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THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
LOS ANGELES
liNiVcRSITY OF CALIFORNIA,
LIBRARY.
sLOS ANGELES, CAUF,
A SHORT CONSTITUTIONAL HISTORY
OF THE UNITED STATES
" The people, then, erected this government. They gave it a consti-
tution, and in that constitution they have enumerated the powers which
they bestow on it. They have made it a limited government. They
have defined its authority. They have restrained it to the exercise of
such powers as are granted, and all others, they declare, are reserved
to the states, or the people. But they have not stopped here. If they
had they would have accomplished but half their work. No definition
can be so clear as to avoid the possibility of doubt ; no limitation so
precise as to exclude all uncertainty. Who, then, shall construe this
grant of the people .' Who shall interpret their will, where it may
be supposed they have left it doubtful ? With whom do they repose
this ultimate right of deciding the powers of the government ? They
have settled all this in the fullest manner. They have left it with the
government itself, in its appropriate branches. The very chief end, the
main design, for which the whole constitution was framed and adopted,
was to establish a government that should not be obliged to act through
state agency, or depend on state opinion or state discretion."
Webster, Reply to Hayne, January 26, 1830.
UNIVERSITY EDITION
A SHORT
CONSTITUTIONAL HISTORY
OF THE
UNITED STATES
BY
FRANCIS NEWTON THORPE, Ph.D., LL.D.
Author of
" A (State) Constitutional History of the American People, 1776-1850,"
" The Constitutional History of the United States, I7bs-i8g3"
" The Government of the People of the United States,"
etc., etc., etc.
" Those commonwealths have been ever the most durable and
perpetual which have often reformed and recomposed themselves
according to their first institution and ordinance."
John Pym.
BOSTON
LITTLE, BROWN, AND COMPANY
192 1
^> o n p
Copyright, 1904,
By Little, Brown, and Company.
All rights reserved
:^
(A
to
PREFACE
The present volume narrates the constitutional his-
tory both of the Union and of the states, showing the
common basis of American local and general gov-
*» ernment. In a book of small compass, adapted to
V those who desire the essentials of our civil develop-^
VJ ^ment, it has seemed sufficient if there were related,
(i) the origin of our civil system; (2) the principles
on which it is founded; (3) the adaptation of the plan
of government to public needs, by amendment and
**'. construction ; and, (4) the interpretation of the prin-
ciples of the government by the supreme tribunal, —
the courts.
Constitutional histories of America usually throw little
light on the civil development of the states. Writers
have centered their attention upon the Federal Govern-
ment, the trend of thought running easily in this direc-
tion since 1865. Yet it is in the state constitutions that
one may read the record of constant attempts to adapt
the written form of government in America to the im-
mediate needs of the people, and this effort at adapta-
tion begins with the beginning of the commonwealths
and is a characteristic of American civil life.
For this reason the development of the state constitu-
tions has received its proportional share of attention in
this volume. The chapters on "The Commonwealths"
vi PREFACE
record the formulation of American principles of govern-
ment for local purposes, — which means, in plain speech,
that they record the application, or attempted application,
of constitutional government to the individual needs of
large and important groups of the American people.
In these chapters on " The Commonwealths," as well
as in the remaining chapters of the volume, the rela-
tivity of state and national development is constantly
kept before the mind. In America there is a constitu-
tional system which is formulated, nationally, in the Con-
stitution of the United States, and locally, in the organic
laws of the states. It is one civil organism expressing
itself in dual form. The principle at the root of this
idea is fundamental to the American system, and its
clear apprehension is the first essential to the rational
interpretation of civil life in America,
The volume rests at every point on the original
sources and primary authorities. Every portion of the
Union has thus contributed to the narrative. The
scope and character of the material thus consulted are
evident from the foot-notes, which might have been
multiplied many times, had the size of the book per-
mitted. The Constitution, with citation of interpretative
cases, is taken from the Manual of the Senate of the
United States. Errors, probably of transcription, have
been corrected, and omissions, chiefly of data on the
ratification of the Amendments, have been supplied.
In addition to a general index to the volume, there is
a special index to the Constitution.
CONTENTS
CHAPTER ^^^^
I. Union . . , j • • x ^•
Relative order of civil organization and administration . i
Essential character of the American Revolution; a civil
adjustment *
Government: " the public business" ..... 2
Priority of American written constitutions ... 2
Dynastic v. popular basis of government .... 2
Dual form of government in America:
(i) National; (2) State; or,
(i) general; (2) local j ' '^
The value of the American constitutions as records . 3
The State Constitutions as exponents of civil principles . 3
Constitutions and laws indicate tendencies in govern-
ment
4
The actual state changes .....•• 4
Constitutions and laws enacted to secure civil permanency 4
The Thirteen Colonies (1776) severally independent . 4
Attempts at colonial union (1643) 4
Diverse character of the plans:
(i) English; (2) American 5
Question of the taxing power 5
The Albany Plan (1754), its basis . . . • • S
Opposition of American to the military type of government
The Stamp Act (1765) • • • ,/ , '^ •. • .' a
The First American Congress, New York, October, 176S
Its Declaration of Rights °
Colonies represented (note) . . ' c' i. 't> '
Revolutionary character of the doctrine of the Uec-
laration of 1765 . . '.','•' ' 1
The taxing power as an exercise of right the issue . • 7
Repeal of the Stamp Act with reservation of nght to tax
America • j' ' 7
The issue of American independence raised . ■• 7
The second American Congress, Philadelphia, September, ^
1774 • ■ ■ „ 8
Colonies represented „
Delegates, number, how chosen . . • • •
The first and second Congresses compared . . • |
Question of instructions to delegates . • • •
vii
viii -CONTENTS
CHAPTER PAGE
Galloway's plan of union 8
Doctrine of " natural rights " 8
Both economic and political rights recognized _ . . 8
American rights declared " natural and constitutional " 9
Report on trade and manufactures .... 9
"The Association of 1774 " 9
Fundamental importance 9
A decisive economic event 9
Lincoln's estimate of it 9
John Adams' estimate of it 9
This Congress a " reform convention " . . . . 9
Reforms, not independence asked 9
The third American Congress, May 10, 1775, Philadel-
phia 10
Lord North's policy 10
The discretion of Parliament 10
The issue: monarchy t'. democracy .... 10
The several Colonies organize State governments
(see note) 10
Departments of War, Navy, State, and the Post-
Office 10
The Congress represents united America ... 10
Limited power of this Congress 10
Public opinion the sanction to its acts . . . . 11
Significance of issues of credit money (bills of credit) 11
Reassembles after six weeks' adjournment, with as-
surance of public approval 1 1
The continental (national) situation . . . .11
Thomas Paine's pamphlet, " Common Sense " . .11
Virginia instructs for American independence . .11
Richard Henry Lee's motion n
The Committee on Independence, its report . .12
The Committee on Articles of Confederation and its
report 12
Real character of Dickinson's plan . . . .12
Its progress through Congress 13
Its progress through the States (Legislatures) . 13, 14
Question of slavery, basis of representation, western
lands 13, 14
The Articles become the first Constitution of the
United States (March i, 1781) 14
Hamilton's criticism of the Articles
The Articles tested by experience .
The question of sovereignty
Amendment of the Articles (a more perfect imion)
demanded
Attitude of Congress .
Attitude of the States
Appeals of individuals for reform
Condition of trade and commerce
14, IS
15, 16
. 16
16
16
16
16
16
CONTENTS ix
CHAPTER PAGE
Maryland and Virginia and control of commerce
on the Potomac i6
i6
i6
17
17
17
17
The Annapolis Convention (1786) .
Its appeal, and results
A Federal Convention determined on
Congress assents ....
The significance of " Shays's rebellion "
Constitutional reforms a " grinding necessity "
II. Formulation of the Supreme Law
Delegates to the Federal Convention chosen (1787) . 18
Character of the Convention 18
The " Virginia plan " submitted 18
Outline of this plan 18, 19
A " national government " proposed ... 19
The " national " party; the " State " party . . 19
Legislative, Executive, Judicial powers ... 19
Details of the Virginia plan
General Pinckney's draft (note)
Debate of the Virginia plan
Decision as to election of the Executive, June 4
Differences in the Convention:
National interests. State interests. Commer-
cial interests, agricultural interests, small
States, large States 21
Slavery 22
Compromises:
(i) on representation, (2) on slaverj-,
(3) on taxation (trade, commerce) . .22
The demand of the small States (in popula-
tion) made by New Jersey ... 22, 23
Proportional representation v. equal
representation 22
The large States (in population) demand
proportional representation and carry the
question 22, 23
Attitude of Paterson, Wilson, Madison 22, 23
The " New Jersey plan " submitted . 23, 24
Provisions of this plan 24
Attitude of Hamilton 24
Hamilton's plan (sketch) .... 24
The Virginia and New Jersey plans com-
pared and discussed 25
The Connecticut compromise (Sherman) . 25, 26
Details of Sherman's plan .... 26
The vote a tie: A Grand Committee of
Eleven elected to consider the plans . 26
Dr. Franklin secures harmony . . . 26, 27
The compromise on representation adopted
(equal representation and proportional
representation) 27
CONTENTS
CHAPTER
PAGE
The question of apportionment of representa-
tion involves slavery, and taxation . 27
The North Carolina compromise (Williamson) 27
Question of a census . . . . ■ -27
The Pennsylvania compromise (Morris) . 28
The two compromises united ... 28, 29
The amended Virginia plan given over to a
Grand Committee (July 26) to report a Con-
stitution 29
Report of this Committee (August 6) . . 29
The Executive, the Legislative, the Ju-
diciary 29
Question of an export tax; of the slave trade;
of a tariff 29, 30
Attitude of the South, of the North _ . -3°
Morris succeeds in referring all disputed
questions to a Special Committee . . 30
The slavery compromise agreed to . . . 30
The amended draft given over to a Commit-
tee of Eleven which reported September 8 . 30
The Committee on Arrangement and Style
reports a Constitution, September 12 . . 30
Franklin's conciliatory speech . . . -31
The Constitution signed 31
The Constitution as reported:
Composite, and a compromise . .31
Arranged by Gouverneur Morris . .32
Its origins (chiefly American) . .32
Preamble, threefold division of
{wwers, senate, house, journal,
powers of two houses, habeas cor-
pus, ex post facto laws, veto power,
president, vice-president, judici-
ary, treason, public records, new
states, public debt . . 32, 33. 34
A plan of government not a code . . 34
III. First Principles
Washington's estimate of the Federalist • • • 35
Its authors 3S, 36
Anti-Federalist pamphlets (note) 35
Purpose of the authors of the Federalist ... 36
Plan of the essays, authorship 36
Union or dismemberment 37
Purpose of Jay's papers 37
Purpose of Hamilton's essays 37) 38
Civil dissensions cited by Hamilton, 1786-7 . 38
Hostile, independent, sovereign States v. Union . . 38
Objection as to a standing army answered . ^^
Montesquieu's objection to a confederated republic
answered 39
CONTENTS xi
CHAPTER PAGE
Emphasis of " the form of the state "... 39, 40
Division of functions, separation into three parts . 40
The proposed " civil form " of the government ex-
tolled 41
Saving the people from themselves (Webster) . 41, 42
The makers of the Constitution had not great faith in
the wisdom of the people 42
Lincoln, Wilson, Hamilton, Madison cited ... 42
A national government and industrial prosperity . 42
Experience of the States imder the Confederation as
sources of revenue (ta.xing power) .... 43
National taxation for national ends .... 43
Distinction between a Confederation and a National
Government 43
Tendency of a confederation towards military despot-
ism 43
Coercion of laws v. coercion of arms . . . 43, 44
Objection that the Union would absorb the States an-
swered 44
The people the source of power (Hamilton) ... 44
Idea of a standing army, 1787 and at present . 44, 45
On restriction of powers of the Legislature ... 45
The National Government will attract the ablest men 46
Objection as to abuse of the taxing power by Congress
answered (Hamilton) 46
Maxim: Relation of necessities of a Nation to its
taxing power (resources) 47
The means, in government, must be adequate to the
ends proposed 47
Objection as to federal usurpation of powers answered 48
Principle as to prevention of excessive taxation . . 48
A tariff for revenue 48
Energy in government; " checks and balances " -49
Madison on the " mechanical arrangement " of the
proposed government 49
Is the government national or federal? (Madison) 49, 50
(1) Foundation; (2) Powers; (3) Sources; (4)
Operation; (5) Extent of powers; (6) Procedure;
(7) Mode of amendment .... 49, 50
IV. First Principles {Continued)
The question of political expediency . . . • S^
Coercion of a State 5^
Preventives of secession 51
Maxim of ratio of power to its duration _ . . .52
Lincoln's interpretation of the principle . 52
Objections to basis of representation and size of the
two Houses answered S^
Principle on which the size of the House of Represent-
atives is determined 52, S3
Objection that the House would make discriminations 53
xii CONTENTS
CHAPTER PAGE
Hamilton's estimate of the taxing power in the House 53
1 8th century idea of location of the taxing power . 53
Exclusive taxing power and control of elections . 53, 54
(See note, p. 53.)
