of Virginia, which James I. issued in 1606, sliortly before the primitive Jamestown set- tlement, granted the lands along our northern Atlantic coast to which Great Britain laid claim, between the 34th and -loth degrees of north latitude, to two dis- tinct companies, one of which had its headquarters at London and the other at Plymouth, in the mother country. Organizing at once under this charter of 1606, the London Company sought and obtained by 1609 a new and enlarged charter as the " Virginia Company," for prosecuting its practical work of American settlement. ^ Under the simple reign of James I. there were three different charters granted to this oldest of American colonies. The Plymouth Company reorganized in 1620 for the more northerlj'- colonization of our American coast, and received that year from James I. another charter for " the planting, ruling, ordering, and governing of New England in America." Under this " New England charter " came the Pilgrims of the " Mayflower " to their new Plymouth of Massachusetts Bay ; and the agreement signed by them off Cape Cod before they came ashore bound the new settlers by common consent into a body politic, — a memorable transaction. Next came the charter of Massachusetts Bay, granted in 1629 under Charles I., which by 1684, after the establish- ment of a most thriving colony, was cancelled by the English Chancery during the reign of James XL, for alleged infractions of the royal grant. The new charter of William and Marj^ in 1691, to which we have alluded, annexed Plymouth finally to Massa- chusetts Bay and erected Massachusetts into a single colony. Unlike the previous INlassachusetts charters, that of 1691 designed a full political government. The Pennsylvania colony, whose proprietary char- ter to William Penn passed the seals in 1682, ex- THE COLONIAL GOVERNMENTS. 13 hibits various fundamental documents which testify to the prudent and thrifty management of this excel- lent Quaker and his philanthropic and statesmanlike views. By virtue of liis legal supremacy, Penn as Governor prescribed from time to time a frame of government with increasing liberality, and under the document of 1701 granted broad political powers with the specific approbation of the Pennsylvania General Assembly, and of the Governor's Council, under an express proviso that no change should be made in these fundaments without the joint assent of the Governor and six-sevenths of the Legislature. This famous document of 1701, known as Penn's "Charter of Privileges," declared full liberty of religious conscience, in an article pronounced inviol- able and forever incapable of amendment. Among other provisions it enlarged the English common law by according to criminals the same privilege of wit- nesses and counsel as their prosecutors,^ and abolished the common-law forfeiture which attached to suicides and deatli by the "dcodand." ^ William Penn's charter of 1701 to Delaware is of a similar scope; and this lattvr domain which came to William Penn as proprietor in 1G82 and by (piitclaiin from the Duke of York was known in early colonial times a,s " The Territories." The fii-st of the so-called Carolina charters — for North and South Carolina were long colonially united — antedates tlie permanent English settlement of this Atlantic coast, havinpr been gmnted to Sir Walter Raleigh in log I by Queen Eli/.a])oth. That charter really lonstitutes the lii-st step in the work of • See Article VI., amendments to the Constitntion of the T''nitod Stated, emhodying this s^mo fojitiiro. 2 This pnivisioii, In ctwcntially the same lanpuage, found its way into several earlv State constitutions. 14 CONSTITUTIONAL STUDIES. British colonization in America ; and five voyages, all of thera unsuccessful in planting a colony, were made under it. The charter of 1663 for Carolina was granted by Charles II. to various English peers as lords proprietors, and John Locke's fundamental con- stitution, drawn up at the instance of these privileged owners for the settlers, followed in 1669 to last only for a brief and turbulent period. Although this scheme of the broadest political philosopher of his age proved a practical failure, as history has recorded, setting prerogative, as it did, high above self-govern- ment in the new world, seeking to establish a feudal tenure in the primeval soil, avowing the absolute power and authority of every freeman over his slaves, and declaring the Church of England the orthodox religion of the colony, it had some good points in minor details. Probably much of this ill-adapted constitution was made by its framer to order, and did not embody Locke's personal views. With some of these colonial charters went out spontaneously the good-will of the sovereign who granted it. The grants of Charles II., in particular, breathed loving-kindness to his beneficiaries. In the charter to William Penn he recounts that love and philanthropy of the latter to the native Indians which his own roj^al ancestors had enjoined ; and the monarch gave and confirmed the name "Pennsyl- vania" to the colony after the family surname, — a token of royal favor towards a private subject with- out an American parallel. Charles II. had granted the popular charters of Connecticut and Rhode Island, nearly twenty years earlier, in affectionate language. To oiu' " loving subjects " is the ex- pression of the Connecticut charter. In that of Rhode Island (1663) the monarch makes special men- tion that these settlers, Roger Williams and his com- THE COLONIAL GOVERNMENTS. 15 panions, had been harshly treated for their religious views by the other New England colonies ; he recog- nizes '' their peaceable and loyal minds," " their sober, serious, and religious intentions," their self-exile, and their prosperity and preservation " by the good Provi- dence of God, from whom tlie Plantations have taken theii' names." ^ And to these good subjects the King plainly offers himself to be their champion, promising to protect them against all molestation from their neighbors ; and in all controversies between Rhode Island and the other New England colonies which might arise, this colony is specially invited to appeal to the Cro\\ni for redress.'^ Emanating from the same national source, and embodying a single national puri)0se, we may expect to find these English colonial governments closel}', on the whole, resembling one another in essentials ; at the same time that differences of local origin and development give rise to local differences in their public management. 1. As to the structure of colonial government. There was not in these earlier days any marked sepa- ration of fundamental powers such as Montesquieu lias inculcated. Hut tlie British monarchs after 1688 strongly favored the establishment of a strong royal executive or vicegerent in each colony, with powers commensurate for lioldiiig tlu^ settlers in allegiance U) Great liritain, and an appointment immediately dependent \\\ion the Crown. Such was the royal gov- ernor in tbos(^ j)r()vincial governments wliich consti- tuted a majority of the Amcriciin colonies ; and sucli, too, regardless of her former usages, or of the favor > " Rhoile Wand niinstitntions ; 1 Story, Commentaries, § 159 and citations. ■^ See Virginia chartor of |r,| l \i, \\\ I'ooro, 1".»0j, wiiicli prescribes a " (Jeneral ("onrt " for tliat primitivo colonv. • Antl HO cxpreHsed under the charter of 1691. 18 CONSTITUTIONAL STUDIES. and otherwise pass laws for the common interest; and yet so great was her royal governor's power, on the one hand, as specified in the charter of William and Mary, and so ill-defined, on the other, that of the " General Court," that two constitutional doubts had to be resolved in 1726, by a supplementary charter from George I. That sovereign did not incline strongly to the side of the local colonists in this con- troversy; for he ruled (1) that, as to choosing a speaker, the General Court might make such choice subject to the approval of the Governor, and (2) that, as to its right to adjourn, the General Court might adjourn for two days, but no longer, without the Governor's consent.^ In Connecticut and Rhode Island, however, the two favored jurisdictions of royalty, legislation, the choice of a governor, and the whole business of con- stituting courts and bestowing official patronage were confided fully by royal grace to the free settlers ; and those two colonies, under their respective charters, organized local government, as they were permitted to do, upon a popular and republican basis. Here the Governor, Council, and Assembly continued an- nually chosen by the freemen down to the American Revolution, and all other officers were appointed by their authority .^ Annual elections prevailed here as elsewhere in America, so far as there were popular elections at all, — whence the maxim, familiar a cen- tury ago, that " wherever annual elections end tyr- anny begins," — and the colonial assembly moreover held annually its wonted sessions. But the circum- ^ Poore's Charters and Constitutions (Massachusetts). 2 1 Storv, Constitutions, § IGl, observes tliat while the Statutes of 7 and 8 William III. required tliat all i^overnors appointed in charter or proprietary governments should be approved of by the Crown, this statute w.as, " if at all, ill observed," and produced apparently no change in the colonial policy. THE COLONIAL GOVERNMENTS. 19 stances of original settlement in Connecticut and Rhode Island had produced the anomaly of double capital towns and rivals ; so that under their respec- tive chartei-s the legislature regularly met twice a year, rotating in the one colony from Hartford to New Haven, and in the other, from Providence to Newport, — a condition which long outlasted this colonial era. In the tlu'ee proprietary governments — Maryland, Pennsylvania, and Delaware — the grand proprietor exercised his suWoyal prerogative of appointing governors answerable to himself, as likewise of be- stowing the colonial patronage, and defining legis- lative authority. Hence we find Penn's " Charter of Privileges " in 1701 proclaiming freely that hence- forth there shall be an annual Assembly in Penn- sjdvania, with power to choose its own speaker and other ollicers, to judge of the qualifications and elec- tions of its own membei'S, to prepare and pass bills, to impeach criminals, to retbess grievances, and to exercise "all other powers and privileges of an as- sembly according to the rights of the free-born sub- jects of Englantl, and as is usual in any of the Ivinjr's Plantations in America." ^ And in certain a[)pointments to ofiice, a compromising expedient is SL't forth in that document, long traceable in the fiindamentiil law of Pennsylvania as a SUxte, which empowered the freemen to choose a doul)le numl)er, leaving the Governor to select one or tlie other for the office. Here, as in all our other American colo- nies except roiiiiecticnt and Rhode Island, legislation by tlic popular braneli icciuired the (governor's specific approval, and liis veto of a measure was absolute. Some minor difTerenees may be observed in respect to the mode of enacting laws in tlie several cuilonies; ' I'ooro's Charters niul CunstitutioDH (PcuiiHylvouia)- 20 CONSTITUTIONAL STUDIES. and yet the legislature, of which at least one branch the people might freely choose to represent and de- fend their collective interests, became early a palla- dium of the American system inseparable from popular liberty, though in the earliest of these American charters no such provision was clearly set forth. For free-born Britons were not likely to endure long the exercise of arbitrary power by king or incorporators in this new world.^ By the eighteenth century, there- fore, tliis right of colonists to participate by their representatives in all local legislation was fairly con- ceded by the home government ; but as to provincial governments there continued a controversy. For pro- vincial colonists contended that such representation was a matter of right ; but the Crown and its legal advisers, that representation was a privilege only, subject to the pleasure of the parent government. In the political struggles from time to time which culminated under George III. in bloodshed, the royal governor would harass the colonial legislature to the extent of his ample authority, or would long neglect to convene it, — practical mischiefs which our Declara- tion of Independence boldly deuounced, and which many a bill of rights or constitution in the revolting States of America took care to guard against for tlie future.^ ^ Mr. Hnteliinsoii, in his rolmiial History of Massacluisetts, 94 (cited 1 Story, Constitntioii, § IfiO), skctolios admiral)!}' tlie progress made in all tlioso early colonies, except Maryland (whose charter made express jirovision), before the reijyn of Charles TT., in estahlisliinej a representative Icp^islature of some sort and forcins^ its recojjjnition upon the chartered pi-oprietors or incor)>orators. " After the restora- tion (lf)8S)," he adds, " there is no instance of a colony settled without a representation of the peo])le, nor any attempt to deprive the colonies of this i)riviloa;e, except in the arbitrary reign of King James the Second." 2 Tn (he colony of New York (and semhle. in Virginia also) the British Crown before the middle of the eighteenth century succeeded in THE COLONIAL GOVERNMENTS. 21 The germ of popular government in the earlier colonial charters consists, like that of all private guilds or corporations at the common law, in bringing the whole body of stockholders or those immediately con- cerned with affairs into an annual meeting for the election of managing officei-s. Such is the component element of government in that admirable system of New England towns, wliose inhabitants came together once a year to discuss and arrange local affaire and to choose their selectmen. And to some extent any colony newly planted and small in numbers might conveniently assemble at stated times for the general regulation and control of affaii-s ; but as new settlers scatter over the territory and extend as well as local- ize their interests and population, either the proxy or the representative principle comes soon into play. Representation serves the convenience of modern civil government popularly conducted, as does the proxy in private corporations. According to tlie expression of the Connecticut charter of 1062,' an option was given the settlers to hold either ''a general meeting " of tlie freemen or a representative assembly, and the colonists naturally enough chose the latter. But popular n-prescntiition as sanctioned by Charles II. and the seventeenth century was too crude to last, btvsed as it was in Connecticut upon precise town equality ; while in Khf>do Island, Newport was allowed the permanent precedence over all other towns of the colony, Providence included, which entaJilirthiiiR xcpteniiiiil aasfrnMics, in iinitntion of the soptf^niiial I'nr- liamontR dI' tlio parfiit comitry, " whicli w.xs a iin.iaiiro so offensive to tho poopio that it constitntod ono of tlioir priov.inces j)roponniJoil at the cominpncpincnt of tho Aniorican Hovolution." 1 Story, § 167. ' " A body rorporatp ami politic hy tho name of thf> povcnmr ami company of tho English Colony of," etc., is tho title cniployeil in the Connoctiint and Hhodo Island rharteraof Charles II., tho beat fruitiou of these royal American charters. 22 CONSTITUTIONAL STUDIES. were classed in political power by two set grades. Some towns grow into great cities, while others de- cline or become stagnant ; and such a fixed basis of town representation, which left no chance to apportion by population, doomed at length these most lasting of all colonial charters more than any other defect in them ; for being charters and royal ones, there was left no chance to amend them. Representation by towns instead of numbers was long the British fashion on either side of the Atlantic ; but the Massachusetts charter (1691) from William and Mary provided with a wiser foresight that the colonial legislature might alter later at its discretion the basis of town represen- tation drawn up in the instrument. And, in fine, the flexibiUty of provincial over charter governments in all such fundamental matters was doubtless a reason for preferring them upon experience in the colonial policy of the parent country .^ 2. As to the fundamental safeguards of allegiance to Great Britain. Besides the practical constraint which any royal governor might have exerted while clothed with the ample powers we have enumerated, were certain fundamental expressions in these colo- nial charters, which bomid grantees and the colonists to both legal and moral compliance. All thirteen of these American colonies lived under fundamental re- strictions that no laws should be made repugnant to those of England, or that as nearly as convenient the laws should be consonant with and conformable thereto ; and either expressly or by necessary impli- cation it was provided tliat the laws of England should be in force in the colony so far as ajiplica- ^ As alrcaly shown (p. 13), Penn's "Charter of Privilec^es " (1701) was made capable of ainendineiit uuder certain striugeut conditious. THE COLONIAL GOVERNMENTS. 23 ble.^ In the latest and most liberal charters this written reservation was still expressed as in the early Virginian document of 1609. Thus were our American colonists nurtured and brouglit up in the knowledge of a fundamental re- straint upon local legislation ; and this, aside from that other written constraint upon local government which the charter itself imposed. Some power ex- ternal to the colonial legislature must have existed for determining the validity of its enactments; and that paramount power the parent government nat- urally claimed as its own. Besides the royal gov- ernor's vigilant exercise of a negative upon such local colonial legislation, the British monarch re- served his own right to ajjprove or disapprove, — a prerogative exercise from which Maryland, Connecti- cut, and Rhode Island alone were exempt.^ Pa- rental supremacy was still further aided by the judicial appeal which lay from the decisions of all colonial courts to the English privy council, — a practice which, on the whole, seems to have been deemed by our colonists a privilege ratlier than a grievance.'' Except, however, for repugnant enact- ments, the colonial legislatures in America exercised a broad local authority, particularly in matters of * Snch a doclaration w.ia ronclu.sivo ami cmlil not afterwards be abrogated by the Crown, bcin^ a fundamental nilo uf the original settlcniont. 1 Sl(.ry. § 150. '■^ " In all tlio (jtlior colonios [oxcopt ^^arvland, Ponnocticut, and Rhode Island I the King ])o«iso.- rocal conveniences, soon engaged their peculiar atten- tion, as we shall show later.^ 5. As to religious freedom and philantlu'opy. Colonies as to matters of faith differed both in tenets and practice, Ix-ing Protestant, liowever, in the main, and imbued with tlie prevalent spirit of the English Reformation. Liberal religion, or rather the desire to escape conformity to church establish- ments at home anfl to enjoy free Articles, III. • PREAMBLE TO CONSTITUTION. 103 other;" but here that "we the people ... do ordain and establish this constitution," — a profound and highly suggestive difference. Three of the objects stated in that article are here repeated with slight variation: namely, (1) to provide for the com- mon defense ; (2) to promote the general welfare ; ^ and (3) "to secure the blessings of liberty to our- selves and our posterity. "^ But three new objects are added, hinting at former imperfections now to be remedied : (4) to form a more perfect union ; (5) to establish justice ; ^ and (6) to insure domestic tran- quillity.* An ancient philosopher urges that, as in musical composition, every great act of legislation should have its lofty and appropriate prelude; and many a document of Revolutionary origin, many a Revolutionary statute which embodies some grand reform, is prefaced by a high-sounding preamble; that, however, which made this Union efficient, chose only the dignity of a compressed recital. The first three articles which follow this preamble in the text distribute the powers of government con- formably to Montesquieu's maxim, as the States had already done; but without dogmatic announcement, and far more appropriately in some respects than any State had heretofore seen fit to apply the precept. The executive independence here accorded was reall}' remarkable, in view of prevalent State practice, which hampered that department so greatly, though it is possible that the rude experience of some of 1 " Their mutual and general welfare." Articles, III. 2 " The security of their liberties." Articles, III. lu securing " to ourselves and our posterity," the " perpetual " intent of the Union is maintained as Ijefore. i* A real Federal judiciary liad been wanting under the old system. * lu special allusion, apparently, to the Shays insurrection and other State disturbances, whicli induced tlie convention of 1787. 104 CONSTITUTIONAL STUDIES. those young sovereignties had already bred a general discontent with the tyrannous tendencies of the Legislature. "The accumulation of all powers, legislative, executive, and judiciary, in the same hands," says the "Federalist," in that momentous canvass of 1788, "whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may he justly pronounced the very definition of a tyranny."! But the accumulation of Federal power under the Confederation had been contemptible enough; and we still find the line of division some- times indefinitely drawn, so that the Legislature, by formulating action, retains the advantage. ^ Article L, which defined and set forth the legisla- tive power of the United States, was, however, the foremost and the longest in the whole new compact ; and here, with a reforming spirit which by this time pervaded the whole Union, the convention of 1787 transformed the single Congress into a body con- sisting of two chambers, a Senate and a House of Representatives. By a compromise most admirable the spirited contest between larger and smaller States over a basis of representation was so settled that the new Senate symbolized the equality of States, as in Congress heretofore, while the new House of Repre- sentatives was based upon population of the Union as apportioned under a census to be taken every ten 3^ears. Senators were to be chosen by the legisla- tures of the respective States, just as delegates to the Continental Congress had usually been; while members of the House were to be elected "by the people of the several States." Under a further com- 1 Federalist, No. 47. Thi.g paper styles Montesquieu "the oracle, if not tlie author," of tlic precept of separated ])owers. 2 "Legislative ))owcr deals mainly with the future; executive with the present ; while judicial power is retrospective." Cooley's Elements, 42. THE FEDERAL LEGISLATURE. 105 promise — obsolete in effect since the final abolition of slavery — poll representation under the census was to be modified by an allowance of three-fifths in each State for such persons as were held in bondage. ^ As against existing State and Confederate practice, which favored annual elections, members of the House were to be chosen every second year, while those of tlie Senate were to serve six years, a consid- erable term which approached in length the nominal septenary of the British House of Commons. No constraint upon re-elections to Congress, as under the old articles, was imposed for the future. ^ That peculiar feature of choosing to the House which left the actual qualification of electors (or voters) in each State to depend upon the State rule for electors to its own "most numerous branch " of the Legislature, has already been noticed.^ Through- out the Union this rule tends steadily towards full manhood suffrage regardless of property; though with reasonable exceptions of crime or pauperism, and in a very few States of illiteracy besides, — excep- tions which our latest Federal amendments declare shall operate no denial to vote on account of race, color, or previous condition of servitude.'^ As to requisite qualifications of those chosen to either House of Congress, a liberal advance upon State policy was at once made in our Federal instrument ; for no tests were set up but those of a reasonable 1 This was the real intendment of the expression "all other per- sons," the word "slave " being judiciously kept out of the text. Con- stitution, I. §§ 2, 3. Under Amendment XIV. § 2 (186G), the rule of apportionment is restated so as to meet the new condition of national freedom; " Indians not taxed " being still excluded from the reckoning as before. See more fully, post. 2 See Article V., page 88. 8 Supra, page 96. * Amendments XIV., XV. (1866-69). 106 CONSTITUTIONAL STUDIES. limit of age beyond majority, a length of citizenship varying slightly for the two branches, and residence when elected as an inhabitant of the State in which one was chosen. Religious and property distinctions cease wholly to apply, and no State has the right to impose them in any national candidacy. ^ Nothing, however, in the text of the constitution forbids the choice of all representatives for any State upon a general ticket ; and such really was the earlier method of choice in most States and the long-continued prac- tice in certain of them; but by 1872 Congress required uniformity, and the election of members of the House must now be, as State usage prefers, " in districts of contiguous territory. "^ The times, places, and manner of holding elections for senators and representatives shall be provided in each State (so the constitution declares) by the Legis- lature thereof ; but Congress may by law at any time make or alter such regulations, except as to the places of choosing senators.^ Hence we find further national enactments by way of judicious regulation : elections (once scattered through the calendar year most inconveniently) are to take place uniformly on the Tuesday next after the first Monday of Novem- ber ; * all votes for representatives in Congress must be by written or printed ballot;^ and for the election of United States senators by a State legislature the time and mode of choice are definitely prescribed.^ 1 See Story, Commentaries, §§ 624-629, Cooley's cd. 2 Art. I., § 2; Rev. Stat. U. S. § 23. No Federal provision insists that members of the House shall be residents of their several districts. 8 Const., Art. I., § 4. 4 Rev. Stat. U. S. § 25. 6 lb., § 27. 8 On the second Tuesday after the meeting .and organization of the Legislature which next precedes the expiration of a senatorial term, such Legislature shall proceed to elect ; and at least one ballot shall THE FEDERAL LEGISLATURE. 107 Vacancies occurring in either branch are specifically provided for.^ No longer dependent upon their several States for a precarious recompense, members of Congress were henceforth to be paid out of the treasury of the United States at a rate of remuneration to be ascer- tained by law.2 As under the old articles, and in State fundamental law, they were to be privileged from arrest while in attendance on the Legislature or while going and returning, except for treason, felon}^, or breach of the peace ; and freedom of speech and debate was still assured to them.^ Office-holding under the United States was, as before, pronounced incompatible with a seat in Congress; and appoint- ment to a Federal office created or with emoluments increased during such service in Congress was further to a stated extent forbidden.* The double-house or bicameral feature has proved in Congress as elsewhere of vast advantage to public stability, introducing delay, afterthought, and the opportunity of correction, all the more salutary wher- be taken daily diirini^ the rest of the session until some one, if possible, is chosen. Rev. Stat. U. S. §§ 14-17. 1 Const., Art. I., §§ 2, 3. 2 To., § 6. Cf. Articles, V., sui[)ra, page 88. Congress has by- law changed from time to time the method and rate of compensa- tion, — sometimes fixing a -per diem, but latterly establishing a stated salary. Mileage has also been allowed so as to better equalize the common recompense, since travel from their respective homes to the capital varies with membershi]i so widely. Increase of compensation should be prospective, if possible, for constituents have invariably re- buked a Congress which assumed to raise its own pay. At the outset of Federal government, the Senate undertook to assert a superior dignity, claiming higher pay as an incident ; but the House resisted all such pretensions and compelled an equal compensation for both branches. 3 Const., Art. I., § 6, and cf. Articles, V., supra. * Ih. As to State example on such points, see supra, page 56. The venal and insidious influence upon Parliament of a British min- istry served as a warning to Americans in those early times. 108 CONSTITUTIONAL STUDIES. ever the two brandies combine public influence differ- ently ; nor can venality gain its ends so readily under such double adjustment. Public bodies always tend strongly to tyramiize and accumulate force; and while friction ought not to be so great as to block business or dishearten great reforms, deferred legis- lation is better than crude and unwise enactment. Each branch of our American Congress has a rational and not adventitious basis of its own, — a basis which in a certain sense is popular ; and were it not for two faults in our present Federal system, the Senate, de- spite its exasperating defiance sometimes of national opinion, would prove an excellent bulwark for con- servatism. These faults are : (1) the too great facility for creating new States by the concurrence in Con- gress of bare majorities, so that older States, im- mense in numbers, wealth, and intelligence, become overborne permanently in the Senate by wild and drifting communities at the remote west who seize upon political power, while yet the elements of state- hood are raw and unassimilated ; (2) the election of all senators by a legislature, which at least is a method of choice quite out of date with a progressive democracy, and has favored in many States an insid- ious and underhand manipulation. ^ Designedly, and under favoring conditions in full effect besides, the Senate of the United States — far less even now in niunbers than the French Senate or English House of Lords, though more readily, perhaps, commanding an attendant majority — is a deliberative body of I While our Federal constitution continues unchanged in this re- spect, the best recourse of States and the people is — as Illinois has exemplified on two memorable occasions — to project the candidacy of rivals for Senator into the popular canvass which precedes the choice of legislators, and thus pledge the latter in effect as Presidential electors are pledged. THE FEDERAL LEGISLATURE. 109 great dignity and stability, and might command at all times the most talented and virtuous of the whole people, if only the State would summon such men; it is rightfully the forum of national eloquence and the palladium of political wisdom. Our House of Representatives, though a much smaller body than the British House of Commons and the French and Italian chambers wliicli correspond to it abroad, proves less the arena of debate than of action, and under the operation of rules lapses into a huge intel- lectual machine for the achievement of business ; and feeling so quickly, moreover, and so constantly, the passing moods of popular opinion, its members, sub- missive each under compulsion to his own constituency, allow their own independence to be shackled, or else assert it at the sacrifice of a precarious public agency. In this there are doubtless advantages to the people themselves. But the courtesy, quiet, and freedom of the Senate has been contrasted with the turbulence of the House of Representatives ever since both bodies occupied with open doors the same building. And to make the Senate all the more stable by com- parison, with an experienced element in its member- ship inseparable from deliberation, the classified system of rotation already in vogue in certain States ^ was here applied, so that one-third of this Federal chamber, and no more, should vacate their seats for successors every second year, or as each new House of Representatives came into power.^ On the other hand, the right of popular district constituencies in the States to choose biennially to the House has kept the whole people alert in public vigilance, and capa- ble of holding one branch, at least, of the Federal Legislature directly amenable to their will. Congress, as thus constituted, was directed to 1 Supra, page 54. 2 Const., Art. I., § 3. 110 CONSTITUTIONAL STUDIES. assemble at least once in every year; namely, on the first Monday in December, unless they should appoint by law a different day.^ The House of Representa- tives were to choose their own Speaker and other officers; but over the Senate the Vice-President of the United States was designated to preside ex officio., while the Senate chose their other officers, including a President pro tempore for all contingencies of a vacancy. The fundamental distinction has wrought out great divergence in the practice of the two houses; for the Speaker of the House, invested by consent with the patronage of all committee appoint- ments in that popular branch, has become a national personage of vast consequence, over whose choice a closely divided house has fought many a hard battle at its first gathering; but in the permanent Senate, organization is almost automatic, the subordinate places are quietly filled and committees arranged or rearranged as may seem fit to any existing majority of the members, who thus control their own patron- age, while the Vice-President of the United States occupies the chair, unable to vote except in an equal division; and the equilibrium of States, each repre- sented by two members, continues for most of the time unimpaired,''^ Methods of procedure are defined in the consti- tution by various rules, some of which State in- struments had prescribed already; both State and Congressional usage in America being largely derived, however, from the Parliamentary common law of our colonial era, here set forth in considerable detail. Each house was to judge of the elections, returns, and qualifications of its own members ; and a majority of each should constitute a quorum to do business, while a smaller number might compel under penalties 1 Const., Art. I., § 4. 2 ^rj. j.^ §§ 2, 3. THE FEDERAL LEGISLATURE. Ill the attendance of absent members.^ Each honse was to determine the rules of its proceedings, punish its members for disorderly behavior, and with a two- thirds concurrence resort, if so disposed, to expul- sion.2 Each house was to keep its appropriate journal, and publish the record from time to time, entering the yeas and nays of members on any question, at the desire of one-fifth of those present. Neither house could adjourn during the session for more than three days without the consent of the other, nor to any other place. ^ All bills for raising revenue were to originate in the House; but the Senate might propose or concur with amendments as on other bills.* The method of passing all bills, orders, resolutions, or votes to which a concurrence of the two houses was needful (except on a question of adjournment) involved submission to the President of the United States for his approval : if approving, he signed, and ^ See similar State provisions, supra, page 56. A majority is the usual quorum for busiucss in a deliberative body ; but, regarding the practical difficulty of securing regular attendance, a less number is prescribed as sufficient in many assemblages. Thus, in the English House of Lords three lords constitute a quorum, and in the House of Commons (a body of some six hundred members) forty-five may suffice for the despatch of business. Story, Constitution, § 834. That less than a quorum should be empowered to adjourn or to compel attend- ance is a salutary rule. Under the Articles of Confederation the want of some such power produced great mischief, for attendance was often very dilatory, at the same time that more than a majority of States was requisite for all important transactions. We have no external tribunal competent for deciding contested elections, such as England now provides. 2 Censure or expulsion is the usual punishment. Members of the House hare sometimes resigned when censured, and then returned to their seats vindicated by a re-election. As to punishing contempt shown by persons who are not members, see 103 U. S. 168. * See State provisions, supra, page 56. * lb. The English rule requires all revenue bills to originate in the House of Commons. May, Const. Hist., c. 7. See also debates in Congress on this subject in 1872. And see pages 56, 57. 112 CONSTITUTIONAL STUDIES. thus gave the measure its full validity and effect; but if disapproving, he might interpose his veto, which could only be overcome by a two-thirds recorded vote in each branch of Congress. Silent retention of such bill or resolution by the President for ten days without returning it, unless Congress by adjourning had prevented its return, gave to such measure the same effect as his formal approval.^ In most of these particulars, the text of the constitution is plainly enough expressed, and wherever doubt may arise, our courts incline to leave the Federal Legis- lature to its own chosen procedure.^ In addition to legislative functions, which work out a distinct routine, while based fundamentally upon common English usage. Congress, like many of our State legislatures, and after much the same fasliion,^ is vested with the Parliamentary powers of a high court of impeachment, to whose jurisdiction all civil officers of the United States, not excepting the President himself nor the Vice-President, are answerable. The House, as grand accuser and prose- cutor for the people, is invested with sole power to impeach; while the Senate alone, sitting specially upon oath or affirmation, tries the case, renders judg- ment, and upon concurrence of not less than two- thirds of the members present, may convict the ^ The executive veto is further considered, post. As to State and colonial usage iu this respect, see supra, page 62. 2 In 144 U. S. 1, the Supreme Court refused to treat a Speaker's new rule of counting a quorum as an unconstitutional one. Acts of Congress enrolled, officially attested by the Speaker and President of the Senate, and deposited in the State Department with the President's signature, are unimpeachable in the courts for alleged verbal errors. 143 U. S. 649. Nor does our judiciary incline to question the discre- tion of Congress in passing laws and appropriations. 