IN MEMORIAM BERNARD MOSES mM^m, id p^^ ' f 1 ^^\ii^%i Wlf^ T^^- ^if ^ i^ SI <^ ai m J • T "^ ' 1 [j^H^i 1 rr'^K^ii 1 rf^siv. f /.~~^t W y/l\\ * ^» ^ ^/ IL W ^1 iri^/ Mi'^mi'^^ ^^l/}^!^ / ^i^j|/ ^^f^ ^^^F^' i/^M v^ //^Iv^ /r -"^ ' ^^JH ^^Mtfi )^M//p ^m^/\ f^l^l ^oi^iy/ vx^\v^^' J^Sl^j 1 ^fei/ T^I^J / 7^^^ / ^^i (^j^lv^ i C^ /^^l^. :^k^v ^M ^MM ^Mji^Mi ii^ /jK^r-. it- 1// r^^lr^2i 3 \/X\ Mglgi g ^Mi :^/|/ Mp/l/^JI^^/l/^i^^l ^^^^ ^^ / ^vXvEi/^ ^^or-f ^1 /- =>^»«:- -J,'/ 1 ri5i.,^-i^^ ^PJJ ^^B^v/| '"^M^~/ ^N^' ^MiS^^- Q iL M^i ^ ^^ 1 ^^\il^Jr ^fe»^ W\ ^^^^, 3 1 fi Sfe ^^r^^ O ^^^M o M E^' ^^ai^'i 1 rr^J^ ^^M^J^ ^^S fi \iOA /A^fc^^ 1 / /^AQx Constitution op the United States 1 CHAPTER n. The Legislative Department 37 CHAPTER IIL The Executive Poweb 65 CHAPTER IV. The Judicial Power 96 CHAPTER V. The Post-Constitutional History op the United States 145 CHAPTER VI. Cubrent Questions Productive op Changes in the Constitution 223 CHAPTER VII. The State Constitutions: The Changes Therein, and their Development 350 xix XX CONTENTS. PAGE ADDENDA 275 APPENDIX. Articles op Confedeeation and Perpetual Union be- tween THE States .... 313 Constitution of the United States 326 Articles in Addition to, and Amendment of, the Con- stitution OF the United States 341 Index 347 Index to Addenda 362 CONSTITUTIONAL HISTOEY OF THE United States, CHAPTER I. CONSTITUTION OF THE UNITED STATES. It would far transcend the limits of a book intended' for popular purposes, to enter into an elaborate investigation of all the causes which contributed to the creation of the United States Constitution, or to trace in detail the reasons why the constitutions of the American States all came to be written documents, instead of being unwritten and elastic principles of government, like the Consti- tution of Great Britain. Without much sacrifice of space, however, a few salient elements may prop- erly here have attention drawn to them. The powers of the governments of the English colonies in America, before the Eevolutionary war, beginning in 1775, were all written instruc- 1 3-' ' '-' i CONSTITUTIONAL HISTOET. lions, accoicnpaniecl by charters and grants of title and formulated frameworks of government. The English colonists were thus accustomed to written documents as the source of governmental power, and the meaning of their provisions was the test of governmental limitations. At an early date in the history of the origin and settlement of "Virginia no taxes were to be levied by the Governor without the consent of the Gen- eral Assembly, and when raised they were subject to an appropriation by the Legislature of the colony. The Plymouth colonists, who were the settlers in New England, acted originally under a form of voluntary compact ; but found it difficult to obtain proper respect for governmental au- thority under this voluntary form of associa- tion, and as early as January, 1629, by a patent from the Council under the charter of King James of 1620, obtained sanction and authority for the laws which they subsequently enacted. The fact that this Patent lacked royal assent was the ex- cuse for its withdrawal by Charles II., and it was not until 1691, under the charter granted by William and Mary, that unquestioned royal authority was granted for the laws enacted by the New England colonists. At an early period in the history of the English CONSTITUTIOTT OF THE UITITED STATES. 3 colonies in America the rights of the inhabitants to personal liberty were based upon Magna Charta and on the Petition and Bill of Eights ; and the common law, except in so far as it may have been modified by special charters, was the prevailing law of the land. The principle upon which the common law was thus recognized as the prevailing law, was that it was the birthright and inheritance of every emi- grant in so far as it was applicable to his condition. There were three classes of government, instituted in America by the English crown. One was the provincial establishments, in which the Governor was made supreme ; under this form of govern- ment New Hampshire, New York, New Jersey, Virginia, the Carolinas, and Georgia were adminis- tered. The second was called proprietary govern- ments, which embraced grants to individuals with governmental powers ; under this form, in their earliest history under the English crown, Mary- land, Pennsylvania, and Delaware were constituted. The third was charter governments, of which Massachusetts was the leading example, and Con- necticut and Ehode Island as derivative forms from the Massachusetts grant. Under all these forms, in process of time, local Legislatures were estab- lished, which drew to themselves a considerable 4 COI^^STITUTIOITAL HISTOET. proportion of the governmental power which had originally been parceled out to the governors of the colonies. In both the proprietary and charter governments, the colonists, during all their early struggles with the crown, insisted that they had an inherent right of representation ; the crown, on the other hand, insisted that it was a mere privilege, held at its will. In some of the colonies the laws were required to be sent to the King for his approval ; in others, they were not so required. The general feeling on the part of the colonists that it was their right to make their own laws is best expressed in the declaration drawn up by the Congress of the nine colonies assembled at New Yoi^ in October, 1765, wherein they are made to say, " that they owe the same allegiance to the crown of Great Britain that is owing from his subjects born within the realm, and all due subordination to that august body, the Parliament of Great Britain ; that the col- onists are entitled to all the inherent rights and lib- erties of his natural-born subjects within the king- dom of Great Britain ; that it is inseparably essen- tial to the freedom of a people and the undoubted right of Englishmen that no taxes be imposed upon them but with their own consent, in person or by their representatives ; that the people of the colo- nies are not, and from their local circumstances COTSrSTITUTIOlS" OF THE UNITED STATES. 5 cannot, be represented in the House of Commons ; that the only representatives of the colonies are persons chosen by themselves ; that no taxes could be constitutionally imposed upon them but by their respective Legislatures; that the supplies of the crown being free gifts of the people, it is unreason- able and inconsistent with the principle and spirit of the British Constitution for the people of Great Britain to grant to His Majesty the property of the colonies ; and that trial by jury is an inherent and invaluable right of every British subject in the colonies." The united colonies admitted the right of Par- liament to pass general acts for the amendment of the common law to which the colonies were sub- ject, or general acts for the regulation of trade and commerce throughout the whole empire, but de- nied the right of Parliament to pass special acts applicable only to a part of His Majesty's subjects, to wit, the inhabitants of the colonies, and more particularly special acts imposing taxation. The Stamp Act being such a special act, the colonies, at the invitation of Massachusetts, assembled by their representatives in September, 1774, at Phila- delphia, in a Congress, and thus established, for the first time in the history of the English- American colonies, a general deliberative body, deriving 6 COI^STITUTIOITAL HISTOET. its authority from the people of the colonies alone. This Congress continued to exercise power until March, 1781, and was then superseded by the Con- gress of the Confederation, which came into ex- istence during the latter part of the "War of In- dependence ; it then being manifest that a new nation would be born. The Continental Congress avoided creating jealousy between the several col- onies, by placing them all, independent of size or numerical strength, on the same footing; inasmuch as the combined delegation from each separate col- ony had but a single vote. The second session of this Congress of dele- gates met in May, 1775, immediately after the opening of the war of Independence by the battles of Lexington and Concord. This Congress then assumed supreme direction of the war of Inde- pendence, and was, to all intents and purposes, the government of the united colonies after the 4th of July, 1776, when, by the promulgation of the Declaration of Independence, they declared their severance from the British crown, their right to make treaties with foreign governments, and their establishment as a nation. It appointed the offi- cers of the army; it pledged the credit of the united colonies for the payment of the expenses of military organization ; it apportioned the amounts CONSTITUTIOIT OF THE UNITED STATES. 7 which each State was to pay toward the general ex- penses ; it adopted rules for the government of the army and navy ; it granted commissions by letters of marque to capture the vessels of Great Britain ; and exercised, in short, substantially all the powers which subsequently, first by the Articles of Confederation and then more fully by the Con- stitution of the United States, were ceded by the several States to the general or national government. The severance of the colonies from Great Britain, both by the result of the war and by the formal Declaration of Independence, made each particular colony a sovereign and independent State, except in so far as it might voluntarily con- sent to subject its sovereignty, by cession, to the general government of all the States. Although this is true of the original thirteen States, it is not equally true of the remaining twenty-five, as their very existence as States depended upon the fiat of the Federal Congress. Several of the States, between the breaking out of the War of Independence and the formation of the Articles of Confederation, framed constitutions of their own, in which they formally declared their independence of the mother country, and reenacted such parts of Magna Charta and the Bill of Rights as were applicable to their condition, together 8 COIS'STITUTIOT^AL HISTOEY. with statements of the rights of man expressive of the wider views and the more revolutionary prin- ciples which had found acceptance with the colon- ists from the freedom of movement and independ- ence of character incident to and formed by American colonial conditions. These views, as to forms of expression, were very considerably influ- enced by the theoretical teachings of the French Encyclopaedists, whose works, to no small degree, quickened the thoughts and influenced the meth- ods of expression of Jefferson, Adams, Madison, and Hamilton, who were the leading minds of the Continental Congress. Yirginia, New Hampshire, New York, and South Carolina had, before 1778, passed constitutions for the people of their States as sovereignties, and subsequently every State of the Union, after the Articles of Confederation were formed, by a prop- erly delegated convention of its people, put in shape, and, by subsequent submission to the people, caused the passage of organic laws, called constitu- tions, by which the general framework of the institutions under which they were living was mapped out, the division of Executive, Judicial, and Legislative functions clearly defined, and the rights inherent in the people beyond governmental control, expressed and insisted upon. CONSTITUTION OF THE UNITED STATES. 9 The revolutionary Congress, recognizing the fact that its existence would end with the struggle, and acting on the assumption that the struggle would result favorably to the colonies, appointed in Jung, 1776, a committee composed of one member from each colony, to consider the form of Articles of Con- federation to be entered into between the colonies, as the basis of a permanent form of government. These Articles of Confederation formed the subject of de- bate in Congress until the 15th of November, 1777, when they were adopted. A circular letter was prepared to the several States requesting authority from the States to authorize their delegates to Con- gress to subscribe the Articles of Confederation. The States proposed many amendments, which were all rejected by Congress, because Congress deemed it inexpedient to accept any amendments for fear of the delay. A draft was thereupon prepared and sent to all the States on the 26th of June, 1778, and was ratified by them all, except Delaware and Maryland, which respectively withheld their ratifi- cations, the one until 1779 and the other until 1781. From the moment of the organization of govern- ment under the Articles of Confederation, the question of the ownership of the lands which theretofore had belonged to the crown, in the several States, was an irritating subject between 10 COT^STITUTIONAL HISTORY. the States, as was also the not-clearly defined boundaries between the States. The only way to overcome the difficulty first named, was to conform to the suggestion of Congress, that the several States should cede the crown lands within their borders to the general government, as lands belong- ing to the people at large. The name of the con- federacy was the United States of America. Under it the following powers of government were secured to the nation and ceded by the States : Congress was empowered to determine on peace or war with foreign nations, to send and receive ambassadors, and to make treaties of commerce ; but each State was free to levy whatever import or export duties it saw fit, to determine upon the rules of capture by land or sea, and to appoint courts for the trial of cases of captures on high seas and piracy. In all cases of dispute between the States, if the agents of the States could not by joint con- sent agree upon judges to try their causes as they might arise. Congress was empowered to constitute a court by a most cumbersome method. Three persons were appointed from each State, and then the disputing States struck out one each, until thirteen remained, from which number Congress drew out seven or nine by lot, a majority of which determined the cause finally. CONSTITUTION OF THE UNITED STATES. 11 Congress was also empowered to regulate the coinage, to afford postal facilities, and to appoint the officers for the land and naval forces. During the recess of Congress, its powers were conferred upon a committee of the States — one del- egate from each State — with the limitation, how- ever, that upon almost every important question it required the assent of nine States before the measure could become operative as a law. Under these Articles of Confederation the treaty of peace with England was concluded and the American nation was governed until the final adop- tion of the Constitution of the United States. The main defect of the Articles of Confederation was, that although powers sufficient to create a gov- ernment were ceded, there was no power to raise revenue, to levy taxes, or to enforce the law, ex- cept with the consent of nine States ; and although the government had power to contract debts, there were no means provided to discharge them. The government had power to raise armies and navies, but no money wherewith to pay them, unless the funds were voted by the States them- selves ; it could make treaties with foreign pow- ers, but had no means to coerce a State to obey such treaty. In short, it was a government which had the power to make laws, but no power to pun- 12 CONSTITUTIONAL HISTORY. ish infractions thereof. "Washington himself said . *' The Confederation appears to me to be little more than the shadow without the substance, and Congress a nugatory body." Chief Justice Story, in summing up the leading defects of the Articles of Confederation, says : " There was an utter want of all coercive authority to carry into effect its own constitutional measures ; this of itself was sufficient to destroy its whole efficiency as a superintendent government, if that may be called a government which possessed no one solid attribute of power. In truth, Congress possessed only the power of recommendation. Congress had no power to exact obedience or pun- ish disobedience of its ordinances ; they could neither impose fines nor direct imprisonments, nor divest privileges, nor declare forfeitures, nor sus- pend refractory officers. There was no power to exercise force." This absence of all coercive power was most directly and injuriously felt in the financial adminis- tration of the nation. The requisitions of Congress for money were disregarded at will. The conse- quence was, that the treasury of the United States was empty ; the credit of the confederacy was gone ; and while public burdens were increasing, public faith was prostrate. Even the interest of the pub- CONSTITUTION OF THE UNITED STATES. 13 lie debt remained unpaid, and the bills of credit tliat had been issued during the Revolution and immediately subsequent thereto sank to so low a value that the public debt was substantially repudiated. As an illustration of this fact, it may be remarked that of the requisitions for the pay- ment of the interest upon the domestic debt from 1782 to 1786, which amounted to more than six million dollars, only a million was paid. Each State saw fit to exercise its sovereign power to regulate commerce with the other States, and this created dissensions among the States ; so that in 1784 the national Congress formally declared its inability to maintain the public credit or to enforce obedience to its own dictates, and from time to time, up to 1787, declared in various public ordinances its inability even to enforce its own treaty power. This state of things became intolerable, and was, by the leading men who had guided the colonies through the struggles of the War of Independence and aided in the formation of the Articles of Con- federation, recognized as a mischief which would result in the disintegration of the union of the States. Hence an active propaganda was instituted in all the States for the preparation of more perfect articles of union and the creation of a government representing the States as a nation. In February, I 14 CONSTITUTIONAL HISTORY. 