Principle: the National Government and its preserva-
tion 54
Theory of " residuary sovereignty " . . . -55
Function of the Senate 55)5^
The term of the Legislature 56
Stability sought through a Senate .... 56
The objects of government immediate or remote . 57
Question of a fixed public policy . . _ . . -57
Jay's defense of the Senate as a treaty-making power 57, 58
Objections to President and Senate as treaty-making
power answered (Jay) 5^
Hamilton's defense of the Senate as a Court of Im-
peachment 59
Discussion of mode of electing the President . S9i 60
Hamilton, Lee, Wilson cited . . . . 59, 60
Objections to the powers of Congress . .60, 61
Hamilton relies on " the administration of the gov-
ernment," as the supreme test 61
No discussion of political parties 61
The principle of the Judiciary (Hamilton) . _ . .62
Three classic works on American Institutions, —
" The Federalist," " Democracy in America," and
" The American Commonwealth " (note) ... 62
Further discussion of the Judiciary . . . 63, 64, 65
(Organization, powers, jurisdiction, encroach-
ment on legislative authority, inferior courts,
suability of a State, jury trials) 63-66
Objection that the Constitution had no Bill of Rights
(Hamilton, Wilson, attitude of the States) . 66, 67
Bills of Rights in the States 67
Main doctrine of the Federalist: " The utility of the
Union; its conformity to republican principles " . 67, 68
Analogy of the Federal Constitution to the State
Constitutions 68
V. The Commonwealths
Transition from Colony to State, 1 776-1 780 ... 69
Vermont, Kentucky, Tennessee 69
The framers of these early constitutions . . 69, 70
Political theory of the state: i8th century, — com-
pact, individualism, natural rights, Bills of Rights . 70
Popular estimate of Bills of Rights . . . • 7°, 7i
Magna Charta, the Petition of Right, the English
Bill of Rights, the American Constitutions . . 71
The State constitutions limit power .... 71
Made by conventions and (the early ones) promul-
gated 71
CONTENTS xiii
CHAPTER PAGE
Soon amended, reasons for
71,72
72
72
72
72
'2, 73
73
73
73, 74
74
74
74
4, 75
75
75
75
76
Temporary provisions
These constitutions silent as to sovereignty .
Popular belief in State sovereignty, i8th century
Popular concept of the Federal Government
Change to concept of National sovereignty .
Case of Mississippi, 1890
Theory of " separation of powers "...
Theory of supremacy of the Legislature
The British prototype
(tripartite division, taxing power, power of im
peachment)
White persons the basis of representation
Free men of color and women as voters .
Qualifications for office ....
Protest against religious and property qualifications
lead to their abolition
" A government of laws rather than of men " (Massa
chusetts constitution, 1780)
Distrust of the Executive
Property qualification, social position, religious
qualification, principal function of governors 76, 77
Contrast between conception of the Executive in the
i8th century and at present 77
Organization of the Judiciary 77, 78
Common law forms and innovations in legal practice 78
The Maryland constitution (1776) . . . . 78
Change from appointive to elective system (judiciary) 78, 79
Distinguished American lawyers of the period . . 79
The Massachusetts type, the Virginia type of con-
stitution 79
The New York type (cosmopolitan) .... 79
The New Jersey constitution 79
The first constitutions short and simple docimients . 80
Characteristics of the first constitutions ... 80
Individualism a ruling idea 80, 81
Hamilton's maxim (test) of a strong government . 81
VI. Ratification and .Amendment
General conditions, 1787 82
Attitude of the State party to ratification . . 82, 83
Treatment of the Constitution by Congress . 82, 83
The Constitution in Pennsylvania .... 83, 84
In Delaware, New Jersey, Georgia, Connecticut . . 84
In Massachusetts 84, 85
In Maryland, South Carolina 85, 86
In New Hampshire 86, 87
In Virginia 87, 88
In New York 88, 89
In North Carolina 89, 90
Inauguration of the new government ... 89. 90
xiv CONTENTS
CHAPTER PAGE
Narrow margin for the Constitution .... 90
The general demand for amendment . . . 90, 91
(Opinions of Hamilton, Wilson, Jefferson) . . 91
Congress takes up proposed amendments . . . 92
The first ten amendments . . . . 92, 93, 94
General discussion of them .... 94, 95, 96
Formulation of proposed amendments . . 96, 97, 98
Ratification of the amendments .... 99, 100
Vermont 100
The judiciary article 100, 101
Suability of a State 101, 102
Suability of a State as determined by the State Con-
stitution (note) 103
The Eleventh Amendment .... 103, 104, 105
Origin of the Eleventh Amendment, and State sover-
eignty 105, 106
The Origin and adoption of the Twelfth Amend-
ment 106, 107, 108
The disputed election of iSoo .... 109, no
Discussion of the Twelfth Amendment . . in, 112, 113
Action of Congress on the Amendment . 114, uSi i^^
General character of the first twelve amend-
ments 117. 118, 119
Contrast, 1789 and the present 120
VII. Contest
Question of the constitutionality of a bank, 1791
121, 122, 123
(Opinions of Hamilton, Jefferson, Washington)
121, 122, 123
The Jay Treaty as an issue, 1794 . . . .124,125
Question of appropriation 125
The alien and sedition laws, 1798 . . . . 126, 127
Party interpretation 126, 128
The Kentucky and Virginia Resolutions, 1798, 128, 129, 130
Principle of the Resolutions 129
" Doctrine of '98 " 130
Acquisition of the Louisiana country, 1803 . . 130, 131
The treaty examined i3i> 132
Constitutional questions raised .... 132, 133
Attitude of the Federalists i33> ^34
Attitude of the Republicans ^35
Decision of Chief- Justice Marshall, 1828 . • -135
Nullification and Secession in New England,
1807, 1812 . •. ^3S, 136
Power of the President to summon the militia to
Federal service ^37
General effect of the War of 181 2 .... 137,138
Constitutionality of internal improvements (1817) 138, 139
Attitude of parties ^39
Question of sovereignty involved ^39
CON'i'ENTS
XV
CHAPTEE
141
Growth of the Missouri Compromise . . .139
Question of extension of slavery and its protection .
Petition of Missouri for admission
Attitude of the restrictionists
The treaty of 1803 as an element
Slavery and the public lands .
Can Congress restrict slavery?
Vote in Congress . . .
Maine and Missouri in one bill
The Thomas amendment
The Taylor restrictions .
The Houses in conference . . _
Missouri meets in Constitutional Convention
Exclusion of free negroes agreed on
(Benton provision) ...
Can Congress impose conditions upon a Territory?
Status of free negroes ^45, 146
(New York, Missouri, Tennessee, North
Carolina, New Hampshire, Vermont,
Pennsylvania, Massachusetts) . . .146
The Clay Compromise 146, i47
General Pinckney's evidence as to free ne-
PAGE
140
• 139
140
140
140
• 141
142, 143
141, 142
■ 145
• 143
• 144
• 144
• 144
• 144
144
14s
groes ^47
Shall the electoral vote of Missouri be counted?
148
148
149
149
149, 150
150, 151
The Compromise carried . -
Constitutionality of the Compromise (1857)
Principles involved in the Missouri question
Discussion of the Compromise
Vni. Compromise
Origin of the Monroe Doctrine . . ■ 152, 1 53, 1 54
Its growth , •. • ^54, i5S
Relative place of the United States in America . 15S, 150
The principles of the Monroe Doctrine . . i55, 15°
(See note, p. 156)
The tariff of 1824: construction of governmental
powers
The Pan-American Congress .
The tariff of 1828 revives issues
Nullification in South Carolina
Protest of the South .
The Webster-Hayne debate .
Examination of the discussion
Character of Webster's argument
Attitude of Calhoun . . ■
The South Carolina Convention, 1832
President Jackson's attitude .
Compromise tariff of 1833
Constitutionality of nullificarion . _
Jackson's interpretarion of the Constitution
Removal of the deposits . • ■ ■
156, 157
• 157
. 158
158, 159
• 159
159, 160, 161
161, 162, 163
164, 165
165, 166
. 167
167, 168
. 168
. 168
. 169
169, 170
xvi CONTENTS
CHAPTER PAGE
The bank controversy 170
Internal improvements, distribution of the surplus . 171
Jackson's theory of " sovereignty " . . . .172
Van Buren's ideas of the Constitution . . .172
American Anti-Slavery Society organized, 1833 . 172
Question of the right of petition 173
Adoption of the cloture by the House . . . .173
Tyler's idea of the Constitution 173
The Texan question, 1844 . . . . . . 174
Attitude of parties and of the States . . .175
The Oregon question, 1845 . . . . 176, 177, 178
Attitude of the States 176
The Missouri Compromise (as to slavery) ex-
tended to the Pacific
The California country
Question of slavery 178,
Discovery of gold and rush to the coast
The Monterey Convention
Shall California be free soil? . . .179,
Attitude of the South to immigration ....
Attitude of the North 180,
Comparison, North with South, 1849 . . . 181,
New Kentucky Constitution 181,
The proposed Wilmot proviso .... 182,
The Compromise of 1850:
Clay's eight resolutions
Calhoun on the resolutions
Webster on the resolutions (7th March) . 185,
Seward on the resolutions .... 186,
(" Higher law " doctrine)
Sectional differences brought to light by the
debate 187, 188,
IX. Slavery Extension
The Kansas-Nebraska country, 1850 ....
Bill to organize Nebraska Territory, 1853 .
Proposed repeal of the Missouri Compromise
" Squatter sovereignty "
The Kansas-Nebraska bill, 1854
Attitude of the Independent Democrats
Principles involved 192,
Immigration to Kansas
Conflict and civil war in Kansas ....
Constitutions: Topeka, Lecompton . . 193,
Attitude of President Buchanan ....
The Dred Scott case 194, 195,
Dissenting opinion (Curtis)
Lincoln and Douglas on Dred Scott . 196,
Nomination of Lincoln and Hamlin, i860
Of Douglas, Breckenridge, Lane ....
The election, i860 197,
90
90
91
91
92
92
93
93
93
94
94
96
96
97
97
97
98
CONTENTS xvii
CHAPTER
PAGE
Growth of secession doctrines . . . . 108100
South CaroHna's " Declaration of the Causes of Seces"- '
sion "
"Address to the People 'of 'South Caro- ^^^
Una . jQ 200, 201
bpread of secession, i860, 1861 . . 201 202
Organization of " The Confederate States of Amer- '
ica " .
The C. S. A. Constitution . . ' 202' 20^
Exposition (" Corner-stone " address) . ' '20'^
President Buchanan and Secession . 204 ^05
The Peace Conference and Crittenden Resolutions 205' 206
Congress submits a pro-slavery amendment to the
Constitution, 1861 206, 207 208
Attitude of the States .208
President Lincoln discusses secession in his inaugural,
„ ^^^^ . • , 208, 200
Confascation of property (slaves) by the national
Government 200
General Fremont declares slaves free
The Government repudiates this action
Question of treatment of fugitive slaves
Lincoln proposes compensatory emancipation
Congress declares fugitive slaves free .
Abolishes slavery in the District of Columbia, 1861
Agrees with England to suppress the African
slave trade 210 211
Authorizes negro regiments '210
Congress and compensatory abolition . . .211
Lincoln's objection to the confiscation bill . . 211
Army and navy to use negro laborers . . . .212
The Emancipation Proclamation, preliminary and final
^^863 _ . ; 212
Urganization of West Virginia; admission . . 212, 213
Lincoln again urges compensatory emancipation,
_.^S63 213, 214
Lincoln s policy of reconstruction 214
Reception by the nation of the Emancipation Proc-
lamation 214
Emancipation in Missouri . . . .214,215,216
AflFairs in Missouri ' . ' 217
Progress of abolition in Arkansas 218
In Virginia 219
In Louisiana 219 220
In Maryland 220 221
Nevada organized and admitted, 1864 . . . . ' 221
Abolition in Tennessee 222
On the way to national abolition . . . 222, 223, 224
X. The Commonwealths
Increase of States and national domain, 1800-1S60 225
209
209
210
210
210
210
XVlll
CONTENTS
CHAPTER PAGE
Movements of population
The line 36° 30 ....