159 U. S. 590; 163 U. S. 427. ' Supra, page 67. THE FEDERAL LEGISLATURE. 113 person impeached, and award the sentence. At the trial of a President of the United States, the Chief Justice, and not the Vice-President, whose interest in the succession is immediate, sliall preside. Treason, bribery, "or other high crimes and misdemeanors," furnish cause of impeachment by the House; and while sentence by the Senate cannot extend beyond removal from otfice and his further disqualification to hold and enjoy any office of honor, trust, or j)rofit under the United States, the convicted party is nevertheless made further liable to prosecution and punishment in the courts of law like any other criminal. ^ 1 Const., Art. I., §§2, 3 ; Art. II., § 4. These impeachment pro- visions apply only to "civil officers;" for military and naval officera of the United States are subject to summary trial and sentence by court-martial, whether in time of war or peace. 158 U. S. 109. Mem- bers of Congress (to accept the ruling of the Senate in 1799, when Blount, a Senator, was impeached) are not "civil officers" in this constitutional sen.se ; and thei-e are sound political reasons why a legislature in one or the other branch should be confined to such punishment of its own members, including expulsion, as the funda- mental law elsewhere prescribes. While some States before 1789 (as seen supra, page C7) were clear in declaring that an officer might be impeached while out of office, the text of the Federal constitution is not explicit, and an instance occurred under President Grant where, after a Cabinet officer's resignation had been hastily accepted by the Executive, the House desisted from impeachment upon some such scruple ; and yet, with the sentence of pro.'spective disqualification recognized in the text of the constitution, a plenary power might perhaps have been inferred. "High crimes and misdemeanors" is rather a vague offence in common-law interpretation, nor perliaps would Congress consider its own impeachable discretion limited by any common-law barrier. Impeachment by the Legislature has not been found a satisfactory mode of prosecution and punishment in our American practice. It is a cumbersome process, after all, and political bias is very apt to influence the result. The adverse course of State constitutions in this respect will be traced hereafter (Part III., post); and as to our still unaltered Federal mode, it has been found, upon a century's test, best adapted to judicial incumbents whose misconduct provokes no clear issue of political partisanship. A few such persons have been 8 114 CONSTITUTIONAL STUDIES. quietly convicted and removed from ofEce ; but in the case of a Su- preme Court judge, obuoxious to the party majority for his politics, impeachment was once deemed too drastic a remedy to prevail by a two-thirds vote ; and so, again, with that of a President of the United States. VI. FEDERAL CONSTITUTION ANALYZED; FUNDA- MENTAL POWERS OF CONGRESS. The great fundamental powers of the new Union are seen detailed for the most part in the latter part of Article I. and more especially in its eighth section. True philosophical description would perhaps have stated those powers as belonging to the government of the United States, instead of to Congress, as the text puts it. But Congress had hitherto and for nearly fifteen years personified in fact the whole dignity and authority of the Union, and this, more- over, was the epoch when a representative legislature still stood among American States as the peculiar aegis of a Republican people. The drafting of chief Federal powers, as so much to be detracted henceforth from State sovereignty, was the noblest accomplish- ment of the whole constitution, as it proved for appli- cation the most delicate and difficult. The discussion to which each important phrase has given rise, in courts and the forum of political debate, the defini- tions and re-definitions as between State and Federal authority which have become needful, are familiar to Americans. And here the brief text of enumeration has been inundated by copious commentary and expo- sition. Contests over the constitutional construction of these powers in and out of court have at times bred political parties and agitated the whole country ; giants in intellect and eloquence have been the oppos- 116 CONSTITUTIOIs^AL STUDIES. ing champions, and sovereignty, State and Federal, have fought for the mastery. As to fundamental powers, in this complex political establishment of ours, some propositions developed from the long discussion may be stated as well estab- lished. Powers are sometimes (1) exclusive in the United States; sometimes (2) concurrent in the United States and the several States; and sometimes (3) exclusive in the States, those several depositories of all residuary public influence. Exclusive powers in the State need no enumeration, for they comprise all undelegated functions of government, such, for instance, as divorce and the probate of wills. Of exclusive powers in the United States, import duties and the regulation of foreign commerce serve for example ; while among plainly concurrent powers are those of general taxation and borrowing money. But in connection with enumerated powers in our Federal constitution, and for their better confine- ment, we find enumerated prohibitions which are positively expressed; and these prohibitions may be (1) to the United States alone, ^ though rarely amount- ing to more than the qualification of some power expressly given; (2) to the States ;2 (3) to both State and United States governments.^ Of powers which are expressly vested in the United States, and yet not in terms exclusively so, some are permissivel}^ exerted by the several States until Congress legislates and Federal supremacy prevails for the time being.* 1 E.q. As to slave-trade suppression before 1808, taxation on exports, etc. Const., Art. I., § 9. 2 Art. I., § 10. 3 Such as bills of attainder, ex post facto latrs, and the pjrant of titles of nobUity. Art. L, §§ 9, 10. * As in bankrupt and insolvent systems, which St.atcs have regu- lated thus far in our history more constantly than the United States. " It is not the mere existence of national power but its exercise which FEDERAL POWERS DEFINED. 117 Of express prohibitions to the States some are uuqualilied iii language, while some are simply pro- nounced subject to the consent of Congress.^ Sundry powers and prohibitions in this constitution have direct relation not to Congress, but rather to some other department of Federal government. ^ As be- tween States severally and the United States, each government, unless collision occurs, is entitled to complete independence and sovereign exercise within its own legitimate sphere of action ; but where such mutual exercise provokes collision, it is the Union that should prevail as supreme.^ For the present exercise of Federal powers a generous interpretation of the constitution with its amendments may fairly be claimed, to the extent of rendering the Union adequate for great emergencies, and equal at all times to the efficient conduct and preservation of its momentous trust on behalf of the whole people ; and yet, on the other hand, the Federal government should not by misconstruction of the language used in the great charter whence national authority is derived, nor by unwarranted enlargement of its manifest expression, destroy or even encroach upon the States and their rightful autonomy ; since to each State still belong the intimate concerns of all local inhabitants, save as voluntarily surrendered by fun- damental consent given under constitutional forms. Under the Articles of Confederation we see Con- gress (then the sole embodiment of Federal authority) vested at once and expressly with " sole and exclu- sive " rights and powers for various purposes, and express prohibitions correspondingly laid upon the is incompatible with the exercise of the same power bj States.' Cooley's Elements, 34. 1 Cf. different clauses in Art. I., § 10. 2 See President's power of making treaties, etc., Art. II., § 2. 3 See 139 U. S. 240; 158 U. S. 98. 118 CONSTITUTIONAL STUDIES. States.^ And in the more perfect Union, as was done under the imperfect one, Federal government should, avoiding "the falsehood of extremes," steer safely between disintegration on the one hand and centralization on the other. To this intent, and not for donating by a sweep powers not elsewliere enu- merated, does our constitution of 1787 aid all specific authority by the fit supplementary clause that Con- gress may make all laws which shall be " necessary and proper" for carrying into execution all the powers vested by that instrument in the government of the United States or in any department or officer thereof.^ I. The first power specifically given to Congress is that of taxation, as operating upon the whole Union and its inhabitants, and not, as before, upon sovereign States merely, — that power which, if even stingily bestowed before 1787 by the thirteen States themselves, would probably have postponed indefi- nitely the convention and its new plan of Union. ^ The power here conferred is "to lay and collect taxes, duties, imposts, and excises, to [i. e., in order to] pay the debts and provide for the common de- fense and general welfare of the United States."* We thus observe (1) that the discretionary choice in Congress is large as between the various kinds of taxes; at the same time that an indirect duty laid upon foreign imports has constantly proved the most popular and indispensable source of national revenue, to which excises (the internal indirect tax), and ^ See Art. VI. Where constitutionally an net of Congress is passed or a treaty effected, this becomes the supreme law of the land. 2 Art. I., § 8, final clause. ' Supra, page !U. * Art. I., § 8, first clause. FEDERAL POWER TO TAX. 119 direct taxation are but secondary. ^ And (2) that all Federal taxation has its proper enumerated objects, and Congress has no unqualified right to impose it. Taxation by Congress, for some avowedly private or extra-constitutional purpose, would be void.^ All duties, imposts, and excises must be uniform, or so that the same articles shall bear the same rate of taxation throughout the United States, thereby pre- venting any Congressional preference of one State over another. 2 Furthermore, for lessening the sac- rifice required of our original States in permitting this Federal network to be spread over them and surrendering so many sources of their own revenue, the constitution provides that direct taxes shall be apportioned among the States according to the popular basis of numbers adopted for the choice of Representatives.^ Finally, no tax or duty can be laid ^ An income tax may bo laid on the principle of a direct tax ; and so may a tax npon lands or polls. See 158 U. S. 601. Under the immense war pressure of 1813 and 1862-1865, the greatest variety of taxes were imposed by Congress. 2 To " pay the debts " of the United States constitutionally con- tracted must always be a chief object of Federal taxation. As to giving " the common defense and general welfare " a plenary and indefinite interpretation there was great controver.sv in former times, but opinion seems to have settled upon a moderate and confined inter- pretation of that claui-'e. See Story, c. 14, and Cooley's notes at length. Those phrases arc seen to have been used (in doubtless a limited sense) in Articles of Confederation as well as the present instrument. Supra, page 90. 3 Art. T., § 8, first clause; lO'i U. S. 12.3. Diversity of taxation, either as to tlie amount or species of property, is perfectly consistent with uiiifonnity and equality. 142 U. S. 339. * Art. I., § 2, third clause ; an adapt.ation from the older method of making requisitions. The meaning of "direct taxes" is now con- sistently explained by the courts as including any income tax levied upon individuals, as well as taxes on polls or real estate. See 1.58 U. S. 601, explaining 3 Dall. 171 ("carriage tax") and other former cases. This "apportionment" method of taxation has never been of much practical avail, though the offspring of a very important com- promise in the convention of 1787. 120 CONSTITUTIONAL STUDIES. upon articles exported from any State, ^ so that our customs revenue system is, after all, one-handed for effectiveness. The power to tax involves when unconstrained the power to destroy; and Federal taxation where rightfully applied is sovereign and paramount. 2 II. The power to borrow money on the credit of the United States^ is an obvious and indispensable function of sovereignty, which, as concerns our Union, the Articles of Confederation had already recognized.* This Federal power to borrow cannot be controlled by the States; no State taxation of national securities is permissible; but States may still borrow at discretion for their own purposes. The borrowing capacity of the Union should properly be conlined to the same just limitations of constitu- tional purpose as the taxing power. Large public borrowing comes usually in special emergencies, while for ordinary needs money is often borrowed by way of anticipating for convenience the regular revenue. All debts contracted by Congress on behalf of the Revolutionary Confederacy were made obliga- tory upon the United States by the original Articles, with a solemn pledge of the public faith ; and similarly 1 Art. I., § 9, fiftli clause. See 92 U. S. 372. This constraint was procured by jealous staple-raising States for their own immunity. 2 Thus State bank circulation was wiped out by Federal taxation, so as to be replaced by that of national banks. 8 Wall. 533. But States cannot tax conversely. 4 Wheat. 316. 3 Articles, IX., clauses 5 and 6, which also expressly granted the right to "emit bills of credit," — a power here omitted, but unfortu- nately not positively forbidden to the Union. Const., Art. IV., § 8, second clause. * Public debts seem sometimes inseparable from modern govern- ment. The constant settled aim of this Union has been to get free from debt; but once only, and for a brief time about 1835, was that ha])py goal reached. Government may borrow money either by issu- ing long bonds or by temporary loans. REGULATION OF COMMERCE. 121 all debts of the United States under the old Confed- eration Avcre declared ecpuilly liinding under the constitution.^ III. The power to regulate commerce was a national innovation, and one of the grandest gains for consoli- dating national influence which the Federal constitu- tion proposed. If the petty commercial warfare of thirteen jurisdictions proved intolerable in 1787, what would now be that of forty or more? The want of some supreme power over navigation con- joined with that of levying uniform customs had most hindered the United States from taking rank in Europe as a nation competent to make a commercial treaty, and degraded the Confederacy fatally in the estimation of its own people. This new power was conceded therefore in the convention of 1787 without opposition or even a division. ^ But the meaning and true extent of this power has occasioned constant con- troversy and litigation ever since our constitution was adopted, and in no respect is the arbitrament of the Supreme Court more delicate. By "commerce," as it is ruled, the constitution means not traffic alone, but navigation in its amplest sense; hence Congress has passed laws from the beginning, such as favor American enrolled and licensed vessels, command respect for our national flag on the high seas, and employ freely the weapons of reciprocity and favor, on the one hand, and on the other, embargo, non- intercourse, and retaliation, in aid of America's commercial relations with the world. The rights of American seamen, moreover, are thus regulated, lighthouses and buoys are erected, the coast sur- veyed, and (not exclusive altogether of State policy) 1 Cf. Articles, XII. ; Const., Art. VI. 3 Art. I., § 8, third clause. 122 CONSTITUTIONAL STUDIES. quarantine, pilotage and wrecks provided for. Under an exercise of the same power by Congress the im- portation of an undesired foreign population may be hindered or suppressed. ^ All such matters relate especially to American commerco with foreign nations, the first branch specified in the grant of power. The second branch comprises commerce "among the several States," whether by land or water. This second specification blends often with the first, applying the same general doctrine. It has led to the important "interstate commerce act" of 1887, wdiich regulates all transpor- tation over the surface of the United States by rail- way and other carriers which is not limited strictly to a State's own confines. ^ The third specification embraces commerce with Indian tribes; and here a regulating power in Congress harmonizes with the uniform policy of the Union, which places such of the red aborigines as have not become civilized citi- zens under the full and immediate control and disci- pline of the general government, whether as subjects fit for treaty relations or as mere wards. ^ Much of this Federal exercise of power comes, of course, into conflict with State authority; and as the language of our constitution appears ambiguous on the point of Federal exclusiveness, the supreme tribunal of the Union has been forced to define and apply the rule of constitutional intent in many perplex- 1 See among other Supreme Court decisions relating to foreign commerce, 13 IIow. 515; 9 Wheat. 1 ; 7 How. 238; 91 U. S. 275. 2 This important enactment by Congress, including the establish- ment of a Federal commission, followed the decision of the Supreme Court in 118 U. S. 557. 2 Cf. under our Confederacy the confused though not dissimilar expression of Articles, IX., fourth clause. See al.so Const., Art. I., § 2, third clause, excluding from representation all " Indians not taxed." REGULATION OF COMMERCE. 123 ing instances of State and national collision. Wher- ever genuine conflict thus arises, it is the State that must yield to the supreme and sufficient potency of the Union. ^ Congress, of course, cannot interfere with the commerce which is confined to one State exclusively ; the ordinary trade and traffic of a State pursued among its own inhabitants, local buying, selling and exchange, local contract transactions, for the regulation of local travel and communication, are all at the discretion of the individual State. In short, the commerce of a State which Congress may control must be in some sense and at some essen- tial stage of its progress extra-territorial. As to all extra-territorial, interstate, or foreign trade and com- merce, however, a State has no right to legislate at all so as practically to interfere with the United States; and wherever the national sovereignty, dig- nity, and efficiency would be necessarily impaired in consequence, no matter whether the State so intended it or not, such local legislation is an encroachment upon the powers of the Union. ^ Thus, the regula- tion of commerce on a stream whose navigable waters are exclusively within the limits of a State belongs properly to that State ; but where a river, by itself or by uniting with a lake or other connecting waters, forms a continuous highway over which commerce may be directly carried on with other States or with foreign countries, such commerce becomes properly subjected to the regulation of Congress.^ The same distinction holds good of analogous land traffic by railway or canal. Where the State of New 1 139U. S. 240; 158 U. S. 98. 2 138 U. S. 78. 8 14 How. 568; 10 Wall. 557. The test of "navigable waters" in the United States is not, as in England, the ebb and flow of the tide, but their navigable capacity. 10 Wall. 557. 124 CONSTITUTIONAL STCTDIES. York granted to Robert Fulton and his associates, by way of bounty for the valuable invention of the steamboat, an exclusive right to navigate by steam the waters of that State for a series of years, the act was held void as concerned all higliways of foreign and interstate commerce.^ A State may not safely authorize the construction of a bridge across a navi- gable harbor or river so as to impede foreign and interstate commerce, without some sort of Congres- sional sanction ; ^ and the power of the Federal gov- ernment to improve navigable waters is exclusive of States, as well as paramount, whenever called into exercise.^ A State cannot impose tolls, nor fix a tariff for railways, so far as concerns the traffic which passes into the State from outside or through the State into some other State or country.* In general it may be said that no State has the right to lay a tax or imposition on interstate or foreign commerce in any form, whether by way of duties levied on the transportation of the subjects of that commerce, or on the receipts derived from that transportation, or on the occupation or business of canning it on, for the reason that such taxation is a burden on that commerce, and amounts to a meddlesome regulation of it.^ Indeed, in all matters of consequence within the 1 9 Wheat. 1. 2 13 How. 518; 18 How. 421; 123 U. S. 288; 125 U. S. 1; 154 U. S. 204. 3 Congress may create a corporation for erecting such a bridge. 153 U. S. 525. * 118U. S. 557. 5 See Fuller, C. J., in 135 U. S. 161 ; 136 U. S. 104 ; 147 U. S. 396. Thus, a State cannot levy a special license tax upon peddlers, " drum- mers," etc., from other States. 153 U. S. 289. But to require all peddlers, etc., to take a license, not discriiniuating as to those from other States, is not unconstitutional. 156 U. S. 296. And .see 141 U. S. 47. Nor is a State debarred from taxing .all traffic from one point to another point within the State. 145 U. S. 192. And see 155 U. S. REGULATION OF COMMERCE. 125 present Federal power of Congress, its own inaction does not excuse States from transgressing in order to impose regulations of their own ; for the only effect of such inaction nnist be to leave such extra-territorial commerce free and untrammelled, and subject to the unregulated operation of domestic law.^ On the other hand, in applying the extremely delicate limitations of this regulating power, States are readily permitted by our Federal judiciary to impose any tax which is in effect a burden upon local internal commerce alone, or even a tax upon com- merce coming in from outside, so long as it is a burden equally shared by local commerce, and in no sense a discrimination uj)on external commerce. ^ And so, too, the regulation of each State's internal police is left to the State with equal exclusiveness so far as the rule operates only internally, even though foreign and interstate commerce may be indirectly affected by it.^ Many State enactments which justly amount to no more than equal and just police and inspection regulations, stand thus the test of the constitution;^ and, in fact, that instrument expressly recognizes the right of any State to levy such impost or duty on imports or exports for the 688. It is the State discrimination against what goes to or arrives from without its confines, that the court here condemns as repugnant. A State may levy a tax on its own proportion of railroads, telegraplis, etc., which operate in other States. 141 U. S. 18, 40. 1 91 U. S. 275; 120 U. S. 489. 2 141 U. S. 18, 40 ; 163 U. S. 1 ; 15.5 U. S. 688. But taxation upon external traffic alone is void. Supra, page 124, 141 U. S. 47. There are some very nice distinctions in the later decisions. See 142 U. S. 217. 8 A State may require returns to be filed. 153 U. S. 446. And see 154 U. S. 362; 162 U. S. 565. * 9 Wall. 41 ; 93 U. S. 99 ; 136 U. S. 313 ; 163 U. S. 299 ; 16 Wall. 36. But nominal inspection acts (as, e. r/., for slaughtered meats) which apply only to such articles as come from without are void as a discrimi- nation against external commerce. 138 U. S. 78. An oleomargarine State statute is an inspection regulation. 155 U. S. 461. 126 CONSTITUTIONAL STUDIES. execution of its own inspection laAvs as may be abso- lutely necessary. 1 Competent State regulations have been made concerning liquor traffic, so as to embrace imported merchandise whose bulk has been broken, but not whole packages as they arrive. ^ There are valid State laws of long standing, applicable to pilot- age and quarantine in local harbors, which Congress has not, as probably it might, seen fit to supersede; valid State regulations of local fisheries also and the plying of a local carrier trade. ^ In general every State establishes, controls, regulates, and improves its own highways, whether of land or water traffic; besides allowing ferries to be established, railroads constructed, and bridges built after a considerable discretion ; and yet, where the interests to be imme- diately affected are not local, but may prove directly injurious to other States or to a foreign country as a continuous highway beyond the State, the assent of Congress is always desirable if not indispensable, since otherwise the United States might interpose its superior regulation and control.* An important restriction upon the power of Con- gress to regulate foreign and interstate commerce, as well as upon the power to tax, is found in the express provision that " no preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall 1 Art. I., § 10, second clause. This clause has reference to foreign commerce only. 114 U. S. 622 ; 8 Wall. 123. 2 5 Wall. 4G2. 8 12 How. 209; 2 Wall. 450; 118 U. S. 4.55. But such statutes must not discrimiuate against other States. 118 U. S. 90. As to State fisheries, see 152 U. S. 133. * Supra, page 122 ; 102 IJ. S. 691 ; 124 U. S. 465 ; 154 U. S. 204. The line of Supreme Court decisions on this whole important subject, not always distinctly traceable by a layman, need not be liere defined more closely. The professional reader may consult at greater length, Story, Comm., ch. 15, with latest notes by Cooley and others. NATURALIZATION AND BANKRUPTCY. 127 vessels bound to or from one State be obliged to enter, clear, or pay duties in another." ^ The jealous heed in 1787 that no State should derive substantial advantage over another nor receive special favor under tlie reformed Federal government explains this clause sufficiently. IV. National uniformity (1) in naturalization, and (2) on the subject of bankruptcies, is the object pro- posed by the next power detailed in the present sec- tion; and the corresponding discretion vested in Congress is ample. ^ But only in the former respect has that discretion been amply exerted; and in the convention which framed our instrument the latter grant of power appears to have been an after-thought. Under the earlier Confederacy, States retained sole power to naturalize, and complications resulted which obviously needed reform.^ Seizing at once and occu- pying this ncAV province of Federal authority. Con- gress has practically excluded the States from its exercise, ever since the constitution went into effect ; while at the same time the law recognizes as still existing on the part of our people a certain citizen- ship as to the State demanding State allegiance, sub- ordinate, however, to citizenship of the United States and national allegiance, which continue paramount and supreme.* The naturalization laws of Congress, with their peculiar bearing upon the admission of foreigners to a full American status, have varied somewhat with the changing policy of the majority in power ; ^ but a moderate term of residence within 1 Art. I., § 9, sixth clause. And see 18 How. 421. 2 Const., Art. I., § 8, fourth clause. ' For under Articles, IV. free inliabitants of the Union were ac- corded many interstate rights. Sec supra, page 91. * See 16"Wall. 36. ^ The present and usual term of residence is five years ; and declara- 128 CONSTITUTIONAL STUDIES. the United States and of probation after one's decla- ration of intent, suffices usuall}- to confer all privi- leges and immunities of a full status such as the Federal constitution at this day doubly warrants and secures.^ A citizen, in the full legal acceptation of that term, may be said to be a member of the civil state or community entitled to all its privileges ; ^ and there is a clear legal distinction in privilege between citizens and resident aliens. In many American States, to be sure, some of those distinctions are by this date largely abolished, in favor, more especially, of such aliens as have by declaring their intention become prospective citizens of the United States.^ But an alien is judicially considered, from our national point of view, as resident in the United States by sufferance only, where he takes no steps to become a citizen. Congress has full power to expel or exclude all such persons, or to exclude some and admit others, or even to punish those who attempt to violate its enactments.* tion of intent is followod in two years by a full admission. U. S. Rev. Stats., §§ 2165-2174. In 1798 the term was raised to fourteen years, but that illiberal extension did not long prevail. 1 See Const., Art. IV., § 2. "All persons boru or naturalized in the United States and subject to the juri.on the bill as a wliole. " Under the administration of Wasliington and John Adams, the President went in state to Congress to deliver the message orally be- fore the assembled houses ; after which each house would consider and frame a formal address in reply, bearing it in procession to the executive mansion with corresponding ceremony. President Jefferson EXECUTIVE POWERS AND DUTIES. 167 vene both houses or either of them ; and where the two houses disagree with respect to the time of ad- journment, he may adjourn them to such time as he shall think proper. ^ (5) Finally the President shall take care that the laws be faithfully executed ;2 and this includes not alone the enforcement of acts of Congress according to their express terms, but all the protection, national or international, which the nature of our constitu- tional government implies.^ Nor can the judiciary directly intervene by mandamus, injunction, or other- wise, to control the Chief Executive in the exercise of his high discretionary functions, — not even upon the allegation that he is enforcing an unconstitu- tional law.* But as to Federal subordinates, and in acts purely ministerial, where nothing is left to official discretion, it has been ruled otherwise.^ Ministerial and executive duties in such a connection should not be confounded ; for the exercise of power to enforce the laws is a purely executive political duty, which no remedy short of impeachment by Congress can rightfully restrain. Congress cannot, however, lawfully increase these executive duties by delegating to the President its own legislative authority.^ The Executive Department has on the Avhole been admirably adjusted, and a supreme incumbent of high iu 1801 substituted the siinjder aud more couveDieut method of sending to Congress a written message, to which no formal repl}' was expected, aud such has since continued the uniform practice of government. 1 Const., Art. II., § 3. a 76. 8 135 U. S. 1. * 4 Wall. 47.5 ; 6 Wall. 57. s 1 Cranch, 137; 9 Wall. 298; 12 Pet. 524. ** 143 U. S. 619. But suspension of reci])rocity by the President's authorized proclamation is not open to such objection. lb. 168 CONSTITUTIONAL STUDIES. character, wisdom, and good sense cannot fail even in times of peace to make a strong and abiding impres- sion. The very fact that Congress has such power for enacting momentous laws unwisely renders it all the more desirable that the President should have a counteracting influence like some tribune of the people. Another strong bulwark against the tyranny of either Congress or the President, another grand popular reliance, will next appear in the Federal Judiciary, and most of all in the Supreme Court; and the tenure of Federal judges, which alone is fixed for life or good beha^dor by the constitution, places them in the civil service above the reach of arbitrary removal. IX. FEDERAL CONSTITUTION ANALYZED; THE JUDICIARY. The want of a distinct and efficient Federal judi- ciary was felt to be so vital a defect of the old Con- federacy that the creation of this third department of government under the Federal scheme of 1787 was readily allowed. Here and there in Articles of Con- federation we find a permissive establishment of courts for piracies or captures on the high seas, while Congress itself was made the final tribunal for deter- mining disputes between States over such matters as boundaries.^ Yet in all this there was found no independent Federal establishment, no sanction for Federal judgments, no explicit means of enforcing upon States or their inhabitants a decision rendered. A judiciary aids in the due execution of powers given to a government, by aj^plying compulsion to refractory individuals ; its process should be afforded to all invoking the public standards of right for the adjustment of private controversies ; it should inter- pret laws, treaties, and the constitution so as to give a uniform sense to which all good citizens must submit. The Federal judiciary established by our consti- tution of 1787 was made accordingly after the Montesquieu formula, as independent and distinct as either Congress or the Executive. One declared » Confed., Art. IX. 170 CONSTITUTIONAL STUDIES. object of the preamble to that constitution was to "establish justice;" and among the enumerated powers of Congress "to constitute tribunals inferior to the Supreme Court." ^ The judiciary article itself declares expressly that "the judicial j^ower of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. "^ Thus, while Congress may model and remodel the lower Federal tribunals from time to time, as may be deemed expe- dient, the Supreme Court, which is the head and crown of the whole system and the Federal tribunal of last appeal, remains as perpetual in functions, as intact and independent (except for diminishing or increasing its membership when vacancies occur ^ ) as Congress itself or the Executive. No law can abolish or supersede it; no Presidential fiat can change the incumbents. So complete a separation of a judiciary from the other two departments of government sup- plied to our Federal system what few States possessed thus early. ^ In tenure and method of appointment this Federal system conformed fairly to the spirit of 1787, but unchanging afterwards, as most State systems have done, it anchors fast to stable conserv- atism, as so august a judiciary should. All Federal judges have been regularly appointed by the Presi- dent, subject to confirmation by the Senate, and those of the Supreme Court cannot constitutionally be appointed otherwise.^ Their tenure is defined unre- servedly as "during good behavior; " and their com- pensation, which they are entitled to receive "at stated times," shall not be diminished (though Con- 1 Art. I., § 8. 2 Art. III., § 1. 3 Vacancies cannot be compelled except by impeachment. * Supra, page 66. ^ Supra, page 165. THE FEDERAL JUDICIARY. 171 gress may increase it) during their continuance in office.^ A Federal judge may be displaced by due process of impeachment, but the Federal constitution gives no power to remove on the simple address or joint resolution of Congress. ^ Since Congress may change the inferior Federal courts at will, so may it abolish, and thus incidentally deprive judges of their offices. A premature circuit court establishment was thus swept away in 1801 when Jefferson became President, and politics con- quered politics. Soon after the Civil War circuit courts with special judges were re-erected by Con- gress, and in 1891 was interposed a court of appeals to rank next in order to the permanent Supreme Court. District courts in each State were always the Federal tribunals of first resort. Territorial courts, erected as incidental to general sovereignty over national territory, are not within the strict estal >- lishment ; and judges of such courts ma}^ be appointed for definite terms, and are removable by the Presi- dent.^ Nor have the President's military provisional courts any permanent civil character.* Our Federal courts have kept to their own domain, performing no functions except those of a judicial nature, and such as the constitution imposes plainly upon them. They refuse to arbitrate political issues or to participate in executive business ; they decline to sit as commissioners or determine questions sub- ject to the consideration and supervision of Congress or of some executive officer.^ The Supreme Court 1 Const., Art. III., § 1. To induce but not compel voluntary retire- ment at old age after long and faithful service, acts for pensioning such judges have been pasised. 2 Cf. State organic law, page 67. 3 1 Pet. .511 ; 141 U. S. 174. 4 9 Wall. 129; 13 How. 498. 5 Cooley, 51 ; 13 How. 40; 19 Wall. 107, 6.55. 172 CONSTITUTIONAL STUDIES. would not entertain appeals from the Court of Claims until Congress gave a judicial character to that tribunal by making its money judgments competent.^ Nor does the organic rule of States like Massachu- setts obtain for procuring the Supreme Court's advice as a basis for future executive or legislative action; but its opinions are rendered only in the course of regular litigation. ^ Not to be too technical in describing here the judi- cial power which United States courts exercise, we may observe that Federal jurisdiction arises under three different conditions: (1) Because of the sub- ject-matter; as where a case, whether in law or equity, civil or criminal, arises under the Federal constitution, the laws or the treaties of the United States and the interpfetation thereof is material to the issue ; and besides in all cases of admiralty and maritime jurisdiction arising on the high seas or internal navigable waters, or in interstate commerce, subjects vested in the Federal government.^ And here, both in interpretation and enforcement, the Federal judiciary is supreme. (2) Because of the parties litigating whom local State process cannot fairly conclude. As in civil cases, regardless of the subject-matter, between citizens of different States; so that in consequence our Federal decisions compre- hend to-day a great body of commercial and business law, not strictly binding as precedents otherwise 1 Cf. 2 Wall. 651, and acts of 1863. ■•2 During rresident Wasliiugtoii's administration, and while the Supreme Court had as yet very little judicial business to transact, an o])iuian upon tlie legal bearings of certain matters before the Calnnet was refused by Chief Justice Jay on constitutional grounds. This, however, has not prevented judges nor even the Chief Justice from serving in some special capacity for a public emergency. 8 Federal jurisdiction here is very broad. 12 How. 443. THE FEDERAL JUDICIARY. 