1787, a resolution was adoptad by Congress recom- mending a convention in Philadelphia of delegates from the several States for the purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures such altera- tions and provisions therein as should, when agreed to in Congress and confirmed by the sev- eral States acting as sovereigns, be adequate to the exigencies of government and the preservation of the Union. The convention met, and, after very full consid- eration, determined that amendments to the Ar- ticles of Confederation would be inadequate for the purposes of the government, and prepared a new Constitution, the ratification of the conventions of nine States to be deemed sufficient for the estab- lishment of the constitution among the States so ratifying the same. This Constitution was submitted to the several States, and was ratified by eleven of them, North Carolina and Rhode Island standing out, the former until November, 1789, and the latter until May, 1790. Although the government was organized by the ratification by eleven States, the ratification by all the States made that instrument the supreme law of the land, and that Constitution, with its amend- ments, from that time forth, remained the charter CONSTITUTION OF THE UNITED STATES. 15 under whicli the government of the United States has been administered in all its foreign and inter- state relations. In the interpretation of this chart of government it must be remembered that the government of the United States is one of delegated powers ; that in theory the States possess all the sovereign powers not delegated, either expressly or by necessary implication, to the general government : and that the vast body of law, known as constitutional law, in the United States, deals first with the in- terpretation of these powers delegated to the gen- eral government, and secondly with the reserved rights of the States under their respective State constitutions, and the reserved rights of the peo- ple never delegated either to the State or to the general government. The history of the Constitution shows, first, that the compact between the States was intended to be indissoluble. The Articles of Confederation in terms said so, and when they were found inade- quate for the purpose, the Constitution was framed, "to form a more perfect union." Likewise the States are indestructible. The Constitution is a compact of States, and the States are, therefore, an integral part of the nation ; without them there is no compact which can bind non-assenting States. 16 CONSTITUTIONAL HISTOEY. This has been decided in a recent case (Texas vs, "White) by the Supreme Court of the United States. The Constitution makes the national government, in all matters delegated to it, the supreme law of the land, and not only is it the supreme power in all such matters wherein the Congress of the United States has, in pursuance of constitutional authority, acted, but it is the supreme authority whenever it chooses to take up a subject which is delegated to the government of the United States, although the States, in the absence of such action on the part of the general government, have seen fit to pass laws of their own to meet the emergencies. A notable instance of this is bankruptcy. From time to time bankruptcy laws have existed in the United States, enacted by the general Congress, and have been repealed. During the period of re- peal the various States have enacted insolvency and bankrupt laws which, on the instant when the general government again took up the subject by passing a new bankruptcy law, became dormant and inert, and remained in abeyance until the na- tional law was in its turn repealed. V>^ (^ The Territories of the United States have no re- a served rights. They can be dealt with by the gen- eral government in such way as it may see fit, and (^not until a Territory becomes sufficiently populous 1^:l, CONSTITUTION OF THE UNITED STATES. 17 to be admitted as and becomes a State is it entitled^ to all the reserved rights of States,^nd when so invested it is as sovereign and independent a com- munity as though it had been one of the original thirteen States which had entered into the com- pact. Amendments to the Constitution are provided for in two ways. In the one in which Congress has the initiative, it may recommend amendments by a vote of two-thirds of both Houses, and such amendments shall become valid when ratified either by the Legislatures of three-fourths of the several States or by conventions of three-fourths thereof, as one or the other of these modes of ratification may be proposed by Congress. Another mode provided by the Constitution is for Congress, on the application of the Legislatures of the several States, to call a convention for proposing amend- ments; the work of which convention must be equally ratified by the Legislatures of three- fourths of the States or by conventions in three- fourths thereof. The only limitation upon the power of amendment of the Constitution is, that no State, without its consent, shall be deprived of its equal suffrage in the Senate. This provision was deemed necessary in order to prevent an amend- ment by the more populous and larger States which 18 CONSTITUTIONAL HISTOEY. should deprive the few smaller States, such as Ehode Island and Delaware, of their equal repre- sentation in the Senate. This power of amendment takes away all excuse for revolution, because the in- strument which is the supreme law of the land pro- vides a method by which the popular will can act upon it so as to remedy or remove any existing or supposed abuses. The general provisions of the Constitution which do not fall under the divisions of Legislative, Ju- dicial and Executive functions, are enumerated in the fourth and sixth articles of the Constitution of 1789, the amendments of 1789, and 1790, 1794, 1798, 1804, and what are known as the thirteenth, fourteenth and fifteenth amendments, which were the result of the Civil War. The earlier provis- ions in terms provide that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State ; that the citizens of each State shall be en- titled to the privileges and immunities of the citi- zens of the several States ; that persons who are fugitives from justice shall be delivered up to the State having jurisdiction of the crime ; per- sons who were held to labor in one State were required to be extradited and delivered up if they fled into another for the purpose of escaping from CONSTITUTION OF THE UNITED STATES. 19 such servitude. There is a section allowing States to be admitted into the Union, but prohibiting Congress from creating new States from existing States without the consent of the latter ; and pro- viding that the United States shall guarantee to every State in the Union a republican form of gov- ernment, shall protect each against invasion, and on the application of the Legislature, or of the Execu- tive of a State when the Legislature cannot be con- vened, shall protect it from domestic violence. The first amendments which were deemed neces- sary to the Constitution after its formation were proposed almost immediately after its adoption, and were rather in the nature of after-thoughts better to protect th3 rights of individual liberty. Thc3 first article of the amendments provides that Congress shall make no law respecting the estab- lishing of religion, or prohibiting the free exer- cise thereof, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, or to petition the government for a re- dress of grievances. The second article provides that a well-regulated militia being necessary to the secu- rity of a free State, the right of the people to keep and bear arms shall not be infringed. The third, that no soldier shall in time of peace be quartered at any house without the consent of the owner, nor 20 CONSTITUTIOI^AL HISTOEY. in time of war, but in a manner to be prescribed by law. The fourth, that the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, shall not be violated, and that no warrants shall issue but upon probable cause supported by oath or affirma- tion, and particularly describing the place to be searched and the person or things to be seized. The fifth, that no person shall be held to answer for a capital or otherwise infamoifs crime unless upon a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, of the militia when in actual service in time of war, or public danger ; and that no person shall, for the same offense, be put twice in jeopardy of life or limb, nor be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law, and that private property shall not be taken for public use without just compensation. The sixth is to the effect that in all criminal prosecu- tions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been pre- viously ascertained by law, and to be informed of the nature and cause of the accusation, to be con- CONSTITUTION OF THE UNITED STATES. 21 fronted with tlie witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. The seventh, that in all suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved. The eighth is to the effect that exces- sive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted. The ninth, to prevent any misconstruction by the courts, that rights not specially reserved by the people are not withheld from arbitrary power, specifically says that the enumeration in the Con- stitution of certain rights shall not be construed to deny or disparage others retained by the people. The tenth, that powers not delegated to the United States by the Constitution, nor prohibited by it to the States are reserved to the States respectively or to the people. The eleventh was proposed in Sep- tember, 1794, by Congress, and was ratified in January, 1798, and is to the effect that the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State. The force and effect of the twelfth amendment, which was adopted in 1804, in rela- 22 CONSTITUTIONAL HISTOET. tion to tlie election of the President of the United States, will be considered in connection with the creation and powers of the Executive department of the government. The thirteenth, fourteenth and fifteenth amendments were the result of the Civil War, 1861-1865. Their declared object, pur- pose and meaning were forever to abolish the sys- tem of slavery or domestic servitude, and to prevent thereafter all class distinctions or inequalities before the law arising from color, race, or previous condition of servitude. A stringent provision was made to prevent persons from holding office who had been in office and had taken an oath to sup- port the Constitution of the United States prior to the rebellion, but who, notwithstanding such oath, were engaged subsequent thereto in insurrection or rebellion. It was provided, however, that Congress, by a vote of two-thirds of each House, might remove such disability. A provision was made to pre- vent the validity of the public debt of the United States from being questioned, and to prevent the United States, or any State, from assuming any debt or obligation incurred in aid of insurrection or rebellion against the United States, or recognizing any claim for the loss or emancipation of any slave, and that all such debts and obligations and claims shall be held illegal and void. The representative CONSTITUTIOI^ OF THE UNITED STATES. 23 system, by representation of majorities only in geo- graphically defined districts, was adopted as the cardinal and underlying principle upon which was to be created the law-making power under the Con- stitution of the United States, and of the several States. Wherever Congress is required to act, or the people of the several States are required to act, through their Legislatures, the intent is that such congressional action or legislative action shall be performed by a mere majority, unless oth- erwise declared. In considering also the provisions of the Consti- tution, it must be borne in mind that they are largely the result of compromise. The jealousy of the States of each other was the cause of the threatened dissolution of the Confederacy under the system of government which prevailed in the United States of America from the close of the war in 1783 until 1789, the year of the adoption of the Constitution of the United States. When, in consequence of the pressure that arose from the evident inadequacy of the Articles of Confederation to create a permanent form of gov- ernment, the people of the United States called a convention to consider provisions for the forma- tion of a more perfect union, the members of the convention were, more or less, under the influ- ence of this local jealousy, and the organization of 34 CONSTITUTIONAL HISTORY. the Senate, giving to each State two members, independent of the numbers, wealth, or position of the State, was intended to placate the smaller States and to make them feel that, although under a system of representation dependent upon nu- merical strength they would lose power in the lower House, they would still, by the veto power that the upper House had over the legislation of the lower, preserve their dignity as States and prevent the possibility of the passage of laws detrimental to their interests. Thus, it happens, for instance, that the new State of Colorado, although having two Senators, has but one Representative, its numerical strength being just sufficient for a single Representative in the House of Representatives ; yet its admission as a State entitles it to equal position in the Senate with the State of New York with its five millions of inhabitants. From an early period in the history of the United States, down to the commencement of the Civil War, there was a wide divergence of opinion whether the Constitution of the United States was a dissoluble partnership, or was a framework of gov- ernment which did not admit of the idea of separa- tion. On the one hand it was contended that, as there is no political common umpire or tribunal authorized to decide as a last resort upon the CONSTITUTION OF THE UNITED STATES. 25 powers and interpretation of the Constitution, each State had a right to construe the compact for itsell Such were the resolutions of Virginia as early as 1798 ; such was the resolution of South Carolina when it attempted to nullify the tariff legislation of the United States in 1832. But this theory is refuted by the very wording of the Constitution itself, which says that it is ordained and established by the people of the United States to create a more perfect union ; and, as all the States were parties to it, no one State could construe it against the rights of the other States. Such an interpretation is against the theory of government itself, which pro- hibits any State which has once delegated its powers to a sovereign, from reasserting such power, with- out the consent of such sovereign ; and leads to the absurdity of claiming the possibility of carry- ing on a government which would give to each member thereof the right to deny the very exist- ence of the government itself whenever it feels the pressure of the governmental hand. On all constitutional questions the Constitution appointed a tribunal which was to expound its pro- visions, and, therefore, no province was left to the Legislatures or courts of the several States to de- termine the limit of the United States Government. The Supreme Court of the United States was the 26 COIfSTITUTIONAL HISTORY. final interpreter of all the powers conferred upon the general government. The Civil War of 1861- 1865 originating from the desire of the Southern States to preserve slavery, uninterfered with by the sentiments of the Northern States, and to maintain the doctrine of State rights, resulting disastrously to the South, took that branch of constitutional con- troversy out of American politics. By the amend- ments since 1865 the political fact has been estab- lished that the United States Government is indis- soluble, and that the Constitution created not a partnership between the States, but a form of gov- ernment for the States, from which such States could not withdraw ; and that, instead of remitting questions between the States to the arbitrament of the sword, they had to find peaceful solution after argument before the Supreme Court of the United States, or by amendment of the Constitution itself. The fourteenth amendment will have a tendency to prevent unequal taxation within the States. Heretofore there was no limitation upon States (except in so far as some few State Constitutions may have prevented) as to acts of confiscation under the guise of tax laws ; but this amendment, by securing equal protection of the laws, sets a limit to spoliation under the forms of taxation. CHAPTEE n. THE LEGISLATIVE DEPAETMENT. We have thus far, in our examination of the pro- visions of the Constitution of the United States, shown that the reason why the Articles of Confed- eration failed to accomplish their purpose to create a nation, was because the national authority, as created by such Articles, was stripped of the ele- ment of sanction. There was, in the first place, no supreme executive power ; in the second place, the Federal Congress had simply power, until the adoption of the Constitution of 1789, to pass laws without enforcing them, and they were there- fore in the nature of mere recommendations. The clear and unequivocal surrender of power on the part of the States of certain well-defined govern- mental functions to the national government, and the general transfer of power involved in that grant of the Constitution which says " that all legislative power by the Constitution granted shall be vested in a Congress of the United States which shall con- 27 28 CONSTITUTIONAL HISTOET. sist of a Senate and House of Eepresentatives," as in- terpreted by the Supreme Court of the United States, gives to the national Legislature power to pass laws on all subjects of which the United States has jurisdictioneither by direct grant or by implication. The House of Representatives is composed of members chosen every second year by the people of the several States, and the qualifica- tions requisite for electors are the same as those which the State constitutions require for electors of members in the same branch of the respective State Legislatures. The qualifications of representatives are that each representative shall have attained the age of twenty-five years, that he shall have been seven years a citizen of the United States ; and that he be an inhabitant of the State in which he shall be chosen. Under the Constitution of 1789 the rep- resentatives as well as direct taxes were apportioned among the several States according to the number of their inhabitants, which included all free persons and those bound to service for a term of years; three-fifths of all other persons, which of course meant slaves, and excluded Indians not taxed. The first enumeration after the adoption of the Constitu- tion was to be made within three years after the first meeting of the Congress, and thereafter every ten years. The number of representatives then fixed was THE LEGISLATIVE DEPAETMENT. 