The three zones of population
The new State constitutions:
i8th century Bills of Rights .
Anti-slavery provisions (North)
Right of property in man (South)
Prevalence of the bicameral system
Equal taxing power of the Houses
Limitations of legislative power
Provisions as to banks (1837) .
Land grants for schools .
Support of schools made obligatory
Revolt against " special legislation "
The problem of apportionment of
tion 227, 22
Single district system (Michigan) . . . 227, 228
Census, rural and urban interests .... 228
Disappearance of religious and property qualifi-
cations
Requirement of United States citizenship
Growing recognition of national sovereignty
Liberal character of the Wisconsin constitution
(1848) 228
Lotteries 229
229
229
228
228
228
XL
Missouri (1820), clause as to free negroes
Illinois (1848), similar clause
Changed attitude toward the negro (1800-
1860) 229
Failing confidence in " checks and balances "
Multiplication of statutes and abuse of legislation
Restriction of Legislatures
Increasing power of the Executive
Eminent governors
Founding of charitable institutions
Change from appointive to elective Judiciary
Simplification of legal procedure
The East more conservative than the West
Extended jurisdiction of inferior courts
, Monetary limit of jurisdiction
Salaries of judges
Decay of regard for the Judiciary
New administrative features .
Limitation of public debts
Evidence of new industrial life
Sovereignty, federal relations .
Interpretation of Principles
Adams appoints Marshall Chief- Justice . . . 236
Estimate of Marshall 236
Character of Marshall 236, 237
230
230
230
• 230
230, 231
■ 231
231
• 232
. 232
• 232
• 233
• 233
• 233
• 233
233> 234
• 234
• 234
234, 235
CONTENTS
XIX
CHAPTER
XII.
His decisions, general character of . . .237
Growing supremacy of the principles laid down in
" The Federalist " 237
The Supreme Court under Chief-Justice Taney . 237, 238
The Supreme Court prior to 1801 238
Marbury v. Madison, 1803 .... 238, 239
U. S. V. Fisher, 1804 239
Cohens v. Virginia, 182 1 239
McCullough V. Maryland, 1819 .... 240
Am. Ins. Co. v. Canter, 1828 240
Osborn v. The Bank, 1824 240
Weston V. Charleston, 1829 240
Gibbons v. Ogden, 1824 240
Brown v. Maryland, 1827 240
^yilson V. Blackbird Creek Marsh Co., 1829 . 240
Principles involved and settled by these decisions 237-240
Martin v. Hunter's Lessee, 1816 .... 241
Martin v. Mott, 1827 241
U. S. V. Judge Peters, 1809 241
Fletcher v. Peck, 1810 241
Sturges V. Crowninshield, 1819 .... 241
Dartmouth College Case, 1819 . . . .241
New Jersey v. Wilson, 1812 242
Providence Bank v. Billings, 1830 .... 242
Barron I). The Mayor, etc. of Baltimore, 1833 . 242
Principles involved and settled by these decisions 241-243
Changes in the Court (1830) 243
Chief-Justice Taney appointed, 1835 .... 244
Mr. Justice Story 244
The Rhode Island-Massachusetts boundary case . 244
Case of Groves v. Slaughter (1841) . . . 244, 245
Case of Prigg v. Pennsylvania (1842) .... 245
Dissenting opinion of Mr. Justice McLean . . .245
The Liberty Party utilizes this opinion . . . 245
Analogy to the Democratic-Republican Party, 1796 . 245
Case of Genessee Chief v. Fitzhugh, 1851 . . . 246
Case of Dred Scott v. Sandford, 1857 . . . . 246
Suspension of habeas corpus by President Lincoln . 247
Ex parte Merryman (1861) 247
Ex parte Milligan (1867) 247, 248
Comment on decisions by Marshall and Taney . 248, 249
Amendment
The Thirteenth Amendment :
Proposed by Ashley in the House, by Henderson
in the Senate, 1863 250
Attitude of parties 250
Prospect of ratification 250
Sumner's phraseology 250
Debate and adoption in the Senate . . .251
Defeat in the House 251
XX CONTENTS
CHAPTER PAGE
Approved by Baltimore Convention . . .251
Lincoln favors the amendment . . . .251
Revived in the House 251
Opposition and objections 251
Lincoln urges adoption, annual message, 1864 . 252
The amendment passes, January 31, 1865 . . 252
Ratification 252
Death of Lincoln 252
Reconstruction:
Johnson's policy 252, 253
Proclamation of amnesty 253
The Southern States assemble in Convention:
Mississippi 253, 254
Alabama, South Carolina, North Carolina,
Georgia, Florida, Texas . . . 254, 255
Afifairs in these States . . . . 254, 255
Question of domestic police .... 255
Question of Federal relations . . 254, 255, 256
Ratification of 13th Amendment by South-
ern States 257
Problems in reconstruction (1865-6):
The negro race 253-257
Federal troops 253-257
Federal relations .... 253-257
The question of negro suffrage (1865-6):
The negro population, 1865 .... 257
The government the white man's North
and South 257
General attitude toward the negro . 257, 258
Probable effect at the South .... 258
The counter-revolution at the South . . 258
The Civil Rights bill proposed, 1866 . . 258, 259
Vetoed by President Johnson, his reasons . 259
Passed over the veto 259
Tennessee " restored to federal relations " . . . 259
Congress confers suffrage on negroes in the District
of Columbia, 1867 259
The veto and reasons 259
Congress confers the suffrage on negroes in the Ter-
ritories, 1867 _ . 259
The case of Nebraska, its constitution amended in
compliance with condition of Congress, 1867 . 260
The Fourteenth Amendment:
Proposed by Congress, 1867 260
Its elements 260, 261
Objections and opposition 261
Debate in the Senate 262
Debate in the House 263, 264
Minority view 264
Ratification doubtful 265
CONTENTS xxi
CHAPTER PAGE
Attitude of the States (hostile) . . .265
Progress of ratification (North) .... 265
Progress of ratification (South) .... 266
Report of the North Carolina Legislature 266
Report of the Kentucky Legislature . .266
The amendment rejected 266
Congress investigates the condition of the negro
at the South, report 266
Peonage abolished by Congress, 1867 . . . 267
The South divided into five military districts . 267
Veto of the bill by the President . . . .267
Bill as to Southern Constitutions .... 267
Veto 267
The issue of negro suffrage:
Maryland, 1867 267
New York, 1867-8 267, 268
Michigan, 1867 267
The South, under act of 1867, frames new con-
stitutions, conferring negro suffrage:
Alabama, 1867 268
South Carolina 269
Florida 269
Texas -^ 269
Ratification of the Amendment by Nebraska,
Iowa, Arkansas, Florida, North Carolina, South
Carolina, Louisiana, Alabama . . . 270
Admission of Arkansas, Florida, North Carolina,
South Carolina, Louisiana, Alabama by in-
dividual bills 270
The struggle over negro suffrage at the South 268-270
Ohio, Oregon, New Jersey withdraw ratifica-
tion 270
The Amendment declared adopted, July
28, 1868 270
Virginia, Mississippi, Texas reject the amend-
ment and denied representation in Con-
gress 271
Immediate effect of the amendment at the
South . . _. 271
The principle of the amendment an issue in the presi-
dential election of 1868 271
Grant and Colfax elected 271
The Fifteenth Amendment:
Proposed, 1867 272
Purpose ^72
Debate and negative result 272
Revival of the amendment .... 272, 273
Debate in the House, objections . . . .273
A conference asked 273
Report of the Boutwell Committee . . -273
xxii CONTENTS
CHAPTER PAGE
Republican estimate of the amendment . . 274
Doubtful fate of the amendment before the States 274
Readmission of Virginia, Mississippi and Texas
conditioned on their ratification of the amend-
ment 274
Afifairs in these States 274
Their ratification of the amendment . . . 275
Ratification at the North 275
Rejection by some States . . . .275
Purpose, character, estimate of the amendment 275, 276
The 13th, 14th and 15th Amendments:
Adaptations to needs of the Nation . . 276, 277
Conduced to efficiency of the Constitution of the
United States 277
The English and the American constitutional systems
compared 277
Sources of provisions in American constitutions 277, 278
Administrative features of these constitutions . 278
Difficulty in amending the constitution of the United
States 279
Ease of amending the State constitutions . -279, 280
The State constitutions register the evolution of gov-
ernment in America 280
Industrial rights and conditions largely determine
constitutional changes 281
Important changes (acts, constitutional amendments)
1860-1870:
i86i Congress confiscates rebel property; and de-
clares forfeit the ownership of slaves em-
ployed against the United States . . 281
Fremont attempts to emancipate slaves . 281
1862 Lincoln urges compensatory emancipation 282
Great Britain and theUnitedStates intreaty
to suppress the slave trade . . .282
Hunter attempts to emancipate slaves . 282
Congress abolishes slavery in District of
Columbia; negroes allowed to give evi-
dence in court 282
Congress emancipates slaves escaping from
masters in insurrection; negro troops
authorized 282
Preliminary Emancipation Proclamation . 282
1863 Emancipation Proclamation . . 282
West Virginia admitted 282
Arkansas, Virginia, Louisiana, Maryland
abolish slavery 282
Doctrine of paramount authority of the
United States (national sovereignty) 282, 283
Baltimore Convention demands abolition of
slavery 283
CONTENTS
XXlll
CHAPTER
xni.
PAGE
1864 Nevada admitted 283
Missouri, Tennessee abolish slavery . . 283
1865 The Thirteenth Amendment adopted 283
" Restoration " Conventions at the South . 283
Slavery abolished by new constitutions at
the South 283
Extension of the right to vote to negroes
suggested by President Johnson to Mis-
sissippi ^q4
1866 Congress passes the Civil Rights act . . 2S4
Congress submits the Fourteenth Amend-
ment T.. • ""*
The right to vote extended m the Dis-
trict of Columbia and the Territories,
irrespective of race, color, or previous
condition of servitude . • • ■
1867 Nebraska complies with condition and is
admitted
Congress abolishes peonage . • ■ •
1868 Ratification of the Fourteenth Amend-
ment „ • • 28s,
Public opinion as to negro suffrage, see note
1870 The Fifteenth Amendment adopted . 286, 287
Public opinion as to the negro, 1865-1870 2S7
Reports to Congress as to treatment of the negro at
the South . . ■ ^^7,
The reconstruction constitutions • - ^ ^ .
Criticism of Congress for extending the suffrage to the
negro
Discussion of the question
Defects in the work of the Congress ■ _ •
Further criticism of Congressional reconstruction
The Commonwealths
Character of the Civil War . •
New States, new constitutions, 1870-1900
The Southern, 1865 .
The Southern, 1867-70 . _
Significance of the word " white
Meaning of reconstruction
Abolition of slavery .
Changes in Bills of Rights
Negro suffrage North and South
Later Southern constitutions:
Mississippi, 1890
South Carolina, 1895
Louisiana, 1898 .
Alabama, 1901 . . -^
The " grandfather clause
The Republican party and negro suffrage
Significance of negro suffrage in Amencan history
292.