173 upon the courts of individual States, but rendered so as to harmonize as far as possible the contemporaneous law and practice of the States where ^Darties litigant resided. (3) Because of subject-matter and parties combined ; and with particular reference to the grav- ity of State or international disputes which might affect the peace and stability of the whole Union. To this head belongs the exclusive Federal jurisdic- tion of all cases which affect ambassadors, other public ministers and consuls ; of all controversies to which the United States shall be a party ; of contro- versies between two or more States,^ between a State and citizens of another State, '■^ or between citizens of different States; between citizens of the same State claiming lands under grants of different States ; and between a State or the citizens thereof and foreign States, citizens or subjects.^ In this third and gravest class, or rather in all cases which affect ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court takes original and uncon- trolled jurisdiction under the constitution. But in all such other cases as we have mentioned, the Supreme Court exercises an appellate jurisdiction merely, both as to law and fact; and this, further- more, subject to such exceptions and regulations as 1 As in some question of boundaries or division. 11 Wall. 39. 2 Au early decision against the State of Georgia I)y the Supreme Court (2 Dall. 419), produced such alarm that the constitution was amended (1794-1798) so as to exclude Federal jurisdiction of any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. Amendment XI. But a State may expressly waive such defence. 108 U. S. 436. The principle that a sovereign is not amenable, involuntarily, to the suit of an individual, has no application to a suit by one government against another government. 143 U. S. 621. 8 Const., Art. III., § 2. 174 CONSTITUTIONAL STUDIES. Congress shall make.^ This appellate jurisdiction comprehends the highest State courts as well as inferior Federal tribunals, wherever a cause of juris- diction affirmatively appears; in considering State constitutions, for instance, or laws, which involve a question of conflict with the Federal " supreme law of the land. "2 But the Supreme Court imposes cautious conditions upon State supervision. A griev- ance must be affirmatively shown. The appeal must not be upon an agreed statement, but as the result of honest antagonism ; nor will it be entertained on any simple issue of facts, nor where the State tribunal might have decided upon some other ground, but only in law and necessarily.^ Federal courts are indisposed to take a criminal out of State custody by habeas corjncs ; * nor can the mere hardship, impolicy, or injustice of any State law or constitutional pro- vision be alleged as an objection to its validity. Aside from all such appellate jurisdiction, cases are removed from State to Federal inferior courts upon proper jurisdiction shown. ^ Europeans often wonder that Federal and State courts can work together in upholding so complex and conflicting a jurisdiction; but, as English observers admit, the system of Federal supervision works, and now, after a hundred years of experience, works smoothly.^ For the fundamental principle in the United States is that the supreme law-making power resides in the people, and that whatever they funda- mentally enact binds everywhere; so that, whether 1 Const., Art. III., § 2. The Court of Appeals (1891) now renders final judgment in many cases. 2 Const., Art. VI. 3 143 U. S. 339 ; 150 U. S. 361 ; 152 U. S. 355. 4 1 56 U. S. 272. 5 Cooley, 129 ; U. S. Rev. Stats. 641, and acts of 1887 and 1888. ^ 1 Bryce's Commonwealth, 245. JURIES AND FEDERAL CRIMES. 175 in State or Federal application, that which is imcon- stitutional transcends the permanently expressed will of the people.^ Delay and patient deliberation by the highest tribunal over what has been fully argued in a concrete case, not arising until the enactment of disputed validity has been put in force, must go far towards preparing the public mind for accepting an adverse judgment. Public legislation submits thus to our sober second thought, and the Supreme Court is keeper of the national conscience, the guaranty of minority rights, as it ought to be. For, as Burke has so fitly observed, every government ought in some sort to make a balance of its judicial autliority, and give security to its justice against its power. ^ One or two provisions of the Federal constitution concerning judicial procedure may be noted in this connection. The ancient trial by jury, which we have seen our Revolutionary States proclaiming among fundamental rights,^ is clearly secured in the instrument of 1787, so far as all criminal trials (except in impeachment) are concerned. As to vici- nage, always an important incident of this sacred right, lest one might be dragged into distant neigh- borhoods for arraignment, it is further provided that such trial shall be held in the State where the crime shall have been committed; or if not committed within any State, at such place as Congress may by law have directed.* But, this original instrument ignoring the civil trial by jurj', one of the earliest ^ Even the Supreme Court of the United States lias in one or more ji^reat instances been considered as overruled by the people, acting through political change, and imposing their " higher law." 2 For more technical details of Federal judicial power, see Cooley's Elements, 111-147 ; Story, § 1577, latest notes. 3 Suprn, page 32. * Const., Art. III., § 2, 3. 176 CONSTITUTIONAL STUDIES. amendments preserved that right in all common-law suits, where the value in controversy should exceed twenty dollars; forbidding to United States courts the re-examination of any fact tried by a jury other- wise than according to the rules of cynnnon law.^ Other amendments insisted upon the presentment or indictment of a grand jury, defined the vicinage more closely as that of the "State and district," wherein the crime shall have been committed, such district having been previousl}'^ ascertained by law, and added important safeguards to the accused which will be noticed later. ^ Treason against the United States is most liberally defined, repudiating the odious doctrines of construc- tive treason once prevalent in the mother country. Such treason, it is stated, shall consist only in levy- ing war against the United States, or in adhering to their enemies, giving them aid and comfort.^ Equally liberal as to the proof of such treason, against the mockery of English State trials in the preceding century, our constitution declares that conviction of treason must be on the testimony of at least two wit- nesses to the same overt act, or on confession in open court. And once more setting an example in pun- ishment for the offence, which England followed long after, it repudiates the old common law which cruelly visited the offence upon children and children's children. Congress may declare the personal pun- ishment, but no attainder of treason shall work cor- ruption of blood or forfeiture beyond the life of the ^ Amendment VII. 2 Amendments V., VI. 8 Const., Art. III., § 3. This provision is taken from the old Statute of Treasons, 2.'3 Edw. III., which durinc; the English civil war was plainly violated in Sidney's trial. See 4 Bl. Com. 7.5. A mere conspiracy by force is held not sufficient, without an actual levying of war. 4 Or. 75. JURIES AND FEDERAL CRIMES. Ill person attainted.' There is no common-law juris- diction of crimes in the United States, but Federal crimes must be defined by Congress, subject to the further written law of the Federal constitution. ^ ^ See 9 Wall. 339, as to a case under our own civil war of 18G1-65 ; also English statute 3 & 4 William IV., c. 106. With hanging, draw- ing, and quartering, the old English punishment of a traitor's person was barbarous enough. Hanging has been tlie appropriate modern punishment; but under Act July 17, 1862, Congress gives the court discretion to sentence by fine and imprisonment instead. The criminal offence of treason, though heinous enough, is one of the most diilficult to calmly adjudicate or discern in any body politic. Under our own composite system there is allegiance due to the United States, and alle- giance due to the State, the former being now acknowledged para- mount ; and one might render himseK liable to State i)rosecution for some local traitorous offence to which these Federal clauses would not per se apply. 2 8 Pet. 591 ; 125 U. S. 555. 12 X. FEDERAL CONSTITUTION ANALYZED; INTER- STATE AND TERRITORIAL RELATIONS. Article IV. of the constitution is largely devoted to interstate provisions which affect private rights and the States themselves. Much of it is an expan- sion from the earlier text of the Articles of Con- federation. That full faith and credit shall be given in each State to the public acts, records, and judicial pro- ceedings of every other State is admitted to be an essential rule of comity, and particularly so in a co-ordinate Union like ours. The constitutional phrase is almost literally borrowed from Articles of Confederation,^ with the fitting supplement that Congress may by general laws prescribe the man- ner and effect of such proof.^ The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.^ This, too, is a paraplirase only less literal from the Articles of Confederation, which recognized such a comity under the earlier Union, " the better to secure and perpetuate mutual friendship and inter- 1 Articles, IV. 2 Const., Art. IV., § 1. Inquiry into the jurisdiction of another State court over parties and subject-matter is not precluded. l.'JS U. S. 439 ; and see 141 U. S. 657. » Const., Art. IV., § 2. See also Amendments XIV., XV., enlarging the constitutional effect of tliis clause. INTERSTATE PROVISIONS. 179 course among the people," and for equal "privileges of trade and commerce." A sort of mutual State citizenship, with reciprocal privileges and immuni- ties, as in passing through, residing, pursuing busi- ness and enjoying liberty and property, is here under the Federal system of 1787 effectively secured. It is further declared in the same connection — once more paraphrasing Articles of Confederation ^ — that fugitives from justice, charged in any State with treason, felony, or other crime, shall be extradited on executive demand, wherever found, to be removed to the State having jurisdiction of the crime. ^ This and another clause, now happily obsolete since the extinction of American slavery, ^ complete the comity provisions which affect our interstate relations more immediately for the individual.* Next as concerns States immediately in their public relations, provision is first made for extending the original Union by the prospective admission of new States. Under the Confederacy a similar extension had been authorized, embracing Canada, with pos- sibly other British-American colonies ; ^ but the Con- tinental Congress went beyond such literal authority when title to the vast region of the Mississippi was 1 Articles, IV. The original article is drawn out rather loosely, and so as to avoid controversy under a confederated sj'stem which left all naturalization to coequal States. 2 Const., Art. TV., § 2. This is a State executive duty which Fed- eral courts cannot compel. 24 How. 66. Local retaliation generally corrects any miscliief. ^ Const., Art. IV., § 2, .3, known historically as tlie "fugitive slave clause," though purposely avoiding tlic word " slave ; " and requiring State extradition of persons "held to service or lahor in one State" and escaping to another. That clause was in expression horrowed from the early New England Articles of Confederation, page 73. * See for technical details, Cooley, 195-201. ^ Articles, XI. 180 CONSTITUTIONAL STUDIES. clearly quitclaimed by leading States to the Union. ^ Under our present constitution the discretion to admit new States is lodged unreservedly in Congress like ordinary legislation; and ever since the Louisiana purchase of 1803, that discretion, which had clearly comprised the original territorial area of the United States westward to the Mississippi, has been repeat- edly extended in practice so as to comprehend with- out constitutional change whatever adjacent foreign territory on this continent between the two oceans may be acquired at any time by war or peaceful pui'chase. But both as to policy and constitutional right, so vast and unreserved a power to Congress, or to the treaty-making department, v/ithout limit of popular referendum, constitutional amendment, or unusual constraint whatever, to change the whole scope and character of this Union by the incorpora- tion of foreign soil and foreign populations or races, is worth challenging on every new occasion ; for it is a power pregnant with the gravest dangers, such as debauched and finally destroyed the Roman empire. This confederated system of ours recognizes no per- manent political condition anywhere but that of co- equal States. And as for admitting new States formed within existing and recognized domestic ter- ritory, the unconstrained power of Congress which the framers of 1787 intended to bestow is ample enousrh to be dreaded. ^ For no State once admitted to the Union can ever be deprived of its equal 1 Supra, page 85. In the Ordiiiauce of 1787, whiyli our first Con- gress of 1789 ratified, it had been agreed that new States not exceed- ing five might be formed from the northwest territory and received into the Union. Articles of Confederation were in tlieir final form assented to by all the States but Maryland, before this territorial ces- sion was made at all ; hence the insuflBcient authority which those Articles had recited. 2 Const., Art. V. TERRITORIES AND NEW STATES. 181 suffrage in the Senate without its consent.^ New States, therefore, may be constitutionally admitted, by Congress into this Union ; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the legislatures of the States as well as of Congress itself.^ Further power is given Congress in this section " to dispose of and make all needful rules and regu- lations respecting the territory or other property of the United States. "^ By 1787 a vast domain west of the Appalachian range to the Mississippi became the undisputed "property" of the whole Union, not under the Articles of Confederation, but rather as a virtual concession gained when ratifying them from the older States. Those sovereign cessions from Virginia and other States were not without special conditions regarding the future status of American slavery, which Congress later recognized.^ Terri- tories most ample, and stretching from ocean to ocean, have since come into the Union, as the sole fruit of national purchase and conquest; yet territorial the- ories have been occasionally broached since 1787, as though the Union were incompetent to regulate freely its own soil for settlement and republican education.^ 1 Const., Art. IV., § 3. The consent of Congress need not be di- rectly given if fairly inferable from its course of action. 11 Wall. 39. As might well be surmised, no States have ever been consolidated by junction on such terms as aliove; while in repeated instances — e.g., Maine from Ma.ssachusetts and West Virginia from Virginia — old States have been constitutionally subdivided by triple consent. ^ Const., Art. IV., § 3. 3 " Nothing in this constitution shall be so construed as to prejudice any claims of the United States or of any particular State." lb. This mollifying clause appears to have been inserted with express ref- erence to territorial jurisdiction. * " Squatter sovereignty " and other such ingenious doctrines served. 182 CONSTITUTIONAL STUDIES. Over this general subject, however, as also in the admission of new States, since territories ripen natu- rally into statehood, Congress exercises a plenary constitutional discretion, which ought to respect the general welfare and v/ishes ; ^ for the constitution was made for States and not for territories, and the terri- torial condition is in a proper sense only temporary and preparatory. Finally, it is imposed on the United States as a duty (1) to guaranty to every State a republican government; (2) to protect it against invasion; and (3) to protect it upon due application against domestic violence. 2 The first or guaranty clause, whose per- version in meaning was attempted during the recon- struction era which followed close upon our civil war, presupposes a State government of a republican form already in existence; and while permitting States to change their local organic law, imposes only the restriction that republican shall never be however, a temporary political purpose, which vanished with the final disappearance of slavery. 1 The plenary power of Congress over the territories combines that of a local proprietor of land and of a regulator of local government. Doubtless tliat power is subject by implication to all fundamental lim- itations in favor of individual rights which are now formulated in the Federal constitution and its amendments. 136 U. S. 1. Methods of territorial government for tlie Union date back to 1784 and to the Continental Congres.s, which laid broadly the foundations of the pres- ent public land system, clearly recognizing at once the solemn trust of nurturing and educating the new settlements into loyal, self-governing and orderly States. Two forms of territorial government have been from time to time established l)y Congress as circumstances required : (1) an executive Federal government, somewhat arbitrary, under the immediate appointment of Tresident and Senate; (2) a Federal gov- ernment partly po])ular, which recognizes a territorial legislature and local representation; and this is the usual kind. Congress may and usually does imjiose certain fundamental conditions upon the admission of each new State. 2 Const., Art. IV., § 4. FEDERAL GUARANTY AND PROTECTION. 183 exchanged for anti-republican constitutions.^ By republican government we should understand a gov- ernment whose representatives are chosen by the people ; and while no czar or hierarch would be thus allowable, legitimate republican government may take a wide variety of forms. Moreover, a State republican government once established may demand the Federal assistance because of the hostile action of some invading foreign power, or b}^ reason of some Revolutionary domestic uprising against the consti- tuted authority; and in either case, the intervention of the Federal government to protect the people in their existing government would be proper.'-^ In other extreme instances, as where despotism is in- stalled and organized under forms of law,^ or there has never been a State government, or that which once existed has been displaced in the course of rebellion and attempted secession and lapses into domestic disorder, some just enabling action by the United States may be advisable or even necessary. As for the protection of an existing State against invasion, such is the natural incident of Federal con- stitutional government for occasions of emergency, as was State self-protection under the previous Con- federation. Protection, however, against domestic violence is so delicate an exercise of Federal power, and so liable to abuse and sensitive collision, that it is expressly guarded by requiring the State Legisla- ture, or (if it cannot be convened) the State Execu- tive, to invoke such protection. This expression, however, does not cover the whole ground, for by the present age the network of interstate commer- 1 Federalist, Nos. 21 and 43. ••^ 7 How. 1 ; 7 Wall. 700. The Dorr Rebellion in Rhode Island, 1841-42, furui.shed an instance in point. 3 As in the Mormon territorial outbreak of 1857. 184 CONSTITUTIONAL STUDIES. cial and other common interests has overspread the area of the United States so completely that where State authorities are themselves remiss in putting down local disorder or in calling for Federal aid, the President, supported by Congress, is justified in marching troops to the scene and intervening for the welfare of the whole people and the public concerns. 1 1 As in the Illinois disturbances of 1894. By virtue of interstate commerce and carrying the mails, " the government of the United States has jurisdiction over every foot of soil witliin its territory and acts directly upon each citizen." Debs, Re, 158 U. S. 564. XI. FEDERAL CONSTITUTION ANALYZED; ADOPTION, POWER TO AMEND, AND FEDERAL SU- PREMACY. Consonant to the spirit of that earlier age, both adoption and future amendment of this Federal con- stitution were deemed sufficiently sanctioned by repre- sentatives of the people without a direct reference to the polls. This, indeed, is the essence of republican government as distinguished from democracy, whose fiat is a plebiscitum.^ Articles of Confederation had been the product of a general Congress submitted to the thirteen State legislatures for confirmation. The constitution of 1787, on the other hand, framed by the Philadelphia convention, went to conventions of the different States for final sanction after a per- missive reference by the Continental Congress; a closer reference than before to the will of the people (since conventions are of spontaneous popular origin), yet an incomplete one. The prevalent disregard of immediate popular expression was more plainly mani- fest in the provisions made for future constitutional amendment, which left the convention or legislative mode a mere matter of option by Congress, still ignoring all direct vote by the people. No inadver- tence gave sucli shape to these provisions as to make amendment difficult; for that Philadelphia convention would never have met, the scheme of 1 Supra, page 47, for earlier State practice. 186 CONSTITUTIONAL STUDIES. Confederation could not have been superseded at all at this period, had one specific amendment passed all thirteen legislatures instead of twelve, — had organic change been possible without a universal State assent. Even now, by a sort of revolutionary process, this new constitution of 1787 was to be sufficiently estab- lished by the ratification of nine out of thirteen States,^ and any still reluctant might remain outside. Two specific modes of future amendment we find set forth : one, the simpler and the only one in fact which a century's experience has applied, is by spe- cific amendment proposed to the several States by two-thirds of both Houses of Congress; the other, by a convention which Congress shall call on the api^li- cation of the legislatures of two-thirds of the States. In either case Congress takes the direct initiative, though in the latter case its duty becomes formal and imj)erative, and a mere majority may suffice. In neither instance, however, is the President's approval needed, as though to legislation, but Con- gress performs a special function which the constitu- tion executes. 2 For calling a new convention the remote initiative vests in scattered but co-oj)erating State legislatures; but as those several legislatures must apply to Congress, no spontaneous Federal con- vention like that of 1787 is ever again to be legally called, seeking Federal approval afterwards. For the ratification of a new Federal constitution or of prospective amendments, three-fourths of all the States must give assent either by local legislature or convention, as Congress ma}^ propose in advance.^ If such a thing be organically possible as an irrepeal- 1 Const., Art. VII. See page 95. 2 3 Dall. 378. 8 Const., Art. V. Congress has tlius far chosen to propose ratifi- catidii hy State logislature. The mode is not optional with States, nor is reference made at all to a direct popular expression. METHODS OF AMENDMENT. 187 able ordinance of man, which we may well doubt, this constitution has in one important particular ruled out all change.^ Students of our American system have criticised that rigid Federal conservatism which compelled so large a fraction as three-fourths of all the States to give any proposed change validity. Yet there are sound reasons for making radical Federal amend- ment more difficult than in the less spacious area of individual States. In fact, a popular impulse that moves two-thirds or even a large majority not sec- tional of the States to ratify easily widens its projiel- ling force to the greater fraction; and so was it with the adoption of the instrument of 1787 itself. The greater difficulty is rather in initiating change at all, in overcoming the first inertia, in getting Congress by a two-thirds vote to proj)ose something remedial, where, most of all, one or the other branch must be shorn of privileges should the change take effect. A hundred years and more have produced only fifteen articles of amendment, of which the first ten, pro- posed by the very first Congress, really rounded out the original instrument under a tacit compromise with ratifying States, while the last three were the exac- tion of a bloody civil strife. The two intermediate amendments, affecting Congressional privilege in no respect, aimed to rectify minor constitutional defects which Federal procedure had disclosed. When public opinion becomes well aroused, the gates of constitutional amendment fly wide open and entrance gives easy exit ; but it is the concrete that arouses, and the public mind, dormant through generations of prophetic foreboding, awakes only when sufferings are actual. 1 Const., Art. V., close of article; (1) as to slavo-trado privileges, obsolete since 1808; (2) as permanently guaranteeing the equality of States in the Senate. 188 CONSTITUTIONAL STUDIES. The sixth article contains three clauses. The first proclaims all debts and engagements of the old Confederation equally binding upon the new Union. ^ The second, or Federal supremacy clause, constantly invoked by the Federal judiciary when State consti- tutions or enactments violate the grand ordinance of Union, declares explicitly that this Federal constitu- tion, and all pursuant laws and treaties of the United States, "shall be the supreme law of the land;" enjoining further their paramount obligation not upon the United States judiciary alone, by implication, but upon the judges in every State, whatever the constitution and laws of any State may recite to the contrary.^ By "supreme law of the land," or para- mount comprehensive law essential to the whole Union, is meant that which Congress and all other departments of government must respect at all times, and to which States and their own departments when- ever in conflict must yield subordination. The Federal constitution measures therefore the validity of laws and treaties of the United States, which to be valid must conform to its own ordinance ; and as between these, a statute or a treaty is equally obliga- tory in a national and domestic sense, so that the one may supersede the other if later in point of time.^ The third clause of this article, consistently with such a doctrine of Federal supremacy, binds all high officers, executive and judicial, as well as all mem- bers of the Legislature, whether of the United States or of the several States, to swear to support this 1 Const., Art. VI., § 1. Since all thirteen States entered finally the new Union, this ])lcdgc of public faith well fortified the new national policy of sustainint:; sacredly the pnldic credit. 2 Const., Art. VI., § 2. 8 11 Wall. G16; 143 U. S. .570. Of course in an international sense the repeal of a treaty may involve a liveacli of puhlic faitli with inter- national consequences, as concerns the otlier contracting power. FEDERAL OATH AND TESTS. 189 Federal constitution, — the simple and only oatli or affirmation that the United States of America impera- tively asks from any one. And tinall}', in a most liberal spirit for that eighteenth century, when State official tests were commonly exacting, ^ it is announced that no religious test shall ever be required as a qualification to any office or public trust under the United States. ^ 1 Supra, page 43. ^ Const., Art. VI., § 3. XII. FEDERAL CONSTITUTION ANALYZED; SUBSEQUENT AMENDMENTS. The amendments to the original Federal constitu- tion of 1787 subsequently adopted to this date are fifteen in number. Of these the first ten collectively are in the nature of a sux^plemental declaration of rights, embracing a careful selection by the First Congress from an immense mass of proposed amend- ments, which doubtful States, beginning with Massa- chusetts, had framed and submitted when ratifying the original instrument. Ratifjdng unconditionally for the sake of harmony what appeared an imperfect constitution in its original draft, these States in con- vention gave their needed consent upon an under- standing that the new Federal government would at once initiate amendments of this general character to broaden and strengthen the safeguards of liberty ; nor in this did the new government disappoint them. ^ Many of these "bill of rights " provisions were trans- ferred from State constitutions already established. ^ The eleventh amendment ^ stifled suits in the Supreme 1 Amendments I.-X., all submitted together to the State legisla- tures in 1789, and declared ado]ited in 1791. Congress proposed at the same time two other ameudments which failed of State adoption. One of them fixed a permanent rule for apportioning tlie Hon.se of Repre- sentatives; the other forl)ade that a law varying the compensation of members of Congress should take effect until after a new election of representatives. 2 Cf. Part I., c. 3. "* Proposed in 1794 and declared adopted in 1798. SUBSEQUENT AMENDMENTS. 191 Court of the United States obnoxious to State sov- ereignty, and prevented such litigation for the future. The twelfth amendment ^ corrected defects in the machinery of Presidential elections made patent in the bitter party contest of 1800, but did not radically change the plan. The thirteenth, fourteenth, and fifteenth amendments, completing the list at the present time, were the cumulative result of that fratricidal conflict whence emerged a Union purged of human slavery and readjusted to the new social condition of equal civil rights, regardless of race or complexion. 2 Congress has at different epochs entertained a vast variety of amendment propositions, many of them crude and transient, which have failed of a two- thirds passage in both houses and public insistence. One memorable one went to the States in 1861 for adoption, but in the tremendous drift of events became overwhelmed; pledging the Union never to interfere with slavery as locally existing in a State, it preceded by only four years that thirteenth amend- ment whose actual scope was diametrically opposite, for public opinion in those four years underwent a revolution. No co-operative State application to call a convention such as the constitution recognized has ever yet demanded the action of Congress ; nor has Congress ever required an amendment to be ratified by State conventions instead of the Legislature. I. " Bill of Rights " was the compromise addition purposed to the original instrument of 1787. Several important clauses of the original constitution had 1 Proposed in 1803 and declared adopted in 1804. '"' The thirteenth amendment M-as proposed and adopted in 1865. The fourteenth was proposed in 18C6 and adopted in 1868. The fif- teenth was proposed in 1889 and adopted in 1870. 192 CONSTITUTIONAL STUDIES. actually that character, ^ but no parade was made of them, as though of blazing formulas our framers were weary. Of the first eight compromise amend- ments, which touch the individual and civil rights, it should be said that in general they apply exclu- sively to Federal jurisdiction and procedure; 2 States themselves cherishing similar maxims for appli- cation to issues more peculiarly their own. As to the first amendment (1) Congress must make no establishment of religion nor prohibit its free exer- cise, — a prohibition which is not transcended by breaking clown some despotic hierarchy or polygamy pursued under the guise of religion in the Territories,^ but inculcates non-interference in private preferences of religious worship. (2) Congress must not abridge by law the freedom of speech or of the press, — a maxim already pronounced in the States, where its application must mostly be confined.^ (3) Congress must not abridge by law the right of the people peaceably to assemble and to petition the government for a redress of grievances.^ II. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.^ 1 E. (J., the humane limit to penalties for treason, the habeas corpus, no title of nol)ility, no religious test for office, and jury trial in criminal cases. 2 147 U. S. 490, as to fifth amendment; 124 U. S. 200; Story, § 1782, notes. 3 136 U. S. 1. * The "sedition act" of Congress in 1798 appears to have been founded upon a misconception of Federal jurisdiction in sucii matters as well as of good policy. But anti-lottery acts are no such abridg- ment of freedom, for freedom is not immoral license. ^ Tliis does not sanction a tlireatening demonstration of violence at the capital. To petition is not to demand, but to ask with loyal deference. Tl)is, too, we have seen, was a State maxim. Supra, page 3.5. 8 For State maxims corresponding, see page 33. In the English FIRST TEN AMENDMENTS. 193 III. Soldiers shall not be quartered in time of peace in any house without the owner's consent, nor in time of war except as the law may prescribe, — ■ an abuse of the colonial age while revolution was impending. A common incident of war while bel- ligerent or rebellious soil is occupied, it should not be arbitrary or injurious to peaceful and loyal citizens. IV. The people shall be secure against unreason- able searches and seizures, and no warrants shall issue but upon probable cause, supported by oath or affir- mation and a particular description. ^ V.-VIII. The next four amendments chiefly con- cern procedure in the Federal courts, extending safe- guards such as States had expressly recognized for protection of the accused. Presentment or indict- ment must be made by a grand jury for a capikil or otherwise infamous crime, as an added prerequisite to the trial of crimes by a jury ; ^ though to cases arising in the land or naval forces, court-martial regularly applies, as well as to State militia while in active Federal service.^ No person shall be twice put in jeopardy of life and limb for the same offence ; nor shall any one in any criminal case be compelled to be a witness against himself.* The accused in all Bill of Rights of 1688 was a .similar provision as to Protestants, whom the King had disbanded while treating Roman Catholics with favor. ^ Supra, page 33. " Writs of assistance " or general search-war- rants were a cause of complaint against George III. before the Revo- lution, and the eloquent James Otis denounced them. No sealed letter can be lawfully o])e".ed except under a search-warrant. But see 96 U. S. 727 as to lottery circulars; 143 U. S. 110. 2 Supra, page 1 75. 8 158 U. S. 109. * Amendment V. ; 142 U. S. 148. It is not "twice in jeopardy" to undergo a second trial where the first jury reached no verdict before its discharge. If a witness has absolute immunity against future prose- 13 194 CONSTITUTIONAL STUDIES. criminal prosecutions shall have a right to a speedy and public trial by an impartial j\iry of the State and district of the crime. ^ He shall be informed of the nature and cause of the accusation, and be confronted with the witnesses against him ; he shall have com- pulsory process for obtaining witnesses in his favor, and shall have the assistance of counsel for his defence. 2 This final clause at least secures valuable rights to the accused which the old common law curiously ignored, and all the foregoing safeguards were well worth expression. No person shall be deprived of life, liberty, or property, without due process of law; nor shall pj'ivate property be taken for public use without just compensation. 2 These are broad maxims constantly invoked. Life, liberty, and property comprise those personal rights which are universally dearest to the individual, and deserve most the law's equal protec- tion. " Due process of law " guards those individual rights from all sovereign interference apart from such correct and orderly proceedings, considerate of private right, as are imposed by what has long been called "the law of the land," — a law sound in policy and operating upon all alike. ^ Constitutional or cution, he may be compelled to testifv, as the latest cases rule. 161 U. S. G91. Cf. 142 U. S. 547. 1 Various State statutes are constitutional which allow one charged with crime to waive voluntarily a trial by jury and elect to be tried by the court. 14G U. S. 314. Territorial tri.ils do not require any ascer- tained "district," as district relates to States. 138 U.S. 157-. And see supra, pages 32, 34. 2 Amendment VI. See IGl U. S. 29. Amendment VII. as to jury trials in civil suits at common law has been noticed, supra, page 175. In equity and admiralty suits jury trials are in the main discretionary with a court for special issues of fact only. Nor in the analogous Court of Claims procedure is a jury trial es-sential. 102 U. S. 420. ^ Amendment V. at close. « 153 U. S. 710. FIRST TEN AMENDMENTS. 195 " bill of rights " provisions admirably define those rights in America; and both statute and case law must respect such fundamental guaranties in order to apply "due process of law."^ The identity in mean- ing of this familiar expression with "law of the land " — both Anglo-Saxon phrases time-honored — is now conceded. 2 " Taking property for public use without just com- pensation " was already forbidden in State constitu- tional law,'" and States to tliis day preserve the organic prohibition under some variations of expres- sion. The right of eminent domain in a government to appropriate and control individual property for the public use and welfare, as in laying out highways or erecting public buildings, is admitted, and that right is often imparted to municipal and other corporations ; but the exercise of such a right in its many manifes- tations must respect individual ownership by award- ing not an arbitrary but a just recompense, which, if not otherwise agreed upon, must be awarded by some fair and impartial tribunal.* There may be fran- chises or other incorporeal property as well as property corporeal subjected to this taking.^ Excessive bail shall not be required, nor cruel and unusual punishments inflicted.*^ Here we find old 1 See Cooley, 229-235. Hence do we find statutes practically tested by these more fundamental and enduring precepts, wliose early inspi- ration was drawn from sucli solemn documents as Magna Charta. Our Federal constitution well distinguishes in this respect by ordaining that instrument witli statutes "made in pursuance thereof," etc., "the supreme law of tlie land." Supra, page 188. 2 18 How. 272. And see Amendment XIV. 2 Supi-a, page 41. * Cooley, 344-357 ; 152 U. S. 132 ; 160 U. S. 499 ; 142 U. S. 79. 