29 to be one for every thirty thousand, but each State was to have at least one representative. This provi- sion was subsequently changed by the fourteenth amendment, to the requirement that the represen- tatives should be apportioned among the several States according to their respective numbers, count- ing the whole number of persons in each State, ex- cluding Indians not taxed ; and that when the right to vote at any election for the choice of electors for President and Vice-President of the United States, of Kepresentatives in Congress, of the Executive and Judicial officers of a State, or members of the Legislature thereof, is denied to any one of the male inhabitants of such State, being twenty-one years of age and a citizen of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the num- ber of male citizens shall bear to the whole number of such male citizens twenty-one years of age in such State. The object of this amendment, which was adopted in 1866, was to prevent the slave States, which theretofore had been in rebellion, from abridging or limiting the right of suffrage on the part of the negroes for State offices, without incur- ring the penalty of diminishing thereby their rep- resentation in the House of Kepresentatives of the 30 CONSTITUTIOITAL HISTOEY. United States. Under tlie Constitution as it origin- ally stood the States were at liberty to determine as they saw fit the manner in which these repre- sentatives were to be elected within the States, or Congress was at liberty to legislate upon the sub- ject in furtherance of the constitutional provision as to representation. Congress did from time to time apportion the num- ber of representatives to each State in conformity with the census of each decade, so that in 1872, under the census of 1870, an apportionment was made by which the number of the members of the House of Kepresentatives was fixed at 292.* As the population of the United States from time to time increased. Congress likewise by law advanced the limitation of the number of persons who were entitled to single representatives, in order that the popular body should not become too numerous for purposes of deliberation ; so that under the census of 1870, by act of 1872, each 130,000 of the population is entitled to one representative. By the act of 1872 making such apportionment, following the preceding acts of apportionment, it is required that Kepresentatives to Congress shall be elected by districts composed of contigu- ous territory, containing as nearly as practicable an equal number of inhabitants, and equal in * Chap. 20, Laws of 1882, fixes the number at 325 and 8 dele- gates from Territories. THE LEGISLATIVE DEPARTMENT. 81 number to the number of representatives to which the State in which they lie may be entitled in Con- gress, no one district electing more than one rep- resentative. This is followed by a provision that as to the then immediately succeeding Congress the additional representatives to which each State should be entitled under the apportionment might, until otherwise provided for by the Legislature, be voted for upon a ticket at large. The only national requirement, therefore, as to election of representa- tives is, that they shall be elected by contiguous territories, one from each district. The manner in which the apportionment is to be made, the way in which districts are to be apportioned, the lines forming silch districts, are all left to the legislative bodies of the several States. The apportionment act of 1872, which is the last apportionment act in force, provides the Tuesday after the first Monday in November of every second year as the day of election in all the States and Territories for rep- resentatives and delegates to the Congress of the fourth day of March next thereafter. The time for holding elections in any such district or territory for representative or delegate to fill the vacancy is prescribed by the laws of the several States and Territories. The vote for representatives is re- quired under the provisions of Congress to be by 32 CONSTITUTIONAL HISTORY. ballot. The compensation of members of Congress is $5,000 a year, and an allowance for actual travel- ing expenses. At the first session of Congress after every general election of representatives, the oath of office may be administered by any member of the House of Eepresentatives to the Speaker, and by the Speaker to all the members and delegates present, and to the Clerk, previous to entering on any business, and to members and delegates as they afterward appear, previous to their taking their seats. Before the first meeting of each Congress the Clerk of the next preceding House of Eepresentatives makes the roll of the rep- resentatives elected, placing thereon the names of those persons only whose credentials show that they were regularly elected, in accord- ance with the laws of the United States. The Sergeant-at-arms is charged with the duties of the Clerk in the event of any vacancy in that office, and in the event of the disability or absence of the Clerk ; and in the event of the disability or absence of both Clerk and Sergeant-at-arms, the Door-keeper of the next preceding House of Eepresentatives is charged with this duty. In the event of Congress being prevented, by a contagious disease or the existence of other circumstances, THE LEGISLATIVE DEPAETMENT. 33 making it, in the opinion of the President, hazard- ous to the lives of members to convene at the seat of government, he is authorized to convene them at such other place as he may judge proper. The Senate is constituted of the senators elected by the Legislature of each State. The election takes place on the second Tuesday after the meet- ing and organization of the Legislature ; and if an election fails to be made on the first day, at least one vote is required to be taken every day there- after, during the session of the Legislature, until a Senator is chosen. A vacancy existing at the be- ginning of the session is filled in the same manner, and if a vacancy occurs during the session it is also filled by election, the proceedings for which are to be commenced on the second Tuesday after the Legis- lature has organized and has notice of such vacancy. The number of senators is fixed at two from each State, independent and irrespective of the size of the State or the number of its in- habitants; so that there are several instances of States, notably Oregon and Delaware and Nevada, which have two senators and but one representa- tive. No person can be a senator who has not attained the age of thirty years, been nine years a citizen of the United States, and who shall not have 2* 34 COIS^STITUTIONAL HISTOEY. been, when elected, an inhabitant of the State from which he shall be chosen. Senators are chosen for six years. They are divided into three classes, one class being chosen every second year. If vacancies happen, the Exe- cutive of a State may make a temporary appoint- ment until the Legislature of the State can act. The Vice-President of the United States is the President of the Senate, but without a vote, except in cases of equal division. The Senate chooses its other officers and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President, The organization of the Senate is provided for by the act of June 1, 1789. The oath of office is ad- ministered by the President of the Senate to each senator elected previous to his taking his seat. When a President of the Senate has not taken the oath of office, it is administered to him by any member of the Senate. Congress is the law-making power. One House contains the direct, immediate representatives of the people, the other the indirect representatives of the people ; i.e., the direct representatives of the States. Besides being part of the law-making power, the Senate shares with the President the power of appointment to office, of making treaties THE LEGISLATIVE DEPARTMENT. 35 of peace and declarations of war. Although Con- gress cannot be said to be superior to the co- ordinate Judicial and Executive departments of the Government, it nevertheless has, from the nature of its functions, the superior power. The history of the United States since 1865 gives several instances of the manner in which both the Judicial and Executive departments of the United States Government may, in cases of conflict, be coerced to a considerable degree by the law-making power. Notable instances of this coercion are the acts of Congress interfering with the Executive dis- cretion of President Johnson when he was in direct conflict with the majority of both Houses of Con- gress, andvhis subsequent impeachment and all but conviction and removal ; and the increase in the number of the judges of the Supreme Court of the United States, when a decision had been rendered upon a quasi-political subject — the constitutionality of the Legal Tender act, which did not conform to the opinions of the Executive and Legislative departments, and which was, therefore, to be re- argued and reversed, an increase of personnel of the court of last resort being the coercive method found effective to secure such a result. Among the formalities of the organization of Congress, not heretofore referred to, are constitu- 36 CONSTITUTIOITAL HISTOET. tional provisions to the effect that Congress shall assemble at least once in every year, and that the meeting shall commence on the first Monday in December, unless by law a different day be ap- pointed. Each House is made the judge of the elections, return, and qualifications of its own members. A majority is constituted a quorum for the transaction of business, but power is given to a smaller number to adjourn from day to day and to compel the attendance of absent members. Congress is empowered to make rules for its own government, and each House makes its own rules. The expulsion of a member is given to two-thirds of either House. Neither House has the power during the session to adjourn, without the consent of the other House, for more than three days, nor to any other place than the one appointed by law. No senator or representative is permitted, during the term for which he is elected, to be appointed to any civil office under the authority of the United States, which shall have been created or the emol- uments whereof shall have been increased dur- ing such term of service, and no person holding any office under the United States shall be a member of either House during his continuance in office. All revenue laws must originate in the House oi Representatives. This includes all appropriation THE LEGISLATIVE DEPARTMENT, 37 bills, but the Senate is permitted to propose or concur with amendments in the same manner as on other bills. Power is given to Congress to levy and collect taxes, duties, imposts, and excises ; to pay the debts, and provide for the. common defense and general welfare of the United States ; but such duties, imposts, and excises must be uniform throughout the United States. "We have already referred to the fact that the absence of such a power given in express terms, or even by necessary implication, and the absence of any power to enforce a system of taxation, was the main cause of the failure of the United States to form a stable government under the Articles of Confederation. In many forms has the question of the consti- tutional exercise of this power been before the Supreme Court of the United States. The result of these decisions may be summed up as follows : Congress has power to levy such taxes and imposts as it may see fit for public purposes. It was claimed that customs duties levied with the ulterior purpose of protecting home industry, were an un- constitutional exercise of power under this grant, for the reason that such duties are not levied with the view to the raising of revenue, but, on the con- trary, for the purpose of enabling manufacturers within the United States to increase profits on 38 CONSTITUTIONAL HISTOEY. products for the benefit of their private operations. It was held by the Supreme Court of the United States, that if any revenue whatever was raised from this source, the motive could not be inquired into, and that the indirect benefit to classes in the community of this mode of raising revenue was one of the consequences which did not come within judicial cognizance It was held, however, by the Supreme Court of the United States in the case of Loan Association against Topeka, 20 Wallace, 655, that where, however, the tax is avowedly laid for a private purpose, it is illegal and void. In this case the tax, having been avowedly laid to aid a private corporation in creating a manufacturing establish- ment, was held to be an illegal exercise of the tax- ing power. This case has been followed in several of the States, and creates a line of cases which in time, as public opinion in the United States may be ripened and educated by politico -economical studies, may lead to a reversal by the Supreme Court of the United States of its opinion that taxa- tion for incidental protection under the guise of revenue lav/s is a constitutional exercise of power. ' Thus may possibly be given to the United States the full benefit of free-trade doctrines through an interpretation by the Supreme Court of the United States, namely, that all customs duties must be THE LEGISLATIVE DEPARTMENT. 39 levied for purposes of revenue only, and that if it appears to the court that the object is not one of revenue, but the incidental benefit of persons or classes in the community, it is unequal taxa- tion ; is a burden laid not for purposes of govern- ment, but for private purposes, and is, therefore, unconstitutional and void. "Where Congress has the power to tax, the States are prohibited from exercising the same power, under the general exposition that what is granted to the government of the United States is taken away from the several States ; and when Congress exempts from taxation in express terms, the States are ipso facto inhibited from imposing taxation upon the same . commodity or asset. For instance, the bonds of the United States are, by the contract of the bondholder with the federal government, incor- porated into the law creating the bonds, exempted from taxation. Under those circumstances it would be an illegal exercise of power on the part of the States or municipalities to tax such bonds. In a leading case decided by the Supreme Court of the United States it was fully recognized that the power to tax involved the power to destroy. As the Union and the State governments are coor- dinate branches of the polity of the United States, and as to tax the State governments or the muni- 4() COl^STITUTIOIsrAL HISTORY. cipalities created thereunder, would involve the power to destroy the States or such muncipalities, Congress is by the very nature of such institutions inhibited from levying any such tax. Congress, therefore, cannot tax the salaries of State officers, franchises created by a State, municipal corpora- tion, of a State, processes of State courts, etc. Congress is empowered to borrow money on the credit of the United States. The meaning of this clause is too clear to require judicial interpretation, and gives constitutional sanction to the funded debt of the United States. Congress is authorized to regulate commerce with foreign nations, and among the several States, and with the Indian tribes. This power to regulate commerce with foreign nations involves, of course, the treaty-making power ; to make such arrangements in relation to the commerce, resting on mutual comity, as exi- gencies may from time to time demand. The power to regulate commerce between the several States involves, of course, the power to regulate commerce on the navigable rivers and streams which run be- tween the several States. And more recently, in consequence of the growth of inter state traffic and the establishment of railways which run through many States, and of telegraphic lines which spread their net-work over the whole of the domain of the THE LEGISLATIVE DEPARTMENT. 41 United States, this power has been invoked by the people of the United States as a means of assert- ing uniform jurisdiction over corporate franchises coextensive in their exercise with the United States of America, although chartered under the several State laws. The question of railway and telegraph monopoly has in recent years become much agitated in the United States, in consequence of the rapid growth of those several interests. The power of the Na- tional Congress to regulate such enterprises organ- ized under State corporate franchises, but really carrying on inter-state commerce, has been rec- ognized by the Supreme Court of the United States. Although ordinarily the safer course of legislation is toward decentralization of power, it is nevertheless true fliat in the case of in- dustrial enterprises having a tendency to central- ization within the area of the vast territory of the United States, the governmental power to regulate these enterprises, if they partake in the least of a monopoly character, must be equally coextensive with the territory they occupy. As the several States have shown themselves powerless to deal with the subject either in an efficient way or upon a uniform plan, the power of the United States, now placed beyond question by the decisions of the 42 OOKSTITUTIOKAL HISTOET. Supreme Court of the United States, to regulate these gigantic industrial enterprises is well lodged in Congress. Power is given to the Congress of the United States to establish a uniform rule of naturalization and uniform laws on the subject of bankruptcy throughout the United States. The grant of this power of naturalization has been followed by- national legislation from time to time, by which persons who are residents of the United States for ^Ye years can become citizens thereof by following certain prescribed forms of identification, declara- tion of intentions, etc. Exceptions of an unim- portant character are made in cases of minors. The bankruptcy legislation of the United States has been extremely spasmodic. When a bank- ruptcy law exists the States are prohibited, by necessary implication, from enforcing insolvency laws in conflict with the bankruptcy laws. When the bankruptcy laws are repealed, as they fre- quently have been and as is the case at present, the State insolvent laws once more come into force. While the federal bankruptcy laws are on the statute book and in force, all State insolvent laws, if inconsistent, are for the time being superseded. Congress is empowered to coin money and to regulate the value thereof and of foreign coin, and THE LEGISLATIVE DEPARTMENT. 