284
284
285
286
286
288
288
288
289
289
290
291
291
291
291
291
292
292
292
293
293
294
294
294
294
294
294
xxiv CONTENTS
CHAP PAGE
Doctrine of national sovereignty 295
The Mississippi constitution of 1890 .... 295
Woman suffrage (Wyoming) 295
In other States 295, 296
Changes in Bills of Rights:
Rights of labor . 296
Limitation of powers of Legislatures . . . 296, 297
Local government:
Counties, township, cities 298
The pardoning power 298, 299
The Executive:
Term, salary, power 299
The Judiciary:
New courts, elective, appointive .... 300
Jury system 300
Judges and the party system 300
Break down of " checks and balances " . . . 300
Banking and finance 301
Length of new constitutions 301
Federal relations 301
Tendency since 1865 302
Dates of American constitutions, note . . . 301,302
XIV. Interpretation of Principles
Confederacy or Nation 303
The Gettysburg speech (Lincoln) .... 303, 304
Party use of the word " Nation " 304
Legal status of the Confederate States of America . 304
Courts, debts, land titles 304
Domestic relations 305
De facto and de jure government .... 305
The right of secession 305
Federal relations 5'^S', 3°^
Meaning of " State," " Commonwealth," " Na-
tion " 306, 307
The " Union " 306
Decision in Texas v. White, 1868 306
State sovereignty _ 306, 307
Concurrent jurisdiction of a State and the United
States _ . • • .308
The suffrage and basis of representation . . . 308
Meaning of the Fourteenth Amendment . . 309, 310
Meaning of the Fifteenth Amendment . . . 311, 312
The reconstruction acts, party view of . . . .312
" The United States a Nation, not a League " . . 313
Enlarged jurisdiction of the United States . . -313
The legal tender cases, 1862-1871 . 313, 314, 3i5. 3^6
Dissenting opinion (Field) 3^7
The National Greenback Party, 1884 . . . -317
The income tax cases, 1894 318, 319
The Mormon Church cases, 1889 3^9
CONTENTS XXV
CHAPTER PAGE
Case of Murphy v. Ramsey 320
Jurisdiction over Porto Rico, Hawaii, the Philippines,
1898 321, 322
Policy of the United States 322, 323
Porto Rico 323, 324
The Foraker Act 324, 325
The status of our outlying possessions . . . 325, 326
XV. Summary: The Forces in the Civil Evolution
The American constitutions evidence of civil evolution 327
Parliamentary details of government . . . .328
Struggle between Executive and Legislative . 328, 329
Evolution of the Judiciary 329, 330
Amendments and their significance .... 331
Gradual growth of the Administrative . . .332, 333
Survivals in these constitutions 333
Experience writes these constitutions .... 333
Growth of paternalism 333, 334
The " Administrative " in the national constitution . 334
The theory of the state and its administration . . 334
Question of corporations 335
Frequency of constitutional amendment . . . 335
Effect of movements of population on the organic
law _ . . 335
(Illustration from New York Constitution of
1846-7) 335
Precedents and their influence 336
(Illustrations in the West and Northwest) . . 336
Function of political parties in the civil evolution . 337
" The Federalist " silent as to parties .... 337
The work of the majority 33^
The elimination of errors in civil procedure . . . 339
History not scientific 340
Work of Hamilton, of Jefferson .... 340, 341
Their theories of government 342
The problem of negro suffrage 343
The municipal problem 343> 344, 345
Durability of the Federal Constitution .... 345
Society and democracy 34^
APPENDIX. The Constitution, with Citation of Interpretative
Cases 347
INDEX
To the Constitution 39^
To the History 447
A SHORT
CONSTITUTIONAL HISTORY
OF THE
UNITED STATES
CHAPTER I
UNION
The civil history of a people is a dual theme, compre-
hending both the organization and the administration of
government. In America, as in other countries in modern
times, organization preceded administration ; indeed, it
constitutes a distinct phase of the civil evolution through
which the people of the country have passed. The popu-
lar conception of the revolution of 1776 is of a military
movement, culminating in American independence, yet
the military character of the revolution is its least dis-
tinguishing quality. That revolution was essentially
civil and industrial, and the economic basis on which it
rested proved, under the test of civil experience, to be a
constitutional re-organization of the forces of the state.
From a military point of view the revolution was a small
affair. Not that the continental army or its officers lacked
ability, or that the battles, sieges, and fortunes of the war
are without grandeur when viewed in the light of results.
But the American revolution was not a great military
movement such as we contemplate when we follow the
fortunes of France under Napoleon, or England under
2 A CONSTITUTIONAL HISTORY OF
Marlborough, or, later, the fortunes of the Union and of the
Confederacy in the armies of Grant and Lee. The revo-
lution was a great civil adjustment affecting both England
and America, and conducing in each country to a clearer
understanding of the nature of representative government
on a constitutional basis. It is when we examine the
revolution as a step in the more perfect organization and
administration of government that we approach its true
meaning.
But the organization and the administration of gov-
ernment are not the same. If by " government " we mean
" the public business " we may easily simplify the theme
we would examine. American statesmen of the eight-
eenth century — the men whom posterity fondly calls
the Fathers — were occupied with the organization of rep-
resentative government. It was the pressing problem of
their day, and to its solution they gave an energy and an
effectiveness which have enshrined their names in the
hearts of all lovers of liberty and justice. Nor did they
witness the completion of the great task ; it was taken up
by their successors, and continued to be the large problem
of the American people until after the civil war.
For the evidence of the truth of this declaration we
must turn to the history of the American people. The
record is open to all men. Americans were the first
people to reduce their civil organization to a written form ;
the first to express the fundamentals of government in a
written constitution amendable as the public judgment
and the public conscience might demand.
The constitutional history of European peoples centres
about some dynasty. The popular will, save perhaps in
England, is ever subordinate to the interests of a ruling
family. What of privilege or right has been won has been
won after long and arduous struggles in which the com-
mon people figure as the aggrieved and the aggressor.
The constitutional history of European peoples possesses
a military quality wholly and happily lacking in America.
We record our constitutional development in written laws
enacted by the will of the governed. Of administrative
law our records are silent because it has never existed
among us. We know nothing of edicts or decrees, be-
THE UNITED STATES 3
cause government in America rests not upon a military
but a civil foundation.
The constitutional history of America is therefore a
history of popular government and of popular govern-
ment in a dual form, — national and state. Our civil
development discloses this form in a familiar aspect as
general and local, — whose evolution is recorded, in a
large way, in the federal constitution and in the consti-
tutions of the several states. But these constitutions are
alike founded upon principles and essentially upon the
same principles. We turn therefore to the history of the
states as recorded in their successive constitutions for an
adequate interpretation of these principles ; or, we may
turn to the federal constitution itself, in its inception,
formation, adoption and later amendment, and, in the
examination we discover that though our civil system is
dual, state and nation rest on common principles.
In this volume I purpose to narrate the history of that
civil evolution which has made America what it is to-day.
This narrative is essentially one of principles and the ap-
plication of principles. It relates how the people of the
thirteen colonies became the people of the thirteen
states, preserving them in their autonomy yet organizing
them in a more perfect union. It relates the struggle out
of which sprang the first constitutions of government in
our country and later that Constitution which now for
more than a century has been recognized as the supreme
law of the land. It relates the interpretation which the
Fathers gave us of the principles on which our institutions
are based. Continuing, the narrative relates how these
principles were for many years misunderstood and mis-
applied, resulting in one of the most terrible civil wars
known to history. It relates also the course of that cor-
rective process by which the American people have made
provision for the authoritative interpretation of the prin-
ciples of their government, — by the courts of law, — a
process perhaps more refined than any hitherto utilized in
human government.
Throughout this narrative I have sought to recognize
the fundamental importance of the state constitutions as
immediate and responsive exponents of the principles of
4 A CONSTITUTIONAL HISTORY OF
g-ovemment in America. In the state instruments there
may be found that closer adjustment ever going on in the
rep'ubhc, — the adaptation of means to ends in government
by means of organic law.
It is in these state instruments that we see exemplified
the tendencies, from time to time, in civil administration.
The entire body of American laws illustrates this process
ever going on. Thus it follows that both laws and consti-
tutions of government are records of attempts to adjust
the form and the administration of the state to the prevail-
ing spirit of interpretation of civil principles ; and we all
know that interpretation, like the state itself, is ever
changeable, the civil organization being itself in a state
of flux.
It is to secure permanency and order that written con-
stitutions are made and laws are enacted. The constitu-
tional history of any people is the record of their efforts
to secure this permanency and this order. In America
the attempt has taken unto itself a dignity commensurate
with the magnitude of the task. No fewer than one hun-
dred and forty written constitutions have been framed,
and laws which fill more than four thousand volumes have
been enacted for this purpose. Nor is this all. Wars
have been waged and thousands of lives have been sacri-
ficed that this purpose may be reaHzed. Nor has the
nation lacked strength nor territory for its activities. Re-
publican institutions have here found an ample field. The
story is unique in the annals of men. No other people has
run a like course. And there is reason for believing that
American institutions are yet in their infancy.
The thirteen colonies which revolted against Great
Britain were independent each of the other ; but the
struggle for independence brought them into a new rela-
tion which compelled the formation of a union. Until the
outbreak of hostilities in 1775 no active steps toward the
formation of such a union had been taken. There had
been attempts at union in colonial times but all save one
ended in failure. The New England union of 1643 was
the first and the last league of the colonies. It was a local
union ; and its small extent, its limited jurisdiction, and
its brief existence precluded it from having the force of
THE UNITED STATES 5
a precedent.^ During the one hundred and thirty years
following the formation of this New England league, four-
teen different propositions for colonial union emanated
from various quarters, — some English, some American,^
— but none of these propositions was more than a scheme
on paper. Those of English origin were monarchical in
character and based on the theory that the English col-
onies in America should be united in a federal government
on a military basis.
The plans of American origin were more liberal and
proposed a federal government on a popular basis, the
essential element of which was the colonial assembly.
This body was recognized as the representative of the
people. In the proposed leagues of American origin the
assemblies were to choose delegates to a colonial con-
gress, but its powers were not closely defined. The vital
characteristic of the American propositions was their
latent democracy. The power to levy taxes was acknowl-
edged by them to reside in the assemblies. English and
American plans were alike in providing for a captain-
general, who should be sent out to the colonies by the
crown ; whose authority should be supreme in America,
though subordinate to that of the crown, and whose com-
pensation should be paid by the colonies.
The nearest approach to colonial confederation was
made at Albany in 1754. The plans there proposed agreed
in providing for a military executive, but differed in their
provision for the legislature. Of these plans, that sub-
mitted by Dr. Franklin is best known. It avoided ex-
tremes by proposing a colonial legislature, which should
control taxation ; and an executive, appointed by the
1 It consisted of Massachusetts, New Plymouth, Connecticut, and
New Haven, and was in force forty years. Its jurisdiction was limited
and chiefly for military purposes. It was distinctively an ecclesiastical
union. For the text of the articles of union, see Preston, p. 85. For an
account of all the unions proposed during colonial times, see the author's
"Constitutional History of the United States," vol. i, pp. 166-215. For
the relation of New Hampshire to the Union, see A. S. Batchellor's
"Government and Laws of New Hampshire before the Establishment
of the Province, 1623-1679." Manchester, N. H., 1904.
2 For an account of these plans, see the author's "Constitutional
History of the United States, 1765-1895," vol. i, pp. 185-213.
6 A CONSTITUTIONAL HISTORY OF
crown, who should be practically independent of the legis-
lature. As a scheme for colonial federation it was ad-
mirable, but it failed because the trend of affairs, obscure
in 1754, was toward the formation of a new nation and
an independent government.
One of the chief causes of American independence was
the attempt of Parliament to establish a military type of
government in America. The controversy over the Stamp
Act, passed in 1765, and all that that controversy implied,
culminated in the call for an American congress, first
sent out by Massachusetts on July 25th of that year. The
response was immediate and favorable. On the 19th of
October of that year delegates from nine colonies met in
New York City and organized as a continental congress.^
This meeting, strictly speaking, was a convention. The
delegates had no authority to legislate, but only to confer
together on the condition of the country. Each colony
present was allowed one vote in the proceedings of the
congress, and thus early was recognized the autonomy of
each colony, — soon to become a state. The recognition
was the germ of state sovereignty.
The congress was in session three weeks. On the 25th
of October it sent forth a declaration of rights which
stated the claims and grievances of the colonies and their
understanding of the principles of government. This
declaration was the parent of innumerable declarations
of the rights and privileges of the American people. Yet
upon close investigation it will be found that the celebrated
declaration of 1765 was not wholly new. Rather was it
a compilation of earlier statements and declarations of like
nature which had been made at various times by colonial
assemblies. The New York congress gathered up these
declarations and expressed them in general form, — a
statement of the doctrine of the rights of the colonists as
Englishmen.
This doctrine ran contrary to the accepted legal inter-
pretation of the foundation of government : namely, that
it is a grant from the crown, and marked a departure in
1 Massachusetts, Connecticut, Rhode Island, New York, Pennsyl-
vania, New Jersey, Maryland, Delaware, and Soutb Carolina.
THE UNITED STATES 7
the theory of g-overnment which henceforth should be
conceived as resting upon the natural rights of all men
instead of upon the privileged rights of a few. Though
departing thus radically from precedents in its statement
of the theory of government, the congress maintained the
old doctrine of allegiance to the crown. But it made a
clear disclaimer of the constitutional right of Parliament
to tax America without its consent. " The right to tax,"
so it was declared, " resides only in the local assemblies."