5 148 U. S. 312. ^ Amendment VIII. Electrocution is not a " cruel and unusual punishment" within the constitution, but rather in sense a humane one. Nor can the solitary confinement of a condemned criminal be deemed unconstitutional. 142 U. S. 155. 196 CONSTITUTIONAL STUDIES. barriers renewed against tyranny; for constitutions do not so much create new rights in the people as prevent abuse under the forms of justice. A prisoner once convicted by a jury may be rightfully committed without bail pending an appeal. IX., X. The last two amendments of the original compromise concern reserved sovereign and public rights not imparted to this new Federal or Federo- national government. Here it is seen that the reser- vation made is not so much of State sovereign powers as of that general sovereignty of the whole people in whose name the instrument of 1787 had ordained a new and more perfect Union. i Under Articles of Confederation, it was the States that prepared and entered into the league of Union; and those articles distinctly asserted that the powers not expressly delegated to the United States in Congress assembled were retained by the respective States. ^ But in adapting that assertion to the new constitution by way of amendment, Congress purposely put forth a phrase less favorable to State sovereignty, by omitting the former word "expressly," as though some of the newly delegated authority might fairly be implied, and by reciting that the powers not delegated to the United States by the constitution, nor prohibited by it to the States, were reserved to the States respec- tively, "or to the people," a pregnant alternative.^ So, too, in the preceding article it was declared that the enumeration in this constitution of certain rights should not be constrained to deny or disparage others "retained by the people."* In all strict Confederacies, as history teaches, either the strongest States rule or anarchy prevails. 1 Const., Preamble. ^ Amendment X. 2 Articles, II. * Amendment IX. LATER AMENDMENTS. 197 But in America, under the constitution, the subjects of the present Union are not States, but private citi- zens, and a peculiar representation tends to equalize State influence. To quote from De Tocqueville, the United States constitute no longer a Federal govern- ment, but an incomplete national government, which is neither exactly national nor exactly federal, and two sovereignties exist in each other's presence.^ XL, XII. The eleventh amendment, which re- strains the judicial power of the Union in suits by non-resident individuals against a State, has already been considered. ^ So also has the twelfth amend- ment, which cured some defects in the primitive machinery of Presidential elections, without essen- tially changing its operation.^ XIII.-XV. Of the three final amendments, the effect is cumulative towards one general end ; namely, to establish in essential citizenship a race once held in bondage. The thirteenth amendment, the direct logical outcome of our Civil War and of President Lincoln's militar}^ emancipation, abolished forever, in clear and simple phrase borrowed from the old ordi- nance of 1787, not negro slavery alone, but all slavery and involuntary servitude, within the United States or any place sul)ject to their jurisdiction, except for crime upon due conviction.^ The fourteenth amendment, further extending the scope of social reconstruction which followed this first grand achievement and the close of armed con- 1 De Tocqueville's America, 199. 2 Supra, page 173. See 140 U. S. 1. ^ Supra, page 161. * Amendment XIII. Asiatic slavery cannot lawfully exist in America, more than African, nor can a system of peonage or of compulsory adult apprenticeship. 198 CONSTITUTIONAL STUDIES. flict, is partly vindictive or retributive, and yet not harshly so either in expression or enforcement, con- sidering the provocation. President Lincoln was now dead. The pursuance of a policy towards van- quished fellow-citizens passed into other control ; and the States lately resisting were compelled to pass under the yoke, and sanction new terms of pacifica- tion, before normal relations with the Union were fully restored. Hence the adoption in turn of the fourteenth and fifteenth amendments, by States Southern as well as Northern, in a co-operative assent under the forms of the constitution. ^ Three prime objects are presented by the four- teenth amendment: (1) the better protection of the emancipated negro as a citizen of the United States, under tlie broadening of former definitions ; ^ (2) the 1 Article XIII. had been unconditioually ratified by thirty-two States out of thirty-six. Article XIV. was ratified by thirty-three States out of thirty-seveii, aud Article XV. by thirty States out of thirty-seven. All this was far in excess of the requisite three-fourths. The States rejectiug ameudmeuts, in every such instance, were either border slave States, not under military control, or those of the free North, where public sentiment opposed the reconstruction policy of Congress. The constitutional effect of State rejection followed by acceptance, and of State acceptance followed by rejection, might have come up for discussion liad tlie vote been closer in adopting these three amend- ments, for liistorical precedents were here furuislied. (I ) Conditional ratification is usually to be considered no ratification in a constitutional .sense ; and such Vjeiug the prevalent belief wlieu the constitution of 1787 came before the conventions of the original States, reluctant State conventions abstained from such action. (2) State acceptance is probably constitutional, even though a previous legislature or con- vention has rejected, provided such ratification follows within a reason- able time. (3) But after a full acceptance, it seems tliat a State cannot riglitfully rescind ratification and then reject ; if, at all events, some other State has meanwhile ratified upon the faith of that previous acceptance. These three statements of doctrine find analogies in the conmion law of private transactions. 2 Under tlie well-known " Dred Scott" decision of 1857 (19 How. 393), tlie rights of American citizenship were denied by the Su])reme Court to the negro, whether as a slave or a freeman. CIVIL WAR AMENDMENTS. 199 punishment of citizens lately rebellious; (3) the integrity of public credit and the public debt of the United States, by upholding the claims of loyalty and repudiating those of disloyalty under the late conflict.^ A broad and enlightened status of citizen- ship for the future, based alone upon birth or natural- ization in the United States subject to its jurisdiction, without other adventitious distractions, is here set forth for application, both to the United States and to the State wherein the person resides. States are forbidden to abridge the privileges or immunities of citizens of the United States; to deprive any person of life, liberty, or property without " due process of law; " or to deny to any person within local jurisdic- tion "the equal protection of the laws."'-^ This amendment, as since construed in the courts, does not change radically the former relation of State and Federal governments ; but leaves still to the several States exclusively the protection of all civil rights and privileges which are not expressly or by clear intendment vested in the Federal government con- formably to its nature and attributes.^ Next a new apportionment basis for representatives in Congress, based upon numbers, fitly supersedes that which in 1787 compromised as between the free and slave ^ Ameudment XIV. 2 Ib.%\. States suLject to the above-expressed constraints still retain the police power as before; and a "civil rights " bill of Congress to compel an equal and indiscriminate intercourse of races at hotels, on railway cars, or in the schools, exceeds its prescribed autliority. 109 U. S. 3. Separate race accommodations and facilities may be tluis provided. 163 U. S. 537. 3 92 U. S. 214 ; 116 U. S. 2.')2; Cooley, 258. This amendment can- not override public rights of a State in the nature of an easement. 160 II. S. 452. Nor State process wliich affords to all parties alike a fair liearing. 150 U. S. 380; ICO U. S. 389. But all citizens are now equal before the law ; and no racial distinctions, so far as certain political rights are concerned, can be permitted. 162 U. S. 565 (as to drawing jurors). 200 CONSTITUTIONAL STUDIES. population.^ Negro representation is to be by num- bers henceforth where before it was merely fractional. States are not thereby compelled in consequence to allow all negroes to vote; but wherever a State abridges male suffrage "except for participation in rebellion, or other crime," its basis of representation in the House shall be reduced proportionally. ^ Be- sides this granted disfranchisement of " rebel partici- pants " (which the resisting States were never inclined to put in force), all former members of Congress and State or Federal officers who had engaged in rebellion in violation of a previous oath to support the constitution of the United States were temporarily banished from the public service under this four- teenth amendment; but Congress long ago by a vote of two-thirds of each house removed this disability, as permitted.^ Finally the validit}' of the authorized public debt of tlie United States, including pensions and bounties for services in suppressing rebellion, shall not be questioned; while, on the other hand, neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of the rebellion, nor any claim for the loss or emancipation of any slave, but all such debts, obligations, and claims shall be held illegal and void.* The fifteenth amendment, though framed and pro- posed by Congress in turbulent times, rises once more to unimpassioned dignity of statement. By 1 Supra, page 105, "three fifths of all other persons" (/. c, of slaves). 2 Amendment XIV., § 2. This reduction has never been really enforced liy Congress, and tliere are practicnl difficulties to determin- ing tlie constitutional proportion in figures. There are Northern as well as Soutliern States which a])i)]y an educational test in restraint of general suffrage, and thus come equally witliin scope of the constitu- tional threat. 8 Amendment XIV., § 3. * Jb. § 4. CIVIL WAR AMENDMENTS. 201 this constitutional change the elective franchise is broadened for the late slave's benefit, and a rule is made mandatory upon States which Congress had previously attempted to establish by policy. ^ All abridgment of the right to vote is forbidden as to citizens of the United States in the present ample sense on any account of race, color, or previous con- dition of servitude; but otherwise local suffrage is still left to each State's regulation as before, with only a new Federal right to interfere against racial distinctions at the polls. ^ For suffrage here means civic participation in government; it is not a natural but a political right; and all such participation is usually limited by the local government policy.^ Such was to be the increased responsibility of the Union under these last three amendments that in each instance Congress was expressly empowered to enforce the article by appropriate legislation,* — a provision not to be found in any earlier amendments of this constitution. That power is limited, however, in meaning to the just scope of each separate amend- 1 Cf. Amendment XIV., § 2 ; page 200. " Amendment XV. Such a prohibition would apply to State ballot laws which exclude a Chinese citizen of the United States, though negroes are more immediately concerned, whose citizenship is so largely their birthright. A State may still impose property or educa- tional tests for the ballot, or disfranchise for crime, but all such tests must apply equally to whites and blacks, without racial distinction. 92 U. S. 214, 542. 8 See Part III., post, showing State restrictions upon suffrage at the present day. Various political reasons induced the passage of this fifteenth amendment, and among them that the ballot would prove to be educational and a means of enlightened self-protection to the freed- men still dwelling among their late masters. But the apprenticeship of liberty proves always slow and arduous ; and the first real results of this experiment were certainly disappointing. The full constitu- tional purpose of this amendment, however, for permanent effect is just and noble, and in aid of a humanity more generous than nations and kingdoms ever compassed before. * Final section in each amendment. 202 CONSTITUTIONAL STUDIES. ment; "which, as we have seen, to the disappoint- ment, doubtless, of many who aided these constitu- tional changes, leaves still, as in 1787, a wide range of State discretionary action. The Federal constitu- tion, here as elsewhere, is self-executing in most of its prohibitions, and requires no legislation from Congress to make them binding.^ This self-execut- ing jDower may be inferred in various other instances where the public interest requires it; as in enabling the Executive or Supreme Court to maintain due independence of Congress, or so that the citizen shall stand secure in his sacred individual rights against the government. 1 E. g., in the thirteenth and fifteenth amendments, and in most portions of the fourteenth. PART III. STATE CONSTITUTIONS SINCE 1789. I. HISTORICAL SEQUENCE. From the day that the new Federal constitution of 1787 went into full effect, that admirable scheme of union gained a conspicuousness in the eyes of man- kind, and a paramount influence over the destinies of the American people that no single State instrument could possibly have rivalled. This constitution, as perfected by the " bill of rights " amendments which Congress promptly proposed and the States as promptly adopted, became at once a model for the new State constitutions of Pennsylvania and Georgia already in preparation; and scarcely a State in the whole enlarged Union can be named at the present day whose fundamental law does not pattern after that immortal instrument in one detail or another. But we should bear in mind, notwithstanding, that much of that Federal framework is inapplicable to American statehood; and further that some of the best basic ideas of its architecture were derived from thirteen pre-existing State charters in successful operation. Free government in America received by 1789 a redoubled rather than an original impulse. Later States have imbibed in their fundamental written law much of the spirit and formal expression 204 CONSTITUTIONAL STUDIES. of those leading commonwealths whose glory forever gilds our earliest annals. Thus Kentucky, Virginia's own offspring, took her institutions from the parent State. Much of the substance of the healthy Massa- chusetts constitution became the flesh and blood of those tliriving new States which New Englanders reared in the free territory northwest of the Ohio River; while Vermont, admitted into the Union in 1791, the first of new-born States with Kentucky, chose to pattern her instrument of government very closely after that of Benjamin Franklin's Pennsyl- vania, which the latter State in 1790 supplanted. ^ There are at the present day forty-five full-fledged States in the American Union, as against the thirteen that originally composed it; and of that number very few can be named more than fifty years old, whose constitution has not been~ repeatedly recast in conven- tion and rewritten. Old Massachusetts is the only State of them all which can show, like the present Federal Union, a primitive constitution still vigor- ously operating, which, once adopted in the eigh- teenth century, has never been superseded; and in both instances amendments since added have wrought much practical change.'^ New Hampshire and Ver- mont furnish the only other examples of an eighteenth- century constitution still in force at all. As time goes on, the national flag of this Union seems beau- tifully to symbolize the true historical relation of the several States to national development. Those thir- 1 Vermont's constitution of 1786 first made this copy; and her con- stitution of 1793 after admission retained the image. 2 A computation made in 1885 by a careful historical scholar shoM^ed among other statistics that four States — Georgia, Soutli Carolina, Texas, and Virginia — had each lived under five successive constitu- tions; while Louisiana adojiled lier sixth coustitution in 1879. These figures did not include changes in those States tliat might liave taken ])lace during the Civil War. Horace Davis's American Constitutions, IG; Johns Hopkins Historical Studies. HISTORICAL SEQUENCE. 205 teen stripes are emblems of thirteen commonwealths, the creative source of the whole American Union; but the more in number the stars that crowd that azure field as time goes on, the less distinctive becomes the individual light that twinkles from them. During the remnant of the eighteenth century which succeeded 1789, and while the Federalists as a party retained control of national affairs, conserva- tism was predominant in the States ; and this indeed was the essential reason why Pennsylvania and Georgia reformed at once their turbulent establish- ments. But the latter State, with a restless popula- tion, after amending within six years its second constitution of 1789, adopted in 1798 a third new draft of government. The great gain of Federal example to national harmony and stability had been in persuading each of these two States to supersede that tumultuous assembly of a single house which had exerted much undefined authority, by a truly Ameri- can legislature of two branches; though Vermont chose to experiment further for herself in that former direction. Pennsylvania, besides, chose henceforth a single executive, after the true American model, in place of a directory, strengthening the independence of that department against the Legislature, as the Federal instrument had done. The Republican era of Jefferson and Madison which merged into the stormy war of 1812 with European embroilment, after a marvellous season of domestic prosperity, and which happily escaped by 1815 with peace and renewed national honor, was not produc- tive of great fundamental change in the existing States. This, however, was the era of new national growth westward and in the valley of the Mississippi, now rapidly reclaimed from Indian occupation and 206 CONSTITUTIONAL STUDIES. extended by purchase to the wilderness of the Rocky Mountains; and west of the AUeghanies, as indeed throughout the Union, the impulse towards republi- can and uniform government was strong and steady. Not one of the eighteenth-century States remodelled its constitution during the first seventeen years of the nineteenth century, though local changes were introduced here and there through the process of amendment. Two new States, however, Ohio and Louisiana, the antipodes of national sisterhood, were admitted to the Union during this era. From 1816 to 1835 ensues a period of perfect peace, recuperation, and internal development, of a growing native confidence in popular institutions, and a boast- ful disposition to make proselytes of the old world. Self-government had vindicated its claims by Ameri- can example, and from European systems America felt detached forever. Six new States, each with its accepted constitution, were admitted into the Union during the earlier portion of this era, at the average rate of one State a year.^ In a majority of the pre- existing States constitutions were largely overhauled, and rewritten or vitally amended; and Connecticut in 1818 threw aside finally the venerable royal charter which had served hitherto for republican govern- ment, and clothed herself with a modern constitution after the prevailing fashion. The tendency of the nineteenth century now became manifest, for one and all of these United States, to abolish all property and religious tests, to enlai-ge the franchise for the white man, to strengthen each State executive against the Legislature, while putting greater curb upon the discretion of that latter body, to use the judiciary as a political check, and generally to give the reins 1 Indiana. Mississippi, Illinois, Alabama, Maine (by separation from Massachusetts), Missouri, 1816-1821. HISTORICAL SEQUENCE. 207 more completely into the hands of the people, so that the governed might become the governing also. By this time the example of American independence, with its written proclamation of human rights, became the solace and inspiration of the feebler Si)anish-American colonies to the south of us. To this era succeeded 1836-1861, — a period when a still more pronounced and combative democracy wrestled with conservatism, and other bitter strifes went on, until the slavery conflict, forcing its own dangerous rivalry to the front, precipitated the whole United States into a civil strife so terrible that it seemed almost as if the sun of the great republic had gone down forever in blood and sectional dissolu- tion. In most States, meanwhile, the old barriers of caste and property were broken down, and through the brief and impatient tenure that ensued, office- holding lost much of its traditional dignity and sta- bility. Not only governors and the high executive officials were now subjected to the will of com- mon voters, as expressed at the polls, but judicial incumbents as well. Party spoils were proclaimed the prize of party victors ; and with wealth increas- ing besides, which sought special favors from public officers and the Legislature, corruption grew, which honest voters strove to repress by straining tighter the cords of fundamental restraint. Splendid abili- ties, devoted love of Union, struggled in the souls of great statesmen with the weakness of compromise and a fatal tendency to palter public interests for temporary advantage, while the arrogance of material strength tempted to trample upon the rights of weaker nations. The star of manifest destiny for a while led on to continental empire ; but though the Union triumphed steadily and enlarged its broad area on the Pacific, territorial aggrandizement was not 208 CONSTITUTIONAL STUDIES. honorable, as it had been in the earlier and simpler years of the century. A swarm of new States swelled the catalogue of written constitutions for this portentous era; California, the seventh among them, disturbing in 1849 the former equipoise of free and slave States for admission; and the pro- tracted struggle over Kansas, after the rej^eal of the Missouri compromise, arousing the most vehe- ment sectional passion. The aggregate number of newly admitted States for this period was ten, two of them furnishing the first fruits of Mexican dismemberment. ^ By 1861 democratizing influences had nerved our whole people, and taught them a self-reliance which was to become yet stronger. Had it been otherwise, a civil war, which drained the resources of States arrayed in deadly strife, would have ruined this Union. Each adversary fought with courage and determination, but victory crowned the stronger and in sight of Heaven the worthier cause. During those four years of fight little heed was given by the Federal government to State extension ; but Virginia being torn asunder in the struggle, a loyal and sepa- rate State, known as West Virginia, was organized in 1862, and Congress admitted in 1864 from the Rocky Mountain region the sparse mining State of Nevada. The period of southern State reconstruc- tion lasted for about twelve years from the submis- sion and disarmament of that section in April, 1865. New State constitutions now forced southern inhabit- ants not only to acquiesce in the legal extinction of slavery throughout the Union, but to repudiate, with 1 Arkansas, Michigan, Florida, Iowa, Texas, Wisconsin, California, Minnesota, Oregon, and Kansas. The numerous proposed constitutions of this last-named State ])rior to its admission, record the desperate struggle of free and proslavery settlers for the mastery. HISTORICAL SEQUENCE. 209 tlie repeal of their several ordinances of secession, tlie whole doctrine of State sovereignty upon which the theoretical right to secede had been based. Other conditions yet more galling were imposed by amendments of the Federal constitution, whose supremacy was henceforth unquestioned.^ From the accession of President Hayes in March, 1877, the rehabilitation of the once insurgent States became complete. Military interference in the south- ern section now ceased, and the Union rapidly regained its normal condition with a former obstacle to national harmony now fairly removed. A new era of fraternal reconciliation now commenced such as the world has seldom witnessed. Federal amnesty was freely accorded by Congress and the President, while Southern States hastened to blot out as they might the disabilities of their military champions under their own organic law. Meanwhile at the North and in the growing West States always loyal have renovated their local institutions with a stronger confidence than ever in the permanence of the American Union, and with a fuller determination to hold government. State or Federal, as closely amen- able as possible to public opinion. The appointing of all high officers of the State has been largely taken from chief magistrates and the Legislature. The Chief Executive, now the sole choice of the voters, is viewed more than ever as the vicegerent of popular authority. Fundamental limitations accu- mulate upon legislation and the incurring of public debt. Even the State judiciary, though strengthened against rash and tumultuous assault, is made to feel its final dependence upon the voters; and the pas- sionate desire of an American democracy to control and limit public government, at the present day, is ^ Supra, page 198. 14 210 CONSTITUTIONAL STUDIES. in strong contrast with the deferential and implicit confidence which the common people reposed in their representatives, those especially of their legislatures, a century ago.^ Those brief instruments of State government, in the earlier era, which left a skeleton outline for legislatures to fill up at will, have given place long since to lengthy constitutions, full of local specifications and of details jealously worked out by description, like a huge act of legislation. ^ 1 The new States admitted into the Union from 1865 to 1897 are as follows : Nebraska (1867), Montana (1889), North Dakota (1889), South Dakota (1889), Washington (1889), Idaho (1890), Wyomiug (1890), Utah (1894). Total present number of States in the Union, forty-five. 2 Some have severely criticised the present distrustful aud prolix tendency of expression in our latest State constitutions. One of the ablest of such critics, tlie late Governor William E. Russell, of Massa- chusetts, in an address at Yale University (1894), sets forth earnestly some of the most forcible objections to such full aud uuphilosophical detail in an organic instrument. But somethiug may be said on tlie other side. The notable simplicity of our Federal con.-;titution, on which such critics dwell, is hardly in contrast ; for its framers, after much discussion and practical experience of the particular problem, under- took merely to draw out better and define the organic powers adequate for maintaining an efficient Union with a few supreme concerns com- mitted to it ; while in the several State governments remains that great residuary mass of functions aud authority, such as changes and develops of necessity with tiie evolution of society. State legislation for such vast and diversified concerns must necessarily grow aud in- crease in complexit}' as .society multiplies and concentrates its popula- tion ; and so, too, must the Slate fundamental law, wliich controls that legislation, take on a like incongruous growth of provision. Massa- chusetts is praised for keeping to the old and simple landmarks of con- stitutional government ; and yet in that roving discretion still left to tlie Massachusetts Legislature under an ancient constitution, we see the cause and occasion of tiiose constant and prolonged annual sessions from wliicli most other States are now hap])ily exempt; and tlie fact, for instance, that mere statute enactment in tliat State promotes private iuc()r))oration under general laws, while State constitutions elsewhere comjiel it, does not deter tlie scliemcrs from constantly seeking special privileges and modifications for tlicmselvcs, and tluis at least consum- ing the pulilic time, if not inducing worse dangers. Tlie true course for States seems to be to avoid the evils of too close a specification, on the one hand, in a written framework of government, and too lax a discretion to transient representatives of the people on the other. IT. METHODS OF FUNDAMENTAL ADOPTION AND CHANGE. How little stress, in framing and putting into public force a State constitution, was laid upon the direct approval of the voters prior to the Federal example of 1787, or indeed, in that Federal instru- ment itself, we have already remarked. ^ American statesmen in those days thought it a sufficient resort to first principles for the people to choose special representatives to a convention — since a convention derived a deeper sanction than a legislature — and then leave that convention to its own unfettered and final discretion. To that earlier practice of the States Massachusetts and New Hampshire are seen to have constituted the only clear exception ; but the more fundamental sanction which those States chose so early to rest upon has gradually become the com- mon condition. In one or two very recent instances, to be sure, where a prime and perplexing object of constitutional reform has been to reduce a voting element,''^ a State convention has assumed to establish as well as shape out the new organic law. But for real homogeneous communities of these United States, where the majority rules, the true sanction of a con- stitutional convention must consist, henceforth and 1 Supra, pages 47, 185. 2 As recently (1896) in South Carolina, where there is a large negro element of population, and (1897) in Delav/are. 212 CONSTITUTIONAL STUDIES. forever, while self-government sustains itself, not in the choice of constituent representatives alone to that convention, but in the ultimate approval at the polls of that convention's work as formally submitted. The change in this popular direction came slowly in America, and long after the nineteenth century had begun. ^ New Hampshire's new constitution of 1792 went to the voters, and was ratified by them, like her earlier one. But this was an exceptional instance. On the other hand, the amendments of a New York convention in 1801, artfully procured, were promulgated as final without any such submis- sion ; and so was it with new constitutions somewhat earlier, of South Carolina in 1790, Delaware in 1792, and Georgia in 1798.'-^ Pennsylvania's convention of 1789 had framed a radically new instrument of government; and after adjourning in 1790, that the people might examine but not pass upon the work, it reassembled a few months later and formally pro- claimed this new constitution in force. With States newly admitted to the Union at the close of the last century, the course pursued was the same. Conven- tions framed and put in force the Kentucky constitu- tions of 1792 and 1799; those of Vermont in 1793 and of Tennessee in 1796 were ordained in like manner. Ohio's first constitution (1802), followed by that of Louisiana (1812), each framed by a territorial con- vention under an enabling act of Congress, but not submitted to the people, recognized among other provisions the riglit of a legislature ^ to submit to the people on future occasion whether there should * See notes to Poore's Constitutions, wliich the ofBcial text of these early instruments serves to confirm. 2 As also the Georgia amendments of 1795. 2 In Ohio by a two-thirds vote ; in Louisiana by a majority. FUNDAMENTAL ADOPTION. 213 be a constitutional convention ; but as to the popular referendum of such a convention's work the instru- ment vv^as silent.^ It was the era next succeeding the peace of 1814 that saw the first decided advance since 1787 of the popular submission doctrine in the United States. Connecticut, in 1818, when setting aside the old colonial charter, submitted, after the Massachusetts and New Hampshire fashion, her new constitution to the people, and that instrument was ratified at the polls. Next, New York in 1821 invoked the same popular test to tlie adoption of a new framework of government. Massachusetts, in 1820, held a convention and proposed important changes in the organic law, some of which carried at the polls while others miscarried. Great Southern States, from 1830 to 1835, such as Virginia, North Carolina, and Tennessee,^ held conventions, each of which framed fresh constitutions, and submitted them to the people of the State, by whose majority vote each and all became ratified and effectual. Pennsylvania's convention of 1790 had been called at discretion on the seventh year by the "Censors," a popular council revived in Vermont's new constitu- tion, just after Pennsylvania had dispensed w^ith it. Other old States, whose Revolutionary constitutions had made no express provision for change or super- sedure, felt an inherent competence to summon a new convention at any time for either purpose. But, following the example set by the Federal constitution and some still earlier State instruments, we see special provisions made at once for the process of simple constitutional amendment without calling a convention at all. Thus Delaware (1792) adopted 1 Tennessee's first constitution of 1796 was in this respect similar, and so were tliose of Kentucky and Dehiware ia 1792. 2 Also, apparently, Mississippi in 1832. 214 CONSTITUTIONAL STUDIES. the Maryland rule of 177G, long favored in the Union, that one legislature shall propose an amend- ment by a specified vote exceeding a bare majority, and the next after an intervening general election shall pass that amendment similarly, and thereby give it full force. ^ Such a mode of amendment, by which Maryland herself made four organic changes in the eighteenth century, without calling a convention at all, is seen to eliminate the direct sanction of the voter. But when Connecticut, New York, and Massachusetts made united demonstration about 1820 in favor of submitting directly to the people all constitutions framed in convention, those States ini- tiated likewise by co-operation the popular reference of specific amendments. ^ Each of these three States at that time improved upon the old Maryland plan of 1776 (which, like our Federal plan, dispensed with conventions for mere amendment) by requiring: (1) proposal of the change by one legislature; (2) re- newed proposal by a succeeding legislature ; and (3) final approval of the change by a majority vote of the l^eople. And this, with occasional slight variations, may be considered the modern American mode still in vogue for changing a State constitution in si^ecific particulars where no convention, no rewritten docu- ment of government, is thought desirable. Thus, then, after the United States had fulfilled a third of their nineteenth-century orbit, and emerged into the full splendor of confident democracy, new constitutions and even amendments to existing instru- ments, whether initiated by convention or legisla- ture, drew their vital breath, not from representatives of the people, but from the final sanction of a popular 1 Supra, page 49. ^ Cf. Alabama's constitution of 1819 on this point, similar but less explicit. FUNDAMENTAL ADOPTION 215 majority at the polls. All State constitutions, in fact, since 1835, have been thus established as matter of course, with the rarest of exceptions. ^ A New York convention in 1846 invoked such political approval of its work, though the previous constitu- tion had not literally required any test of the kind. Even in Florida (1838-39) the constitution under which that territory, once Spanish, became by 1815 a State, was submitted by schedule to its voting inhab- itants. The people of Wisconsin territory rejected summarily the organic instrument prepared for State admission by a convention in 1846, and accepted a later one in 1848. Rhode Island's constitution of 1842, the date when the last of our primitive United States cast off its colonial charter, was a peculiar one in many respects, having an English flavor of local customs ; and a majority vote at the polls gave this new instriiment validity, though no amendment was to take effect in the future without a three-fifths popular assent. During the busy decade of constitu- tional change which preceded Civil War, this funda- mental submission, whether in State or territorj^ in old or new jurisdictions, had become so sacred that while the Free-Soil controversy raged hottest on the territorial soil of Kansas, a fair-minded majority in Congress, sustained by the public opinion of both sections, united in refusing recognition to a constitu- tion which in 1858 a territorial convention had sought arbitrarily to ordain as the price of statehood; and submission to a territorial vote being thus compelled, the instrument was buried in ignominy. So, too, has it been with State constitutional 1 It appears that Arkansas was admitted as a State in 1830 with a constitution promulgated simply by the convention which framed it, harmonizing in that respect with Missouri's neighboring action in 1820 under a constitution quite similar. Kecent exceptions in States where unpopular change is contemplated are noted siqira, page 211, 216 CONSTITUTIONAL STUDIES. amendments wherever this later period has given opportunity for regulating anew the amendment methods. The Arkansas constitution of 1836, Ly way of solitary exception, embodied the old-fashioned scheme of leaving all changes to be wrought out completely in successive legislatures. ^ Elsewhere each new or remodelled State constitution required all new amendments to be submitted to a popular vote. "Each amendment," says in effect the New Jersey instrument of 1844, " shall be distinctly pre- sented for vote, and no amendment oftener than once in five years." American State practice to tliis day prefers that amendments shall originate in the Legis- lature, and pass both houses by some fractional vote greater than a quorum majority. Usually, perhaps, a second legislature must after a similar vote con- firm the proposition ; but in either case, a referendum at the polls settles finally the fate of the proposed organic alteration. Once more, as a sign of increased deference to the people, we find our modern State constitutions ex- pressly providing that the people shall not only vote upon the organic product of any future convention, but upon the preliminary question wliether any con- vention shall be held in the State at all. New York in 1846, liberally favoring the inherent control of republican government l)y tlie people for the people, declares that every twentieth year, as well as at intervening times wlien tlie Legislature may provide, the people shall vote whether to hold a convention or not, and the decision of the majority shall prevail on that point. That policy has l)een followed else- where with excellent effect.