43 fix a standard of weights and measures. Under this grant of power, the right of the issue of the United States Treasury notes, made legal tender at the beginning of the Civil War, was seriously con- tested. At first a decision was had, under the pre- siding justiceship of Mr. Chase, who was Secretary of the Treasury when such notes were issued, de- claring such issue to be in contravention of the Constitution of the United States. This decision was subsequently reversed by a court which had in the interim become enlarged, and it was held that this issue of legal tender notes, made during the war, though not justified strictly under the power granted, was the exercise of a war power, and was jiaturally limited to a condition either of domestic insurrection or foreign invasion. While this decision stands, there is no cause to appre- hend that under the power to coin money and to regulate its value, any addition will be made to the legal tender issue of the United States. * Congress is empowered to provide for the punish- ment of counterfeiting securities and current coin of the United States ; to establish post-offices and post roads ; promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Under this power the * The decision in Juillard vs. Greenman, 110 U. S., 421 (1884), disappoints the hope expressed in the text. See Addenda. 44 CONSTITUTIONAL HISTOEY. Patent Office was organized, and patent, trade mark, and copy-right laws passed, securing for limited periods of time the rights of inventors and authors in their respective inventions and books. Congress is empowered also to constitute tribu- nals inferior to the Supreme Court. In the third article creating the judicial power of the United States, such power is vested in the Supreme Court and in such inferior courts as Congress may from time to time ordain and establish. This article further provides that the judges, both of the Supreme and inferior courts, shall hold their office during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office. Under these two several sections of the Constitution of the United States, Congress, from 1789 to 1876, from time to time, passed judiciary laws under which district courts were organized, which give to each State, substantially, one district judge (to Pennsylvania, however, two, to New York two, to Ohio two, to Illinois two), and circuit courts of nine circuits with one judge for each circuit * The judges of the Supreme Court of the United States when not sitting in banc likewise hold circuit courts. The Judicial department of the United States being created under a separate article * Act of 1887 adds an additional circuit judge to New York. THE LEGISLATIVE DEPAETMENT. 45 of the Constitution, we will reserve our further examination into the organization of these courts and their jurisdiction until we reach that head. Congress has exclusive jurisdiction in defining and punishing felonies committed on the high seas, and offenses against the law of nations; to declare war, and grant letters of marque and reprisal, and to make rules concerning captures on land and water ; to raise and support armies, but no appropriation of money to that end shall be for a longer term than two years ; to pro- vide and maintain a navy ; to make rules for the government and regulation of the land and naval forces ; to provide for calling forth the militia for executing the laws of the Union ; to suppress in- surrections and repel invasions ; to provide for organizing the army and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, re- serving to the States respectively the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress. Under the power to make rules for the government of the land and naval forces. Congress has not the power to make any rules inconsistent with the position of the President of the United States as Commander-in-chief. The Constitution ^ CONSTITUTIONAL HISTORY. appoints hkn the first officer of the army, and the laws of war give to the first officer powers, of which, under the guise of rules and regulations, he cannot be stripped. The manner in which the President makes his requisition for militia is by a call upon the Executive of a State, but he is not required to recognize the chief Executive of a State; he can make his call directly upon the militia officers. Although the States have the power to appoint officers for the militia, they are all outranked by the Commander-in-chief, when called by him to the service of the United States, and outranked by any general or other officer who may be appointed over them. The object in providing that no appropriation of money for army purposes shall be for a longer period than two years, is obviously that no Con- gress subservient to the Executive power shall create a standing army to be placed under the con- trol of the chief Executive of the Union and make permanent provision therefor. The necessity to ask from time to time the popular consent for army appropriations through the instrumentality of Congress, will, it is supposed, forever prevent an army being created which shall be used in a manner opposed to the popular will. Congress has power to exercise exclusive legisla- THE LEGISLATIVE DEPAETMENT. 47 tion in all cases whatsoever over such district, not exceeding ten miles square, as may, by a cession of particular States and the acceptance of Con- gress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the Legisla- ture of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock- yards, and other needful buildings. Under this section of the Constitution the District of Columbia was ceded by the State of Maryland to the United States for the establishment of the seat of govern- ment at Washington on the Potomac, and Congress has exclusive jurisdiction over the government in that district. It provided the district with a mu- nicipal administration, which, however, in conse- quence of the abuses incident thereto, was abol- ished, and it is now governed directly by a committee of Congress. Crimes committed within a fort, magazine, ar- senal, or dock-yard, or other building of the United States, are cognizable only in the United States courts within their respective districts. Congress is empowered to declare the punish- ment of treason, but no attainder of treason shall work corruption of blood, or forfeiture, except dur- ing the life of the person attainted. 48 CON^STITUTIOI^AL HISTOEY. Congress is further empowered to make all laws whicli shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the govern- ment of the United States, or in any department or officer thereof. Although under this general grant of all power necessary to carry into execution the powers specif- ically enumerated, no new power has been granted, such a clause was, nevertheless, necessary for the purpose of preventing captious objections to the exercise of power by necessary implication arising from powers already granted, simply because such powers were not exprsssed in set terms. Under this grant of implied powers, it was held that Congress could charter a national bank, and that it could make appropriations for internal improve- ments. Under this grant of implied power, it was held by the Supreme Court of the United States that Congress might organize a form of State gov- ernment for the States which were in insurrec- tion, and which immediately after the Civil War for the time being had thereby lost their frame- work of government. Shortly after the adoption of the Constitution, by reason of the serious controversy which was then threatening war with France, the so-called THE LEGISLATIVE DEPAETMENT. 49 Alien and Sedition laws were passed, by the first of which the President of the United States was empowered to order any aliens out of the country whose presence was supposed to be dangerous to the community, and this in time of peace. The Sedition laws made it a crime for persons unlaw- fully to combine or conspire together with the intent to oppose any measure or measures of the United States, etc., or to write, print, utter, or publish, or cause or procure to be written, etc., any false, scandalous and malicious articles against the government of the United States, or either House of Congress, so as to stir up sedition, etc. These laws, although upheld by the judiciary, were so obnoxious to many of the States of the Union that their presence upon the statute book resulted in the passage of resolutions by the Legislatures of several States — Virginia and Kentucky — ^by which they nullified such laws within their own States. Eather than force a conflict upon this point, the laws were repealed. Under the ninth section of the first article of the Constitution, restricting the powers of Congress and of the States, it is provided that the migra- tion or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by Congress prior to the 8 W CONSTITUTIONAL HISTOEY. year 1808, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. This was an awkward and obscure pro- vision, adopted to prohibit Congress from prevent- ing the importation of slaves until 1808. In that respect it resembles the provision requiring the States to surrender fugitives who were held to service in other States. The framers of the Con- stitution were evidently extremely unwilling to use the term slave in the instrument, and so in several instances resorted to a paraphrase. Congress was forbidden to suspend the writ of habeas corpus, except when, in case of rebellion or invasion, the public safety may require it. It has, however, been expressly held by the Supreme Court of the United States that the power to suspend the writ of habeas corpus exists only in the case of war or insurrection as to the district which is the theatre of war or insurrection, and not where the civil tribunals exercise full and undisputed authority. Congress is forbidden to pass any bill of attainder or ex post facto law. Although there is secured to each man accused of a crime the right to be con- fronted by his accusers, and to a trial by a jury, which would seem necessarily to forbid the passage of any bill of attainder, yet, to place the rights THE LEGISLATIVE DEPAETMENT. 61 of the people beyond doubt, it was deemed expe- dient to put in express terms that no man shall be convicted by bill, and that no man shall be con- victed of a criminal offense under a law passed subsequent to the committing of the act. Under this prohibition as to the passage of ex post facto laws, it has, however, been held that this does not forbid Congress from passing retroactive laws in civil matters. No capitation or other direct tax is permitted to be laid unless in proportion to the decennial census or enumeration. No tax or duty shall be laid on articles exported from any State. Under this clause of the Constitution, it was held by the Supreme Court of the United States that the export duty on cotton, levied after the close of the Civil War, was unconstitutionally levied. No preference is permitted to be given by any regulation of commerce or revenue to the ports of one State over those of another ; nor are vessels bound to or from one State obliged to enter, clear, or pay duties in another. No money is permitted to be drawn from the Treasury except in conse- quence of appropriations made by law, and a regular statement of account of the receipts and expendi- tures of all public money is required to be published from time to time. 62 CONSTITUTIOIfAL HISTOKY. No title of nobility is permitted to be granted by the United States, and no person holding any office of profit or trust under its laws is allowed, with- out the consent of Congress, to accept any present, emolument, office, or title of any kind whatever from any king, prince, or foreign state. No State is permitted to enter into any treaty, alliance, or confederation ; to grant letters of marque or re- prisal, coin money or emit bills of credit, or make anything but gold and silver coin a tender in pay- ment of debts ; nor to pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility. Under these restrictions upon the powers of the States, the question which has been most fre- quently before the Supreme Court of the United States for interpretation has been, " What is a law impairing the obligation of contracts, and what contracts are under the protection of the Constitu- tion of the United States ? " While it is true that no one Legislature can tie the hands of a subsequent Legislature in matters strictly governmental, never- theless the Legislature of a State may pass a law which constitutes a contract with individuals or cor- porations binding upon the State. Such a law can- not be subsequently impaired, changed or modified to the detriment of the other contracting party THE LEGISLATIVE DEPARTMENT. 5'd without the consent of such contracting party or its assigns. Under this head it has been held by the Supreme Court of the United States, that the State, as to a particular property, may forever surrender its taxing power. In a leading case, decided as early as 1819, known as the Dartmouth College case, it was held that the charter granted by a State to a college was a contract which the Constitution of the United States would not per- mit to be impaired. As the result of this decision restricting the powers of States to alter and modify franchises granted by them, the States hastened to alter their respective Constitutions, so that it was thenceforth provided that all grants to corporations and all charters of corporations were subject to modification, alteration, and repeal at the will of the Legislature. This made the right of the Legislature to alter, modify, or repeal franchises granted to corporations, a part of the contract originally entered into with the corporation, and therefore the exercise of that right, however detrimental to the interests of the corporation, could not be said to be an impairment of the obligation of the contract embodied in its charter enacted subsequently to such constitutional amendment. When some of the Western States of the United States recently enacted laws by virtue 54 CONSTITUTIO]N"AL HISTOEY. of which commissioners were appointed to regulate the tariff of charges for freight and passengers to be levied by the railway corporations which had been chartered within the State, it was argued before the Supreme Court of the United States, by the bondholders and stockholders of the corpora- tion, that such legislation was an impairment of the original contract made with the corporation, and that under such contract the bondholders and stockholders acquired rights which could not be subsequently destroyed by a reassertion of sov- ereign power on the part of the State, which had been impliedly bargained away. In those States, however, the constitutions provided that grants by the Legislature of corporate franchises were subject to modification and repeal, and the Supreme Court held that the bond and stock holders were without remedy. It has also been held that the remedial provisions of law by which the creditor could collect from his debtor within the respective States by judgment and execution a claim due him, could not be so altered as substantially to impair his rights ; that the remedial legislation of the State under which contracts are made form part of the contract, and that to alter them to the detri- ment of the creditor was an impairment of his rights. On the other hand, it has been held by the THE LEGISLATIVE DEPARTMENT. 55 Supreme Court of the United States, in construing this provision of the Constitution, that a municipal corporation, being a subordinate branch of the sovereignty of the State, having delegated powers only, is subject to have its charter modified, altered or repealed at the will of the Legislature, and that such legislation never partakes of the nature of a contract. This is likewise true of all officers of the States whose salaries are fixed by the State, and whose functions are prescribed by State laws. It has also been held that a State cannot by contract bargain away the essential powers of sovereignty. The State, therefore, cannot deprive itself of the right to appropriate private property to public xise under the power of eminent domain. Even exclusive privileges in the nature of legis- lative contracts are upheld. If the State, for instance, grants a privilege to a corporation to build a bridge, and couples such grant with an agreement not to charter a bridge within a certain given point, the State is held to such a contract after the bridge is built. On the other hand, whatever may appropriately be deemed to fall within police powers cannot be contracted away. A man who buys a large stock of liquors under existing laws by which no license is required, cannot claim as against the State that his contract 56 CONSTITUTIOIS-AL HISTOET. is impaired because the State subsequently either restricts the sale or imposes conditions upon the business in which he is engaged. No State is permitted, without the consent of Congress, to lay any imposts or duties on imports or exports except such as may be absolutely neces- sary for executing its inspection laws, and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of Congress. No State is permitted, without the consent of Congress, to lay any duty of tonnage, keep troops or ships of war in time of peace, enter into any agreement or contract with another State or with a foreign power, or to engage in war unless actually invaded or in such imminent danger as will not admit of delay. Under these provisions it has been held that an immigrant tax imposed by State law upon vessels entering the port of New York, of one dollar per head, collected from ships which brought the emigrants, and the purpose and object of the expenditure of such head-money was undoubt- edly of an extremely useful character to both emigrants and ship owners, was an unconsti- THE LEGISLATIVE DEPAETMEITT. 