For obvious reasons the colonies could not be repre-
sented in Parliament. The distance between England
and America was too great to make representation practi-
cable. The declaration concluded with a claim, for the
Americans, to all the ancient and undoubted rights of
Englishmen.
Parliament discovered that the Stamp Act could not be
executed in America without violence ; but this act was
not the only one of which the Americans complained : two
others, known as the Townshend acts, both passed for
the purpose of raising revenue in America, were equally
unpopular.^ After a long and bitter debate Parliament
repealed the Stamp Act,^ but at the same time declared its
right to tax the colonies. The news of the repeal was
received in America with every manifestation of joy ; but
joy turned to sorrow at the later news, that Parliament had
levied a tax, though trifling in amount, on tea and on a
few other articles, not so much for the purpose of revenue
as to assert the right of taxation. In asserting this right,
Parliament raised the issue which ultimately lost England
the thirteen colonies.
In February, 1768, Massachusetts again invited the
colonies to confer and co-operate addressing her circular
letter to the speakers of the assemblies in which she boldly
asserted that the rights of America must be defended.
The Massachusetts letter was welcomed by every as-
sembly. The several colonies were already in a revolu-
tionary state. In the royal colonies the assemblies boldly
ignored the governor, — the representative of the crown,
^ For an account of them, see Trevelyan's " American Revolution,"
part i, chap. ii.
* March 7, 1766.
8 A CONSTITUTIONAL HISTORY OF
— or circumvented him by organizing as a provincial
congress, which elected delegates to the general congress.
This assembled in Philadelphia.^ Fifty-five delegates,
representing together all the colonies except Georgia,
were in attendance. Some were chosen by the assemblies,
some by county committees assembled in convention,
others by provincial congresses. Thus apparently their
authority was not equal, but upon assembling, the cre-
dentials of all were accepted, and the congress began its
work.
This second congress differed widely from that of 1765
in that the purpose of its meeting was more specific and
the credentials of its delegates essentially more represen-
tative of the sentiment of the country. The idea of union
was becoming universal; the revolution had progressed
into a more positive stage. The time had come for taking
steps toward the formation of a national government:
independence was at hand. The instructions to the dele-,
gates varied, but every commission either expressed or
implied the popular will that the congress should consider
the unnecessary restraints and burdens on trade which
the late acts of Parliament had imposed, and procure a
redress of grievances. Here, it will be observed, was a
two-fold duty: partly political, partly economic.
The congress had been in session three weeks when
Galloway, a Pennsylvania member, submitted a plan of
union, the most important provisions of which were those
for the appointment of a captain-general by the crown,
and the election of a congress by the assemblies. The plan
was briefly discussed, but soon recognized as antagonistic
to popular government, and later was expunged from
the journal. Its fate plainly showed that American union
could not be formed upon a monarchical basis. Mean-
while a number of committees had reported. The com-
mittee on the rights of the colonies reiterated the substance
of the famous English bill of rights of 1689, and of
the declaration of rights made by the congress in 1765.
It however went further than the last named declaration
by claiming that American rights were not only natural
1 September 5, 1774.
THE UNITED STATES 9
but constitutional; that is, incident and necessary to the
plan of government under which English people were
living.
The report of the committee on trade and manufactures
was of an entirely different order, for it involved not
merely the theory but the administration of government.
It constituted the basis of that celebrated agreement
known as the solemn league and covenant, the Associa-
tion of 1774. By this it was agreed that a policy of non-
importation and non-consumption of English goods, and
of non-exportation to Great Britain, should be followed.
All trade with Great Britain and her colonies should cease
after December i, 1775. Agriculture, the arts and man-
ufactures should be encouraged. The slave trade too
should cease. This agreement was an economic event of
the highest importance. It was the first great act in the
formation of the American Union. Many years later it
was spoken of by President Lincoln as " the parent of the
Union " ; and President John Adams described it as " the
first expression of the sovereign will of a free nation in
America." Of the many declarations which this congress
sent forth, this of the industrial rights of America made
clear the real causes of the revolution. The time had
come when the colonies were self-supporting and fully
able to assume the duties and responsibilities of nation-
ality. This was the real significance of the association
of 1774.
The congress of 1774 was a reform convention, called
solely to consider the best means of redressing public
grievances. Its members had no thought of American
independence. The majority of them had little doubt that
the causes of the evils of which the country was complain-
ing would be removed. They knew very well that under
English rule the colonies were prospering and, if they
were at all familiar with history, they must have known
that in their safety, freedom, and happiness the American
people at this time had more to be thankful for than any
other colonial people in ancient or modern times. But
events were swiftly moving toward a very different con-
clusion than that which the majority of the delegates were
anticipating. They adjourned on the 26th of October to
10 A CONSTITUTIONAL HISTORY OF
meet again on the loth of May, 1775, unless, meanwhile,
the public grievances of which they complained should be
redressed by Parliament.
The loth of May came and the congress again as-
sembled. The ministry had not made concessions ; rather,
the prospect was of the enactment of a series of laws all
in the spirit of the tea tax. Lord North's policy of con-
ciliation, framed early in 1775, did not abandon the claim
of right to tax the colonies ; it left the matter wholly at
the discretion of Parliament. Most of the delegates were
returned to Congress, and all the colonies, save Georgia,
were represented. Since the last meeting, military affairs
in New England had reached such a stage that reconcilia-
tion with the British government was practically impos-
sible. The time had come when the test must be made
whether the monarchical or the democratic idea of gov-
ernment should prevail in America. The delegates clearly
understood the issue and proceeded to define it in a series
of remarkable acts. Their efforts to persuade the people
of Canada to join with them failed, as likewise did their
attempts to conciliate Parliament, the King, and the
English people. But their appeal to America aroused the
sentiment of union : it awakened a new nation. The time
had come for the colonies to become states, and Congress
took the initiative by urging the change. Within two
years all the colonies organized state governments under
written constitutions.^
A series of measures was now adopted ; some of a
civil, others of a military nature. By this congress a be-
ginning was made of the Departments of War, Navy,
State, and the Post-Ofifice. Washington was chosen com-
mander-in-chief, and the militia encamped near Boston,
and organized in other parts of the Union, were adopted
as the continental army. The Congress acted as the rep-
resentative of the united colonies of America, but as yet
no distinctive national name was used. Undoubtedly the
delegates acted fully up to their authority. They had not
been empowered to levy taxes or to declare war, but their
acts necessitated the imposition of taxes and the prepara-
tion for war. The delegates assumed that they had the
^ For an account of them, see chap. v.
THE UNITED STATES ii
sanction of public opinion, and acted as a representative,
federal body. Thus, on the 22d of June they ordered the
emission of bills of credit to the amount of two millions
of Spanish dollars for the defence of America, and to the
redemption of these bills of credit pledged the credit of
the colonies represented. This was a federal act of the
highest importance, and the roots of its authority ran deep
into the foundations of American union.
On the 13th of September, 1775, Congress reassembled,
after a six weeks' adjournment, in full possession of evi-
dence of popular sanction of its acts. All its appeals and
protests to the King, to Parliament, and to the English
people had been in vain. The true condition of affairs
was more perfectly realized by the delegates than before ;
men were talking of continental interests, of a continental
congress, and of independence. Early in 1776 Thomas
Paine had urged independence in Common Sense, —
one of the most famous of political pamphlets. From
hundreds of town meetings, from county conventions, and
from committees of correspondence, active all over the
land, was now* heard the demand for independence, —
but Congress hesitated ; the step was perilous, and for
reasons of expediency the members delayed a declaration
of independence. New England and the South were
sure, but the Middle Colonies were yet doubtful. Inde-
pendence must be the act of a united America.
On the 15th of May, 1776, Virginia instructed its dele-
gates to recommend to Congress the adoption of a decla-
ration of American independence, and on the 7th of June,
Richard Henry Lee, of Virginia, chosen by his colleagues
to move the resolution, formally proposed the resolution,
which was seconded by John Adams, of Massachusetts,
that " These united colonies are and of right ought to be
free and independent states ; that they are absolved from
all allegiance to the British crown and that all political
connection between them and the state of Great Britain
is and ought to be utterly dissolved." Four days later
Thoitias Jefferson, John Adams, Benjamin Franklin,
Roger Sherman, and Robert R. Livingston were ap-
pointed a committee to prepare a declaration of inde-
pendence. On this day another committee was appointed
12 A CONSTITUTIONAL HISTORY OF
to prepare Articles of Confederation. Jefferson's com-
mittee reported on the ist of July, and two days later its
report, somewhat amended during debate, was adopted.
On the 4th of July the draft of the Declaration of Inde-
pendence was engrossed and proclaimed to the world.
Meanwhile the committee appointed to prepare Articles
of Confederation drew up a plan of government,^ and sub-
mitted it to Congress on the 12th of July, through John
Dickinson, its chairman. His report followed closely a
plan of union ' which had been submitted to Congress by
Dr. Franklin on the 12th of July of the preceding year.
As the first serious attempt to embody the principles of
American union, Dickinson's revision of Franklin's sketch
is of great interest. It discloses the ideas which prevailed
at the time of the revolution respecting the relation of the
states to each other, and to any general government which
might be formed ; and it also discloses what the founders
of our national government conceived were its essential
qualities.
Dickinson's plan recognized the independence and sov-
ereignty of each state, but at the same time prescribed
limitations on the states, — a contradiction as to sover-
eignty which ran through the whole system. This con-
tradiction was the result of the attempt of the plan to
divide sovereignty, asserting, by implication, general sov-
ereignty in the Confederation, and residuary sovereignty
in each of the states. The division is unphilosophical, but
the doctrine of residuary sovereignty has been repeatedly
affirmed by the supreme court of the United States.^ The
limitations prescribed for the states were a clear invasion
of their sovereignty, and tended to develop in the public
mind the germs of the idea of national sovereignty.* But
the fundamental idea of the Articles was of a plan of gov-
ernment by which every power, jurisdiction, and right
which was not expressly delegated to the United States
1 Elliot, vol. V, p. no.
2 Franklin's Works (Bigelow's Edition), vol. i, p. 243; vol. ii, p. 343;
vol. V, p. 548.
' A typical presentation of this doctrine is Texas v. White, 7 Wallace,
70c (i<S68). The doctrine is explicitly stated in "The Federalist,"
(Lodge's Edition), Nos. XXXII, LXX'XI.
* See Articles of Confederation (Bigelow's Franklin), vol. v.
THE UNITED STATES 13
was retained by the states individually.^ The administra-
tive details of Dickinson's plan were taken almost wholly
from Franklin's sketch. The exclusive rights of the
United States enumerated ^ were characteristic of a sov-
ereign power. The chief limit on the United States related
to the power of taxation and the fixing of the revenue.
In these and in several other particulars no steps could be
taken without the consent of nine states, a condition which
tied the hands of the new government. The Articles were
to be submitted to the assemblies for ratification, a clear
recognition of the potency of the residuary sovereignty
of the states.
On July 22, 1776, Dickinson's report was taken up by
Congress, and was debated, at times, until the 20th of
August, when a new draft was reported, styled " Articles
of Confederation and Perpetual Union between the
States." In Dickinson's first draft the term "colonies" had
been used. The revised plan was debated in Congress at
irregular intervals during the following year, and many
amendments were proposed. The most interesting dis-
cussion was of the basis and apportionment of representa-
tion, a subject which brought up the institution, — slavery.
Finally a compromise was agreed to: that five slaves
should be counted as three freemen, a settlement which
came to be known as " the federal number," the three-
fifths, or federal ratio. It was also decided, though not as
a compromise, that each state in the confederation should
have one vote in Congress.^
On November 15, 1777, the Articles as amended in
debate were adopted by Congress, and two davs later
were sent to the assemblies for ratification. During the
following seven months the assemblies discussed them
and proposed many amendments, none of which Congress
approved.
The principal difficulty in the way of securing ratifica-
tion of the Articles was the western lands. All the states,
except Rhode Island, New Jersey, Delaware, and Mary-
1 See Articles of Confederation (Bigelow's Franklin), vol. ii.
2 Article IX. , . , ..r-
8 For an account of the debate on the Articles, see the author s Con-
stitutional History of the United States, 1765-1895," vol. i, pp. 220-233.