^ Other States, however, * Here, again, Arkansas stood by tlie example suiiplied in 1820 hy its neighbor, Missouri. 2 See, e.g., Ohio's constitution of 1851, tliat of Kansas, 1859, and FUNDAMENTAL ADOPTION. 217 more conservative on that point, still prefer specific amendraenty, by initiation in the Legislature, to any such radical disturbing influence as a remodelling convention. But conventions themselves choose often to propose amendments rather than draft the whole fundamental law anew. The Illinois conven- tion of 1848 broke up its work into parts for separate submission, as New York and other States have since done, with good effect, in order that the rejection at the polls of some doubtful propositions might not prevent a legal acceptance of the worthy residue. ^ It would be interesting to consider how far funda- mental conditions expressed in any sovereign consti- tution as irrepealable can have binding force upon posterity. Such conditions as recognize the Union paramount may be thought obligatory enough with- out any State expression, and all such conditions in a government are understood to be subject to the right of revolution. But other provisions expressly declared unamendable or irrepealable may be found, not in the original Federal instrument alone and those of original States, ^ but regularly upon the admission of new States to the Union formed out of the national territory by way of a compact with Congress.^ A compact to be legally repealed requires the assent of both parties ; but no such compact exists Maryland's in 18G7. To snch jjrovision wc owe some excellent changes iu New York's fundamental law. ^ Durini^ the ten years which j)reccdod our Civil War tlie politicnl convenience of taking the sense of tlie people separately upon doulttfiil propositions became obvious when new States, such as Kansas, Oregon, and Minnesota, were to be admitted. '^ Sec supra, pages 49, 187. 2 Such, for example, by way of compact with the Union, as these : never to tax the lands of non-residents higher than those of State resi- dents ; and that local and adjacent waters shall be a common highway for the whole Union, etc. 218 CONSTITUTIONAL STUDIES. between the present people of a State or nation and their own posterity, and mutual repeal in such a sense is as impossible as mutual establishment. No human ordinance can rightfully claim perpetual fulfilment. To take American institutions in their latter-day sense ai")d throughout this renovated Union, now happily in normal working order, the State constitu- tion is become practically a law which the people make directly by voting at the polls upon a draft submitted to them;^ meaning by this, however, an enactment fundamental and obligatory upon all State departments, legislature, executive, and judiciary, save as to possibly transcending the supreme Federal constitution. Hence it becomes to this extent a direct exercise of popular sovereignty, a government by plebiscitum. While our Federal constitution still can only be amended by three-fourths of the States ratifying after the old method of separate convention or legislature (in practice the latter, as Congress has hitherto exercised its option), ^ and there is no plebiscitum, no polling of the wdiole United States at all, a State constitution may usually be changed by a- bare majority vote at the polls, however small, after the two legislatures in succession, or (as in some instruments), a single legislature has put the proposed amendment before the people.^ The last "Council of Censors," with authority to call conven- tions or amend, has vanished from the States.* And in the lengthy constitutions with inflcxiljlc regulation on matters liable to fluctuating opinion, which now so often confront us,^ conventions show some of the ^ See Bryce's Commonwealth. 2 Supra, ])age 186. 8 The requirement of a miuimnm number of votes cast seems a fair one for fiuulamental changes. And sec Delaware (18.31). * See Vermont's amendment (1870) to constitution of 1793. ^ Among examjdes of growing verbosity taken at random from FUNDAMENTAL ADOPTION. 219 temporizing, lobbying, and log-rolling propensities which they criticise as follies in a legislature. The people of a State choose the convention, but members of that body are tlie architects and joiners of the new organic framework. All this points in favor of mak- ing concrete submission of a new scheme by separate propositions where there is uncertain sentiment ; and in favor of proposing an occasional amendment, as far as possible, in preference to holding conventions at all. For all this makes the people more nearly the originators of their own system. The public mind does not readily grasp the full purport of a complete instrument de novo, nor balance the prob- able evils against the probable advantages; but it seizes readily upon specific corrections of specific evils, illustrated by some actual state of facts which has just aroused the common interest. Instead of being eager to summon conventions and re-enact the whole body of fundamental law, our people have generally proved conservative and slow to act, except in plain emergencies. _ State constitutions by no means the latest, we find Pennsylvania's in- strument of 1873 occupying twenty-three pages of print against ten in that of 1838; Maryland's, of 1867, with thirty-two against twenty-one in that of 1851 ; and Missouri's, of 1875, with thirty -three against fifteen in that of 1820. The magnitude of new su])jects for public attention, such as railways, manufactures, and municipal government, largely accounts for such a growth. See supra, page 210. III. STATE FUNDAMENTAL MAXIMS. Of State fundamental maxims in the nature of a declaration of rights, those first familiar through the Revolutionary instruments of Virginia, Pennsylvania, Maryland, and other members of the original Confed- eration have left their lasting impression in Amer- ica. The sacred formulas in the preamble of our Declaration of Independence find like recognition, besides those with dispersed lustre in the original text of the Federal constitution, or blazoned together as its first ten amendments. Political truths, like those in the Revolutionary declarations of rights, gained double circulation and credit in the land when stamped as the new coinage of the Union. These bosom truths need here no repetition. ^ In one form of statement or another, and with variations of expres- sion suggested by time and circumstances, they are to be found in all succeeding constitutions, whether of old or new States; most American commonwealths still choosing to devote in their organic code a special chapter to such recital. But of basic State maxims originating since 1789 it is hard to draw out any catalogue ; and the more so because States in recent years have taken so greatly to limiting specifically the range of legislative or judicial authority in pro- hibitions wliich themselves might often be thought tantamount to formulas of good government. For 1 See supra, page 30. STATE FUNDAMENTAL MAXIMS. 221 whenever a people safeguard their individual rights against public action in one department of sovereignty or anotlicr, then in a sense one may say that the " bill of rights " maxim finds expression. With this caveat^ let us enter upon the task of a brief enumeration, favoring most as fundamental maxims those which constitution builders have set apart in that category. The Montesquieu separation of threefold powers is still inculcated constantly in American State consti- tutions ; nor has modern civil experience devised any radical departure from that method for carrying on popular government. Among the few formulas first derived from Federal example and the constitution of 1787, we may note with satisfaction the spread among States of that which forbade laws impairing the obligation of contracts. The right of petition, on the other hand, embodied by amendment only in this Federal instrument, spread into continental acceptance through State example.^ Everything ranged under the head of " great and essential prin- ciples of liberty," says the Pennsylvania instrument of 1790 for better assurance, " is excepted out of the general powers of government, and shall remain for- ever inviolate." Perhaps the earliest grand idea to propagate vigorously in this new eia of complete Union was that (already advanced by Pennsylvania 2) which abolished all imprisonment for debt where the debtor in good faith gave up whatever property he had, — a doctrine which Vermont, Kentucky, and Georgia all announced by constitution in the eigh- teenth century, and which under statute or funda- mental law is since the doctrine of the whole United States. 1 Pennsylvania and Massachusetts, supra, page 35. PennKjlvauia's instrument of 1790 once more included Penn's colonial clause as to deodands and suicides. See page 3.5. 2 Page 36. 222 CONSTITUTIONAL STUDIES. An accused person acquitted shall pay no costs unless the majority of judges certify that there was probable cause for prosecution.^ Banishment as a State punishment is prohibited; and so is corporal chastisement for civilians. ^ Indiana announced by 1816 that a man's "particular services," as well as his property, should not be taken without " just com- pensation," — a maxim, by the way, to which Ohio in 1802 had given a novel turn from the stand-point of public advantage.^ Illinois in 1818 mingled with the familiar recital of other private rights that of reserving commons forever to the people, meaning by commons lands that were once granted in common to any town or community by competent authority.^ Truth as to the facts shall be an admissible defence in all libel suits. ^ While the new national tendency was steadily to dispense with special qualifications for civil office or the Legislature, tenure of office for life or for good behavior, even in the case of judges, became gradu- ally obnoxious to public sentiment, as the newer con- stitutions gave expression ; Virginia herself extending to the judiciary by 1850 the "return into that body from which they were originally taken," and the election test "at fixed periods" to which the legisla- 1 Delaware, 1792. - Oliio, 1802. Delaware (1897) alone retains the antiquated pillory and whipping-post. Flogginj^ in tlic army or navy or tlic merchant ser- vice has been a snbject for later repression l)y Congressional enactment. ■* Private property shall always be subservient to the public welfare, provided just compensation be given. * See constitution of 1848, permitting a legal division of such com- mons by suitable procedure in the courts. 5 Mississippi, 1817 and 18.32. New York and other leading States made such a change in tlie common law of libel by simple legislation early in the century. "Unless ymblished from malicions motives" is the prudent qualification of Rhode Island's constitution (1842) and that of some other States. STATE FUNDAMENTAL MAXIMS. 223 tive and executive departments alone were declared subject in her famous declaration of 1776.^ Missis- sippi had much earlier proclaimed as the universal tenure of State office some limited period of time, provided good behavior shall continue so long. 2 " No oilice shall be created of longer tenure than four years," is the rigorous rule which Indiana proclaimed in 1851 ; and yet while holding to the older American prohibition of more than one lucrative office at a time in the same individual, this Indiana convention made stated exceptions in a few deserving instances. No lieutenant-governor, declares the Michigan con- stitution of 1851,2 shall be eligible to any office or appointment from the Legislature, except he be chosen to the United States Senate. ProjDerty and religious qualifications, whether for office or the right of suffrage, were now disappearing. Extra compen- sation for public officers or contractors was sometimes jealously forbidden, and public salaries were ordered paid, without increase or diminution during the incumbent's term of office.^ As our nineteenth century nears its meridian, we see stronger safeguards than before insisted on for individual security against judicial process. "The writ of habeas co^yus shall in no case be suspended," observes that Vermont constitution of 1836, which establishes tardily a legislature of two houses. Writs of error shall never be prohibited by law.^ Criminal indictments must be framed for prosecution, and no one shall be compelled to criminate himself.^ For the trial of criminals by peers and a jury, the 1 Supra, page 37. 2 Mississippi, 1832. 8 With perhaps the fresh recollection of some specific abuse. * Wisconsin, 1848. See VIII., pos<. 6 Wisconsin, 1848. 6 Cf. U. S. Const., Amendment V. 224 CONSTITUTIONAL STUDIES. common law fairly retained its magtia charta sanctity; but as to civil litigation some of the former reverence faded. " Jury trials may be waived by agreement in civil cases," is the new maxim of various State con- stitutions : ^ " in civil suits not over fifty dollars " is another experimental change, the Legislature may authorize trial by a jury of six men.^ "In all crimi- nal cases," declares Indiana's constitution in 1851 somewhat vaguely, " the jury shall have the right to determine both the law and the facts." Oath or affir- mation shall be such as most consists with binding the individual's conscience.^ No person arrested or confined in jail shall be treated with unnecessary rigor. No court shall be secret. " No person shall be incompetent as a witness by reason of his religious belief " is a maxim of the New York constitution of 1846, soon to be adopted elsewhere, as amplifying religious liberty of conscience, already an accepted rule. Amendments of the Federal constitution for protecting those accused of crime find an increasing State acceptance. "No imprisonment for debt" becomes now an unqualified State assertion;* and more than this, a new privilege develops in the legal exemption from seizure and attachment (since nearly universal) of a certain reasonable amount of property for every debtor, "that he may enjoy the necessary comforts of life."^ California in 1849 specified homestead exemptions for heads of families ; and recognizing the new conflict now waging in the Atlantic State legislatures for married women's rights, though not without a Spanish-American pre- 1 New York, 1846; California, 18t0. Contra, Illinois, 184S. 2 New Jersey, 1844. North Dakota's constitution ( 1889) allows of a verdict by nine jurors. " Indiana, 1851. * Wisconsin, 1848; Texas, 1845. Cf. page 221. 6 "Wisconsin, 1848. STATE FUNDAMENTAL MAXIMS. 225 disposition to the civil law of matriinoiiiul matters, that earliest of Pacific States sanctioned by its primitive constitution the wife's separate property. In the cause of sound morals, duelling had by this time been fundamentally forbidden in many States ; and lotteries, too, once so popular a means of raising- money for civil and religious objects.^ Among State organic provisions of this middle epoch of the century Avere several whose object was to break up finally manor and patroon systems of landholding, such as had lingered in New York, to abolish feudal tenures, and further to discounte- nance all leases longer than a single generation. ^ Methods were \\o\y prescribed for assessing damages wherever property might be taken for public uses, and the tender of compensation was to precede the taking.^ Maryland's early precept enjoining equal and uniform taxation was henceforth seen formulated in one set phrase or another. Existing rights of commons, "fishery and the rights of shore," found also fundamental protection.^ By the middle of this century bills of rights had become largely eclectic, whatever the pride of a con- vention in changing old phraseology; new States copied or selected from other constitutions in force in older States ; and in one or two instances of that epoch maxims had been scattered through an organic instrument without any distinct grouping.'' But now appear new and express proscriptions of race or 1 See various conctitutions, 1836-1850. ^ No lease beyoi,,! twelve years. New York, 1846. No lease longer than fifteen years. Wisconsin, 1848. The law of primogeniture or entailments shall never be in force. Texas, 1845. 3 See Michigan, 1850. Cf. page .36 ; Indiana, 1851. * Rhode Island, 1842. Cf. page 36. * See Michigan, 1850. 15 226 CONSTITUTIONAL STUDIES. nationality, due to the drift of political conflict for the next ten years. Indiana, though always a free commonwealth, declares that no negro or mulatto shall come into the State ; ^ while free Oregon, upon being admitted as a State, pronounced with rude dogmatism that no negro, Chinaman, or mulatto ^ should have the right of suffrage, and invited " white foreigners" only as settlers. ^ To the time-honored right of free people to bear arms ^ was now annexed, in States where deadly brawls were common, the qualification that carrj^ing concealed weapons was not to be included.^ Women's rights have advanced boldly in the organic favor of American States remote from our old Atlantic slope. Many were the States, from 1850 onward, that protected the separate property of married women by constitutional maxims, as Cali- fornia had done,^ while in all the other States legis- lation has come to establish such a policy without constitutional announcement. And since the Civil War woman's emancipation, so styled, from her com- mon-law conditions, has progressed tow^ards active participation in a government controlled originally by man alone, and yet not to positive victory. "In the words of the Fatlier of his Country," quaintly recites the preamble of Ilhode Island's con- stitution in 1842, " we declare that the basis of our political systems is the right of the people to make 1 Indiana, 1851. 2 As to Cliiiiese exclusion, Oregon appears to have gained the start of California in its organic law; and it would appear from this first constitution that mining resources were anticipated in that northerly Pacific State beyond what ever became revealed. ^ Supra, page 192. * Kentucky, 1850. ^ E. (J., Michigan, Indiana, Oregon, Kansas, during 1850-1 8G0. Kansas in 1859 went still fartlier in declaring the rights of husband aud wife equal in the custody of their children. STATE FUNDAMENTAL MAXIMS. 227 and alter their constitutions of government," but that what exists at any time is obligatory on all till changed by an explicit act of the whole people. ^ Indeed, the recognized American doctrine, with racial qualifications, perhaps, in the slaveholding States, appeared more clearly as time went on that all power was inherent in the people with the right fundamentally to make and alter whenever the public good should require it, — this proviso being however understood, that the government should continue republican and popular in form. Soon after the downfall of human slavery in 1865 we find maxims in the State instruments of reorganized and border States, formerly slaveholding, which announce hence- forth the common faith of universal brotherhood ; and with a repudiation of all property in man, repudiat- ing also all political distinctions founded in race or color. Various States in this new era recanted formally the heresy of secession, and declared alle- giance to the Union henceforward as paramount to all claims of State sovereignty.^ If in this new and reunited national era, the latest of all, other maxims of fundamental right are worth recording as State constitutional expressions, they are suggested mostly by the growth of wealthy private corporations or the difficult adjustment of municipal government to the great and growing cities. Civil rights of the negro make an additional element.^ Except for the racial obstructions noted, aliens have been liberally regarded in the United States ^ Tlhode Island had just suppressed the Dorr ■Rebellion. 2 vSee South Carolina, 1868; Virginia, 1870. Nevada, when ad- mitted in 1864 as a new free State, had pronounced fundamentally against the secession theory while civil war was raging. 8 Thus the right of all citizens to travel on the public highways has reference to discriminations of race and color by common carriers. Mississippi and Louisiana, 18C8. 228 CONSTITUTIONAL STUDIES. for the most part. But some reaction has set in against foreign ownership of lands and corporate stock, as one or two of the latest constitutions indicate. 1 The enlightened lead of the old thirteen States, and especially New England, in public schools and a liberal education, was not lost upon the new States of the nineteenth century, whose earliest constitutions, Ohio's, for instance, developed the same policy. Most new States, in fact, formed out of national territory, received in succession from Congress when admitted to the Union generous grants of the public land as an endowment in the cause of learning. Equal participation by the inhabitants in such endowed education, we see expressly enjoined in Ohio's first constitution. ^ These Congressional grants, for common schools and a graded system of education capped by a State university, Avere usually stated to be in consideration of certain fundamental advantages promised to the whole Union under the compact of State admission; and public library funds from the sale of public lots was another stipulation in early instances. 3 Michigan, of the grand tier of new northwestern States, broadly declares in 1835 by fundamental law that the Legislature " shall encour- age, by all suital)le means, the promotion of intel- lectual, scientific, and agricultural imjorovement," California by 1849 employing a similar expression.* While "Native-Americanism " swayed American poli- tics somewhat later, the dread of Roman and foreign influence appeared in State systems of education. 1 Washinp;ton, 1889. 2 Ohio, 1802. ' See Indiana, 181C. * This is after the Massachusetts example, set as early as 1783. Supra, page 42. STATE FUNDAMENTAL MAXIMS. 229 All money raised by taxation for the support of j)ub- lic schools was directed by a Massachusetts amend- ment of 1855 to be applied exclusively to schools under legal and public control, and not to those of any religious sect; ^ and such continues the American rule to this day. Equality of the sexes in public education is enjoined in some late constitutions. But various States, where the white and colored races are largely blended in a population now wholly free, forbid their instruction in the same public schools, and the policy is to educate the races separately.^ "No person," declares Pennsylvania in her consti- tution of 1790, "shall be disqualified from office on account of religious sentiments who acknowledges God and a future state of rewards and punishments;" dispensing for the future with belief in the inspira- tion of the Bible, the former limit of toleration. And with the da^vn of the nineteenth century, the impulse became resistless to adopt Federal example, and get rid of religious tests for voter, office-holder, or legis- lator. Maryland by 1810 abolished all taxation for the support of religion, remitting all Christian sects to the voluntary plan of sustenance.^ Still earlier had Ohio's constitution, which ushered in the present century, proclaimed the right of conscience, the right of free worship to the individual, without religious preference or religious test; yet inculcating further in the same connection that religion and morality were essential to society, and hence that schools and 1 See also Kansas, 1859. ■* 1 Bryce, 423. ^ Much of the American written law by which this voluntary sys- tem became finally established in the different States depended upon simple legislation where the State constitution itself had fixed no defi- nite standard. Virginia's religious freedom act, for instance, antedated our Federal constitution, and was perhaps the earliest legislation of the kind. 230 CONSTITUTIONAL STUDIES. common instruction, not inconsistent with rights of conscience, should forever be encouraged. ^ Such Xjrecedents were not lost upon Congregational New England. Connecticut's bill of rights in 1818 announced freedom henceforward for religious pro- fession and worship, and forbade preference to any Christian sect or mode of worship. And, finally, Massachusetts, by constitutional amendment, abolished in 1833 her time-honored levy of parish taxes, and re- nouncing the former championship of " public Protes- tant teachers of piety," remitted all religious sects in the commonwealth to their own private devices for raising money.^ "Free interchange, of thought" (a right which should not be abused) is commended in some later American instruments.^ It was not, how- ever, until 1877 that New Hampshire, by modernizing amendment, struck out her ancient test of " Protes- tant religion," which discriminated against Roman Catholics for office. And atheists are still, or at least were recently, disqualified from holding office under the fundamental law of a few States.* Ver- mont's old constitution, moreover, still enjoins fun- damentally upon Christians the duty of regular public worship of some sort, and the observance of the Sabbath, or Lord's day.^ 1 Ohio, 1802. 2 See also Alabama's 1819 constitution forbidding religious tests for office. 8 Indiana, 1851. * In four States (Arkansas, Maryland, North Carolina, and Texas) a man is ineligible to office who denies the existence of God ; in l^enn- sylvania he is ineligible if he does not lielieve in God and the existence of future rewards and ])unisliniciits. In Maryland and Arkansas such a person is also incom])Otent as a witness. See 1 Bryce, 424. ^ Vermont, 1793. Of. Delaware, 18.31. Utah's singular experience as a Territory led to constitutional ex- pressions unusually strong upon lier admission as a State (189.5) ; there should 1)0 no utn'on of cliurcli and State, nor domination of any church ; polygamous or ])lural marriages were forbidden, etc. IV. THE ELECTIVE FRANCHISE. That admirable forbearance which the fathers of our Federal instrument displayed in leaving the whole delicate regulation of popular suffrage to the several States deserves repeated mention. The new system of Union could hardly have been adopted otherwise. For the House of Representatives of a Federal Congress it was thought sufficient to require that the choice of a member from any particular State should be by the same suffrage standard which that State applied for election to its own most numerous l)ranch of the Legislature. For membership in a Federal Senate, as well as in the supreme choice of electors of a Federal chief magistrate, deference was paid to the wisdom of each State legislature, — that safe embodiment of representative authority, as the earlier practice of modern republics regarded it, in an aggregation of public men, wiser and more trustworthy, it was thought, than the people whom they represented. All this suited well the temper of confederated States in the eighteenth century, and through the nineteenth results have continued on the wliole satisfactory. All discussion, all experi- ment over the extension of the suffrage, then, has been conducted within separate State confines, except perhaps concerning negro suffrage, which civil war compelled the whole Union to consider as in some sense a national problem. Democracy and manhood 232 CONSTITUTIONAL STUDIES. suffrage have gradually gained Federal ascendency, through ascendency in the several States Avhere regu- lation is easier and more elastic. And in the mean- time the Federal example since 1787 of dispensing with all religious or property tests for participation in civil government stirred quickly the States to emulation. To repeat our former statement, this Union, so far as concerned the Federal form of government, might have developed into an aristocracy; but State direction and State institutions have compelled it to become a democracy. This Federal Union, as we have seen, began its operations in 1789 as a combination of States quite conservative and somewhat aristocratic for the most part, showing the force of Englisli environment in the distrustful qualifications which hedged the indi- vidual right to vote.^ But under the sunbeams of enlightened self-government, those qualifications soon began dispersing like a morning mist. The Federal- ists, as the earliest national party intrenched in power, relied largely upon voters of property, upon the socially influential in established States. There were property tests and religious tests for electors and candidates already ; yet, partly through the efforts of a political opposition, concessions soon appeared in one constitution or another. Pennsylvania, with no religious test for the voter, dispensed in 1790 with her former religious qualification to hold office. South Carolina, the one State where caste and cavalier prepossessions stood tlie strain of democratic innova- tion down to the defiant strife of 1861, abolished religious tests both for voter and office-holder by organic change. ^ Kentucky in 1799 pronounced in her constitution against religious tests, wliether for 1 Supra, page 50. ^ Supra, page 44. THE ELECTIVE FRANCHISE. 233 voters or office-holders, choosing the rule of the Federal Union. Delaware in 1792 enlarged the franchise so as to embrace eveiy "vhite freeman" of full age and two years' residence who paid a State or county tax. Tax-paying was by the close of the eighteenth century the minimum standard which property qualification had reached under the old enlightened State example so far as constitutional expression was concerned ; yet among the earliest of new States, Kentucky dispensed with even this before the century ended, as did also Vermont. Maryland in 1810 abolished all former propertv qualifications, whether for office-holding or voting, even to the pay- ment of taxes. That the voter should be at least a tax-payer was, however, much longer insisted upon by most States. South Carolina's constitution of 1790 adhered to the freehold qualification; "five hundred acres and ten negroes," or a real estate valued at .£150 sterling clear of debt, was the stand- ard set in her organic lav/. Connecticut, in her constitution of 1818, favored qualifications of property, or of militia duty, or of a State-tax payment within a year. Massachusetts, abolishing all freehold or property qualifications for the voters soon after, clung still by the poll tax for a long period. 1 Delaware in 1831 abolished religious and property qualifications, except as to paying taxes. Virginia in 1830 made a technical enumeration for property qualification, having earlier left the Legis- lature largely to itself. The democratic tendency in new States before 1830 was towards dispensing with even the tax-paying qualification, thus giving freely the franchise and popular control of govern- ment to numbers and not property. ^ New York in 1 Abolished finally in 1891. 2 Illinois, 1818; Alabama, 1819; Missouri, 1820. 234 CONSTITUTIONAL STUDIES. 1821 dispensed with its former freehold privileges in voting, at the same time specifying for the franchise various requisites of taxation, or of service in the State militia or among the firemen. During the years 1836-1860 the final abolition of tax-paying as well as of property-holding requirements became very marked in the changed constitutions of our States. Yet there are States which to this day require the payment of a slight tax in order to vote, while Rhode Island still imposes a property qualification. A buoyant and increasing confidence in the unregu- lated popular expression at the polls, for city and country alike, seems to have culminated in America about the middle of this nineteenth century. So far as white male inhabitants were concerned, all con- stitutional change in the States had hitherto tended to so extend the franchise that the poorest local resident not a criminal nor a dependent pauper might readily take part at the polls with those who paid taxes and had a pecuniary stake in the govern- ment; while as for bribery and the criminal disquali- fication not unfrequently denounced in organic law, convictions had been rare and individual disfranchise- ment by the Legislature still rarer. But now the native-born began to feel the evils of an unrestrained and incongruous migration from foreign lands, and of that organized machine in the largest cities which too often tampered with the ballot-box, and induced riot and corruption at the polling-booths. Greater purity of the ballot, the elimination of fraudulent opportunities, became henceforth a standing task for all good citizens. Hitherto no educational test had been applied to the common voter; but midway in this present century Native Americanism asserted itself. "No elector shall be qualified," declared Connecticut's amendment of 1855 in substance, " who THE ELECTIVE FRANCHISE. 235 cannot read the constitution or any statute of the State; " and Massachusetts by 1857 confined the bal- lot to such as could read the constitution in the English language and write their names. To such constraints upon ignorant suffrage those two common- wealths have ever since adhered, claiming that prac- tical experience commends the rule, and a few States for special reasons have lately joined them. This reading and writing test is not the true one for all cases, since sturdy and honest manual labor makes better citizens than a mental training perverted. Foreigners may know their native language, if not ours, nor are the illiterate necessarily ignorant. Nevertheless, moral fitness, though a most desirable exaction, can only be tested by judicial conviction for crime, and an approximate organic satisfaction is better perhaps than none at all. Meanwhile various other constitutions of the decade 1850-1860 are seen prescribing to one extent or another a registration system in the growing centres of population, so as to reduce the danger of false and repeated personation at the polls ; ^ and such safeguards will increase with time rather than diminish. The new State of Kentucky ordained that elections should last for three days at the request of any can- didate; and new Tennessee followed by prescribing two consecutive days.^ The eighteenth century was then near its close. Likely enough a similar usage had existed previously in Virginia or North Carolina. But the mischiefs of frequent and prolonged elections have since impressed our people; and by 1861 and the era of the Civil War, elections were almost uni- 1 Virginia, 1850; Louisiana (as to New Orleans), 1852; Rhode Island, 1854. 2 Kentucky, 1792, 1799; Tennessee, 1796. 236 CONSTITUTIONAL STUDIES. versally confined by State organic law to a single day, each newly admitted member of the Union favor- ing that principle. To separate civic from State elections is held desirable in these later days; so, too, where possible, in alternate years, to separate the great State contests from the national. That controversy, as between the ballot and viva, voce modes of voting, whose origin we have already remarked,^ continued far into the nineteenth century. Georgia in 1789, Pennsylvania and South Carolina in 1790, Kentucky in 1792, Vermont in 1793, Ten- nessee in 1796, each in turn gave fundamental prefer- ence to the modern ballot. But Kentucky, veering in her opinion, changed from the ballot in 1799 to viva voce., siding in practice apparently with the mother State, Virginia, whose course had been defined by statute discretion. Georgia's change of mind was somewhat similar. ^ And thus stood the issue at the close of the last century. Since then the use of the ballot under State funda- mental law has advanced steadily towards universal acceptance throughout the Union. ^ Original States, like New York and Maryland, which had once ex- perimented with the viva voce method, abandoned it forever.* And the fair distinction drawn in 1790 by 1 Supra, page 51. In Dr. Cortlaudt F. Bishop's History of Elec- tions in the American Colonics (III. Columbia College Historical Studies, No. 1), it is shown that proxy voting prevailed very early in ]\Iassachusetts and adjacent colonies, and that traces of tliis practice remained in Connecticut's early election laws down to 1S19, when her charter Avas superseded. This mode, as in private corporations, sug- gests a possible origin of the American ballot. See pages 50, 51. 2 Georgia's constitutions of 1777 and 1789 had favored tlie ballot* hut that of 1798 required tlie electors to vote viva voce, in all poi)ular elections until the Legislature should direct otherwise. 3 See Ohio, 1802; Louisiana, 1812; Connecticut, 1818. 4 Maryland, 1810; New York, 1821. BALLOT AND OEAL VOTING. 237 Pennsylvania's constitution is seen recognized in various other State instruments framed previous to 1850, — that all elections shall be by ballot except those by legislators, who shall vote viva voce. For those in public station ought to be held by constit- uents to their public responsibilities and be judged by the record, while to the voter an honest indepen- dence, as among candidates, is the chief essential. But while the method of voting remained debat- able, we see in the various conventions of new States of the Mississippi valley a disposition either to com- promise or evade the present issue. Mississippi in 1817, at her admission, ordained that the first State election should be by ballot, and all future elections "regulated by law;" Alabama in 1819 that all elec- tions should be by ballot until the Assembly directed otherwise; and Indiana in 1816, earlier than either, that all popular elections should be by ballot, pro- vided that the Legislature might, if thought expe- dient, change in 1821 to the viva voce plan, after which time the rule should remain unalterable. All such dexterous political expedients seem to have ended, as they ought, in establishing permanently for each State concerned the written or printed ballot. But Illinois, on the contrary, put the burden of proof upon advocates of the ballot, just as Georgia had done in 1798; her new constitution of 1818 or- daining that all votes should be given viva voce until the Legislature enacted otherwise. Even such subterfuges could not avoid destiny, for in 1818 Illinois permanently established the ballot under a new State constitution. Georgia made apparently no change before 1861, whatever might have been the legislative action. Missouri's convention in 1820 seems to have evaded the issue altogether; while Arkansas in 1836 gave clear preference to viva voce, 238 CONSTITUTIONAL STUDIES. just as Illinois had done when fii'st entering upon statehood. The tendency of the century had now hecome unmistakable for taking each popular vote by ballot; and Michigan's concession to the contrary in 1835, that township officers might be elected viva voce, marks the extreme limit for suffrage by voice and a show of hands, so far as American practice permanently shaped out elections by the people. Down to the Civil War, how^ever, while States such as we have mentioned might be thought doubt- ful in their dissent from the ballot, Virginia and Kentucky stood sturdilj^ together to resist the gather- ing sentiment of sister States. And in the appeal to unflinching manliness at the polls these two States insisted that every voter should show at the hustings the courage of his personal conviction. Custom and statute law seem to have fixed early the viva voce standard for the Old Dominion, though her organic law down to 1830 was silent on the subject. But Virginia's new constitution of that year gave to the filial Kentucky a pronounced support, by the declara- tion that "in all elections" to any office or place of trust, honor, and profit, the votes "shall be given openly or viva voce, and not by ballot." And once again in 1850, the emphatic and somewhat humorous expression of Kentucky's constitution, a few months earlier, was duplicated in the new Virginia document of that year, that "in all elections," whether by the people or the Legislature, "the votes shall be per- sonally and publicly given viva voce, provided that dumb persons entitled to suffrage may vote by ballot." All this, however, won no more proselytes, for by this time all new States of the Union favored successively the ballot in their written constitutions ; and while the Civil War progressed, a decade or BALLOT AND ORAL VOTING. 