57 tntional impost. The Emigration Commission, which for many years in the City of New York performed a very praiseworthy function in protect- ing the immigrants, from the moment of their land- ing until their departure from the City of New York, against frauds and swindles of every description which had theretofore been practiced upon them, providing hospitable accommodations for them, and for a year after their landing exercising some degree of guardianship in relation to their affairs, had its usefulness, after thirty years' duration, suddenly endangered by a decision of the Supreme Court of the United States adverse to the levy of the fund which supported it. Full faith and credit is required to be given in each State to the public acts, records, and judicial proceedings of every other State, and Congress is required by general laws to prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof. Under this section exemplification acts exist under which the acts and records of the several States are made evidence in the courts of law of other States. The citizens of each State are, under the Consti- tution, entitled to all the privileges and immunities of citizens in the several States. Under this clause special license laws, by which citizens of one State 58 COl^STITUTIOlTAL HISTORY. were prohibited from seeking trade in other States except on taking out licenses which, were not re- quired to be taken out by the citizens of the State, were held to be unconstitutional. In some of the courts of the United States, however, it has been held that by the term citizens of each State who are entitled to such protection is meant natural citizens, and not artificial creations like corpora- tions, and that, therefore, a State is at liberty to impose terms upon corporations of other States as a condition of their doing business therein which they do not impose upon their own corpora- tions. A persQn charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime. This creates without treaty between the States a provi- sion for extradition by which all criminals are delivered by one State to another, so that such criminals can be tried within the State where the crime has been committed. The constitutional provision that no person held to service or labor in one State under the laws thereof, escaping into another, shall, in con- THE LEGISLATIVE DEPARTMENT. 59 sequence of any law or regulation therein, be dis- charged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due, was mainly applicable to a condition of slavery, now happily passed away, when negro bondmen escaped from the Southern to the Northern States, and is now applicable only to cases of apprenticeship, for which it is not likely to be invoked. The United States is required to guarantee to every State in the Union a republican form of government, and to protect each of them against invasion, and on application of the Legislature, ois. of the Executive when the Legislature cannot be convened, against domestic violence. The provision requiring that full faith and credit shall be given in each State to the acts, etc., of every other State is intended to prevent any such weakening of the bonds of the Federal Union as might follow from the States disregarding what was due to courtesy and comity when their respect- ive proceedings should come under consideration, and thus opening anew the controversies and ques- tions which, in the jurisdiction having properly and primarily the control of them, had once been determined. This clause relates only to judgments in civil actions, and not to judgments on criminal 60 CONSTITUTIONAL HISTORY. prosecutions. In the latter respect tlie relation of the States to each other is wholly unaffected by the Constitution. The clause giving to the citizens of each State all the privileges and immunities of citizens in the several States, was not intended to give the laws in one State the slightest force in another State. It simply secures to the citizens of each State in every other State, not the laws or peculiar privileges which they may be entitled to in their own State, but such protection and benefit of the laws of every and any other State as are common to the citizens thfrn^^oi in virtue of their being citizens. XThder the section making it imperative upon the United States to guarantee to every State in the Union a republican form of government, a ques- tion was raised by the friends of woman's suffrage, before the Supreme Court of the United States, whether a government that excluded women from the suffrage was a republic, and the court held that it was. When the senators and representatives of a State are admitted to the council of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. Congress has power to dispose of and make aU THE LEGISLATIVE DEPARTMENT. 61 needful rules and regulations respecting the terri- tory or other property belonging to the United States. Under this grant of power it has been held that Congress has the absolute right to prescribe the times, the conditions, and the mode of trans- ferring the public domain, or any part of it, and to designate the persons to whom the transfer shall be made ; that no State legislation can interfere with this right, or embarrass this exercise, and that no State law, whether by limitation or otherwise, can defeat the title of the United States to public lands within the limits of the State. By the sixth article of the Constitution, it is pro- vided that all debts contracted and engagements entered into before the adoption of the Constitution shall be as valid against the United States under the Constitution as under the Confederation. The second section provides that the Constitu- tion and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. This supremacy gives to the United States Govern- ment, as contradistinguished from a State Govern- 63 CONSTITUTIOI^^AL HISTORY. ment, its true sovereignty. "Without it the Union could not maintain itself. There would have been a constant clashing of interests and of laws, and endless interpretations by the several State courts conflicting with each other as to the meaning of clauses of the Constitution of the United States. The declaration of supremacy of the Constitution of the United States and the laws thereunder, and the organization of the Supreme Court of the United States to determine all questions arising under the Constitution of the United States, or under a United States law, or when the Constitution of the United States, or the United States statutes are invoked or called into question, has created a homogeneity of decisions and interpretation which gives stability to and respect for its laws. A treaty is regarded as equivalent to an act of Congress, and has precisely the same validity. Congress has, therefore, the power by a subse- quent law to repeal clauses in a treaty if the sub- sequent enactments are in necessary conflict with the treaty. It is only the foreign governments, the compact with which has been violated, which have a ground of complaint for an infraction of the treaty, not the citizens of the United States. Although the Constitution thus places the United States government and its legislation above that THE LEGISLATIVE DEPAETMENT. 63 of States, it nevertheless takes from the States their power to legislate in but three cases. First, where they are expressly prohibited from legisla- ting ; second, where exclusive power is expressly vested in the United States ; and third, where power vested in the United States is in its nature exclusive. It has now been expressly held by the Supreme Court of the United States, that when a State be- comes one of the United States, it enters into an indissoluble relation. The act which consummates its admission into the Union is something more than a compact ; it is the incorporation of a new member into the political body ; it is final. The union is as complete, as perpetual, and as indis- soluble as the union between the original States. The senators and representatives, and the members of the several State Legislatures, and all Executive and Judicial officers both of the United States and of the several States, are required by the Constitution to be bound by an oath or affirma- tion to support the Constitution ; but no religious test is ever required as a qualification for any office or public trust under the United States. Shortly after the war of the rebellion a new oath was prescribed by Congress to all office-holders, known as the "iron-clad" oath, by which the 64 CONSTITUTIONAL HISTOEY. officer swore that he had not aided or abetted the rebellion in any form or manner, and abjured the heresy of secession. This oath was, after solemn argument, declared to be an unconstitutional im- position as a test for office, as the Constitution required nothing further than an oath to support the Constitution. Shortly after the adoption of the Constitution, amendments were proposed, and by the States in due form ratified, which limited the powers of Congress ; the first eleven were in their nature a sort of Declaration of Eights of the people against arbitrary interference by the federal authority, and have already been commented upon. CHAPTEE HL THE EXECUTIVE POWER. The Executive power of the Federal Government under the Constitution of the United States is vested in a President, who is to hold his office for the period of four years, and who, together with the Vice-President chosen for the same term, is elected by an Electoral College composed of electors of each State equal to the whole number of senators and representatives to which the State is at the time of such election entitled in Congress. The manner of the election of the members of the Electoral College is determinable by the Legislatures of the several States, with the limitation only that no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector. Under the Consti- tution, Congress was vested with power to deter- mine the time of choosing the electors and the day on which they shall give their votes ; such day, however, to be the same throughout the United 65 66 CONSTITUTIONAL HISTOEY. States. By an amendment to the Constitution, adopted in September, 1804, these electors were constituted into electoral colleges, to meet not as one body, but in their respective States, and to vote by ballot for President and Yice-President, one of whom at least shall not be an inhabitant of the same State with themselves. The ballots for Pres- ident shall be separate from those for Vice-Pres- ident, and after having made distinct lists of all persons voted for as President and of all persons voted for as Yice-President, and of the numbers of votes for each, the lists are required to be signed and certified and transmitted sealed to the seat of government of the United States, directed to the President of the Senate. The President of the Senate then shall, in the presence of the Senate and House of Eepresentatives, open all the certi- ficates, and the votes shall then be counted. The person having the greatest number of votes for President shall be President, if such number be a majority of the whole number of electors appointed. If no person have such majority, then from the persons having the highest number of votes, not exceeding three, on the list thus voted for as Presi- dent, the House of Eepresentatives shall immedi- ately choose by ballot the President. When that contingency arises the members of the House of THE EXECUTIVE POWEE. 67 Kepresentatives cease to vote in their individual capacity, but vote by States, each delegation or a majority of each delegation, casting the vote of the State. For this purpose the quorum to constitute the House of Kepresentatives must consist of a member or members from two-thirds of the States, and a majority of all the States is necessary to a choice.* In the event of the House of Kepresentatives failing to choose a President, when the right of choice thus devolves upon them, before the fourth day of March next following the election, then the Yice-President, elected as hereinafter stated, shall act as President, as in case of the death or other constitutional disability of the President. t The person having the greatest number of votes as Vice-President shall be the Vice-President, if such number be a majority of the whole number of electors. If no person has a majority, then from the two highest numbers on the list the Senate shall choose the Vice-President. A quorum for this purpose shall consist of two-thirds of the whole number of senators, and a majority of the whole number shall be necessary to a choice. No person is eligible for the position of President unless he be a natural -born cifcizen or a citizen of the United States at the time of the adoption of * See Addenda, Law of 1886 on Presidential count, f See Addenda, Law of 1887 on Presidential succession. 68 CONSTITUTIONAL HISTOEY. the Constitution. He must be at least thirty-five years of age, and have been fourteen years a resi- dent within the United States. The difference between the amendment and the Constitution as it originally stood, lies mainly in the fact that under the original Constitution the electors voted by ballot for two persons, and that they made a list of all the persons voted for and the number of votes for each, and the person having the highest number of votes, if such number was a majority of the whole number, became the Presi- dent, and the next person having the highest number of votes became the Yice-President. The idea which the framers of the Constitution enter- tained as to the manner in which these electoral colleges should exercise their function was that the people of each State would, in such manner as the Legislature directed, select the wisest and best men in the State to determine upon the fittest and best citizens for the offices of President and Yice- President respectively. Alexander Hamilton says in the Federalist, " It was desirable that the sense of the people should operate in the choice of the persons to whom so important a trust was to be confided. This end will be answered by commit- ting the right of making it not to any preestab- lished body, but to men chosen by the people for THE EXECUTIVE POWEE. 69 the special purpose at a particular juncture. It was equally desirable that the immediate election should be made by men most capable of analyzing qualities adapted to the station. ... A small number of persons selected by their fellow-citizens from the general mass would be most likely to possess the information and discernment necessary for so complicated an investigation." The end which was intended to be achieved by preventing the merger of the State electors in any general body, was mainly to preserve State action to such a degree as to prevent State jealousy in the selection of the President, so that each State should feel that in the performance of so important a task as the selection of a President of the United States it preserved its separate action; second- arily, by this system of double election to secure the best possible result as to persons to fill the important offices of President and Vice-President. At a very early period after the adoption of the Constitution the practical result of this method of selection was the very opposite from that which was intended by the framers of that instrument. National conventions of parties predetermined who the nominees of the party should be for such offices, and the election of electors under the forms of the Constitution at a subsequent period was 70 C01^STITUTI0]S^AL IIISTOEY. merely a method whereby to test the party strength in the several States ; the electors to be voted for were likewise to be determined by a party conven- tion within the State ; and the majority in any State would elect either Federal or Republican electors, subsequently Whig or Democratic, and at a still later period Republican or Democratic electors, by a majority vote which determined which party should prevail in each particular State. The electors so elected became and are mere registering machines to cast the vote of the party in conformity with the nomination of the party ; and so strong are party ties in the United States, that there is no instance of any elector so elected disregarding his obligation to his party and exercising an independent choice for President of the United States. Therefore, after the Novem- ber election preceding the March when the Presi- dent of the United States is to be inaugurated, and considerably preceding the period of the meeting of the electoral colleges, the selection of electors is deemed the conclusion of the contest, and when such electors are elected, who is to become the President and Yice-Presidenfc of the United States is immediately thereupon declared and known. The subsequent meeting of the electoral colleges on the first Wednesday in December following the THE EXECUTIVE POWER. 