14 A CONSTITUTIONAL HISTORY OF
land, made some claims to lands lying directly to the
west. The area in dispute extended from the present
western boundary of New York, Pennsylvania, Maryland,
Virginia, the Carolinas, and Georgia, to the Mississippi.
Maryland, New Jersey, and Delaware demanded that this
area should be surrendered to the United States by the
states claiming it, and from its sale a fund be created for
the use of the general government. The states having no
western land plainly intimated that they would not ratify
the Articles unless the cession was made. The response
of the states was speedy and generous. In 1780 New
York ceded to the general government all its claim to
western lands and Connecticut in the same year indicated
her willingness to make a like cession. There was every
evidence that Virginia would follow their example. As-
sured now of the ultimate cession of the western lands to
the general government, Maryland, the last state to act
on the Articles, authorized her delegates in Congress to
sign them, and their signatures, affixed on March i, 1781,
completed the work of ratification. On the following day
Congress met for the first time under the Articles, which
to all intents and purposes were a national constitution.
The Articles were in process of formation and ratifica-
tion nearly five years, during which time their defects as
a plan of government had been, in a measure, realized.
" The great and radical vice in the construction of the
existing confederation," wrote Alexander Hamilton,^ " is
in the principle of legislation for the states, or govern-
ments, in their corporate or collective capacities, and as
contra-distinguished from the individuals of which they
consist. Though this principle does not run through all
the powers delegated to the union, yet it pervades and
governs those on which the efficacy of the rest depends.
Except as to the rule of appointment, the United States
has an indefinite discretion to make requisition for men
and money ; but they have no authority to raise either
by regulations extending to the individual citizens of
America. The consequence of this is, that though in
theory their resolutions concerning those objects are laws,
1 "The Federalist," No. XVI.
THE UNITED STATES 15
constitutionally binding on members of the union, yet
in practice they are mere recommendations which the
states observe or disregard at their option."
This was written in 1787, after six years' trial of the
Articles, and it states briefly but comprehensively the es-
sential defect of the political system which they embodied.
The " great and radical vice " which Hamilton thus
pointed out in a negative way he made clearer. " The
government of the union," wrote he, " like that of each
state, must be able to address itself immediately to the
hopes and fears of individuals ; and to attract to its sup-
port those passions which have the strongest influence
upon the human heart. It must, in short, possess all the
means and have a right to resort to all the methods of
executing the powers with which it is intrusted, that are
possessed and exercised by the governments of the par-
ticular states." ^
Under the test of administration, the Articles in the
short period of five years proved wholly inadequate to
the exigencies of the union. The government which they
established did not possess the means, or have the right
to resort to all the methods of executing the powers with
which it was intrusted, that were possessed and exercised
by the government of the particular states ; it was de-
pendent upon the states for the execution of its laws. It
could not appeal to the individual citizens of the United
States, save indirectly through the state legislatures. As
long as the states responded promptly and willingly to
the support of its acts, the congress of the Confederation
was a directing, if not a governing body; but by 1785
there was evidence on every hand not only that the polit-
ical system at the head of which the congress nominally
stood was wholly inadequate, and that if the purposes for
which the Union had been formed were to be realized, the
Articles of Confederation must be amended.
The crisis came in 1786, when the states finally refused
to grant Congress the power to pass a tariflf act. This
signified that the trade and commerce of the country were
to be regulated by thirteen individual states, a condition
1 "The Federalist," No. XVI.
i6 A CONSTITUTIONAL HISTORY OF
of affairs which necessarily must involve the country in
industrial ruin. As early as 1780, and nearly a year before
the ratification of the Articles, Hamilton had urged the
calling of a federal convention, to amend them. Six
years had passed, and the political and industrial history
of the country had fully confirmed the fears of Hamilton,
and of other friends and supporters of the Union, that the
incurable fault of the Confederation was its recognition
of the sovereignty of each state.
Congress itself, after 1784, was convinced that consti-
tutional reforms were important, but its suggestions re-
ceived little attention. The most serious evil of the
times was the repeated practical denial of the obligation
of contracts, as exemplified in the enormous issue of
paper money by Congress and by the states. Repeated
attempts were made, as in Rhode Island, to enforce the
circulation of state paper, at par, by law. The effect of
this wholesale issue of fiat money was the prostration of
public and private credit. Scarcely less serious was an-
other evil, — commercial rivalry among the states.
In 1786 Maryland and Virginia appointed commis-
sioners to prepare articles of agreement respecting the
control of commerce on the Potomac ; but other states
were interested in the great subject of inter-state com-
merce, and some of them were in favor of giving to
Congress the exclusive power of regulating it. The Vir-
ginia and Maryland commissioners recognized the inter-
ests of Delaware and Pennsylvania in the Potomac, and
prepared a letter to all the assemblies urging the assem-
bling of a trade convention to which every state should
send delegates. To this suggestion five states responded,^
by sending delegates to Annapolis, Maryland, to confer
together on the subject of inter-state commerce and the
regulation of trade. After a three days' session they
agreed upon a report, written by Alexander Hamilton,
which was sent to Congress and the state legislatures.
The report was, in substance, a review of the defects of
the Articles, and concluded with the suggestion that as
the subject was of general interest, each state should
1 Virginia, New York, New Jersey, Pennsylvania, and Delaware.
THE UNITED STATES 17
appoint delegates to a federal convention, which should
consider what should be done to render the federal consti-
tution " adequate to the exigencies of the Union." Phil-
adelphia was named as the place of meeting, and the
14th of May, 1787, as the time.
To this suggestion all the states, except Rhode Island,
responded during the next six months, by the appoint-
ment of delegates. On the 21st of February, 1787,
Congress gave its tardy consent to the call for the con-
vention. Its decision and that of several of the states
was hastened by an insurrection which broke out in
Massachusetts, known as " Shays's rebellion," caused by
the prostration of public and private credit, by the dis-
turbance of industry, and by the riotous growth of loose
notions of government, engendered by ultra revolutionary
notions. The outbreak was recognized at the time as an
unmistakable sign of the critical condition of public
affairs. The insurrection lasted four months. Taken in
connection with the low state of public credit, the depres-
sion of trade, the feebleness of the federal government,
and the jealousy prevailing among the states, this " com-
motion among the eastern people," as Washington called
it, placed our national character " much below par, and
brought our politics and credit to the brink of a preci-
pice." The willingness of the states and of Congress to
consider constitutional reforms was, as John Adams ex-
pressed it, the result of grinding necessity. A fed-
eral convention seemed the only means of escape from
anarchy.^
1 For a detailed account of the condition of the states under the
Articles of Confederation, of the failure of the confederation, and of the
necessity of constitutional reforms, see the author's "Constitutional His-
tory of the United States, 1776-1895," vol. i, pp. 208-288.
i8 A CONSTITUTIONAL HISTORY OF
CHAPTER II
FORMULATION OF THE SUPREME LAW
During the fall and winter of 1786-1787 the legislatures
of the states, except Rhode Island, elected in the aggre-
gate seventy-four delegates to the Philadelphia convention,
and of these fifty-five accepted election. On Friday, the
25th of May, 1787, the business of the convention opened
with the unanimous choice of Washington as presiding
officer. The sessions continued for three months with
few interruptions. The delegates met with closed doors,
and under the rule " that nothing spoken in the house be
printed, or otherwise published, or communicated, without
leave." They composed the most distinguished body of
Americans who have assembled at one time for any
purpose.
The Virginia delegates had arrived some days before
the actual work of the convention began. James Madison,
one of these delegates, had thoroughly acquainted himself
with the history of confederacies, and came to Philadel-
phia with a carefully prepared outline of a general gov-
ernment. This outline, known as the Virginia plan,
consisted of fifteen resolutions, and was submitted to the
convention on the 29th of May, by Edmund Randolph,
governor of Virginia, and one of the delegates from that
state.
The plan called for a radical remodelling of the Articles
in conformity to the republican basis of the state govern-
ments. Congress had consisted of a single house; the
Virginia plan called for a national legislature of two
branches: the lower chosen by the people, the upper in-
directly by the assemblies. The Confederation made no
provision for a chief executive ; the Virginia plan pro-
posed a national executive to be chosen by the national
THE UNITED STATES 19
legislature. The Articles made no provision for federal
courts ; the Virginia plan proposed a national judiciary,
consisting of one superior tribunal and of inferior tri-
bunals. These general provisions indicate the compre-
hensive scope of the plan ; its details partook of a like
quality. In brief, a national government should be estab-
lished consisting of a supreme legislative, executive, and
judiciary.
The word "national" indicated the essential character of
the proposed reform, and at once divided the convention
into two parties, — the state party and the national party.
The state party feared the formation of a consolidated
government, and desired only to amend the Articles so as
to secure a strictly federal government. This funda-
mental difference between the two parties occasioned the
long debate out of which grew the Constitution of the
United States.
A government organized strictly on a national basis
would address itself primarily to individuals ; therefore
representation in both houses would be apportioned ac-
cording to population, and the executive would be chosen
by popular vote. An elective judiciary was at this time
unknown. In each state, as in England, at this time, the
judges were appointed by the executive, with the consent
of the upper house.^ In a strictly national government,
authority, legislative, executive, and judicial would be
supreme, and the authority of the several states would be
in every respect subordinate.
If the government was organized strictly on a federal
basis, the states, as independent and sovereign bodies,
would lie at its foundation. It would rest upon them as
distinct corporations, and would have no authority over
individuals. The federal legislature might consist of a
single branch in which, as under the articles, each state
might have one vote. Representation, therefore, would be
equal but not proportional. The executive in such a gov-
ernment would be chosen either by the state legislatures,
or by the representatives of these legislatures in Congress.
The federal judiciary might consist of the state tribunals.
1 Excepting in Pennsylvania, Georgia, and Vermont the legislature
consisted of two branches.
20 A CONSTITUTIONAL HISTORY OF
If it consisted of distinct tribunals, their jurisdiction would
not extend over that of the state courts. In a strictly
federal government authority would be limited, would be
expressly delegated, and would never be superior to that
of the respective states.
On the morning of May 29th, Randolph, in an effective
speech, reviewed the Articles of Confederation, pointed out
their defects, and urged his colleagues to remedy them by
the organization of a national government. To this end
he submitted the fifteen resolutions which comprised the
Virginia plan.
There should be a national executive, a national legis-
lature, a national judiciary, and a council of revision.
The national legislature should elect the executive, but he
should be ineligible for a second term. The legislature
should consist of two houses, and should have power to
veto all acts of assembly in conflict with the constitution,
and also should have power to coerce refractory states.
The lower house should be chosen by the people, but the
upper house should be chosen by the lower house from
men nominated by the state legislatures. Representation
in both houses should be proportional to population, or
to the contributions made by the several states to the
general expense. The national legislature should elect
a national judiciary. The council of revision should con-
sist of the executive and the judges, and its duty should
be to revise the laws before they went into effect. New
states should be admitted into the Union ; the Constitu-
tion should be subject to amendment, and each state
should be guaranteed a republican form of government.
After his running commentary on the resolutions, Ran-
dolph handed them over to the convention, which at once
went into committee of the whole on the state of the
Union. General Charles Pinckney, of South Carolina,
then submitted a plan of which little is known. ^ It also
was given over to the committee. For two weeks the Vir-
1 For a copy of Pinckney's draft, together with some critical remarks
by Prof. J. Franklin Jameson, see the Avierican Historical Review for
April, 1903. Madison's well known estimate may be found in his
"Notes" on the convention. See also Profes.sor Jameson's "Studies in
the History of the F'ederal Convention of 1787," and " Report of the
American Historical Association, 1902," vol. i, pp. 89-167.
THE UNITED STATES 21
ginia plan was debated, article by article. Many amend-
ments were suggested and a few were adopted. All the
delegates agreed that the old Articles were inadequate,
but they differed widely as to the best manner of correct-
ing their defects. There was a prevailing sentiment, how-
ever, that the three-fold division of government familiar
to the states should prevail in the national plan ; that the
national legislature should consist of two houses, like
most of the state legislatures, and that the lower house
should be chosen by the people. But as soon as these
broad outlines of the new plan were taken up in detail,
almost hopeless differences of opinion at once appeared.