239 more later, Virginia recanted such views and con- formed to American practice.^ State reconstruction following the Civil War com- pleted the organic triumph of the ballot-box through- out the United States. But, free from all military coercion in her organic institutions, Kentucky seems to have kept longest to the old method. In 1891, however, her constitution, too, was remodelled; and one clause of that instrument expressly declares that all elections by the people shall be by " secret official ballot." This full phrase sanctions the improved method of voting which our latest generation has adopted. Instead of the manifold private and partisan ballots once pressed upon each voter by rival canvas- sers at the polls, we now have in nearly every State, and as part of the organic law where new State con- stitutions or amendments dispose of the subject, an official ballot after what is known as the " Australian plan," publicly printed and prepared, on which appear the names of all party candidates for the voter's own secret mark of preference. A system, in short, which guards better than ever before the individual's choice and his personal freedom from corrupt and insidious temptation is the American suffrage reform which signalizes the last decade of the nineteenth century. Growing evils of machine politics and demagogism are met by numerous provisions in State constitutions of the past forty years, whose main object is to pre- serve at all hazards the purity of the ballot-box and the rights of each honest voter. Hence are found many details over ballot methods, registration, and 1 Virginia and West Virginia, 1863-1864. Every voter shall he free to nse an open, sealed, or secret ballot as he may elect. West Virginia, 1872. 240 CONSTITUTIONAL STUDIES. the appointment of inspection officers to prepare and revise voting lists, especially in the large cities. ^ Those kept at asylums or prisons at the public expense are forbidden to vote, while bribery or intimi- dation at the polling places, and all false personation, are crimes severely denounced for punishment, and lit reason, moreover, for depriving one of the rights of elector. 2 A certain brief period of local residence is usually made indispensable to adult suJS'rage; such, for in- stance, as a residence within the State for two j^ears and within the town half that time. One must, at all events, according to our State constitutions, vote only at the place where he resides; and within the first half of this century local residence for both voter and representative candidate became strongly insisted upon, as it has been ever since. ^ Various organic provisions of a miscellaneous char- acter qualify the right to vote. Thus South Carolina in 1810 expressly excluded non-commissioned officers of the United States from such exercise. Sailors and seminary students neither gain nor lose a voting residence by their casual presence.* State suffrage has been usually confined to the native-born and to those naturalized under the laws of the United States, except for residents in the last century during the Revolution, or when the Federal constitution was 1 See Now York, 1894, providing for registration lists and a bipar- tisan election board. 2 See for such details the constitutions of Maryland (18G7), Mis- souri (1875), Colorado (1876), and New York (amendments of 1894). A few States have shown a fundamental dislike to registration provi- sions, as in the Texas, North Carolina, and West Virginia constitu- tions, 1870-1876. 3 Semhlf, that under South Carolina's constitution of the last cen- tury a freeholder might vote where he held land, even though not a resident. The text appears obscure. 4 New York, 1894. VOTING DISABILITIES. 241 adopted ; ^ and supported paupers are quite generally excluded together with conlined criminals. Each voter must have attained majority. During the Civil War and subsequently, gratitude to the citizen soldier induced in various loyal States some special extension of the franchise for the special beneht of that class of persons.^ Idiots and insane persons are always implied and often express exceptions to the exercise of local suffrage. While the Native Ameri- can party influenced our politics, an amendment in 1858 to the ancient constitution of Massachusetts compelled an additional residence of two years within the jurisdiction of the United States subsequent to naturalization, before any person of foreign birth could be entitled to vote or eligible to office; but gratitude to the foreign-born who went forth to battle for the Union caused the repeal of that amendment in 1863. In various States at the northwest, on the contrary, the right to vote is extended to aliens who have declared their intention, even before reach- ing the full status of naturalized citizens of the United States. Latterlj^, liowever, some reaction from this policy has set in, Texas and Minnesota in 1896 pronouncing overwhelmingly for amendments which made suffrage by foreign immigrants more difficult. 3 1 Vermont by 1828 abolished a light which had been given in 1793 to denizens who were not naturalized citizens. - Thu3 Massachusetts in 1881 relieved from pauper disqualification every person who had served in the war and been lionorably discharged. During the war, provision was made by some States for taking the votes of citizen soldiers in the field. And see New York, 1874. 3 So large were the majorities for these respective changes that in Minnesota, with no issue of nationality raised, the constitutional amend- ment reciuiring an alien to become fully naturalized before he could vote, must have been supported by many foreign-born voters already secure in their rights. ^ See also New York (1894) forbidding a naturalized foreigner to vote within ninety days after receiving his naturalization papers. 16 242 CONSTITUTIONAL STUDIES. Negro suffrage in the United States remains a puzzling problem, and the revolution of sentiment favorable to its exercise is yet imperfect. State con- stitutions, those especially in the slaveholding area of the Union, made strong discriminations concern- ing race and color prior to 1861. This Federal Republic began its high career as the republic of European immigrants. Negroes, mulattoes, and Indians were specially excepted from the right to vote by the first of new slave States admitted into the Union. 1 Ohio, too, fu'st-born of the Ordinance of 1787, began statehood by confining her elective franchise to " every white male inhabitant. " ^ Even Connecticut in 1818 conferred suffrage only uj)on "white male citizens." But Maine in 1820, like her parent State Massachusetts,^ conferred the right to vote upon "all male citizens," ignoring from the outset all distinctions of complexion. Massachusetts and New Hampshire had always been nominally liberal on this point, though the projDerty test worked out sufficiently a practical difference. Vermont (fol- lowing Pennsylvania) and Rhode Island belong to the same category.* New England's homogeneous population favored all this generosity to races. Yet "free white men" or "white male" inhabitants or citizens grew to be the favorite organic expression during tlie first sixty years of this nineteentli cen- tury, as the nation expanded, whether in slavehold- ing or non-slaveholding States; and sometimes, by way of recompense for their exclusion, colored free- 1 Kentucky, 1792, 1799. 2 Ohio, 1802. 3 See Massachusetts, Amondirient TIT. (1821). Cf. Massachusetts constitution, as to " male in1ial)itants " havin/j^ a property (jualification. ■* Tt rnii^ht liave been a Iciral (|nestion liow far free negroes in tliis period were to be deemeil " citizens of the Uniteil States." Tiie Dred Scott decision (1857) is to be recalled in such a connection. NEGRO SUFFRAGE. 243 men were exempted from militia duty and all pay- ment of the poll tax.^ North Carolina's constitution of 1835 witiilield the ballot from those descended from negro ancestors to the fourth generation. 2 New York in 1821 applied specially to all negro voters the requirement of three years' State residence and a freehold property.^ Even Pennsylvania, by 1838, changed from "all freemen" to "all white freemen" in defining tlie electoral franchise. At the date of our Civil War, unquestionably, the preponderance of State authority, north as well as south, justified the conclusion that America v/as in general effect a white man's government.* Bloodshed and the long fraternal strife of arms put an end to such racial announcements. With the violent abolition of slavery throughout the land, and the reasserted supremacy of the Federal Union over all State opponents, came, as a secondary grand result, the mandatory extension of the elective fran- chise to manhood suffrage by Federal amendment, regardless of complexion, race, or the previous con- dition of bondage.^ The lately insurgent and slave- holding States embodied that declared extension in their new fundamental codes, as Congress compelled them to do ; and as for the loyal States northward, national duty and consistency demanded like organic changes. But even in States where no servile popu- lation was now set free, where slavery had never found strong foothold, and negroes still constituted 1 Vermont, 1793; Pennsylvania, 1790; Ehode Island, 1842. 2 New York, 1S21 ; Tennessee, 1834. 3 California in 1849 is liberal to all " wliite males," including those of Mexico -wlio may elect to become citizens of the United States ; and even Indians and tlieir descendants (bnt not negroes) are generously considered. * See Indiana, 1851 ; Oregon, 1857; Minnesota, 1857. 5 Supra, page 197. 244 CONSTITUTIONAL STUDIES. but a small fraction of the inhabitants, the people showed a decided repugnance to changing the old rule which had confined the ballot to " white male " inhabitants. As late as 1864 the new free State of Nevada had been admitted into the Union while the Civil War was in progress, with its organic law thus worded ; and only after a long political struggle would the Empire State of New York conform its own organic expression to the fifteenth Federal amendment.^ Tlie reconstructed slave States, after suffering meanwhile for a few years from the domi- nation of a corrupt political faction which the new and misguided negro vote had helped into local power, threw off the disgracefid encumbrance; and since 1877 the white natural leaders have generally preserved in their own States a practical home rule, while the degraded negro vote has remained dormant or suppressed. A better and stronger participation of whites and negroes at the polls is hoped for here- after, as the race so long in bondage gains in educa- tion and industrial independence through the civilizing process of freedom. Meantime constitutional changes have been wrought in several of these States, which, without actually transgressing the Federal require- ments, bear chiefly against the large negro element in the population, by advancing the general tests of education and property for all electors, ^ and perhaps, 1 Such a proposition liad been in 1840 submitted separately to the voters of that great State for adoption, when it was rejected by a vote of two to one. Again submitted by way of amendment in 18G0, unre- strained negro suffrage was rejected by an immense majority. A new constitution for New York was framed in 1868, wliich renewed the proposal of equal suffrage regardless of race or color ; and the people negatived tliat proposal I)y a closer vote. But by constitutional amond- mt-nt in 1874 equal suffrage was proposed once more, and that amend- ment was finally carried at the polls. - See Mississippi's constitution of 1890, and South Carolina's of 1896. PLURALITY ELECTIONS. 245 too, by multiplying the enumerated convictions for crime upon which any individual offender may be wholly disfranchised.^ The gradual establishment of a plurality poll in place of the majority, as formerly, was in our older States the fruit of hard experience. For repeatedly, when leading parties were so divided that a third candidate held the balance of power, were the people baffled in their preference, so that a new trial at the polls became necessary, or else the Legislature, after a fundamental rule prevalent in the last century, became the umpire of candidates. Several of the leading historical States abandoned the majority for the plurality doctrine soon after the middle of this century, 2 conforming to a practice established much earlier in other parts of the Union. By that period, too, it became common in all newly admitted States to prefer the same electoral test, and thus decide the candidate chosen, once and for all, according to the obvious wishes of the greater number who had voted. ^ Minority representation is a new political idea recognized in some of the later constitutions, though scarcely favored, being confined naturally to local groups, such as aldermen, representing a single dis- trict or city.^ Cumulative voting, which is much aided by the Australian official ballot, seeks such an end; and here among more nominations on a ticket 1 " Petty larceny " is included among the offences thus punishable in Virginia's constitution of 1876. See also North Carolina, 1876. '^ Massachusetts, 1855; Maine, 1856; Virginia, 1880. Cf. Federal constitution, old-fashioned in this respect, page 162. ' Vermont, Rhode Island, and Connecticut are probably the only States in the Union which still require a majority to elect at the polls. * See Illinois constitution, 1870. West Virginia, 1872, permits a referendum on this issue. So in South Dakota; but the vote proved adverse. 246 CONSTITUTIONAL STUDIES. than there are persons to be voted for, voters can accumulate their strength m the selection. California in 1879 excluded all natives of China from the suffrage.^ Hitherto the American rule with trivial exceptions is seen to have been, under its most liberal conditions, that of manliood suffrage; and the admission of woman partially or fully to the same iDolitical privilege has now become an agitating issue, of whose final outcome in States long organized upon the historical basis of self-government it is yet too early to judge. ^ That the Legislature may dis- franchise those convicted of infamous crime is a con- stitutional permission, founded upon sound reason, which at this day is largely bestowed.^ Under some of the earliest constitutions of the new Federal epoch electors were specially privileged from arrest (except for specified heinous offences) during their attendance at the elections or while going and returning; and this privilege from arrest 1 Semhle, in conflict with the 15th Federal Amendment, unless regu- lated by some such test as that of religion. 2 See Minnesota's partial permit to the Legislature in 1875; Utah's constitution (1895) establishes it. See also permissive clauses, North and South Dakota. 8 Kentucky in 1799 denounced penalties against those convicted of bribery, forgery, or other higli crimes and misdemeanors, one of wliich was exclusion from the suffrage. Special disqualification from voting, as a penalty for criminal conviction, became a just feature of many of our later constitutions ; and to the Legislature was given full power on the subject under one fundamental phrase or another. Ohio, 1802; Louisiana, 1812. Connecticut's organic law of 1818 (amended, 1875) recpiired every elector to " sustain a good moral character," and de- prived one witliout reservation of his right to vote on conviction of bribery, forgery, pt^rjury, duelling, fraudulent bankruptcy, "or other offence for which infamous puni.shmont is iuilicted." That the Legi.s- lature may disfranchise those convicted of infamous crime is the milder expression of many States. Indiana, 181G; New York, 1821 ; Delaware, 1831 ; Virginia, 1830; Tennessee, 1834. "Betting on elec- tions" is an offence. New York, 184G. Bribery, or the attempt to bribe, is a felony ; and one who offers a bribe may testify without being prosecuted for doing so. New York, 1894. VOTERS' INCREASED POWER. 247 has become during the present century a feature of many State constitutions. ^ No elector shall be obliged to perform militia duty on election day except in time of war or public danger. ^ And dur- ing our latest era the American disposition has increased to combine elections so as to reduce their number and frequency, and give the local people of a State relief from political turmoil and excitement. State and national elections have in consequence been set for the same day, where formerly they were held in different months of the same year; and biennial State elections for both Legislature and the highest executive officers are now decidedly preferred to those annual pollings once deemed so essential to liberty.^ Not only in the extension of voting membership, but through increased opportunities for exercising the power to choose among candidates, has the elec- tive francliise made immense progress during the past century in these United States. The choice of local town and county officers at the polls has been con- sistently maintained from the colonial age, and more than ever do such incumbents derive authority from the people. Instead of choosing members of a single representative assembly, or of the most numerous branch only of the Legislature, as formerly, the mass of voters in each State have become, throuofh the gradual assimilation in representative character of the two ] louses of a State legislature, electors on a uniform basis of qualification to both State Senate 1 Peuusylvania, Delaware, Kentucky, anil Tennessee, 1700-1799. The phrase is suggested by that clause nf onr Federal constitution which defines the privilege for nienihers of Congress. ■^ Utah, 1895. And see supra, page 3.3. * Supra, page 18. 248 CONSTITUTIONAL STUDIES. aud House. While for years after American inde- pendence was declared, the chief magistrate of many States was cliosen by the Legislature, that choice now devolves upon the general body of voters in- stead, as does also that of most other high executive officers, and, by as nearly a direct process as the Federal constitution will permit, of President and Vice-President of the United States besides. Finally, and as the full triumph of free suffrage longest opposed by conservative citizens, judges and the chief officials connected with the machinery of the courts are now chosen by the voters in nearly every State, — sometimes at large and sometimes by dis- tricts. The march of the American democracy to power has proved irresistible. V. THE LEGISLATURE. The general pattern of an American State legisla- ture, as shaped out by 1789, has served ever since without essential change. And the practical recon- struction of Congress by that important date gave to the more favored plan of a two-chambered body throughout the United States an immense propulsion. For under all republican governments experience teaches that the law-making power needs a constant check upon headlong activity, like that swift messen- ger of the fairy tale who had to put clogs upon his feet lest he should run too far. Scarcely had the Federal government started upon its nobler career, when Georgia and Pennsylvania, the only States among the old thirteen that had hitherto since 1776 experimented with the Legislature of a single house, gave up forever that tumultuous representative body, and conformed thenceforth to the bicameral rule.^ Vermont, however, whose young admiration of Pennsylvania's previous instrument of State govern- ment was unquenched, entered the Union in 1793 with a single representative body by way of Legisla- ture. But in that bucolic State of small townships, coequal in comparison, under highly favorable con- ditions for further experiment, the plan did not work well, and by 1836 a legislature of two branches was substituted. These tests appear to have been conclu- 1 1789-1790, under new State constitutions. 250 CONSTITUTIONAL STUDIES. sive enough for American opinion; and the two- chambered Lcgishitiire has since remained the only kind set up in the United States. But a true basis of difference between the two representative branches of a State legislature has not been easy to formulate. That happy composite of the many and the one which supplies historical distinction between the Senate and House of Repre- sentatives of Congress fmds no analogy in the popula- tion of an individual State. Some of our earlier local statesmen would have drav/n out a basis of dis- tinction for the commonwealth by opposing property or social standing in the upper or smaller branch to numbers in the lower or larger; but the deep-set repugnance of the common voters to anything like organic recognition of privileged wealth or aristocracy sweeps us farther and farther from such political arrangements. Nothing has been left in the present era by way of a real difference of deputed authority in the two branches of a State legislature, but such as comes from representing geographical voting dis- tricts of larger area and population in the Senate, and of smaller area and population in the House, with perhaps a higher standard of age and a more stable tenure in the one branch than in the other. Nor are even such slight differences tolerated pa- tiently in a crisis of excitement by our jealous democ- racy, eager that its will shall be promptly and implicitly obeyed by the whole Legislature, and that each member shall bend to his constituency. The result of all this is naturally to invite into power llexible and time-serving legislators, seldom very wise, and frequently dishonest, to the exclusion of the free-spoken with minds of their own. In Massa- chusetts, as in most parts of New England, it was long the rule of representation to apportion the State THE LEGISLATURE. 251 Senate by coimties and the House by towns; and since candidates were arranged as much as possible by general tickets in the earlier days of the Union, leading citizens and their constituencies made of legislative service a matter for local pride and dis- tinction. The ablest and most popular in the town and county were re-chosen to the General Court year after year. But in course of time, as republicanism grew less compliant, the argument for separate and subdivided candidacies, for numerical representation by one periodical census or another, and for local rather than general tickets, carried such weight that the old system passed into discredit. Temporary geographical lines now made arbitrary groups by districts, combining towns and subdividing counties for one or another branch of the Legislature; and with little left to interest the foremost citizens in sacrificing personal time for the public, little chance for conspicuous service, representation now came much under the control of , intriguers and petty seekers for place; instead of centurions in politics were the leaders of tens and twenties ; while towns, cherishing local pride no longer, had to be content with bargaining that the common deputy of the geo- metrically arranged district for the time being should be put up at one locality for one legislature, and at another for the next. Deterioration of ideals and of personal character comes as a necessary consequence of all this modern nicety in fractional representation, though other causes of political degeneracy may doubt- less be sought elsewhere; as, for instance, in the undiscriminating extension of the elective franchise among the shiftless and illiterate, and the grov.dng wealth and complexity of society, affording opportu- nities and temptation for masters of political chicanery to use organization for base ends. Democracy itself, 252 CONSTITUTIONAL STUDIES. so admirable in most other phases, yields too much to insidious flattery, and by its capricious and uncer- tain temper towards public servants and its mis- placed gratitude for public services, repels many who were best worth trusting above the common- place. Pennsylvania's constitution of 1790 apportioned senators of the State by districts. They were never to be less in number than one-fourth nor greater than one-third of the representatives. Both houses are in 1796 declared by the new State of Tennessee "dependent on the people." Following Federal example, the names " Senate " and " House of Repre- sentatives " henceforth became usually distinctive of the two branches. 1 New York in 1801 increased her House and diminished her Senate, in order the better to make a fair contrast of size a prime element of distinction. The same period of service for both houses was selected in some new constitutions of the eighteenth centur3\ IJut other States preferred some- thing more like the Federal arrangement; and so at least that senators should be chosen for a double, treble, or still longer term than members of the House, with perhaps a corresponding division of classes, for effecting a gradual change of member- ship, as in the United States Senate. ^ While "annual elections " continued still into the nineteenth century the rule of the States for choosing to the popular branch, at least, ^ Tennessee, upon her admis- 1 Delaware in 1792 substitutes this style for " Council " and " House of Assembly." 2 Kentucky, 1799; South Carolina and Pennsylvania, 1790; Dela- ware, 1792. Kentucky, 1792, tried tlie Maryland plan of an electoral college for choosing senators, and by 1799 abandoned it. Supra, page .54. * See Kentucky, Vermont, Pennsylvania, South Carolina, Georgia, New Hampshire, 1789-1800. THE LEGISLATURE. 253 sion in 1796, ordained biennial elections for either branch. State elections, long held in the spring of the year, became by national influence transferred gradually to the fall, and then absorbed into the month and Tuesday of November designated for Federal elections. While New England favored towns as the early unit of representation m the House, southern States in the vicinity of Virginia chose rather the county for that purpose. And that census plan of periodical apportionment for represen- tatives, which the Federal constitution was not the earliest to offer, becomes rapidly a permanent feature in State systems. ^ Both houses, says Ohio, as the nineteenth century began, are " to be chosen by the people ; " and her simple tax-paying qualification for membership in either branch betokened the dawn of a liberal dispensation of former property require- ments. ^ As in earlier State constitutions, eligibility to the Legislature was made incompatible with hold- ing other places of public trust; and priests and ministers of the gospel were in many States pro- nounced ineligible to the Legislature.^ Laws en- acted were to be published at the end of each session. Distrust of the Legislature appeared in funda- mental State provisions very soon after the new machinery of our Federal Union had been set in full motion. And most of the constraints now gradually 1 See Pennsylvauia, Tennessee, Georgia, during the eighteenth century. 2 Ohio, 1802. But Louisiana, 1812, imposed a landed test, while some older States were abolishing such standards. New York long retained her freehold requisite for membersliip in the Senate. * The Massachusetts constitution of 1780 placed no such disqualifi- cation upon the clergy ; but officers of instruction at Harvard College were made specially ineligible, — a rule which was not repealed until 1877. 254 CONSTITUTIONAL STUDIES. imposed by the people of the States were doubtless the offspring of public evils practically felt. Thus, New Hampshire ordained in 1792 that no member of the Legislature should take fees or serve as counsel or advocate in either branch.^ The appointment during one's legislative term to an office not elective, which had been newly created, or whose emoluments had been increased by the Legislature in which he served, was largely forbidden. ^ Secrecy of procedure, in State, as in the United States Senate, came under speedy condemnation. That the galleries of each House shall be open to all persons who behave decently we find proclaimed in various new constitu- tions before the close of the last century. ^ Ohio's constitution in 1802 set an example of pai*simony in fixing the pay of legislators at a low rate, and there has been much regulation of the matter since, in the various States, with an ingenuity to discover some standard which miglit induce short sessions. That no increase of compensation to members shall go into effect for the same session in which the bill passes has long been the rule of many States.'* And as the middle of this century approached, the popular pur- pose grew persistent to settle by basic and precise provisions the relative number of each branch, rules for apportionment and taking the census, and most other details of representative election. A classified Senate, like that of the United States, was now in the height of American favor ; while as to biennial 1 Vermont in 1793 provided similarly. 2 ronnsylvaiiia, 1790; Delaware, 1792. Nor for one year after. Kentucky, 1799. The Federal constitution is imitated in such provi.sions. " New riampshireand Delaware, 1792; Vermont, 179.3; Tennessee, 1796. See also Pennsylvania, 1776 ; New York, 1 777. Supra, page 56. * See New York, Virginia, Tennessee, Alabama, and Mississippi about 1820. THE LEGISLATURE. 255 legislatures, several States had advanced by 1850 to the next stage of making sessions biennial besides, as well as the LegislaLure itself.^ No session, prescribes Louisiana's organic law in 1845, shall last beyond sixty days. 2 And when in extraordinary session, says that of Illinois in 18-18, those subjects only shall be considered for which the Legislature was convened. As in the elective franchise, we now see religious and property qualifications for the Legislature dis- pensed with, age and a local residence being the only enduring requisites for a seat in either brancli.^ In the latter respect State fundamental law has grown more insistent, if possible, as time goes on; and British observers of our institutions have not failed to comment upon the disadvantage of such a rule, in keeping the best talent of a whole State from com- peting for the public service, in order that local mediocrity may be exalted beyond its deserts. But whatever may be the force of this objection, the American people appear committed beyond recall to such requirement, since it gives mathematical force to each constituency. And in the more ambitious prize of representative to Congress, where State con- stituencies are still so much at liberty to go outside their own area for a candidate, it rarely happens that a non-resident district representative is sent to the Federal House at Washington by choice of the dis- trict voters. For a certain prepossession towards local objects, such as comes from common residence, is deemed needful for a representative ; so, too, local interests must be regarded, both in procuring the 1 See Georgia, Texas, Alabama, Maryland, 1840-1846. This is an advance upon the Federal plan of a biennial Congress holding annual sessions. 2 And all legislation beyond that date should be null and void. 3 Delaware was the latest State which required a property qualifica- tion for the Senate. But see constitution (1897). 256 CONSTITUTIONAL STUDIES. crumbs, however small, of public patronage, and in guarding and shaping special concerns in the vast miscellaneous business of a legislature. For all enactments of a legislature do not affect alike the welfare of the whole body politic, nor aim at general reforms ; nor is all public administration an adminis- tration for all. A few constitutions of the eigh- teenth century in its final decade insisted still upon freehold or property qualifications, especially in the State Senate ; ^ and the property test outlasted in the new era that of religion; yet Federal example and the genius of American democracy tended speedily to abolish all such distinctions. While the yeomen or property-holders sat together in a legislature, membership was of a higher grade, like that which we now see in a social club. Federal example set the fashion for various phrases of special description in a State constitution, relating to officers and methods of organization and due pro- cedure for either house in transacting the public business. And so, too, in the relative functions of the two houses, much the same sort of definition became applied. Thus, " bills for raising revenue " (a style henceforth preferable to the State "money bills," so called before 1787) were likewise to origi- nate in the House, or larger body; yet as this nine- teenth century developed, and two branches in most States were found in fact equally representative of the people, unlike the American Congress, the dis- position of State conventions increased to dispense with such old distinctions, so that all bills whatever might originate in either house.^ One idea embodied ^ E. g., South Carolina, Tennessee, Delaware, New York. ^ See Tennessee, 179G, setting an example in this respect, since widely followed. THE LEGISLATURE. 257 in a State constitution or two of the eighteenth century,^ has found niucli favor since: that every new bill must be read for three successive days, with free opportunity of discussion before it passes, unless in case of urgency a stated fraction of the wliole mem- bership much greater than a majority dispenses with the rule in that branch where the bill is pending. More signilicant still is the spread of an early New Jersey fundamental, which substitutes for the major- ity of a quorum, in various instances, the majority of all elected to the body. Thus, while Federal prac- tice, and that perhaps of most States, still conforms to the old Parliamentary standard of a majority of the quorum for passing any bill, with a larger frac- tion, such as two-thirds, for overcoming vetoes and in other special cases, not less than nineteen of the United States could be counted in 1884 which made instead the majority of all elected the test of original passage in either branch, while some nine States applied that standard for passing bills over an executive veto.^ Old State precedent^ has been much followed in permitting a legislature (where the Federal constitu- tion itself is silent) to punish by brief imprisonment persons not members who are guilty of contempt. By 1844 New Jersey put forth another idea for the first time apparently in our organic law, that each bill passed by the Legislature must have but one subject, the same to be expressed in its title; and New York in 184G confining the idea rather to private and local bills, that rule more or less compre- 1 Kentucky, 1799, and prior Virj^inia and North Carolina provi- sions; also Illinois and New York, 1816-1835. " See New Jersey (1770); tahlos in Horace Davis's Constitutions, 67, 68. Kentucky, 1799, fir.st illustrates the latter iu.stance of requir- ing a majority of all elected in either branch to overcome a veto. 8 Supra, page 67. 17 258 CONSTITUTIONAL STUDIES. liensive has since found its way into many other State constitutions, often with the added proviso that no law shall be enacted at all except by a bill.^ That no public act shall be in force until a stated period after the end of the session corrects some miscliiefs of the old common law, peculiarly distressing before steam locomotion and the telegraph were invented. Not even the public contracts of a legislature have escaped the vigilance of constitution framers in the newer States. Those for fuel or for stationery must be given to the lowest bidder ; extra compensation on public contracts must never be awarded ; nor may any member of the Legislature be lawfullj^ interested in public contracts. 2 In New York State the stringent constitutional rule is now that all money bills and such as appropriate money or other property for local or private purposes shall require for their passage in each branch of the Legislature the two-thirds vote of all members elected.^ The era of strong fundamental restraint upon legislative power in America opened with the second quarter of the nineteenth century. The patronage of electing the chief executive and all other high State ofificials became by this time quite generally taken from legislatures that had once enjoyed it, and vested by State constitution in the suffrage of the people. And, furthermore, the brief constitutional text applicable to legislative action in the earlier instruments, importing great confidence in the discre- tion of the people's representatives, ceases forever to 1 California's constitution in 1849 well rounds off the expression, aildinjT tliat no law sli.ill ho revised or amended hy reference to its title, hut the section amended sliall l>e jnihlished at lenpjth. Appropriation hills shall contain no other provisions. Illinois, 1848. 2 Wi.sconsin and Illinois, 1848. 8 New York, 1 804. THE LEGISLATURE. 