71 Tuesday after the first Monday of November, when the election takes place, has degenerated into a mere matter of form, to which nobody pays anything more than a mere passing attention. The Eevised Statutes of the United States, sections 132- 151, provide a uniform time for the choice of the electors, their number, the manner for filling vacan- cies, the certificates for the electors, the manner of making their returns, their compensation ; there is a provision for the contingency of a new election in the event of the Presidency and Vice-Presidency both becoming vacant, and a provision that, in the event of the resignation of the President or Yice- President, it shall be in writing. The liianner of counting the electoral vote has thus far been determined by joint resolution of the House of Eepresentatives and the Senate. Immediately after the election of 1876, a contro- versy arose as to whether Mr. Tilden or Mr. Hayes had a clear majority of the electoral vote, and when the electoral colleges subsequently met in their respective States, two returns came from several States, and by the counting of either one of those electoral returns, or the rejection of both, the result of the election would be changed. The country was considerably disturbed by the then condition of affairs ; grave suspicions were enter- 72 CONSTITUTIONAL HISTOET. tained that fraudulent electoral colleges were con- stituted by violently disregarding or rejecting votes which should properly have been registered for the successful candidate, and the country was sup- posed by many to be upon the eve of another civil strife as to the Presidential succession, when an extra-judicial tribunal was organized, known as the Electoral Commission, composed of five Judges of the Supreme Court of the United States, five mem- bers of the House, and ^Ye Senators, from both parties, fifteen in all, whose determination upon the question was accepted as final. It is well known, that by a majority of one vote Mr. Hayes was declared elected, and duly inaugurated. This condition of affairs is unlikely ever to happen again, because the semi-territorial government to which some of the States which theretofore had been in rebellion were subjected, created a condition of affairs in such States favorable to frauds in election returns, and which made it doubtful for a time whether the nominal State government was really represent- ative of the people of the State, and the acts of the government officials were regarded with grave suspicion by both parties. The Kevised Statutes also provide that the time for which a President and Vice-President shall be elected shall in all cases commence on the fourth THE EXECXTTIYE POWEE. 73" day of Marcli next succeeding the day on which the votes of the electors have been given, and that that term shall be four years ; that the compensa- tion of the President shall be $50,000 a year, and that of the Vice-President $10,000 ; the increase of the President's salary from the amount originally fixed by the act of 1793 at $25,000, having been made in March, 1873. There is also a provision authorizing the appointment, and limiting the ex- penditure of the President's official household. The functions of the President are defined in the second article of the Constitution. He is made 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 has power to grant reprieves and pardons for offenses against the United States except in cases of impeachment, and he is author- ized to require the opinion in writing of the prin- cipal officers in each of the Executive departments upon any subject relating to the duties of their respective offices. Power is given him, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the senators con- cur ; with him rests the nomination, and by and with the advice and consent of the Senate, the appointment of all ambassadors, all public minis- 4 74 CONSTITUTIONAL HISTORY. ters and consuls. He also appoints, subject to confir- mation by the Senate, Judges of the Supreme Court and all other officers of the United States the ap- pointment of whom is not otherwise provided for in the Constitution, and which may subsequently be established by law. Power is, however, reserved to Congress by law to vest the appointment of such inferior officers as it may think proper in the Presi- ent alone, in the courts of law, or in the heads of de- partments. The President is also empowered to fill all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of the next session. He is re- quired from time to time to give to Congress infor- mation of the state of the Union and to recom- mend to its consideration such measures as he shall judge necessary and expedient, and he may on extraordinary occasions convene both Houses, or either of them, and in case of disagreement between them as to the time of adjournment he may adjourn them to such time as he may think proper. The President receives ambassadors, dip- lomatic agents and other public ministers, and is in general terms entrusted with the duty to see that the laws are faithfully executed and to grant com- missions to all the officers of the United States. Provision is made for the removal of both the THE EXECUTIVE POWER. 75 President and Yice-President and all civil officers of the United States on impeachment for and con- viction of treason, bribery, or other high crimes and misdemeanors. He has also the high and im- portant prerogative to veto all legislation of Con- gress, which veto power is, however, subjected to the condition that in the event of his failure to approve a bill he shall return it with his objection to the House in which it shall have originated, which shall enter the objection at large upon its journal and proceed to reconsider the bill. If, after such reconsideration, tv/o-thirds of the Hou^'^ shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two-thirds of that House it shall become a law notwithstanding the Presidential veto. In all such cases the votes of the Houses are determined by yeas and nays, and the names of the persons voting for and against the bill are entered upon the journal of each House. Should the President fail to return the bill, or fail to sign it within ten days after it shall have been presented to him, it be- comes a law as though he had signed it, unless Congress by adjournment prevents its return, in which case it does not become a law without the President's signature. 76 CONSTITUTIONAL HISTOEY. The power to make appointments to office by and with the advice and consent of the Senate has, in practice, also largely deviated from the inten- tions of the draftsmen of the Constitution. By giving the President this power, it was intended to place upon him the responsibility of the nomina- tion, and to give the Senate the power to consider the fitness of the nomination by a canvass of the merits of the nominee, so as to act as a check upon the President's personal favoritism, nepotism, lack of information, or any other influence result- ing in an injudicious nomination. When, however, by the growth of the population and the enor- mous increase of federal offices consequent upon such growth, it became practically impossible for the President to arrive at a judicious conclusion as to the vast number of appointments which had to be made with each change of administration. Under the pernicious doctrine that the prevailing party had a right to all the federal offices, a habit at first grew up of asking the advice of the sen- ators of the States in which the officers were to exercise their functions as to the proper nominee ; and this habit in time grew into a custom, which gave to the senators, as they insisted, the right to suggest to the President the names of the persons who were to exercise federal functions THE EXECUTIVE POWER. 77 within the State from which they were commis- sioned. This became so established a rule of action on the part of the Presidents, that it became a matter of custom that when both senators of a State for which an appointment was made declined to confirm, the Senate deemed itself bound to reject the nomination. Therefore, during President Garfield's administration, the two senators , from New York re- signed their seats in 1881, because what was termed " the courtesy of the Senate " had been violated in their cases, and the Collector of the Port of New York had been nominated without consultation, and in disregard of their wishes. An active movement is now proceeding in the United States to institute some system of civil service reform which will re- lieve the President from the necessity of making nominations to the Senate of a vast number of oflGl- cers who are periodically to be appointed under the " spoils " system. From the necessities of the situation the nominations of inefficient men by the President is inevitable if he acts entirely upon his own judgment, in disregard and without previous consultation with the senators from the States. It is clearly impossible for him to know much of the persons thus nominated. He is, therefore, depend- ent upon the senators of the several States for sug- gestion and advice as to the nominations, and this 78 COIfSTITUTIOISrAL HISTOEY. dependence makes of the senators the heads of the great political machines of the States, and they thereby become, instead of the President, the foun- tains of federal honor and office within their respect- ive States. The civil service reform movement, there- fore, in the United States will, if successful, deal a blow at the " spoils " system, which makes each Pres- idential election a. raffle for one hundred thousand offices, and the incumbents a vast horde of hungry office-holders, upon whom assessments for cam- paign funds can be levied by the party in power, which are promptly paid, because an incumbent knows full well that a refusal to contribute involves danger to him from his own party, and that a change of administration bringing into power the opposition party, will, almost as a matter of course, cause his office to be vacated. This reform is also an attack upon the " courtesy of the Senate," which constitutes senators, instead of mere judges of proper or improper nominations, a cabal to dic- tate nominations to the President, and in the event of a Presidential refusal, to decline con- firmation, irrespective of the merits of the nomi- nees. Each term of the Presidential office begins on the fourth day of March succeeding the election, and continues for a period of four years. The people of THE EXECUTIVE POWER. 79 the United States are at liberty to reelect the in- cumbent if they see fit : there is no constitutional restriction upon them in regard to the number of times he may be reelected. But as Wash- ington declined a nomination after his second term had expired, and pointed out, in so declining, the impropriety of repeated elections of the same officer, however popular, it has become part of the unwritten law of the United States that the Presi- dential term should not be extended beyond eight years. In case of the removal of the President from office, or of his death, resignation or inability to discharge its powers and duties, it is provided that the same shall devolve upon the Vice-President. And it is further provided that Congress may by law provide for the case of the removal, death, resignation or inability of both Presi- dent and Vice-President, and declare what officer shall then act as President, and such officer shall act accordingly until the disability be re- moved or a President be elected. Congress did provide, that in such a case the President of the Senate, or, if there be none, the Speaker of the House of Representatives for the time being, shall act as President until the disability is removed or a President elected ; and in the event 80 CONSTITUTIONAL HISTOKT. of the office of both President and Yice-President becoming vacant, the Secretary of State shall thereupon cause a notification to be made to the Executive of every State, and a new election shall thereupon be ordered.* There is no provision for succession, in the event of there being no President of the Senate and no Speaker of the House of Eepresentatives. The death of President Garfield, at a time when there was neither President of the Senate nor Speaker of the House of Eepresentatives, created a case when, in the event of the death of President Arthur before the Senate could be convened, no succession for the Presidency had been provided for. It is therefore clear that a further pro- vision must be made by law for such a possible contingency.* Another question which arose during the pro- longed disability of President Garfield, inter- mediate between his wounding and his death, is one which has never yet received complete and satisfactory solution, and may create trouble unless anticipated by law. The Constitution provides that, in the event of a President- ial disability, the office of President shall devolve upon the Vice-President; but there is no provision that such a devolution of the office .* See xiddenda, new law. THE EXECUTIVE POWER. 81 shall be simply temporary in character, and that the Yice-President shall resign the same when the disability ceases to exist. The great per- sonal popularity of President Garfield, the hope of speedy recovery from his disability, and the widespread sympathy for his condition, made it inexpedient for the Yice-President to claim the office of President during this inability of the President to perform the duties of his office. But had the Yice-Presidency then been held by a per- son of less delicacy of sentiment and appreciation of popular opinion, the questions of who should determine when an inability arises, and for what term the Yice-President should hold office in the event of the disability being removed, might have become very serioas ones. These recent events, therefore, point to some further amendments of the Revised Statutes in relation to the Presidential office.* The President is not subject in the exercise of his discretion to any judicial interference. The Supreme Court of the United States cannot com- pel his signature to any act, nor cause him to refrain from doing any act. There is but one way to reach an abuse of his authority, and that is by impeachment. There is but one example in the history of the United States of an impeachment of * See Addenda, new law, 4* 82 CONSTITUTIONAL HISTOEY. the President, and that is the impeachment of Andrew Johnson. The House has the sole power of impeachment. The Senate has the sole power to try impeach- ments. When sitting for that purpose, they are on oath or affirmation. When the President of the United States is tried the Chief Justice of the United States presides, and no conviction can be had without the concurrence of two-thirds of the members present. The English precedents are followed in the trial by impeachment, of the House appointing triers, and the impeached officer having counsel, either assigned to him or appointed by him, to try the cause in his behalf. Until 1868 the President had the power to create vacancies in the offices of heads of depart- ments and their first assistants, by demanding resignations and filling vacancies temporarily until the Senate's consent could be obtained. In con- sequence of the conflict which then existed be- tween the Legislative and Executive departments, eventually resulting in the impeachment of Presi- dent Johnson, an act was passed allowing suspen- sions but preventing the President from making re- movals, and from making temporary appointments, except in the cases of death, voluntary resignation, absence or sickness of the chief of any bureau. THE EXECUTIVE POWER. 83 Under the implied powers which the President of the United States has received by the general investiture of power as the chief Executive officer of the United States, may be enumerated the fol- lowing : As Commander-in-Chief of the Army and Navy of the United States, he has power to engage in hostilities, to institute a blockade, and to authorize captures and condemnations on the high seas. He has power to recognize a State Government in so fat as to determine whether the government organized in a State is the duly con- stituted government of that State. He has power to protect aliens, as the care of our foreign rela- tions is committed to him; to remit forfeitures under his pardoning power ; to order a nolle 'prosequi to be entered at any stage in a criminal proceeding in the name of the United States ; to order a new trial on the sentence of a court martial ; and in time of war to suspend the writ of Tiabeas corpus in any district where for the time being the civil authorities are powerless. He is authorized by the Constitution to appoint heads of departments in his official household. This is likewise done by and with the advice and consent of the Senate. This official household constitutes the Cabinet. The term Cabinet is not known to the Constitution of the United States, and has 84 CONSTITUTIONAL HISTOKY. been adopted in American political parlance in imitation of the term for the chiefs of the depart- ments of the English Government. The Execu- tive officers, who are the more immediate advisers of the President, and in the selection of whom greater latitude is allowed by the Senate than in that of any other officer, are the Secretary of State, Secretary of Interior, Secretary of the Treasury, Secretary of War, Secretary of Navy, Postmaster General, and Attorney General. The Departments respectively under the direc- tion of the secretaries are known as the Depart- ment of State, the Department of War, Department of the Treasury, Department of the Navy, Depart- ment of the Interior, the Post-office Department, and that under the Attorney General as the Department of Justice. There is also a Depart- ment of Agriculture, the head of which is, however, not a Cabinet officer. The several duties of the Department of State are by law defined to be correspondences, com- missions, and instructions to or with public minis- ters and consuls from the United States ; carrying on of negotiations with public ministers of foreign states or princes ; receiving memorials or other applications of foreign public ministers or other foreigners, and such other matters respecting THE EXECUTIVE POWEE. 85 foreign affairs as the President of the United States shall assign to the department, and the Secretary shall conduct the business of the depart- ment in such manner as the President shall direct. To the Secretary of State are also entrusted the custody and charge of the seal of the United States and the seal of the Department of State. It is his duty to promulgate the laws ; to publish the same ; to give notice of intended or proposed amendments to the Constitution of the United States ; to give notice of the adoption of constitutional amendments, and to promulgate the same ; to lay before Congress, within ten days after the commencement of each regular session^ a statement of the returns of port collect- ors and of foreign agents, a report of the foreign reg- ulations of commerce and other commercial infor- mation, and of consular fees, and a synopsis of such of his communications to and from diplomatic offi- cers as he may deem expedient to give for public information, a full list of all consular offices, -132; of U. S. courts, 121-122; of Circuit courts, 133. Appointing power of Prest., 73-74, 76- 78, 82-84, 89, 90, 92, 93, 94. 