The majority were jealous for the preservation of all
the powers of the states, and formed what may be called
the state party. They favored a plural executive ; and
some wished an executive committee of three persons,
each from a different section of the country. The colonial
executives had been aided by a council, and the state party
now demanded a council of revision. Some favored the
election of the executive directly by the people; others,
an election by the state legislatures; others, an elec-
tion by both branches of the national legislature, and
others an election by the governors. Out of this confu-
sion came the decision, on the 4th of June, that the election
of the executive should be determined by the national
legislature, but that he should not be re-eligible after his
term of six years.
Up to the time of this decision the discussion appears
to have been friendly; but the apparently irreconcilable
opinions of the members now led them into hostile speech,
and it seemed to some that the convention must adjourn,
having done nothing. Amidst all the differences of the
hour, it was evident that there were two principal parties
in the convention : one, the state party, demanding a
strictly federal government ; the other, the national party
which would, if possible, set up a strongly centralized
government. Yet even thus early in the discussion the
distinctive character of the North and the South appeared.
The northern states were commercial ; the southern, agri-
cultural. Another difficulty which intensified differences
v/as the division of the states into large and small; the
22 A CONSTITUTIONAL HISTORY OF
three largest in wealth and population being Virginia,
Pennsylvania, and Massachusetts.
While the provision in the Virginia plan on representa-
tion was under discussion, it became evident that slavery-
would force yet another division in the convention. The
pro-slavery party demanded the equal representation of
slaves ; their opponents demanded the exclusion of slaves
from representation. Out of these differences of opinion
grew the three great compromises of the Constitution:
the first on representation, — the compromise between the
large and the small states ; the second on slavery, —
the compromise on the representation of slaves, caused
by the contest between the free states and the slave states ;
and the third, the compromise on the regulation of com-
merce and the slave trade, caused by the contest be-
tween the commercial and the agricultural states.
The great states earnestly supported the Virginia plan ;
the small states, with equal vehemence, demanded amend-
ment of the old Articles. The issue was clearly drawn by
the 9th of June, when at the request of William Paterson,
of New Jersey, who spoke for the small states, the ques-
tion of proportional representation was taken up. He and
his party believed that the convention in presuming to
make a new constitution was transcending its powers.
Its duty was to amend the old Articles. These recognized
the sovereignty of the states by allowing each an equal
vote in Congress. Proportional representation, whether
as to wealth or population, he said, was unjust to the
smaller states. Georgia would have but one representa-
tive, Virginia would have sixteen ; the risk was too great ;
and he boldly declared that New Jersey would never join
in such a plan.
In vain did the spokesmen of the national party, and
notably Wilson and Madison, defend proportional repre-
sentation for both Houses. They could not persuade the
convention that a state could preserve its sovereignty, and
at the same time be a member of such a national govern-
ment as they proposed. And they could not persuade the
state party that it was the people and not the states that
were to be represented in the new government. But the
delegates from the large states were in the majority, and
THE UNITED STATES 23
decided that representation in the lower House should be
according to some equitable ratio, and this, it was soon
decided, should be the ratio adopted by Congress in
April, 1783, for determining the quotas of the several
states; that is, according to the whole number of free
white persons, and three-fifths of all other persons, ex-
cepting Indians, not taxed. The small states, thus de-
feated in their struggle to secure equal representation in
the lower House, now strove vigorously to secure it in
the upper ; but they were out-voted by the larger states,
and representation here, it was decided, should also be
according to population. There was less difference of
opinion respecting the remaining clauses of the Virginia
plan, and by the 13th of June all its resolutions had been
discussed, and the convention was ready to hear the final
report of the committee of the whole.
But the smaller states were not merely dissatisfied ;
they were seriously thinking of retiring from the con-
vention. Their delegates now met and outlined a plan
which they placed in the hands of Paterson to present to
the convention.^ Known as the New Jersey plan, it
was federal in character. Congress should consist, as
formerly, of one branch, but should have power to regu-
late trade and to levy taxes. The executive should consist
of several persons, each chosen for one term only, and
removable by Congress whenever a majority of the gov-
ernors should make the demand. The plan made a
provision for a supreme court, and for a system of requi-
sitions on the states similar to that in the articles of
confederation. Paterson defended the plan as coming
within the powers of the convention, and as likely to
prove popular because similar to that of the articles.
Either the convention must restrict itself to amending
the articles, he said, or the delegates must go home and
receive authority to substitute a new constitution for
them.
The small states had now taken a stand from which
they plainly intimated they would not recede. The large
1 See " Papers of William Paterson on the Federal Convention, 1787,"
American Historical Reirirw, January, 1904.
24 A CONSTITUTIONAL HISTORY OF
states, which had controlled the convention thus far, were
not dismayed, but proceeded to attack the New Jersey
plan. James Wilson, of Pennsylvania, made a close com-
parison between the Virginia and the New Jersey plans.
By the Virginia plan, said he, the basis of the govern-
ment would be the people ; but by the New Jersey plan the
basis would be the states. By the Virginia plan the rule
would be the rule of the majority, but by the New Jersey
plan it would be of the minority. The country would
have a single executive by the Virginia plan, but, by the
New Jersey plan, several executives. By the Virginia
plan the new government would consist of the three
branches familiar to the people in their state governments ;
by the New Jersey plan there would be but one branch.
By the Virginia plan the government would have the
power to annul acts of the assemblies ; by the New Jersey
plan it would be authorized to coerce the states.
James Madison followed Wilson in a powerful speech,
in which he pointed out that the New Jersey plan did not
differ essentially from the old Articles of Confederation ;
therefore, the old evils would continue, and the people
would be no better off than before.
Wilson and Madison were followed by Alexander
Hamilton, who, in a remarkable speech, criticised both
plans as inadequate to the wants of the country, and then
he outlined a government on a strictly national basis : a
supreme legislative consisting of two Houses ; members
of the lower House chosen by the people for three years,
and members of the upper House chosen for good behavior
by electors elected by the people. The executive, also
chosen for good behavior, should be elected by special
electors ; should have authority to veto all laws ; to make
treaties with the co-operation of the Senate ; to appoint
the heads of departments, and to carry on war whenever
declared. The national judiciary should be supreme in
all matters of general concern which came before it.
All acts of state legislatures violating the constitution
and the laws of the United States should be null and
void. The governors of the states should be appointed
by the national government. Hamilton did not submit
a detailed plan of government; he merely sketched what
THE UNITED STATES 25
he considered the scope and general organization of a
national system.^
The question now before the convention was which
plan to adopt, — the Virginia or the New Jersey. The
large states, still controlling the convention, were intent
on securing a strong national government, and the com-
mittee of the whole reported the Virginia plan. For a
few days the business ran on smoothly and minor changes
were made in the plan so as to conciliate the small states,
and particularly by omitting the word " national," which
occurred twenty-six times in the amended Virginia reso-
lutions. It was dropped for the phrase, " government
of the United States," or its equivalent. During the
greater part of June, the discussion was of the organiza-
tion of the legislature, whether of one or two branches ; of
the composition of the executive, whether of one person
or more ; and of the qualifications and terms of members
of Congress. But there was one question which seemed
beyond power of settlement : the basis of representation
in the national legislature. Should it be proportional
as the large states now demanded, or one of state equahty,
as in the Articles of Confederation? On this issue the
debate became angry.
The state party elaborated the doctrine of state sover-
eignty. If proportional representation was to prevail, the
sovereignty of the small states, they said, would be en-
dangered. In vain did the national party attempt to prove
these fears groundless. In vain did they argue that
there was less danger of combination between the great
than between the small states. What had the great states
in common, they inquired, and what evidence existed of
the possibility of combination among them?
Happily, just at this time, there appeared a third party,
led by Roger Sherman of Connecticut, who detected the
opportunity for a compromise. Between the national
party and the state party he declared there was a middle
ground ; the states should not be ignored in the organ-
ization of the new government ; they should compose
1 For the draft of Hamilton's plan, see " Report of the American His-
torical Association, 1902," vol. i, pp. 143-150.
26 A CONSTITUTIONAL HISTORY OF
an essential part of its basis. The new government must
consider both states and individuals ; therefore, both the
states as corporations and the people as individuals
should be represented : the one in one branch of Con-
gress, the other in the other branch. But Sherman's
proposition did not please the small states, and they would
have none of it. The great states, whose delegates were
now becoming a little impatient at the stubbornness of
Paterson and his supporters, would not modify their
decision, and it was settled that the representation in
the lower House of the national legislature should be
proportional to population. This also pleased Sherman
and his party of compromisers.
It now remained for them to secure equal representa-
tion of the states in the upper house. Here they antag-
onized the supporters of the Virginia plan, some of whom
lost their tempers at thought of the demand. A vote
was taken : it stood five to five, — a tie. The disrup-
tion of the convention seemed imminent. At this moment
Charles Cotesworth Pinckney, of South Carolina, moved
that the question of representation be handed over to a
grand committee and that the convention should adjourn
for three days. A grand committee of eleven was
elected and the crisis passed.
But the grand committee was as divided over the
question as the convention had been, and rejected the
proposed compromise. There seemed no prospect of con-
ciliation or agreement. Members of the committee, who
were of the state party, re-affirmed their fears and de-
clared that they would never confederate on the plan
suggested by Sherman. Dr. Franklin, who was a mem-
ber of the committee, at last secured harmony and per-
suaded his colleagues to unite in a report. It was
understood, however, that the report was not binding
upon any member of the committee, and therefore, he
might support or attack it as he chose on the floor of
the convention. Franklin went further than Sherman,
as the report shows. In the lower House, each state
should have one representative for every forty thou-
sand inhabitants, and in the upper House an equal vote.
To win the great states it was agreed that the lower
THE UNITED STATES zy
House should have the exclusive right to originate money
bills, though these might be amended in the upper House.
For two weeks the report was discussed. At last it was
adopted, and thus the great compromise on representation
was made.
It was difficult, but less difficult, to agree on the details
of representation. Much was said of the size of each
House. There was fear that new states in the West
might soon outvote old states in the East, if the basis
of apportionment was too small. But Madison and a
few other broad-minded members successfully urged a
generous provision for the future, and warned the con-
vention against any discrimination between the East and
the West. It was necessary, however, to establish some
rule of apportionment and to this end Randolph suggested
a census. The idea was favorably received, but it was
soon discovered that it involved difficulties. How should
the slaves, most of whom were found south of Mason
and Dixon's line, be computed ? Should they be counted
as persons or as property ? The question divided the con-
vention.
The southern delegates and some of the northern de-
manded that slaves should rank as free persons. The
opponents of slavery answered that slaves were property
and for that reason the oxen and cattle of the North
should be included in the census. At this moment Hugh
Williamson, of North Carolina, came forward with a
compromise : the enumeration in the census should be
of all free persons and three-fifths of all others ; but his
compromise provoked a heated discussion. Massachu-
setts, New Jersey and Pennsylvania demanded the ex-
clusion of slaves ; Georgia, South Carolina, and Delaware
insisted upon their representation equally with white men.
North Carolina, Virginia, and Maryland, though slave-
holding states, favored the northern idea.
In the debate which followed, the importance of
slavery to the South was fully set forth by its leading
delegates. The opponents of slave representation ob-
jected to it because of its encouragement to the slave
trade and here the matter was left, — for by a unanimous
vote Randolph's motion for a census was rejected.
28 A CONSTITUTIONAL HISTORY OF
At this point Gouverneur Morris, of Pennsylvania,
proposed that taxation should be in proportion to repre-
sentation, which was agreed to with the understanding
that direct taxation was understood ; but if property was
to be taxed, and slaves were property, then the South
would bear a heavy burden ; and several of its delegates
at once declared that the South would never join in the
union unless it was granted a representation of three-
fifths of its slaves, — from which position the southern
delegates could not be driven. While it was possible that
their request might be voted down, the effect was not in
doubt ; the slave-holding states would reject the plan
when submitted to them, therefore the demands of the
South must be granted or a compromise of some kind
be arranged.
Rhode Island had not sent delegates. New York, in
the persons of Yates and Lansing, had retired from the
convention when Sherman's compromise on representa-
tion was carried ; and of the ten states remaining six
were southern. To win the support of the South to the
new plan, the propositions for a census and representa-
tion of three-fifths of the slaves were renewed, and
through the skilful management of Gouverneur Morris
a compromise was agreed on : that representation should
be according to direct taxation, and that both direct taxes
and representation should be apportioned according to
population, and by the term "population" should be under-
stood all free white persons and three-fifths of the slaves.
The vote of North Carolina and Georgia carried the prop-
ositions, and the compromise on slave representation was
made.