259 characterize these written fundamental ordinances. Nothing so convincingly manifests the progress of a popular self-confidence and strength among Ameri- cans, as contrasted with the old customary repose of constituents in the superior wisdom of the social superiors who represented them, as the nineteentli- century development in this special respect. Instead of leaving such public agents, as in Revolutionary times, to formulate and philosophize over the extent to which it might be safe to admit the commonalty to participate in government, we see communities as the efficient principals binding public agents by their own fundamental rules and cutting down credentials, as though deference to statesmanship were at an end. Instead of looking up to the Legislature as the arca- num of fundamental liberties, we see the people inclining rather to governors and the courts, as a needful corrective upon legislatures tempted to go astray. Instead of hailing each new session of the, people's representatives as the advent of salutary reform, we see legislatures shortened and kept adjourned as much as possible, because of their sinister disturbing influence upon the sober pursuits of life; and beyond all delegation of authority is seen the popular determination to bend this and all other departments of government to public opinion, and render each public servant responsible for his stewardship. These restrictions upon legislative action have become so varied and numerous in our modern State constitutions, and so diffuse, moreover, as scarcely to admit of a clear classification. First and foremost, they show by 1835 a positive disrelish of special legislation, and especially of that for the benefit of business corporations. General laws become hence- forth insisted upon as much as possible by way of 260 CONSTITUTIONAL STUDIES. substitute. Thus, the Legislature shall have no power to suspend a general law for individual benefit, nor to pass laws for individual benefit which are inconsistent with general laws, nor to grant special privileges, immunities, and exceptions.^ No private law shall be passed unless upon due notice of appli- cation. ^ PriA-ate and special privileges and appro- priations are seen checked in various ways. Some States shortly before the middle of the century tried to hamper the private creation of corporations ; others forbade that corporations, excepting municipal ones, should be specially created, but remitted their forma- tion altogether to general laws, with a general reser- vation that the Legislature might alter or repeal.^ Laws for loans or for pledging the State credit are expressly limited, both in the amount to be borrowed and the method of legislative enactment.* The particulars of taxation, too, under a just assessment, are defined; and those, too, of collection.^ Before the middle of the century, and following the disas- trous crisis of public State improvements about 1837, still more specific and stringent constraint was placed by organic laAV upon loans of State credit, and the authority to create State debts where no emergency of war or insurrection existed. IVIunicipal borrow- ing, furthermore, was expressly limited, and muni- cipal authority in other respects; nor should the State, through legislation, aid private individuals or corporations. '^ Banks were the first among chartered 1 Tennessee, 1834. 2 North Carolina, 1835. 8 See California, 1849; also various States (1835-1849), such as Rhode Island, New York, Pennsylvania, Michigan, Florida, Texas, Wisconsin. * Mississippi, 1832. <» Maine, 1820. " See 1842-1849, lihode Island, Maine, New York, New Jersey, Illinois, Florida, Wisconsin, Texas, California. THE LEGISLATURE. 261 private corporations to encounter such popular dis- like;^ but after the Civil War it was chiefly the railway-carrier. There shall be no act of incorporation hereafter, says Delaware in 1831, unless two-thirds of each branch concur; a power of revocation shall be reserved, and the term (unless for public improve- ment) shall not extend beyond twenty years. In divorce and alimony matters, the alteration of names, adoption, and the restoration of voting rights to those convicted of crime. States authorized general legisla- tion, but forbade special enactments on the subject. ^ And so, too, in organizing churches and private societies, and in authorizing the sale of lands, general laws, with a special procedure in the courts, now found fundamental favor. The impulse thus given by 1850 to legislative regulation and constraint by State fundamental law has since been steadily felt, and extended to every quarter of the Union. Every later reform has been in the same direction of fundamental constraint by the people, so that public servants may not feel above their masters. As for the structure of our American Legislature of two houses, New England States still prefer that each branch shall come wholly fresh from the people at each election ; which election in INIassachusetts and Rhode Island alone is still annual, after the eighteenth-century fashion.^ But 1 See Indiana, Illinois, Missouri, Mississippi, 1816-1820. No more than one bank shall ever be chartered by the same act. Pennsylvania, 1838, recalling Governor Snyder and the "litter of banks" which he killed by a veto. 2 North Carolina, 1835. 3 An amendment proposing the change from annual to biennial legislatures was su])mitted to the people of Massachusetts in 1896 and voted down at the polls. 262 CONSTITUTIONAL STUDIES. all other States of the Union, old or new, have adopted biennial terms, — a system which has given satisfaction wherever tried. And in choosing bien- nial legislatures the State preference by two to one is, furthermore, in favor of biennial sessions, unlike the rule of Congress.^ Senators hold usually in our States by the classified plan and with longer tenure than the House ; but a half rotation at each election, so as to bring the Senate in closer touch with public sentiment, modifies the Federal example.^ For either branch of the Legislature the candidate, local by district and local in residence, is chosen at the polls. About half the United States limit the general ses- sion of a legislature, even though it be only a biennial one, to a fixed number of days, averaging less than ninety.^ Nor has it been thought ignoble to so regu- late the pay of legislators as to spur them up to organize promptly and push their work to its conclu- sion ; for we find a gross salary fixed for the whole session,^ or a per diem for so many days, and no longer;^ while Indiana's constitution of 1851 made the humiliating rule that each legislature must organ- ize within five days from assembling a quorum, or else have all the pay stopped until tlie organization is complete. Other stringent provisions are found. No new l>ill shall be introduced after so many days "^ of the ^ New York, New Jersey, Kansas, and Wisconsin, besides some New England and various scattered Southern States, prefer annual sessions for a biennial legislature. - New York, in 184G, took this new dei)arture as the result of long ex]ierienco, and Michigan, Oliio, and other States presently joined her. See Table (1884) Davis's Constitutions, 68. ^ Davis, ib. No session to last longer than tlie lengtli prescribed by organic law, unless two-thirds of all elected vote to extend it. Ken- tucky, 1850; and see Virginia, IS.'iO. * Oregon, 1857. 6 Michigan, 1850. « Fifty. Midiig.an, 1860. THE LEGISLATURE. 263 session have expired. No law shall pass by either house on the day prescribed for adjournment, but bills may then be em^olled.^ Acts shall not pass to cure former omissions, but by general statutes the courts may be authorized to apply such remedy. The people shall choose a State printer; stationery con- tracts shall be awarded by a legislature to the lowest bidder; perquisites of members in public documents, books, newspapers, and postage are cut down or for- bidden. No State paper shall be selected or estab- lished for publishing the laws.^ A date is designated when all acts of a session with fixed exceptions shall take effect, having by that time been duly published and circulated. Technical terms must be avoided in legislation; every act shall have its title, and only one subject; all acts are to be presumed public acts, nor shall revision be made by mere reference. Riders shall not be placed upon appropriation acts, but every such act shall appropriate only.^ Many compulsory provisions of this character originated in States of the Mississippi valley, or west of the Rocky range ; but some, the oldest and wealthiest of Atlantic com- monwealths, like New York, have since made similar regulation, tired of the long usage in bodies unre- strained like Congress, of deferring enactments both trivial and momentous to the closing days of a ses- sion, and then, with shameful haste, mucli scandal and little scrutiny, pushing the whole mass through together.* Massachusetts, proud of traditions and her old framework of government, not only resists to the last 1 Minnesota, 1857. 2 ggg Micliigan, 1850; Ohio, 1851. 3 Virginia, Ohio, Indiana, Oregon, 1851-1857. * By New York's anipmlnients of 1894, all l)ills must have been printed and distributed to the legislators at least three days before their passage. 264 CONSTITUTIONAL STUDIES. such modern organic changes, but stands for the broadest discretion still possible in legislative pro- cedure and policy. After temporizing for a while in her basis of membership with the modern embar- rassment of growing cities and depleted towns, that State conformed before the Civil War to the new necessity of district numerical representation. Vir- ginia, after a somewhat similar effort to temporize, found herself overwhelmed with a solution of the representative problem which in the Civil War cost the State her whole western population. A strict apportionment rule for the two legislative branches under a periodical census became the almost invari- able practice of American States before 1861. Limi- tations were by that time usually fixed or clearly designated in new constitutions concerning the size of each house. Many, however, of the changes which in more modern constitutions of our States have been seen fundamental ^ are by force of mere statute wrought out in Massachusetts and the few other States which still confide in the discretion of representatives, and hug the old tlieory that legisla- tures, freely chosen and frequently convening, are the palladium of republican liberty. Biennial legis- latures, with biennial sessions, would hardly suit a commonwealth until fundamental checks had been put upon legislation itself. Scarcely a State in the ITnion, except Delaware,- exists at the present day, outside of New England, whose constitution does not enter into details which prohibit s]ieciivl legislation. During the decade pre- ceding our CW\\ War the constitutions of Indiana and Oregon enumerated the instances at length where 1 E. (J., tlio preference of systematic or/rauizatiou and procedure under general laws to special enactment. ^ A new Delaware cons^titiition (18!t7) is just ordained. THE LEGISLATURE. 265 general legislation should be rather applied; for instance, in duties of justices of the peace and con- stables; in regulating court practice and the venue of actions; in divorce, the change of names, and inheritances ; in sales of the real estate of minors and insane persons; in laying out highways and town plats; in regulating county and township business; in taxation, the support of schools, official fees and salaries; as to interest and usury and the conduct of elections. Minnesota just before 1860 set an organic rule relative to lending the credit of the State to certain railroads; and wearied of recent experience in mingling State liability with private enterprises, we see various States prohibiting thenceforward all debts of that character, while arranging to sell out the State stock held in existing schemes of im- provement. Constraints already prevalent upon private incorporation, and the incurring of debt. State or municipal, increase rather than diminish as the new era progresses. ^ In short, American State constitutions at the present day strongly favor the idea of impartiality towards all inhabitants, and the uniform operation of all laws throughout the com- monwealth to its remotest borders without preference or privilege to any men or set of men. If it be objected that all such hampering provisions show distrust of the people's representatives, that distrust is generated by a superior constituency, con- fident of its capacity to give instructions. A lapse 1 See Wisconsin, 1871, which, among other express prohibitions upon special legislation, names the location or change of county scats, the apportionment of the school fund, the incorporation or charter amendment of any town or village. The Legislature shall audit no claim, but shall only appropriate after the claim has been audited. New York, 1872. No extra compensation shall be voted to any public oflScer or contractor. lb. 266 CONSTITUTIONAL STUDIES. in character and ability may be predicated usually of our public agents in times of peaceful routine ; but all the while good citizens are vigilant and patriotic, and in great emergencies they come to the front. Public life has no great charm here with its tidal changes, and men prefer the more permanent dignity and emolument of private station. But public opinion still watches and influences ; and the average community of worth and intelligence, with skilful merchants and corporate organizers, university in- structors and professional men, journalists, whose power for good or evil is immense, and farmers and mechanics, trained to intelligence and self-reliance, form opinions on all public questions as they arise and determine for themselves what should be done, where once they left that determination to leaders. The morning paper keeps each in touch with affairs, and comment invites conclusion. Hence is it that the circle which legislates is itself encircled by a vaster deliberating audience, which is quick to note vicious tendencies, and brings practical ingenuity to bear upon their correction. "The longer a consti- tution," it is sometimes argued, "the weaker the people, and the more corrupt a community." Rather should we say that, the longer a constitution, the more complex the public interests which have to be considered, and the sounder and more confident the people that thus manifest a determination to head off corruption and to bind all lesser agencies by overmastering rules. Scarcely a change has been here recited in legislative power and procedure which is not, upon the whole, a change for the better. VI. THE EXECUTIVE. The trend of experience in American States has been since 1789 to free the Executive of the people from the trammels of subordination which the Legis- lature once applied. Two results have thus gradually come about: (1) that the State chief magistrate, somewhat after the example of a Federal president, brings a certain dignity and independence of his own to bear upon legislative action; (2) that the Executive, as well as the legislator, feels an imme- diate dependence upon public opinion, and is equally representative of the voters, though representing officially the whole State, and not a fraction or geo- graphical portion thereof. And thus does immediate and practical representation of the people broaden greatly its original base. All this is very different from our American disposition in the Revolutionary age, for then no bulwark seemed too strong against executive tyranny, as personified in the late monarch or royal governors of Great Britain, and a legislature seemed the sole refuge of public liberty. Now that "President" had become the style of the Federal Executive, States formerly employing that designation dropped it for " Governor " on the earliest opportunity following 1789. ^ The first organic change noticeable in these com- ponent States after the new Union went into opera- 1 E. g., Pennsylvania and Delaware before 1800. 268 CONSTITUTIONAL STUDIES. tion wns inevitably to deprive the legislature of its primary choice of a chief magistrate where such a choice had formerly prevailed. Massachusetts had since 1783 furnished notably the admirable example of a State executive directly chosen by the people. The Federal mechanism, too, for selecting a presi- dent, though cumbrous and defective enough, meant at all events an escape for Federal government from the incubus of primary selection by Congress. In the new State of Kentucky, therefore, public opinion worked rapidly in the new direction. At once dis- carding the mother-State practice of choosing a gov- ernor by the Legislature, that State tried in 1792 the quasi Federal expedient of a choice by special (senatorial) electors; but by 1799 this choice was transferred to the people. Pennsylvania, Vermont, Delaware, and Tennessee, during the last ten years of the eighteenth century, concurred in the test of election by popular suffrage under their new organic law.^ Ohio again in 1802 gave the choice of State Governor to the people; Louisiana, the next new State, making a strange compromise instead,^ which, by 1845, gave way to popular elections conformable to American State practice elsewhere. As the nine- teenth century passed its first quarter, old States, such as Georgia, North Carolina, and Connecticut,^ in framing new constitutions, were seen conforming to this principle; Virginia, however, in 1830 still keeping to its Revolutionary mode of legislative choice of a governor. New States meanwhile were 1 But Georgia, in 1798, adhered to choice by the Legislature; and so did South Carolina, 1790. 2 A legislature fresh from the people was to ballot from the two highest candidates voted for at the polls. Louisiana, 1812. * Connecticut had long pursued this popular plan under her charter government, prior to tlie constitution of 1818, wliich emanated from the people. THE EXECUTIVE. 269 invariably conferring the choice of chief magistrate upon the people, under their successive instruments. A plurality choice, moreover, by the people (which must almost invariably result in a positive selection between candidates on a single trial at the polls) found strong proselytes before the last century ended, since evidently the larger fraction of public support is the safest. Of States so committed before 1800 were Pennsylvania, Delaware, and Tennessee. Ohio opened the new century with a State constitution of 1802, which announced the same rule, since almost universal. American practice had formerly favored the idea that wherever a majority of voters was requisite, the eventual choice from among the highest candidates should revert to the State Legislature, if the people elected no one, since, in so essential a department of government, time ought not to be wasted over further trials at the polls. ^ And to this older rule some of our original States adliered during the first half of the nineteenth century, — Maine, on her separation from Massachusetts in 1820, still retaining it. Federal example now favored an increase in length of the executive term, so as better to promote inde- pendence, experience, and stability in each incumbent of the office, formerly chosen annually. Four years was the term fixed upou by Kentucky in 1799, and in 1812 by Louisiana. Three years, somewhat earlier, had Pennsylvania and Delaware established it by way of change, while South Carolina, Georgia, and Tennessee, between 1790 and 1800, made two years their preference. Ohio, in 1802, fixed the tenure at * See Vermont, 1793; supra, page 60 The constitution of the United States still retains this antiquated feature of eighteenth-century instruments. 270 CONSTITUTIONAL STUDIES. two years, and various other States followed with the same limit. But Vermont, faithful to New England tradition in this respect, pronounced upon her ad- mission^ for annual elections; nor did Connecticut vary her ancient rule in that respect when supersed- ing, after the War of 1812, her colonial charter. Outside New England, however, the tendency for longer terms of office and less frequent elections was soon unmistakable. New York, Virginia, and North Carolina all speeding before 1835 in that direction, and new States taking the same current almost in- stinctively. In short, by the present day, not a State governor can be found outside of New England whose term of office is not at least two years ; while about half of our State executives are chosen rather for three or four years. ^ Re-eligibility to supreme office was restrained by various jealous instruments of the earlier epoch; yet that restraint appears almost invariably to have been partial only, and so as to permit of one's re-election for a specified number of years out of some longer stated period, or after the expiration of so many years in retirement. Delaware in 1831, while raising the executive term from three to four years, declared the Governor re-ineligible altogether, — a constraint which appears at this day quite abnormal in the American system.^ Organic tests for such station were not long kept up after 1789. Pennsylvania, Delaware, Vermont, and Kentucky, among States framing new or original constitutions towards the close of the last century, dispensed liberally with both religious and property qualifications. Maryland in 1810 abolished all prop- erty qualifications, whether for executive office or the Legislature; and Ohio in 1802 entered the Union 1 1793. 2 Davis, Tables, page 67. ^ lb. THE EXECUTIVE. 271 free of all such impositions. Tennessee in 1834 abolished the freehold qualification for Governor. Towards the middle of the present century new con- stitutions and new States usually ignored both prop- erty and religious tests. On the other hand, the constitution of South Carolina had exacted property of the value of £1500; that of Tennessee a freehold of five hundred acres; that of New Hampshire, besides property, that the Governor should be of the Protestant religion ; ^ while Louisiana in 1812 required landed property worth five thousand dollars. New York's constitution of 1821, with all its popular innovations in other respects, maintained for Gov- ernor the former freehold requirement. North Carolina, when revising her instrument in 1835, still disqualified atheists from the office, and required property to a moderate limit. But now in 1846 New York abolished her freehold qualification for Gov- ernor once and forever. Other old States instituted similar changes, while States newly organized one and all disregarded tests of property peculiarly un- suitable to their simple condition. New Hampshire abolished all freehold and property qualifications in 1852, and so had Massachusetts done for members of the Legislature, though for many years longer this latter commonwealth exacted of its Governor a free- hold in his own right worth XI, 000, and only in 1892 was this old test stricken out by vote of the people. 2 But residence remains an essential quali- fication in the States. The resident qualification was somewhat stringent in constitutions of the eigh- teenth century, aside from that of United States ^ See State constitutions, 1790-1800. 2 This text requirement of 1780 had probably escaped notice for many years. Governor W. E. Russell at length called attention to the anomaly, and an amendment was readily carried. 272 CONSTITUTIONAL STUDIES. citizenship. Thus seven years' residence in the State was the test in Pennsylvania, and ten in South Carolina. A lesser term of State residence, such as six or four years, gained preference in the fii"st quarter of this nineteenth centuiy,^ and the tendency has since been more liberal still. "A native citizen of the United States," following Federal precedent, several important States insisted upon early in this century, and various others embody now the same idea.''^ Disqualified classes have been announced from time to time in certain constitutions; membei'S of Congress, for instance, State or United States officials, or ministers of religion. The Governor must not hold during his term any other office of profit.^ The colonial appendage of an executive privy council or directory began by 1789 to fade out in the old thirteen States ; while States newly admitted and having no early custom in this respect chose to dispense quite generally with the encumbrance.^ Special functions of the old executive sort were for the future left rather to a specific Senate, as under the Federal system. Even in New England States which retained expressly that "council" feature of the executive branch, the choice of councillors became transferred to the people by districts, in place of the early legislative selection.^ Virginia in 1830 reduced her Revolutionary "council of State," and applied to that body a plan of rotation, but abolished the whole council finally in 1850 as Maryland had done in 1837. Maine in 1820 followed the parental example of Massachusetts in establishing a permanent executive council. Connecticut, on the other hand, merged 1 Louisiana, 1812; Ohio, 1802. 2 New York, Virginia, Alabama, Missouri (1821-1835). 3 Maryland, 1809. * Supra, page 61. ^ See Massachusetts, amendment, 1840. THE EXECUTIVE. 273 her council fully in the Legislature as an upper branch in 1818 ; while Vermont, beginning statehood with such a body, abolished it in 1836. Rhode Island's constitution of 1842 dispenses with an executive council. After 1850, therefore, Maine, New Hampshire, and Massachusetts became and since remain the only States of the Union which still maintain that old excrescence of colonial rule by Great Britain. ^ Lieutenant-Governor was recognized in the new constitutions of Kentucky, Vermont, and South Carolina at the close of the eighteenth century ; while Pennsylvania, Delaware, and Tennessee left that official out of their new or remodelled instruments during the same period, as also did Ohio and Louisiana early in the nineteenth century. During the first half of the present century new States, without sec- tional distinction, seem to have divided their prefer- ences nearly evenly in respect of setting up such an office; but towards 1850 the drift set strongly in favor of lieutenant-governors, several old States changing their former constitutions to that intent. Ohio in 1851 established that office after half a cen- tury's experience without it. A lieutenant-governor, wherever recognized in State instruments, was now to 130 chosen by the people like the Governor; and so long as no vacancy in the chief office occurred for his advancement, his chief duty was to preside over the State Senate. Wherever, indeed, such executive functionary was dispensed with, under a State con- stitution, the President of the Senate supjflied his place. 2 Perhaps the political convenience of a double- 1 North Carolina, however, recognizes a peculiar " council," much like a Federal cabinet, and consisting of the heads of the chief depart- ments, 1876. 2 Delaware (1897) lias just changed. Utah's constitution (189.'i) designates a governor, but no lieutenant-governor. 18 274 CONSTITUTIONAL STUDIES. headed ticket at the polls, to attract voters and invite combinations for party support, has more to do with the popularity of this vice-executive than any solici- tude over the possible vacancy that may promote him to full power. Concentration of the voting interest on an individual candidacy had, on the other hand, been thought in earlier times the surest pledge for bringing the best man into supreme office. It became common after 1789 to adapt for new or reorganized State governments various provisions relative to the executive department which our Federal constitution had set forth in a corresponding connection. Thus the Governor's salary was not to be increased during his existing term of office. He was to take heed that the laws were properly executed. He was empowered to convene the Legislature on extraordinary occasions, and at every session of that body was to communicate public information and recommend public measures by message. He might adjourn the Legislature where the two houses could not agree. He was of course commander-in-chief of the State militia, though, as some States provided further, he should not command in the field person- ally save upon request of the Legislature. He might require information or advice in writing from his chief subordinates. The }>ardouing power, either absolute or limited, is conferred upon the Governor by the constitutions of almost every State in the Union ; ^ and the phrase of the Federal constitution (whicli includes reprieves) supplies the usual text in this respect.^ But some ^ Cuunecticut ;ipi)earH to fnniisli tlie only real cxceijtioii at the present day, agreeably to local tradition. 2 Delaware, in 18.31, rcqnired tlie novornor to lay li is reasons for each ))ard()n before the Senate. Varions States have since adopted a similar rule. He must send in to the Legislature a specific list of the THE EXECUTIVE. Tlh States require the advice of the Senate to such an exercise ; ^ and occasional reservations are made besides the Federal exception of impeachment, par- ticularly in the offence of State treason. In Con- necticut the Governor can merely reprieve until the end of an ensuing session of the Legislature, while the Legislature alone can pardon. 2 New Jersey in 1844 set up a judicial committee on pardons to re- strain the Governor's free exercise of the power; and in Massachusetts the Governor's Council takes like cognizance of his action. ^ But no remission of court fees or of a debt due the State shall be made in par- doning ; * public notice of aj)plication shall be given before a pardon is granted,^ and the Legislature may regulate as to the manner of applying. ^ Among other provisions are these. The Governor shall send a message to the Legislature with recom- mendations at the close of his official term.'^ And having a considerable power usually to appoint, he must nominate to the Senate Avithin fifty days after the Legislature assembles in session.^ No person once rejected by the Senate shall be nominated again unless at the Senate's request, nor appointed to the same office during a recess.^ Maryland in 1851 authorized the Governor to remove minor officers summarily for incompetency or misconduct. And so favorably has such provision been since regarded pardons grantoil, togetlier Avitli his reasons iu each case. Wisconsin, 1848, mo Maryland, 1851. c New York, 1846. 7 Michigan, 1851. 8 Maryland, 1851. 9 76. 276 CONSTITUTIONAL STUDIES. elsewhere that at this day the Governor in New York and various other States has enlarged power over the high officials under him, even such as the Secretary of State and Treasurer, especially where corruption or gross neglect of duty is alleged, and may examine and report to the Legislature concerning the facts, and meanwhile suspend temporarily the accused person from office.^ As for the veto power, this, too, is generally bestowed in the several States upon the chief mag- istrate, according to the Federal principle which originated in Massachusetts.^ An absolute executive veto, to be sure, has been unrecognized in America since the days of royalty ; but a qualified veto by the Governor appeals to the second thought of the Legis- lature, whose two houses may by a sufficiently large vote on reconsideration pass the measure in question to take effect, notwithstanding the official objections. Two-thirds of a quorum constitutes usually that suffi- cient vote agreeably to Federal and Massachusetts precedent;^ but a few States set this requirement at three-fifths;'* while a rule which has gained much favor in the Union during the present century pre- scribes for each house a proportion of all the members elected, in order to override a veto." In four of the United States at least the Governor has no real veto power at all, but at most can only require the Legis- lature to reconsider its action.^ Vermont in the last 1 See Michigan, 1862; New York, 1846, and amendments. 2 Supra, page 62. 8 Georgia and Now Hampshire (1790-1800). * See N(l New Ilanipsliire with peculiar limits elsewhoro noted. - In 187.3, upon the suhniission of a jivopoKcd anioiidinoiit relating to the judge.4 of the highest court, the ijooplc of Now York by nearly two to (jiK^ rcfnseil to return to the old mode of appointment. ^ But not re-oligihle. rennsylvauia, 1873. THE JUDICIARY. 291 not go unheeded ; and though rich remuneration comes chielly to those who devote themselves to private practice at tlie bar, the American bench has never yet failed to attract men of honor and more than average ability. Among miscellaneous constitutional provisions re- lating to the judiciary in various States these may be noted. Tribunals of conciliation to which parties may voluntarily submit shall be favored. ^ State reports shall be speedily published, and shall be free for any one to print, ^ for emolument, except the judges themselves.^ Judges shall not charge juries as to facts, but may state the testimony and declare the law.'^ Judges shall as often as possible refer in their decisions to the particular law on which the judgment is founded.^ Judges must render decision in ninety days.^ Judges shall have an adequate recompense by way of salary and no fees or perqui- sites ; such salary shall not be diminished, but may be increased; they shall not act as attorney or counsel in matters to be tried before them, nor in general be interested parties in the official business transacted in their courts.'^ They must not even practise law while on the bench. ^ And for their better seclusion, as also for encouraging a devotion to the duties for which they have been set apart, undistracted by politics, judges are sometimes declared ineligible to public office elsewhere excepting judicial station, 1 Wisconsin, 1846 ; New York, 1846. See also Georgia, 1789-1835. 2 California, 1849. 3 Indiana, 1851. 4 Ih. ^ Louisiana, 1812, with a civil code. ® Rather a qnestional)le requirement so far as fixing specific limits is concerned. California, 1879. ■^ See New Hampshire as early as 1 792. IJecent constitutions (1889) of new States contain sucli provision. 8 California, 1879. 292 CONSTITUTIONAL STUDIES. during their respective terms of service.^ Special provisions are sometimes found concerning the method and limitation of suits against the State. There are still a few States of this Union in which the (jovernor (and perhaps, too, the Legislature) may ask in advance the formal opinion of the judges of the highest court for public guidance ;2 but usually no opinion can be procured from the judiciar}^ of a commonwealth except through the ordinary channel of litigation and the formality of a test case duly argued. The common practice in this country about 1789 was for a court to appoint its own clerk ; and a clerk might serve, like the judge, for good behavior. A judge often bestowed the easy office upon a son or kinsman. Ohio in 1802 required sheriffs and justices of the peace to be locally elected by the voters ; and this rule grew gradually into State favor. The county prosecuting officers were formerly appointed to a considerable extent l)y the Executive. The modern revolution, however, in favor of fixed tenure and popular elections for all officers of a State, has swept into the patronage of the voters, clerks, sheriffs, marshals, district attorneys, and registers, as well as the judicial incumbents of the courts with which such officers are connected, from lowest to highest. In States disposed to economize the offices, the comity clerk has sometimes been designated to serve as clerk of a county court, while the Secretary of State officiates as clerk of the highest appellate tribunal.^ The increased momentum of the judicial power in the United States chiefly results (1) from the idea 1 California, 1879. 2 ,S'«/)ra, page 67 ; rioriila,. 1875; South Dakota, 1889. 8 New Jersey, 1844. CONSTITUTIONAL INTERPRETATION. 293 gradually evolved in American politics that the written constitution, the local fundamental law of any State, shall be regarded as a sovereign emanation from the people, for defining and portioning out the respective functions of well-ordered government, and while confining each co-ordinate branch of such gov- ernment to its own legitimate sphere, keeping all three of them from encroaching upon the reserved rights of the individual citizen ; (2) as the corollary of such a proposition, from the necessity of finding some constant safeguard and exponent of such funda- mental law, so that Executive and Legislature, the originators more particularly of public policy for present and future, shall be kept to the equilibrium of fundamental constraints by some force consistent with normal tranquillity. That safeguard and exponent has been found, both in State and Federal systems, in the tranquil and deliberate oversight of the Judici- ary, — a tribunal devoted to revision of the past, co-ordinate as far as possible with these more active and aggressive departments, yet equally independent in fundamental theory, and equally bound to regard the will of the people as constitutionally expressed. The courts accordingly compare the acts of these other departments with the written constitution, and as to acts of legislation, most particularly, whose scope might otherwise be resistless by the individual, pronounces them invalid and of no effect, if in fun- damental conflict. Foreign observers of our insti- tutions marvel that such a mechanism of constraint can be practically applied, and they pronounce its application confusing; yet they freely admit that the mechanism works, and at this long distance of time works easily. Such arbitrament works all the better because no violent array is brought up against Executive or 294 CONSTITUTIONAL STUDIES. Legislature, because the test case made is that of private individuals, and because argument is heard, delay accorded, and the public mind, well prepared to doubt whether the act complained of were really consistent with organic law, learns in due time the decision and its reasons. The test case comes to judgment; the particular judgment is enforced; and the people, and they, too, of co-ordinate departments of the government whose pride is not wounded, and whose agents have perhaps already changed, concede that the judgment for one individual contestant ought to prevail equally for all other private contestants similarly situated. Cheerful acquiescence in the decision of the highest appellate tribunal becomes doubly the policy of fairness, — a maxim like that of acquiescence in the political will of a majority; and even were resistance continued, the court's process is available to all other individuals in turn who feel aggrieved, and disobedience to the law-makers be- comes obedience to the State. Thus does wrong- ful and despotic legislation become Siipped of its mischief. The idea of a power thus overriding the enactment of a legislature was not wholly new to American citizens in 1789, but existed to some extent in colonial and Revolutionary times ; and in the national era which has succeeded that date, the Supreme Court of the United States simply exerts on a new and more comprehensive scale, and with a more imposing fundamental operation, what States inde- pendent of Great Britain had severally begun to exercise in the intervening years through their own highest tribunals.