126, 151: share of Senate in, 34; how used since adm. of Jackson, 227; its evils, 227-228; efforts at reform, 228- 231. See also Civil service; Removal; Spoils; Teniire-of-ofiice. Appointment of State officers, 251-252, 2.54-257; of judges, 254-2.5(>. Apportionment of Congressmen, 28-31, 123. Appraisal of imports, Treas. Dept. to report to Congress rules for, 87. Appropriations, bills for, to originate in House of Rep., 36-37; money to be paid only by, 51; Treas. Dept. to keep account of, 85. Arkansas, liesiljites about secession, 194; secedes 197. Armies, power of Congress to raise, 45 ; appropriations for, limited to two yeais, 45, 46; power of States to maintain, limited, 56. Sie also Mili- tia. Arms, riu:ht of people to bear, 19, 140- 141; does not apply to concealed weapons, 117-118. Army, power of Continental Congress over, 11; of Congress over, 46 ; of Prest. over, 203; U. S. does not need 347 348 INDEX. a standing, 222. See also Militia; Volunteer; War Dept. Arsenals, jurisdiction of Congress over, 47. Arthur, C. A., accession to presidency, 80-81,220. Articles of Confederation, adoption, 9; powers, 10; defects, 11-13, 27, 96; differences from Const., 143-144; their weakness, 146. Ashbuvton treaty, 178. Assassination of Lincoln, 200; of Gar- field, 220. Assembling, people's right of, 19, 117, 140. Assessments, attempts to limit ratio, 272-273. See also Political assess- ments. Attainder, bill of, forbidden, 47, 50-51, 52, 111. Attorney-General, 84; his duties, 90- Bail, excessive, prohibited by Const, amend., 21, 122, 142. Ballot, Prest. and Vice-Prest. to be chosen by, 66; its introduction in voting, 2^. Bank of U.S., disagreement as to its incorporation, 155; reorganization in 1811, 163; the failure to re- charter it, 170-171; Jackson removes U. S. deposits from, 172. See also Fiscal. Bank notes. See Paper money. Banking corporations, influence upon Statelegislation, 257. Bankruptcy, power of Natl. Govt, over, 16; of Congress, over, 42; writs of injunction in, 132. Banks, statistics of, 88. See also Na- tional hanks; State banks. Battle of New Orleans, 162-163. Bell, J., nominated as Prest. by Const. Union party, 193. Biennial sessions of State legislatures, 264-266. Bill of attainder. See Attainder. Bill of rights in amends, to Const., 135-144. Bills of credit. States prohibited from issuing, 52. Bimetallism, 242-244. Blair, F. P., Jr., nominated as Vice- Prest., 205. Bland silver bill, 242. Blockades, power of Prest. to insti- tute, 83. Bonds of U. S. not subject to taxation by States, 39; natl. banks required to invest caj)ital in, 198. See also Debt. Bosses, political, 219, 265. Boundaries between the States, 10. Bounty lands, 94, 115. Breckenridge, J. C, elected Vice- Prest., 190; nominated as Prest., 193. Bribery, impeachment for, 75; provis- ions in State constitutions against, 253. British orders in council, 161. Brooklyn, frequent change of public improvement laws, 273. Brooks, P. S., assault upon Sumner, 189. Brown, B. G., nominated as Vice- Prest., 208. Buchanan, J., adm. of, 190-196. Bureau. *S'^e Census; Education; Freed- men's; Mint; Statistics. Burr, A., contest with Jefferson for presidency, 159-160; duel with Ham- ilton, 160. Butler nominated as Vice-Prest., 181. Butler, B. P., declares slaves to be contrabands of war, 197. Cabinet, 83-84; that of Tyler resigns, 177-178; propriety of giving mem- bers seats in Congress, 247-249. Calhoun, J. C, elected Vice-Prest., 167, 168; advocacy of nullification, 170. California, cession to U. S., 180; ad- mission as a State, 183-184; its ac- tion on Chinese question, 240. Canal commissioners of States, 2-53. Capital of U. S., its location, 152, 153, 155. Capitation tax proportional to popula- tion, 51. Captures. See Prizes. Carpet-baggers, 206. Carrying trade, eflbrts to restore, 237- 238. Cass, L., nominated for presidency, 181. Caucus, origin, 159 ; its evils, 232, 265 ; how to remedy them, 235. Censorship of the press, 137. Census, provision for taking, 28-31. Census Bureau, 93-94. Centralization of power, 1.56, 158, 226. Charter governments of the colonies, 3. Charters, colonial, 2, 3. Chase, S. P., 4-3. Chief Justice presides in impeachment of Prest., 82. Chinese question, 239-241. Circuit courts established byCongress, 44; appeals to Sup. Ct. from, 126, 127; writs of m exeat by judges of, 132. Citizens of the different States to be onan equaliiy. 18; to be entitled to privileges of other States, 57-58, 60, 113-114; suits in which they are par- ties, 103, 104, 105, 106, 109, 110; juris- INDEX. 349 diction of Sup. Ct. in cases between, 103, 105; entitled to equal protection of States, 122-123; their rights i)ro- tected more by States than by natl. govt., 250; their rights of voting at all elections, 251-252. Citizenship of Congressmen ,28; of Sen- ators, 33; defined, 113-114; freedmen admitted to, 202; qualifications for, 254. See o/a'o Naturalization. City. »&g Municipal. Civil judgments \n one State binding in others, 59. Civil law, its administration chiefly in control of States, 250. Civil rights, 22, 122-123, 124; passage of bill, 202. Civil service, evils of, iv-v, viii; re- forms in, 77-78, 228-2:^1, 235, 265. See also Appointing; Oftice-holders; Removals; Spoils. Civil suits, right of jury in, secured by Const, amend., 21. Civil War, 196-200; settlement of is- sues ijiised by it, iv-vi; Const, amends, caused by, 22; settled ques- tion of Stale rights, 26; a pretext for protective duties, 235-2.36. Claims of and against U. S. to be ad- justed by Treasury Dept., 85; inva- lidity of Southern, 22, 123-124. See also Examiner; Court of Claims. Clay, n., 165. Clearance of vessels, 51. Clerk of House of Representatives makes up roll of members, 82. Clinton, G., elected Vice-Prest., 161. Coast Survey, 88, 151. Cobden-Clievallier treaty, 238. Coercion of Judicial and Exec, Depts. by Congress, 35; of States, 194, 196. Coercive authority lacking in Conti- nental Congress, 11-12. Coffee, duty on, lowered, 238. Coin of U. S. under charge of Treas. Dept., 87. Coinage, power of, under Arts, of Confed,, 11; under Const., 42-43; States prohibited from, 52; of silver, 242. Colfax, S., elected Vice-Prest., 20.5. Colonial Congress, declaration of 1765, 4-5. Ste also Continental Congress. Colonies, their forms of government, 1-5. See also State legislatures. Color, discriminations against, prohib- ited by Const, amend., 22. Colorado, organization into a territory, 196; admission as a State, 211; min- ing regions of, 217. Commander-in-chief, 45-46, 73. Commerce, inter-state, 13, 51, 224; power of Congress to regulate, 40- 42; statistics of, 88; embargo act for protection of, 161. See also Ex- ports; Free trade; Protective. Commercial crisis of 1837, 172, 176; of 1873, 210. Commissions granted by Prest., 74. Common law, recognition of, in colo- nies, 2-3. Compensati(m of, presidential electors, 71; for private property seized, 119. Competitive examinations, 229. Compromises in Const., 23-24. Concealed weapons, 118. Coufederaic govt., organization, 195. See also Southern States. Confederates, disabilities, 22, 123; in- validity of claims for losses, 22, 123- 124; iron-clad oath, 63-64. See also Soulhern States. Contii-mation by the Senate, 34-35, 73- 74, 80, 89, 90, 92, 93, 94. Congress, 27-()4; its appointment power, 74; depts. to report to, 85, 87-88; Attorney-Gen. and Postmas- ter-Gen. to report to, 92; limitations on, 96-98, 101-102; power over juris- diction of U. S. courts, 104, 106-107, 108; its right of eminent domain, 119-120; claims before, 133-135; the first Congress, 149-153. See also Co- lonial; Continental; House of Rep.; Legislation: Senate. Congressional districts, 30-31. Congressmen, their qualifications, 28; number^ 29-31; disqualification for otheroftices during term, 36; oath to support Const., 63-()4; cannot be prest. electors, 65; number in Madi- son's adm., 163. Conklin, R., his resignation, 77. Connecticut, fomi oi colonial govt., 3. Conspiracy not treason, 112. ike also Sedition. Constitution of U. S., 1-26; the su- preme law, 61-62; opposition to its adoption, 14, 148-149. See also Amendments; Constructions; Lim- ited. Constitutional Convention, 14. Constitutional law, its scope, 15. See also Laws. Constitutional Union party. SeeKnovr- Nothings. Constitutionality of Acts of Congress, w by determined by judges, 97-102. Constitutions of the States, 1-8; their changes and developments, 250-274. Constructions put upon Const., cause of parties, 173-175. See also Loose ; Strict. Consuls, appointed by Prest., 74; juris- diction of Sup. Ct. in cases affecting, 102, 103 : pan ios to actions, 126. Continental Congress, 5-7 ; its pow- ers, 10-11; its inability to enforce 350 Il^DEX. laws, 12, 27; a tribunal of last re- sort, 96. Continental paper monej^ amount and redemption of, 154. Contraband of war, slaves declared to be, 197. Contracts, States prohibited from im- pairing, 52-56 ; tliose of Treas. Dept. to be reported to Congress, 87 ; for postal service, 92, 93. Convening Congress by Prest., 74. Conventions for nominating Prest., their beginning, 69-70 ; for amend. State consts., 253. Copyright, power of Congress over, 43-44. Corporations, modification of State grants to, 53-56 ; have not the privi- leges of citizens, 58 ; empowered to exercise right of eminent domain, 119 ; grants of land to, 246-247 ; in- fluence upon State legislation, 257 ; minority representation in, 262. See also Municipal. Corruption, of carpet-baggers, 207 ; provisions in State consts. against, 253; in city irovts., 267. Cotton, illegality of export duty on, 51; claims for seizure of, 133-134. Counsel in criminal prosecutions, 120. Counterfeiting, power of Congress to punish, 43. Counting electoral votes, 66, 71, 213- 214. County organizations, established by State constitution!*, 253 ; debts in aid of railways, 260, 261. Court of Claims, appeals to Sup. Ct. from, 127; its jurisdiction, 133-135. Courtesy of the Senate. 76-78. Courts of last resort, their judgments final, 121. See also Circuit; District; Judicial; State; Supreme. Courts martial, 120-121, 140. Credit, bills of, States prohi'iited from issuing, 52. Credit of U. S. under Continental Congress, 12-13. bee also Itebt. Clime, no increase caused by Civil War, V. Crimes committed in U. S. bldgs. cognizable in U. S. courts, 47. Criminal law, how guarded by Const. amend , 20-21; judgments in one State not binding in others, 59-60 ; jury trials obligatory, 110-112; in- dictments essential, 118 ; limitations on prosecutions, 120-121; its adm. chiefly in control of States, 250. See aUo Attainder; Ex poi^f facto. Criminals to be delivered up by the States, 18, 50, 58. See also Eequi- sition. Crittenden Compromise, 194. Crown lands, ownership after forma- tion of Union, 9-10. Cuba, pro-slavery desire for its ac- quisition, 191. Cumulative voting, 263. Currency, statistics of, 88 ; Controller of, 89. See also Legal tender; Paper monej'. Current questions, 222-249. Custom duties. Treasury Dept. in charge of collection, 86. See also Imports ; Protective. Custom-Houses, number of employes and expenses to be reported to Congress, 88. Customs, Commissioners of, 89. Dakotah, organization into a territory, 196. • Dallas, G. M., elected Vice-Prest., 179. Dartmouth College vs. Woodward, 53. Davis, J., elected Prest. of Confeder- ate govt., 195. Death of Prest. and Vice-Prest., 79-81. Debt of U. S., payment and refunding of, v; Continental Congress with- out power to \)&y, 11; practical re- pudiation under Continental Con- gress, 13 ; its validity secured by Const, amend., 22, 123; power of Congress to contract^ 40; in charge of Treas. Dept., 86; its considera- tion in first Congress, 152, 153-155 ; its amount at close of War of 1812, 162; its decrease during adm. of Monroe, 166; extinguished during adm. of Jackson, 173; increased by Mexican War, 182; its payment in coin, 209-210; increased by Civil War, 227; its rapid decrease, 241, 246. See also Bonds. Debts, States cannot obstruct collec- tion of, 54; States prohibited from making them payable in anything but gold and silver, 52; contracted in aid of railways, 260-261. Debts of cities, 260-261,267-271; neces- sity for their limitation, 273-274. Debts of States, validity of those contracted before adopting Const., 61; their amount and their assump- tion by natl. govt., 154-155; con- trolled by their consts., 253. Debts of Southern States, their invalid- ity, 23, 123 ; those created since Civil War, 206-207. Decentralization of power in States, 253. Decisions, ^ce Judgments; Supreme Court. Declaration of Independence, 6. Delaware, form of colonial govt., 3: withholds ratification to Articles oi Confed., 9; secedes, 197. IKDEX. 351 Democratic-Republican party, 155. Democratic party, 155, 17:2; platform in 1848, 181; in 1852, 185-186; its division in 1860, 192-193; adopts Lib- eral Repub. candidates, 208; nomi- nates Tilden as Prest.,21]; change of attitude in lb7G, 214-216; nomi- nates Hancock as Prest., 217; plat- form in 1880, 218; its change of front loses it the election, 219 ; its principles, 220 ; its advocacy of civil service reform, 230 ; free tra- ders' relation to, 238-239. See also Republican (Old); Republican- Democratic. Demonetization of silver, 241-242. Departments, See Agriculture; In- terior; Justice; Navy; Post-office; State; Treasury; War. Deposits of U. S., withdrawn from U. S. Bank, 172; placed in U. S. treas- ury, 176. Diplomatic affairs in charge of State Dept., 84-85. Disabilities of rebels, 22, 123. Disburseiiients. See Expenditures. Discriminating legislation, 113-114. Discrimination in railway rates, 225. Disputes between the States, settle- ment of, under Arts, of Coiifed., 10. Disqualification of Congressmen and Senators for other offices during term, 36. District attorneys, 90. District courts, 44, 126, 127, 132. District of Columbia, jurisdiction of Congress over, 47; appeals from its Sup. Ct. to U. S. Sup. Ct., 127. Districts in which trials shall be held, 120, 132. Dock-yards, jurisdiction of Congress over, 47. Documents, public, 94. Dodge, Free Soil party nominate, as Vice-Prest. in 1848, 182. Domestic violence, U. S. to protect States from, 59. See also Insurrec- tions. Door-keeper of House of Rep., 32. Douglass, S. A. nominated as Prest. by Northern Democrats, 193. Dred Scott decision, 190-191. Duties. See Customs; Free trade; Imports; Internal revenue; Pro- tective; Revenue. Education, grants of lands to States for, 115; of colored children, 124. Education, Bureau of, 94. Election of Congressmen, time and mode, 31-32; Ilouse of Rep. sole judge of, 36. Election of judges, 254-256. Election of Prest., 65-?2; change in mode, 160; defeat of further attempt to change mode, 167; Jackson recom- mends change in mode, 169-170. Election of Senators, 33; Senate sole jud^e of, o6. Elections. See Ballot ; Suffrage. Electoral College, 65-72. Electoral Commission of 1876, 72, 214- 216. Electors of Congressmen, their quali- fications, 28 ; penalty for abridging their rights, 29. Electors of Prest., 65, 72. Emancipation proclamation, 197. Embargo act, 161. Emigration, tax of N. Y. illegal, 56-57; a cause of prosperity, 2A7. Eminent domain, 55, 119-120. Employes. See Office-holders; State. Engineers. See State, England, critical relations with, during Washington's adm., 157; France de- sires U. S. to assist in war against, 158; relations with, 161, 163; orders in council, 161; War of 1812, 162-163; settlement of Oregon question, 181; how its system of parties differs from U. S., 231-232; benefits of her free trade policy, 238. Errors. See Appeals. Europe, U. S. opposition to its inter- ference with affairs of N. Am. con- tinent, 165-166. Everett, E., nominated as Vice-Prest. by Const. Union party, 193. Examiner of Claims, 90. Executive Dept., 65-95; its weakness under Articles of Confed., 12, 27; coercion of Congress over, 35. See also National government. Executive officers, oath to support Const., 63-64. See also Cabinet; President; StMe. Exemplification acts, 57. Expenditures, Treasury Dept. to keep account of, &5-86; to be publishea quarterly, 88-89. Ejq)orts, taxes on, prohibited, 51 : Treas. Dept. to prepare statistics of, 86 ; at close of Jackson's adm., 173; increase during Hayes' adm., 217. Ex]X)Stfa£to laws prohibited, 50-61, 52, 111. Expulsion of Congressmen and Sena- tors, 36. Extradition. See Requisition, Federal party, 148-149; its advocacy of central power, 156; its success, 157; causes of unpopularity, 158, 159; weakened, 160; further weakened, 161, 162; its disappearance, 174. Felonies on the high seas, 45. FUlmore, M., adm. of, I'SSi-V&i. 352 INDEX. Finan'-es under Continental Congress, 13-13. See also Debt. Fines, excessive, prohibited by Const, amend., 21, 122, 142. Fiijcal Bank of U. S., bill to incorpo- rate, vetoed by Tyler, 177-178. See also Bank. Fitzsimmons, T., author of first tariff list, 149. Florida, purchase of, 115, 116, 164; admission as a State, 178-179; se- cedes, 194; its electoral vote in 1876, 212, 214, 216. Food, the U. S. the largest contribu- tor of, iv. Foreign affairs in charge of State Dept., 84-85. Foreign gifts, etc., to ofiice-holders prohibited, 52. Foreign intervention not feared by U. S., 222. Foreign postal service, 92, 93. Foreigners. See Aliens. Forfeitures, power of Prest. to remit, 83. Fort Sumter, surrender of, 196. Forts, jurisdiction of Congress over, 47. France, influence in State constitu- tions, 8; purchase of land from, 115, 116; relations with during Washing- ton's adm., 157; desires United States to assist in war against Eng- land, 158; embargo act, 164; free trade policy, 238. Franchises created by States cannot be taxed by Congress, 40; power of States to modify, 53-56. Free Soil party, origin, 181-182; its protest against fugitive slave law, 186. Free trade, foreign and inler-State, vii; advocated in Democratic plat- form of 1880, 218; position aban- doned, 219; advocated by tlie South, 236; loss of confidence in Democratic party, 23&-239. See also CommQTCQ', Protective. Freedmen, their electoral rights guarded by Const, amend., 29; edu- cation of their children, 124; exten- sion of suffrage to, 200-203, 205; legislation to secure their rights. Freedmen's Bureau, 201, 202, 203. Freedom of the press secured by Const, amend., 19, 117, 136-140; se- cured by State consts., 251. Freedom of religion, 19, 117, 135-136. Freedom of speech secured by Const, amend., 19, 117, 136-137; secured by State consts., 251. Fremont, J. C, proposal to free slaves, i97. Fugitive slave bill, 58-59, 184-186 ; re- pealed, 199. Fugitives from justice to be delivered up by the States, 18, 50, 58. Gadsden purchase, 180. Garfield, J. A., assassination, 80-81, 220: elected Prest., 217; desire for civil service reform, 229. General government. See National. General laws, as opposed to special, 258-260, 264. Georgia, form of colonial govt., 3 ; op- position to protective duties, 168 ; secedes, 194. Germany, effects of its decentraliza- tion of power, 226 ; demonetization of silver, 241. Ghent, Treaty of, 162. Gifts to oflice-holders from foreign states prohibited, 52; to religious institutions, 261-262. Gold, anti-slavery effect of its dis- covery in California, 183; its value in Civil War, 209. Government of the Continental Con- gress, 6-7. See also National. Governments of the colonies, 1-5; of the Southern States, 201, 203-204, 206-207. Governors, colonial, powers of, 2, 3 ; of States, 252, 254-256. Grand jury, indictments by, 118. Granger laws, 53-54, 224. Grant, U. S., 199, 203 ; appointed Sec. of War, 204 ; adm. of, 205-216 ; efforts at civil service reform, 228. Grants to religious institutions, 261- 262. Greeley, H.. heads Eepub. opposition to Grant, 207 ; nominated as Prest., 208. Greenback party, 210, 217, 243, 244. Greenbacks. See Currency ; Paper money. Gresham law, 242. Grievances, redress by petitioning, 19. Guadalupe Hidalgo treaty, 115. Habeas corpvs, 133 ; restrictions on its suspension, 50 ; power of Prest. to suspend J 83 ; not to be used in favor of fugitive slaves, 184-185 ; secured by State consts., 251. Hale, J. P., nominated as Prest. by Free Soil party, 186. Hamilton, A., 1.35, 156-157: on Elector- al College, 68-69; on U. S. jufiiciary, 96-100; on authority of Sup. Ct. over State laws, 104-106; his plan of treat- ing debt, 153-155; on incorporation of Bank of U. S., 155; breach with Adams, 160; death, 160. Hancock, W. S., nominated as Prest., INDEX. 353 217; loses election by free-trade let- ter, 219. Harrison, W. II., dies shortly after his election to the presidency, 177. Hartford Convention, 162, 174. Haj'es, 11. B., contest for presidency, 71-72, 211-216; adm. of, 216-220; ef- forts at civil service reform, 229. Head-money. See Emigration. Holy Alliance, Monroe doctrine op- posed to design of, 166. Homestead law, ] 1.5-116. House of Representatives, 28-33; elec- toral votes to be counted in presence of, 66 ; when it electa Prest., 66-67 ; gower of impeaching, 82, 101 ; elects rest., 159, 166-167; conflict with Senate in counting votes in 1876, 213-214 ; question of giving Cabinet seats in, 347-249. Illinois, minority representation in, Immoral publications in the mails, 138-139. Impairment. See Contracts. Impeachment, 73, 74-75, 81-82, 100-101, 205. Implied powers of Congress, 48; of Prest., 83-84. Importation of slaves, 49-50. Imports, Treas. Dept. to prepare statis- tics of, 86; at close of Jackson's adm., 173. Impost duties of States limited, 56. See also Protective. Impressment of Am. seamen by the English, 161 . Improvements. See Internal. Inability of Prest. and Vice-Prest., 79- 81. Indians, 94; neither citizens nor aliens, 109: reservations for, 115; treaties with, 153. Indictments in criminal cases, 118. Inflation of currency, 209-210. Injunction, U. S. courts can issue writs of, 132. Insolvency. See Bankruptcy. Insurance corporations, influence upon State legislation, 257. Insurrections, power of Congress to suppress, 45; natl. govt, to protect States from, 59. Interior Dept., 84, 93-94. Internal improvements, power of Con- gress to make, 48: Whig party on, 174-175, 176; division of parlies on, in 1848, 181, 182. Internal revenue, collected in each State, 88; Commissioners of. 89; bonds of collectors, 91; its abolition in favor of protection, 238. See also Solicitor. International law, power of Congress to punish offenses against, 45. Interpretation of the Const., right of States to, 24-25; of U. S. Sup. Ct, to, 26, 61-62; why given to judges, 97- 102; influence oi parties on, 145-146. Inter-state commerce, vii, 40-42, 224. Inter-state communication, 223. Invasions, power of Congress to repel, 45; natl. govt, to protect States from, 59. Ironclad oath, 63-64. Irredeemable currency, 209-210. Jackson, A., battle of New Orleans, 162-163; adm. of, 168-173; mode of appointments, 2:^7. Jealousy of the States, 23-24, 69, 147. Jefferson, T., opposition to Const, met by amends., 152; on incorporation of Bank of U. S., 155; advocates State rights, 156; retires from Washing- ton's cabinet, 156-157; elected Vice- Prest., 157; adm. of, 159-161. Johnson, A., coercion and impeach- ment by Congress, 35, 82; adm. of, 200-205. Johnson, H. V., nominated as "Vice- Prest. by northern Democrats, 193. Johnston, J. E., surrender of, 199. Judges of U. S. courts appointed by Prest., 74. See also State judges. Judgments of one State binding in others, 59; of courts of last resort final, 121-122. See also Supreme Court. Judicial power of U. S., 21, a5, 44, 96- 144, 149. See also Courts; State judges. Judicuil proceedings. States to give credit to those of one another, 18, 57-59. Judicial ofHcers, oath to support Const., 63-64. Judiciary act, 106, 126-133. Julian, G. W., nominated as Vice- Prest. by Free Soil party, 186. Jurisdiction of Congress over land purcliased by govt., 46-47; of U. S. courts, 102-109. See also Appellate; Original. Jury trials, in colonics, 5; secured by Const, amend., 20-21; obligatory only in criminal cases, 110-112; de- fined, 122; secured by State consts., 251. See also Grand jury. Justice, Dept. of, 84, 89-92. Kansas, its formation into a territory, 186-187; its admission as a State, 187- 189, 191-192, 196. Kentucky, nullification of Alien and Sedition laws, 49; hesitates about 354 INDEX. secession, 194; remains in the Union, 197. King, W. R., elected Vice-Prest., 186. Know-Not hings, 188, 193. Knox, H. , favors incorporation of Bank of U. S., 155. Land OfSce, 94. Lands, speculation in, causes panic of 18.37, 175-176. -See a^so Bounty lands ; Public lands. Lane, J., nominated as Vice-Prest. bj' Southern Democrats, 19.3. Law Dept. See Attorney-General ; Jus- tice, Dept. of. Law of nations. See International law. Laws, Continental Congress without powers to enforce, 11-12; for carrj^- mg Const, into effect, 48; under the Const, the supreme law, 61-62; Prest. entrusted with execution of, 74; to be promulgated by Sec. of State, 85; Sup. Ct. to determine their con- stitutionality, 125. See also Constitu- tional; Legislation; Muncipal. Leavenworth Constitution, 187. Lecompton Constitution, 191. Lee, 11. E., surrender ol', 199. Legal tender, States prohibited from making anything but gold and silver a legal tender, 52. See also Paper money ; Silver. Legal tender act, 35; its constitution- ality, 143; its passage a war measure, 198. Legislation in U. S., its defective methods, viii. See also Congress; General laws; Laws; Local bills; Special legislation. Legislative Dept. of U. S., 27-64. See also Congress. Legislatures. See State legislatures. Letters of marque and reprisal, power of Congress to crant, 45; States pro- hibited from granting, 52. Libel, 111-112, 136-137, 138. Liberal Republican party, 208. Liberty. See Personal liberty. Liberty party. See Abolitionist. License laws, 57-58. Lieutenant-Governors of States, 252. Lighting streets, 269. Limited constitution defined, 96-97. See also Strict. Lincoln, A., forged proclamation, 139- 140; elected Prest., 193; adm. of, 196-200; assassination of, 200. Loan Assoc, m. Topeka, 38. Lobby, its influence upon State legis- lation, 257. Local bills prohibited in many States, 258-960. See also Special legisla- tion Local govt, in States, 253. Loose constructionists of Const., 174 215-216. Louisiana, purchase of, 115, 116, 161; secedes, 194; electoral vote in 1876, 212, 213, 214. Madison, J., quoted, 149-150; proposes Con'st. amends.. 151-152; on incor- poration of Bank of U. S., 155; lead- er of Republican party, 157; adm. of, 161-16.3. Mail. See Post. Maine, admission of, 164. Mandamus, power of Sup. Ct. to issue writ of, 126. Manufacture^j, statistics of, 88; their influence in forming Whig party, 175. Maritime. See Admiralty. Maryland, form of colonial govt., 3; withholds ratification to Arts, or Confed., 9; secedes, 197. Masonic. See Anti-Masonic. Massachusetts, form of colonial govt., 3; prohibited enforcement of fugi- tive Slave law, 185; qualifications for citizenship, 254. Mayors of cities, should have power of removal, 272; should have greater power, 274. Measures. See Weights. Meeting of Congress, 36. Members of Congress. See Congress- men. Messages of the Prest., 74; Jefferson's change in method, 160-161. Mexican War, 179-180. Mexico, purchases from, 115, 116; set- tling eastern boundary of, 164. Migration of slaves, 49-50. Milan-Berlin decrees, 161. Military districts. Southern States formed into, 203-204. See also Army. Militia, recognition in Const, amend., 19; power of Congress over, 45; mode of reqiiisition for, 46; Prest. commander-m-chief when in ser- vice, 73; right of States to, 140-141; provisions in State consts., 253. Milligan case, 140. Mines, in charge of Interior Dept., 94; claims in, 115. Mining, development of, 217, 237. M inisters. See Ambassadors. Minority representation, 233-235, 263- 263,271. Mint, Bureau of, 89. Misdemeanors, indictments not essen- tial, 118. Mississippi secedes, 194. Missouri, pro-slavery migration from, to Kansas, 186-187; hesitates about secession, 194 ; remains in the Un- INDEX. 355 Ion, 197; propopal to free slaves in, 197; special lej^islation limited, 258; minority representation in, 262. Missouri Compromise, 164, 165 ; reop- ened, 182-ia3; repealed, 187. Mis-trials, 118. Money, power of ConOTess to regulate value of, 42-43; to be paid only on appropriations, 51. See also Bi-met- alism; Coinage; Currency; Legal tender; Paper money; Silver; Specie payments. Monopolies, power of Congress over, 41-42, 225. Monroe, J., adm. of, 163-166. Monroe doctrine, 165-166. Morey letter, 219. Mormons, their organization at Kirt- land and in Mo., 170. Municipal government, 256-257, 266- 274; evils, v-vi, viii; cannot be taxed by Congress, 39-40; power of Stares over, 54^; created by State consts., 25;?. See also Debts of cities. Municipal law, use of States for, 223. National banks, power of Congress to charter, 48; act, 198; the system, 244- 246. See also Bank of U. S.; Fiscal Bank. National debt. See Debt of U. S. National government, its supreme power, 16, 61-62 ; cannot be limited by States, 120; a party to actions, 133-135; claims agamst, 133-135; pro- posed that it should pay for rescued slaves, 194; tendency to strengtiien, 223-226; powers surrendered to it less than those reserved to Stat(!s, 250. See aim Executive Dept. National Republican party, 172; adopts name of Whig, 1T3. Natural resources of the U. S., vi-vii. Naturalization, mode of, 42. Naval Solicitor, 90. Navigation, laws, 150, 151, 235, 237-238; statistics, 88. Navy, power of Continental Congress over, 11 : of Congress over, 45; limi- tation of power of States to main- tain, 56; its gallantry in War of 1812, 162; a large navy not required by U S. 222 Navy Dept!", 84, 88, 90, 93. Ne exeat, U. S. courts can issue writs of, 132. Nebraska, its formation into a terri- tory, 184, 186-1^9, 191; admission as a State, 20.3, 211. Negroes. See Freedmen ; Slaves. Nevada, organization into a territory, 196; admission as a State, 199; min- ing regions, 217. New England, form of colonial govt., 2; opposition to War of, 812, 162. New Hampshire, form of colonial govt., 3; adopts State const., 8. New Jersey, form of colonial govt., 3; municipal govt, in, 273. New Mexico, cession to U. S., 180; its formation into a territory, 184. New Orleans, battle of, 162. New York State, form of colonial govt., 3; adojjts State const., 8; emi- gration tax, 56-57; determines elec- tion of 1880, 217; introduces voting by ballot, 253-254; election of judges, 254-56; special legislation limited, 258-259 ; railway questions, 264. New York city, ruled by bosses, 219; public aid to religious institutions, 261; tax levy in. 2^; defects of govt., 272; public improvement laws, 278. Newspapers. See Freedom of the press. Nobility. See Titles. Ndle pi'osequi, power of Prest. to en- ter, 83. Nominations for Prest., their begin- ning, 69-70. See also caucus. North Carolina, form of colonial govt., 3; withholds ratification to Const., 14; hesitates about secession, 194; secedes, 197. Northeastern boundary settled, 178. Northern Pacific Railway, amount of land given to, 246. Northwest, development of, 216-217. Northwest boundary settled, 181. Northwest Territory, passage of act for its govt., 152. Nullification, attempt by S. C, 25, 170, 171-172; advocated by Hartford Convention, 174. Number of Congressmen, 28-31; of Senators, 33; or presl. electors, 65, 71; of electoral votes for Prest. in 1876, 211. Oaths of office, 63-64; of Congress- men, 32; of Senators, 34. Ofiice-holders prohibited from receiv- ing foreign gifts, titles, etc.. 52 : can- not be presT. electors, 65; increase in number caused by Civil War, 227. See al, consideration in Con- gress, 149-150, 166, 168: modified to avoid trouble with So. Carolina, 171- 172; the question in Polk's adm., 180; its future treatment, 235-239. See also Free trade; Protective; Revenue. Taxation, without representation in colonies, 4-5; Continental Congress without power of, 11; power of Congress over, 37-40; proportion- al to population if direct, 51: State can waive power of, 53 ; power of States over, 117; cannot be exercised to aid private enter- prises, 120; at present on a war footing, 235: made uniform by State constitutions, 253; exemptions from, 261-262. See a&o Assessments; Cus- tom duties; Import; Internal; Rev- enue. Taxes, colonial levy and appropria- tion of in Virginia, 2. Taxing power of U. S., development of, 226-227. Taylor, Z., commands troops sent into Texas, 179; adm. of, 182. Tea, duty on, 150,238. Telegi-aphs, power of Congress over, 40-42; inability of States to deal with, 224. Tennessee, hesitates about secession , 194; secedes, 197. Tenure-of-f>ffice act, 82, 204. Terms of Congressmen, 28; of Sena- tors, 33: of Judges, 44, 102; of Prest. and Vice-Prest., 65, 72-73, 78-79; in- fluence of Washington in limiting, 147-148; of State legislators, 252; of State governors, 252. Territorfes, have no reserved rights, 16-17: power of Congress over, 60; slavery question in, 182-1&3, 193. Texas, acquisition of, 115: transferred to Spain, 164-105: its annexation, 178, 180; amount paid for surrender of its claims to New Mexico, 184; se- cedes, 194. Texas ts. White cited, 16. Text of Articles of Confederation, 275-287: of Const., 288-308. Third terms, 79. Thomas, G. H., appointed Sec. of War, 205. Tilden, S. J., dispute as to presidency, 71-72, 211-216. Times of Congressional elections, 31; of electing Senators, 33 ; of meeting of Congress, 36; of electing Prest. and Vice-Prest., 65, 70-71. Titles of nobility cannot be granted by the U. S. or by States, 52; office- holders cannot receive them from foreign govts., 52. Tonnage duty, 66, 150. Topeka Constitution, 189. Trade-dollar, 242. Trade-marks, power of Congress over, 43-44. Transportation questions, inability of States to deal with, 224-225. Treason, punishable by Congress, 47; impeachment for, 75; defined, 112. See also Attainder. Treasury Dept., 51, 84; its duties, 85- 89, 93: deposit system adopted, 176. See also Solicitor. Treasury, Sec. of, desirability of his having a seat in Congress, 248. Treaties, the supreme law of the land, 61-62: postal, 92; jurisdiction of Sup. Ct. in cases under, 102, 106, 127-128. Treaty-power, of Continental Con- gress, 10: Cont. Confess could not enforce, 13; share of Senate in, 34- 35; of Congress, 40; prohibited to States, 52; of Prest., 73. Trials. See Jury ; Mis-trials. Tyler, J., adm. of, 177-179. Union between the States indissoluble, 17, 24-26, 63. United States, adoption of name, 10. See also National government. United States Bank. See Bank; Fiscal. Upper California, cession to U. S., Utah, its formation as a territory, 184; mining regions of, 217. Vacancies in office of Congressmen, 31 ; in office of Senators, 3:3, 34: in office of Prest. and Vice-Prest., 71; to be filled by Prest., 74; power of Prest. to create, 82. Van Buren, M., elected Vice-Prest., 168; nominated as Prest. by Dem- ocrats, 172; adm. of, 175-176; nomi- nated as Prest. by Free Soil party, 181-182. Vessels, clearance of, 51. Veto power of Prest., 75. Vetoes of Johnson, overriding, 202, 2a3. Vice-President, as President of the Senate, 34: term, 65, 72-73; mode of election, 65-72; as acting Prest., 79- 81: change in mode of election, 160. Vice-Presidents: Adams, 151; Jeffer- son, 157; Burr, 159; Clinton, 161; Calhoun, 167, 168; Van Buren, 168; INDEX. 361 Tyler, 177; Dallas, 179; Fillmore, 182; King, 186: Brcckenridge, 190; Johnson, 205; Colfax, 205; Wilson, 208; Wheeler, 216; Arthur, 220. Virginia, colonial levy and appropria- tion of taxes, 2: form of colonial govt., 3; adopts State const., 8; res- olutions of 1829, 25 ; nullification in, 49; calls Peace Congress in 1861, 195; secedes, 196-197. Volunteer army, its peaceable dis- bandment, v. Voting. See Ballot; Suffrage. War Dept., 84, 88, 90, 93. War of 1812, 162-163. War-powers, 139-140; of Continental Congress, 10; of natl. govt., 43; share of Senate in, 35, 45; of States, 56; over private property, 119. Warrants on U. S. Treasury to be signed by Sec. of Treas., 86. See also Search. Washington, G., on Continental Con- gress, 12; opposed to third term, 79: adm. of, 147-157. Water supply in cities, 269. Webster, D., 163, 178. Weights and measures, power of Con« gress to fix standard of, 43. West Virginia, admission as a State, 198-199. Wheeler, W. A., elected Vice-Prest., 214, 216. Whig party, its first appearance, 173; cause of its formation, 174-175; gains strength, 176; succeeds in 1B40, 176; and in 1844, 177: platform in 1&48, 181 ; in 1852, 185-186. Wilmot proviso, 180. Wilson, H.J elected Vice-Prest., 208. Witnesses in criminal trials, 21, 120. Woman's suffrage, 60, 114, 263. Written constitutions vs. unwritten, 1-2. Writs. See Habeas corpus; Injunction; Mandamus ; Ne exeat; Prohibition. Wyoming, mining regions of, 317.