^ Perfect government is gained in this inherent operation of fundamental law of the land, when general acquiescence is peacefully given 1 See "Atlantic Moutlily," November, 1881. CONSTITUTIONAL INTERPRETATION 295 both by tlie people and the public departments, so that the Executive desists from enforcement, and the Legislature repeals the devitahzed statute without further controversy. For even supposing the court to have registered an unrighteous decision (which is seldom), it is better that the people, who make and unmake judges and other public servants, shall defer to the decision until their own peaceful opportunity comes to reorganize and reconstruct. The field of the American Judiciary becomes thus immensely enlarged as appellate judges in a State become thus the conservators of organic law. The judges represent, as a recent writer has well expressed it, "the deeper and more abiding popular sense of order and justice; " and the court, no less an instru- ment of the people than the Legislature, reflects the public sentiment in a deeper, calmer, more lasting form, embodying popular aspirations after an ideal of perfect order. ^ 1 Horace Davis's Americau Constitutions, 61. VIII. MISCELLANEOUS ; CONCLUSION. Impeachment by the Legislature for the removal of public officers is a process still sanctioned almost everywhere in our American States, Oregon long constituting the sole exception. Impeachment pro- visions in the Federal constitution furnish, with some local variations, the usual model in this respect. But the cumbrousness and uncertain result of all such political trials have induced contempt for the pro- cedure ; so that in consequence some States are now disposed to extend the summary removal of public officers b}^ address or joint resolution as a legislative substitute ; ^ while others empower the Governor, whenever charges aie preferred against subordinates, to suspend or remove the culprits from office, and to institute ci'iminal prosecution against them in the courts. Elections at frequently recuri-ing intervals and the popular test for all high officers of State, judges included, nnist largely dispense with the necessit}^ of impeachment. Some modern State con- stitutions expressly confine impeachment by the Legislature to high officials, making all the lesser public servants liable to indictment and trial in the courts, and even to judicial removal, in case of con- viction, as part of the punishment.^ 1 See Louisiana, 1812; TiidiaDM, ISfil ; pajje 288. 2 Tennessee, 1834. And see Califoniia, 1848; Oregon, 1857. MISCELLANEOUS PROVISIONS. 297 We have observed in the States of this century a growing insistence upon geographical residence as a test of tlie right to vote or hold office. Qualification, or rather clear definition, of this rule finds occasion- ally an organic recognition ; thus absence from home on business of the State or Union shall not dejjrive one of such residential rights. ^ The chief officers of State are specially required under various constitu- tions to reside at the seat of government, ^ and to keep the records there, while county officers are similarly enjoined. States, while seldom liberal, have sometimes been parsimonious respecting public salaries; as when Tennessee's constitution in 1796 prescribed a maximum limit for such recompense in specific instances, yet named no minimum. "All salaries and fees shall be moderate," enjoins Delaware in 1792, "and receipts which specify particulars shall be given for all official fees." ^ The Legislature shall determine what deductions shall be made from the salaries of public officers for neglect of duty. Among citizens specially enumerated as ineligible to State office we find ministers of the gospel,^ army and navy contractors, persons in the service of the United States, and those, moreover, convicted of bribery or infamous crimes. Plurality of offices, State and national, is frequently forbidden in State instruments. Virginia in 1850 disqualified every salaried officer of a bank or attorney for the commonwealth from sitting in the Legislature. Delaware has been the latest 1 Kentucky, 1799. 2 Michigan, 1835; Indiana, 1851, etc. Louisiana's early constitution of 1812 declares that all civil officers for the State at large shall reside within the State ; and all district or county officers within tlieir respec- tive districts or counties, and shall keep their respective offices at such places therein as may be required by law. 8 Delaware, 1792. * Supra, page 68. 298 CONSTITUTIONAL STUDIES. State in the Union, apparently, to retain a property qualification, somewhat as in the last century. ^ Re- ligicMis qualification was ignored so generally in new State constitutions early in this centmy that it seemed a relic of old times when Arkansas, as late as 1836, declared upon admission to the Union that no atheist should hold office nor be an admissible witness in the courts. But North Carolina as late as 1876 renewed the atlieist disqualification of her earlier constitution; and a few other instruments of old States are of the same purport. ^ FolloAving the traditions of her colonial age, Con- necticut, far into the nineteenth century, maintained two State capitals, Hartford and New Haven, where the Legislature was required to hold alternate ses- sions; but since 1873 Hartford has absorbed the honor of State residence. Rhode Island, with a similar colonial history, still pursues that old custom of double headquarters at Providence and Newport. In all other States of the Union one capital city has always sufficed, and from the very outset of the nine- teenth century wo see the Federal rivalry of 1789 reproduced, and the strife of local settlements emulous for selection as the seat of government, shaping the expression of conventions, under whose guidance Territories were ushered into the Union as fidl-grown States. Thus Ohio in 1802 declares Chillicothe the seat of State government until 1808, and forbids money to be raised until 1800 for erecting any State House. Louisiana in 1812 orders the State capital to 1 For the Senate. A coiiveiitiou has (1897) ordained a new con- stitution for Delaware. A peculiarly ohstriictivo method of callinj:; a State convention under the old organic law (namely, the vote of an average rcpre.'^entative majority of the people) hindered the needful popular assent earlier. '^ See supra, page 230. STATE CAPITALS, ETC. 299 continue at New Orleans until removed by law. By the middle of this century the location of the seat of government in a new State had become a prize for keen and speculative competition; so that the con- vention which framed the organic instrument for submission to Congress would often evade the choice of more than a temporary capital, leaving the perma- nent one to be fixed later by the Legislature, under the proviso that a State or even a county seat of government once deliberately selected should not be changed again at discretion. Oregon in 1857 made the majority vote of the people indispensable to every proposal for capital removal, — a wise precau- tion, since schemes of the kind turn usually in the Legislature upon local jobbery and debasement. State boundaries are defined, and the fundamental condi- tions with Congress concerning admission are seen set forth in the constitutions of most new States of modern times ; and a schedule is conveniently affixed to new constitutions in general for temporary details connected with the new establishment. The revision and codification of State laws, at once or at some later specified period, is found a feature of many State constitutions in modern times ; and com- missions for that purpose, or for devising improve- ments in the penal and practice codes, are sanctioned accordingly.! Indeed, commissions of three or more have multiplied much as the drudgery of State busi- ness increases ; and boards of commissioners, gradu- 1 See this idea emanating early in the southwestern region, as in Alabama, 1819, and Missouri, 1820. By 1846 New York set an exam- ple in that respect since largely followed. But Michigan, in 1850, for- bade all general revision of laws in the future, pointing out a simpler method of reprinting, in the government publication, by way of substi- tute. Whatever State legislatures might have ordered in such States as Virginia and Massachusetts without constitutional (h'rection, Georgia's constitution of 1798 is seen directing that witliin five years the body of laws of that State, civil and criminal, should be digested. 300 CONSTITUTIONAL STUDIES. ally rotating, came into vogue by 1850, to supplant single heads for bureau service of a counuonwealth. The old thirteen States, once colonies, received no liberal gifts for education from the Federal Union of 1789, such as endow common public instruction so liberally in States west of the Alleghanies from the proceeds of the Federal pubhc lands. Some of these original States, however, have had public educational funds of their own creation; that, for instance, of Connecticut, known as the common-school fund, and excellently managed; and New York had a similar endowment.! Knowledge, virtue,' literature, and the common schools — the latter free from sectarian con- trol — are all repeatedly commended in the organic law of these United States, superintendents of State education being specially provided. Asylums for the poor and feeble gain provision also ; and the State almshouse, and State institutions for the insane, blind, deaf and dumb, are seen by 1850 among the public institutions recognized by the fundamental law of the people. Humane sentiments make con- stant advance, and organic prohibitions multiply against duels and lotteries, ^ as well as the older offences enumerated. The evil practice of duelling, which had cost so many distinguished lives, Avas by 1850 not unfrequently denounced as a disqualification for office ; and Texas in 1845 required an oath to be taken by every State officer and member of the Legis- lature that he had not fought nor been second in a duel since the State constitution was adopted. Tennessee's constitution at the time of her admis- 1 Connectii'ul;, 1818; New York, 1821 ; supra, page 228. - See Marylaiitl (1851) and other States (1851-1860). Trevious to 1800, lotteries had been widely recognized in America as a suitable mode of raising funds on behalf of charity, religion, and public improvements. MUNICIPAL GOVERNMENT. 301 sion to the Union in 1796 contained a protective clause, exempting from taxation all articles manu- factured from the produce of the State. During the era of this century that State internal improvements made an absorbing issue in national politics, some of our local constitutions exhorted the Legislature to encourage such projects, while others forbade or restrained all expenditures of the kind.^ By 1860 the condemnation of such costly enterprises at tlie expense of the State had become general. New- York's constitutions have taken special concern in protecting and developing tl^^ salt springs of the State and the Erie and Champlain canals, ^ ordaining in 1846 that these public sources of wealth should never be sold. Indiana has enclosed as a sacred precinct the Tippecanoe battle-field; and Maryland her State House square and grounds at Annapolis, while New York seeks to rescue from private waste or depredation the Adirondack forests and the water supply of the Hudson and Mohawk valleys. The increasing tendency of an American popula- tion to swarm at central points of the commonwealth, to the detriment of town representation and the old uniform local government by selectmen and town meeting, drew general notice before this century had far advanced. New York in 1821 ordained that mayors of all cities in that State should be chosen by the respective common councils, but in 1833 per- mitted the mayor of New York City to be elected at the polls. Massachusetts in 1822 by a constitutional amendment authorized the Legislature of the State to incorporate cities wherever there were twelve thou- sand inhabitants, and the local voters desired such 1 Cf. Missouri, Tennessee, Alabama, Mississippi, Michigan, Florida, and Texas (1819-1845). 2 New York, 1833, 1835. 302 CONSTITUTIONAL STUDIES. change of government. Since the Civil War, State constitutions, having large cities within the jurisdic- tion, are seen devoting much detail to that increas- ingly difficult subject of municipal self-government. Thus, Maryland in 18G7 makes lengthy provision regarding the government of Baltimore. One muni- cipal change which the recent New York convention of 1894 favored is that of separating such municipal elections from those of State or national officers, and, by making them local and distinct, concentrate the voter's attention to candidates detached from other issues. In comprehensive schemes, however, for municipal government, States are still confessedly in the experimental stage of a most gigantic problem; it may be said that of divided responsibilities, multi- plied checks and balances, and varying terms of civic servants, the present age seems heartily sick; and dispensing with councils or mimic representative assemblies, the remedy of the hour, which may or may not prove finally effective, is that of establishing a business man's government, controlled essentially like a private business corporation, with powers con- centrated in a commission or single executive whom a board of aldermen can but slightly restrain. ^ The political tendency has been in many States for the legislative majority, on behalf of rural con- stituencies, to take a great metropolis in hand, med- dling in its morals by a State board of police, and regulating and experimenting with its municipal gov- ernment; but some late constitutions react a little in favor of that home rule and local influence which all good citizens must cherish while republics endure. ^ 1 The mayor of any city may make official objection or " veto " within fifteen days to hills of the Legislature which affect the city's domestic affairs. New York, 1S94. 2 New York's 1894 amendments classify the cities of that State Recording to relative population ; and as to cities of the first class A POPULAR REFERENCE. 303 We have elsewhere traced the growth of that fun- damental doctrine which required the submission of constitutions and of constitutional amendments to the voters. Towards the middle of this century such convenient reference to the people became a resort for relieving a State convention of various trouble- some decisions upon such fundamental propositions as granting suffrage to the colored race in a free commonwealth; and thence the further advance was easy for a convention to authorize a legislature to frame other specific issues of a like perplexing kind for the voters. Thus the Wisconsin convention in 1848 permitted a popular reference by the Legislature of "bank or no bank," the creation or non-creation of such corporations to depend upon the will of the popular majority as expressed at the polls. The creation of public debt for certain purposes was so referred in various instances. The liquor question, too, where those who would prohibit in a State alto- gether conflict with the. promoters of a license, became about 1850, as it has been ever since, an issue for popular 7xfercndum under State constitu- tions,^ with later a "local option" application as between the two plans in the various towns and cities. Taxation and other provisions are seen framed in the modern organic law of several States never to be changed without a referendum to the people. In many States a referendum is regularly made to the people at specific periods, such as twenty years, on the question of calling a constitutional convention. And States are already agitating a new and final advance in the same direction which shall require the submission of all enactments by the Legislature to empower a mayor to p;nard as chief executive the interests of the community against injurious legislation. 1 Oliio, 1851. 304 CONSTITUTIONAL STUDIES. the same final sanction of the people at the polls. Ancient experience shows the unfitness of a plebis- citum for framing and originating measures in a free republic of more than moderate population, but not, in matters of general concern, for considering the adoption of what some representative body has pro- posed in concrete form. The Anglo-Saxon temperament has held sway thus far throughout the Union; and, whether in the old French and Spanish annexations of territory and inhabitants, or that incongruous immigration from abroad which j)ours in so constantly over the whole area, foreign elements have been easily assimilated. To this predominance of the primitive race and char- acter through all such admixture, the stability of our institutions is immensely owing. New States have spread the influence of English ideas in law and literature, and the mother tongue is the language of this continent. Louisiana, on her admission in 1812, ordained that all laws of the Legislature, and all judicial and legislative proceedings, should be pro- mulgated, preserved, and conducted in the same language as tliat of the constitution of the United States.^ California, more yielding to her native element, announced in 1849 that all laws or decrees requiring publication should be published in English and Spanish; but the former style has gained the mastery. The genius of republican free government on this continent is Anglo-American. In conclusion, we are impressed by the progres- sive strength of the two great forces of this American 1 It was conceded, however, in the Louisiana constitution of 1845, that the Secretary of the State Senate and Clerk of the State House of Representatives should ho conversant witli both Enfijlish and French, and that members might address the Legislature in either language. FINAL OBSERVATIONS. 305 Union, the centripetal and the centrifugal, in their constant relation to one another, as the whole undi- vided people advance to continental empire. The Federal government, now fitly styled national, stirs best the spirit of public pride and love of glory, because of its splendid historical achievements, and, since the Civil War, its sure foundation in the American heart. Exercising with energy such para- mount functions of sovereignty as those of war, peace, foreign relations, commerce, territorial acquisition and development, the post-office, immense resources of taxation which are exclusive as respects tariff and the customs ; symbolized in the national flag and con- trolling the only active and permanent army and navy of the people ; regulating the mutual intercourse of States and their inhabitants in essential particulars, — the United States government with its continuity of administration is at length easily paramount. But in the several States, — prosaic by comparison, whether in area, population, or the scope of ostenta- tious action, — we see the multiplying nurseries of self-government, the abodes where public spirit and confident experience in free institutions must still be generated while generated at all. Here originate constitutional reforms and the inventions of democracy to curb and regulate all rulers ; and in these jurisdic- tions will popular liberty maintain its last stand, should the Union, ages hence, fall asunder. Cor- ruption that corrodes, despotism that oppresses, vice that unnerves, need only be feared when poisoning such fountain-heads. Humble as may be the field of local achievement in this Union, material as may appear State ends and inconsequential State public routine, the study of republican institutions is an exceedingly interesting one which these several commonwealths furnish. 20 306 CONSTITUTIONAL STUDIES. Political geography reckons usually by nations alone and their chief cities ; and of State political divisions in America the outer world makes scarcely more account than would we of the counties or provinces which make up England, France, or German}^; all the more so that while homogeneousness continues in a national sense. States with merely artificial bounda- ries multiply. Yet, while the Federal constitution has yielded but little to structural reform for more than a hundred years, State instruments abound in improved ideas of government which deserve to be nationalized. Our first impression, perhaps, as we approach the study of these documents, is unfavorable. So much constitutional detail seems needless. We object that something ought to be left to the discretion of the governing power, that the closest ligature of parch- ment offers no adequate guaranty of good government. But when we have well studied and compared State constitutions, such prejudice softens ; we discern that the modern governing power in the American com- monwealth is not the agent, but the principal, not individual ambition, but the general opinion. We realize that a constitution becomes the most impera- tive of written law, because the enactment of the people. Breadth, not intolerance, characterizes these later schemes of State government. Dislike of monopolies, of class and monej^-making privileges, though visible, is not destructively manifested. If some impertinent or niggardly constraint can be pointed out in a State constitution, it is only on rare occasion. If rulers seem now and then hampered in action, it is because the ruled are "subjects," in the old-world sense, no longer; because American citizens are keenly sensitive to public shortcomings, and apprehend the temptations which beset those placed FINAL OBSERVATIONS. 307 temporarily over them by their own suffrage. Sooner or later the best thought of each communit}^ of busi- ness men, of journalists, of university scholars, of literary writers, of those who make a comparative study of politics and government, of professional men and philosophers, as well as of recognized politi- cal leaders, has gone into the marrow of these State constitutions. Republican home government finds here the widest scope and expression; experiments bring results ; and expedients for reform soon develop vital principles. The whole outlook of such progres- sion is hopeful, since the salvation of self-govern- ment lies in a continuous sense of honor and patriotism among the people, and in the courageous determina- tion, moreover, of the majority to correct whatever practical mischief public administration may at any time bring to light. The American people, as a mass, are far from being hasty and capricious in ordering fundamental changes. Even in the great mass of statutes churned out periodically by the several State legislatures, those who explore inform us that the really important changes of written law are few and unfrequent; and our present study of institutions convinces us that in organic political reforms as well, the conservative instinct of the American people is very great. The inertia of the mass opposes those who are actively pushing for new results. The grandeur of our American example in the world's history seems well assured, if only two dangers be well guarded against. One of these, which is fostered by the exceeding laxity of the Federal power originall}^ given in that respect to Congress, or assumed, concerns the future territorial expan- sion of this Union ; and it might be well if a con- stitutional amendment should guaranty in this respect 308 CONSTITUTIONAL STUDIES. a better constraining right to the people. The new and remote annexation of a people unfitted to mingle in self-government, and of a foreign country not contiguous, may imperil the experiment of the fathers in some future era of "manifest destiny." The other danger lies in the excrescent growth of political agencies for organizing the voters, massing cohorts for the candidates, and making selfish spoils of the public patronage. Against this latter evil should be set the best mental and moral enlightenment of the people, so that citizens may grow up good patriots, able to combine and co-operate for noble ends with- out arrogance or class spirit. That virtue which has well been pronounced by Montesquieu the ani- mating spirit of a republic is in its essence patriotism, — a burning passion for one's own country, and a desire to advance always its true good and greatness. Though latent in commonplace times, such patriotism, when intelligently directed, becomes an overwhelm- ing force for the general good in times of danger. CONSTITUTIOlSr UNITED STATES OF AMERICA. We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the connnou defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. Sect. 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and a House of Representatives. Sect. 2. The House of Representatives shall be composed of members chosen every second year by the i^eople of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. No person shall be a Representative who shall not have at- tained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be deter- mined by adding to the whole number of free persons, includ- ing those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed 310 CONSTITUTION OF one for every thirty thousand, but each State shall have at least one representative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut live, New York six, New Jersey four, Pennsyl- vania eight, Delaware one, Maryland six, Vkginia ten. North Carolina five. South Carolina five, and Georgia three. When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of elec- tion to fill such vacancies. The House of Representatives shall choose their Speaker and other officers ; and sliall have the sole power of impeachment. Sect. 3. The Senate of the United States shall be com- posed of two Senators from each State, chosen by the Legis- lature thereof, for six years ; and each Senator shall have one vote. Immediately after they shall be assembled in consequence of the fii'st election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so tliat one third may be chosen every second year ; and if vacancies happen by resigna- tion, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temjiorary appointments until the next meeting of the Legislature, which shall then fill such vacancies. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he sliall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. The Senate shall choose their other officers, and also a Presi- dent pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of tlie United States. The Senate shall have the sole power to try all impeach- ments. When sitting for that ]nirpose, tliey shall be on oath or aflinnation. When the President of the United Stales is tried, the Chief Justice shall jircside : and no jierson shall lie con- victed without the concurrence of two thirds of the members pi'Bsent. THE UNITED STATES. 311 Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under the United States : but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, accord- ing to law. Sfx'T, 4. The times, places, and manner of holding elec- tions for Senators and Representatives shall be prescribed in each State by the Legislature thereof ; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. The Congress shall assemble at least once in every year, and such meeting shall bo on the first Monday in December, unless they shall by law appoint a different day. Sect. 5. Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business ; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each House may provide. Each House may determine the rules of its proceedings, pun- ish its members for disorderly behavior, and, with the concur- rence of two thirds, expel a member. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy ; and the yeas and nays of the niemVters of either House on any question shall, at the desire of one fifth of those present, be entered on the journal. Neither House, during the session of Congress, shall, willi- out the consent of tlie other, adjourn for more than tliree days, nor to any other place than that in which the two Houses shall be sitting. Sect. 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the Treasury of the United States. They shall in all cases, except treason, felony, and breacli of the peace, ])e privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same ; and for any speech or debate in either House they shall not be questioned in any other place. No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created. 312 CONSTITUTION OF or the emoluments whereof shall have been increased, during such time ; and no person holding any office under the United States shall be a member of either House during his continu- ance in office. Sect. 7. All bills for raising revenue sliall originate in the House of Representatives ; but the Senate may propose or con- cur with amendments as on other bills. Every bill which shall have passed the House of Representa- tives and the Senate shall, before it become a law, be presented to the President of the United States ; if he approve he shall sign it, but if not he shall return it with his objections to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If after such reconsideration two thirds of that House shall agree to pass the bill, it shall be sent, together with the objec- tions, to the other House, by whicli it shall likewise be recon- sidered, and, if approved by two thirds of that House, it shall become a law\ But in all such cases the votes of both Houses shall be determined by j'eas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment) shall be presented to the President of the United States ; and, before the same shall take effect, shall be approved by him, or, being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations pre- scril)ed in the case of a bill. Sect. 8. The Congress shall have power, — To lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general welfare of the United States ; but all duties, iniposts, and ex- cises shall be uniform throughout the United States; To borrow money on the credit of the United States ; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes; To establish an uniform rule of naturalization, and uniform THE UNITED STATES. 313 laws on the subject of bankruptcies throughout the United States ; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures ; To provide for the punishment of counterfeiting the securi- ties and current coin of the United States ; To establish post-offices and post-roads ; To promote the progress of science and useful arts, by secur- ing for limited times to authors and inventors the exclusive right to their respective writings and discoveries ; To constitute tribunals inferior to the Supreme Court ; To define and punish piracies and felonies committed on the high seas, and offences against the law of nations ; To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water ; To raise and support armies, but no aj^i^ropriation of money to that use shall be for a longer term than two years ; To provide and maintain a navy ; To make rules for the government and regulation of the land and naval forces ; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions ; To provide for organizing, arming, and disciplining the mili- tia, and for governing such part of them as may be employed in the service of the United States, reserving to the States re- spectively, tlie appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress ; To exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by ces- sion of particular States, and the acceptance of Congress, be- come the seat of the government of the United States ; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings ; and To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. Sect. 9. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one 314 CONSTITUTION OF thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. I'he privilege of the writ of habeas corpus shall not be sus- pended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder or ex post facto law shall be passed. No capitation or other direct tax shall be laid, unless in pro- portion to the census or enumeration herein before dii'ected to be taken. No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another. No money shall be drawn from the treasury, but in conse- quence of appropriations made bylaw; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States; and no person holding any office of profit or trust under them shall, without the consent of the Congress, accept of any pres- ent, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state. Sect. 10. No State shall enter into any treaty, alliance, or confederation ; grant letters of marque and reprisal ; coin money ; emit bills of cretlit ; make anything but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws ; and the net produce of all duties and imposts, laid by any State on im- ports or exports, shall be for the use of the treasury of the United States ; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. THE UNITED STATES. 315 ARTICLE II. Sect. 1. The executive power shall be vested in a President of the United States of America. He shall hold his office dur- ing the term of four years, and, together with the Vice-Presi- dent, chosen for the same term, be elected as follows : — Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress : but no Senator or Represen- tative, or person holding an office of trust or profit under the United States, shall be appointed an Elector. [The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shaU then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed ; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose by ballot one of them for President ; and if no person have a majority, then from the five highest on the list the said House shall in like manner choose the President. But in choosing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall choose from them by ballot the Vice-President. — Repealed by Amendment XII.'] The Congress may determine the time of choosing the Elec- tors, and the day on which they shall give their votes; which day shall be the same througliout the United States. No person except a natural-born citizen, or a citizeir of the 316 CONSTITUTION OF United States at tlie time of the adoption of this Constitution, shall be eligible to the office of President ; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five yi'ars, and been fourteen years a resident within the United States. In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the Vice- President, and the Congress may by law provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President, and such officer shall act accordingly, until the dis- ability be removed, or a President shall be elected. The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them. Before he enter on the execution of his office, he shall take the following oath or affirmation : — " I do solemnly swear (or affirm) that 1 will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States." Sect. 2. The Pi-esident shall be commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States ; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of tlieir respective offices, and he shall have power to grant reprieves and pardons for offences against the United States, except in cases of impeacliment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Sena- tors present concur ; and he shall nominate, and, by and with the advice and consent of the Senate, shall appoint ambassa- dors, other public ministers, and consuls, judges of the Supreme Court, and all other officers of the United States, whoso appoint- ments are not herein otherwise provided for, and which shall 1)6 established by law ; but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in tlie heads of departments. The President shall have jiower to fill up all vacancies that THE UNITED STATES. 317 may happen during the recess of the Senate, by granting com- missions wliich shall expire at the end of their next session. Sect. 3. He shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient ; he may, on extraordinary occasions, convene both Houses, or either of them, and in case of disagi'eement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper j he shall receive ambassadors and other public ministers ; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. Sect. 4. The President, Vice-President, and all civil officers of the United States, shall be removed from office on impeach- ment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. ARTICLE III. Sect. 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office. Sect. 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party; to controversies between two or more States, be- tween a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects. In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate juris- diction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make. 318 CONSTITUTION OF The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed wdthin any State, the trial shall be at such place or places as the Congress may by law have directed. Sect. 3. Treason against the United States shall consist only in levying war against them, or in adhering to their ene- mies, giving them aid and comfort. No person shall be con- victed of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. The Congress shall have power to declare tlie punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person at- tainted. ARTICLE IV. Sect. 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Sect. 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in tlie several States. A person charged in any State with treason, felony, or other crime, who shall flee fi'om justice, and be found in another State, shall, on demand of tlie executive autliority of the State from which he lied, be delivered up, to be removed to the State having jurisdiction of the crime. No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Sect. 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State ; nor any State be formed l)y the junction of two or more States, or parts of States, with- out the consent of the Legislatures of the States concerned, as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States ; and nothing in this THE UNITED STATES. 319 Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State. Sect. 4. The United States shall guarantee to every State in this Union a republican form of government, and shall pro- tect each of them against invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence. ARTICLE V. The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the Legislatures of two thirds of the several States, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratification may be pro- posed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI. All debts contracted and engagements entered into, before the a