The two compromises were reported to the conven-
tion by the committee on the i6th of July ; the decision
about to be made would determine the fate of the new
plan. The managers sagaciously united the two compro-
mises so that the vote must be on the whole report. This
strengthened its chances of success, for the small states de-
sired the equal representation which they would secure in
the upper house ; and the slave states desired the slave rep-
resentation which they would secure by the second part
of the report. As the vote proceeded, it was discovered
THE UNITED STATES 29
that the fate of the two compromises would depc^ d upon
the vote of North CaroHna. It voted yea, and the com-
promises were carried. The victory did not, however,
restore harmony to the convention ; scarcely a member
was satisfied. There were louder hints than before of
immediate adjournment and another federal convention,
but all ended in talk.
Ten days were then spent in agreeing on the details
of the distribution of power between the general govern-
ment and the states. Then, on the 26th of July, the
Virginia plan, which had expanded into twenty-three
provisions, the New Jersey plan, and Pinckney's plan
were handed over to a grand committee which was in-
structed to report a constitution. An adjournment was
then taken till the 6th of August.
It was during these eleven days that the Constitution
or plan of government of the United States was given its
first form. When the convention re-assembled, each mem-
ber was supplied with a printed draft of a constitution
of which a few copies are in existence. The twenty-three
resolutions submitted by the committee show at a glance
the great changes which its members had made in the plan.
The executive should serve one term of seven years, and
could never again be a candidate for the office. His title
should be His" Excellency. He should be impeachable by
the House of Representatives, but should be tried before
the supreme court. The states should pay the members
of the national legislature. A senator could hold no office
under the United States till one year after his retirement
from the Senate. The committee also reported a cumber-
some method of settling disputes between states.
The delegates now settled down to a careful revision of
the committee's report. Matters went on smoothly until
the article was reached forbidding Congress to levy an
export tax, or to impose a tax on imported slaves, or in
any way to hinder the slave trade; or to pass a tariff
law except with the consent of two-thirds of the members
present in each House. Not to tax exports was a novel
idea, and was objected to by some of the southern mem-
bers, who feared that if this powder was given to the gen-
eral government, it would be exercised to tax the tobacco
30 A CONSTITUTIONAL HISTORY OF
and oththt^igricultural products of the South. The north-
ern states consented. Until this time every government
on earth had taxed exports. The sound doctrines of Adam
Smith and his school were now for the first time having
their effect in organic legislation, and the ancient practice
was for the first time discarded.
South Carolina and Georgia were the slave importing
states, and to please them the provision protecting the
slave trade had been inserted. They insisted that their
prosperity depended upon the abundance of slave labor
which, according to their account, implied the free im-
portation of slaves. The idea, however, was repugnant
to many delegates, and Luther Martin, of Maryland, pro-
posed that the importation of slaves should be taxed.
This brought the matter to an issue, and precipitated a
long and somewhat bitter discussion. Free states and
slave states were contrasted in wealth and progress, and
religion and morality as touching slavery were discussed.
There seemed no way of settling the matter till Gouver-
neur Morris suggested that the questions of taxing im-
ported slaves, of taxing exports, and of passing tariff
acts, which at this time were called navigation acts, should
be sent to a special committee, and his motion prevailed.
The North was anxious to secure the provision for a
tariff act and the South for the right to import slaves.
A compromise was agreed on. The importation of slaves
was permitted until 1808; Congress was empowered to
pass a tariff act, but exports should not be taxed. This
was the third great compromise of the plan of govern-
ment for the United States.
The draft by the grand committee, now much modified
by amendment, and all clauses, action on which had been
postponed, were, after a week's further debate, handed
over to a committee of eleven, which reported from day
to day till the 8th of September. All the articles, as they
had been agreed upon, — and they were a series of com-
promises, — were then given over to a committee on
arrangement and style, which four days later reported a
draft of a constitution. This was engrossed.
At the last moment, the basis of apportionment was
changed in order to strengthen the Constitution with the
THE UNITED STATES 31
smaller states, but many of the members pointed out ob-
jectionable features in the plan, and intimated that they
could not approve of it. It seemed that the Constitution
might be left a mere piece of parchment on the secretary's
desk.
To win votes and secure its adoption, Franklin now
wrote a conciliatory speech, which, because of infirmity
he was unable to read to the convention, was read by
James Wilson, and undoubtedly effected its purpose.
Gouverneur Morris had handed in a form of approval
which he hoped would satisfy the discontented : " Done in
convention by the unanimous consent of the states pres-
ent." This Franklin 'incorporated in his speech. But his
conciliatory speech had no effect on Elbridge Gerry,
Luther Martin, George Mason, and Edmund Randolph,
who refused to sign. Washington was the first to affix
his name ; then the delegates, in the geographical order of
their states, beginning with New Hampshire, added theirs.
Alexander Hamilton alone signed for New York.^
The great matter so long in doubt was now settled, and
Dr. Franklin, whose anxiety for the success of the new
plan had not been concealed, looking toward the presi-
dent's chair, pointed out the figure of the sun cut on its
back, and observed to a member near him, that painters
had found it difficult to distinguish a rising from a setting
sun. " I have often and often in the course of the session
and the solicitude of my hopes and fears as to its issue,
looked at that behind the president without being able
to tell whether it was rising or setting, but now at length
I know that it is a rising and not a setting sun." On the
evening of the 17th of September, the delegates again
assembled but only for social intercourse. Their work
was done.
The Constitution which they had framed was composite,
as was the plan of national government which it outlines.
1 Of the fifty-five delegates who attended the convention, thirty-nine
signed the constitution. Four refused to sign, — Gerry, L. Martin,
Mason, and Randolph. Twelve were absent, of whom seven are known
to have approved it, and of the twelve only three are known to have
opposed it. See Jameson's article in " Report of the American Histori-
cal Association, 1902," vol. i, pp. 157-160.
32 A CONSTITUTIONAL HISTORY OF
It was written in its final form by Gouverneur Morris/
and was arranged under his hand, but not in the order in
which its parts had been completed by the convention.
Of a preamble nothing had been said during the debates,
and this brief introduction to the instrument was added
probably by Morris. The phrases of the preamble can be
traced back for two hundred and seventy years through
American charters and plans of union ; but its immediate
source was the plan of government submitted by Dr.
Franklin in 1775. Its phrases seem to have been selected
by Morris from the wealth of material at hand.
The Constitution existed in outline in the Virginia plan
submitted by Edmund Randolph, but it also was outlined
in part in the New Jersey plan and in the sketch read by
Alexander Hamilton. The investiture of power in three
departments closely followed the models set in the state
constitutions, which instruments, indeed, were the imme-
diate source of most of its derivative provisions. The
titles " senate " and " house of representatives " were in
use in five states,- and the clauses defining legislative pro-
cedure were transcripts from state constitutions. The
qualifications for the age and residence of senators and
members of the House were common to organic laws of
the states. New York and South Carolina set a precedent
for a census. The division of senators into three classes
had a precedent in South Carolina, and annual legislative
sessions were common to all the states. Until the Articles
of Confederation, no national constitution had provided
for the publication of the journal of the legislature. The
exclusive right of the lower house to originate money
bills, following the precedent of Parliament, prevailed in
all the states. The power of impeachment and the pro-
vision for the trial of the impeached were similar to state
provisions on the subject. The clauses on the powers of
Congress were elaborated from the like clauses in the
Articles of Confederation. From the state constitutions
1 The original is preserved in the library of the Department of State
in Washington. It has no title ; the articles and sections but not the
clauses are numl)ered.
2 New Hampshire, Massachusetts, New York, Virginia, North Caro-
lina, and South Carolina.
THE UNITED STATES 33
came the clause on the habeas corpus and on ex post facto
laws. The limitations of the powers of the states had a
partial precedent in the Articles of Confederation, but most
of them had been worked out by hard experience in
administration.
South Carolina and Massachusetts gave their execu-
tives the veto power, but the remaining functions of the
executive were more or less carefully defined in all the
state constitutions. The closest analogy for the provi-
sions on the national executive was the provisions on the
executive in the constitution of Massachusetts. The title
" president " had been used in the Virginia charters, and
occasionally in the charters of other colonies, and was
used as the title of the executive in five states.^ Even
the method of choosing the president by special electors
was analogous to that of choosing state senators in Mary-
land, but the precedent was not a close one. The powers
of the executive resembled those which had been granted
in the state instruments, and which had been proposed in
early plans of colonial union. Georgia and New York
provided for a message from the governor, and in most
of the states that officer had authority to call the legisla-
ture in extra session. Strictly speaking, no one state fur-
nished a prototype for the president. The presidency in
so far as defined by the Constitution was a composite
office, representing an aggregate of powers and functions.
The office of vice-president was not thought of until
toward the close of the convention, and then as a com-
promise measure to prevent a hiatus in the government;
but a similar officer could be found in New Jersey, Penn-
sylvania, and South Carolina.
The article on the judiciary approached closely to origi-
nality. With no exact precedent for it in history, it was
worked out as an agency to meet an obvious demand.
Among the reforms early demanded after the ratification
of the Articles of Confederation, had been that for the sep-
aration of the powers of government and the organization
of a separate judicial department. In some details the
judicial article ran back to the judiciary provisions in
1 New Hampshire, New Jersey, Pennsylvania, Delaware, and South
Carolina.
3 .
34 A CONSTITUTIONAL HISTORY OF
the state constitutions, but only so far as these outlined
the mere process in judicial proceedings. The jurisdiction
of the national judiciary was a distinct creation. The pro-
vision on treason has its precedent in the British statute
of 1352. Morris took the judicial article as it came to
him from the convention, and transcribed it with a few
verbal changes. The provision respecting public records
was obviously necessary, as was also that for the admis-
sion of new states and the obligation of the public debt.
The Constitution was, therefore, the embodiment in
written form of a system of national government which
had been worked out in this country during the colonial
period, and the roots of which ran deep into very ancient
soil. It was a plan of government, not a code or a
statute. It does not resemble an act of the legislature;
it is an embodiment of working principles defining with
practical accuracy the co-relation of its parts and depend-
ing upon its administration. But when it was sent forth
for the approval of the people in the several states, it was
considered as nothing more than a new plan of federal
government based upon familiar republican principles.^
1 For a critical account of the sources and the authorship of the
Constitution, see the author's "Constitutional History of the United
States, 1765-1895," vol. iii, pp. 463-!;i5; for the Federal Convention and
its work, id. vol. i, pp. 291-595 See also Curtis's " Constitutional His-
tory of the United States," vol. i; Bancroft's " History of the Forma-
tion of the Constitution," vol. ii, and Meigs's "The Constitution in the
Federal Convention." The most important minor authorities and spec-
ial articles are cited in the above, passim.
THE UNITED STATES 35
CHAPTER HI
FIRST PRINCIPLES
In acknowledging the receipt of a copy of " The Federal-
ist " ^ on the 28th of August, 1788, Washington wrote to
Hamilton : " When the stringent circumstances and fugitive
performances which attend this crisis shall have disap-
peared, that work will merit the notice of posterity, be-
cause in it are candidly discussed the principles of
freedom and the topics of government which will always
be interesting to mankind so long as they shall be con-
nected in civil society." This was written when the long
debate over ratifying the Constitution had closed, and
preparations were in progress for the election of President
and Vice-president and the inauguration of the new
government.
The authors of the Federalist — Hamilton, Madison,
and Jay — addressed it to the people of the state of New
York. The Anti-Federalists looked upon it merely as a
party pamphlet and attempted to answer it,^ but their
pamphlets have long been forgotten. It remains the earli-
est authoritative interpretation of the Constitution, and
of the principles on which government in America is
founded. Alexander Hamilton, its chief author, was the
first to suggest a federal convention,^ and his sketch of a
1 The citations in this chapter are to the first edition of "The
Federalist."
^ The most influential Anti- Federalist pamphlets were Richard Henry
Lee's " Observations of the System of Government Proposed by the late
Convention "; known also as the " Letters of a Federal Farmer"; George
Mason's "Objections to the Federal Constitution," and Elbridge Gerry's
" Observations on the New Constitution and on the Federal and State
Conventions," by a Columbia Patriot. These and other pamphlets on
the Constitution published during its discussion by the people, 1787-1788,
have been collected and edited by Paul Leicester Ford, Brooklyn, New
York, 1888.
8 In 1780.
36 A CONSTITUTIONAL HISTORY OF
government presented to the federal convention contained
twenty-two provisions which ultimately were embodied
in the Constitution.^ James Madison was undoubtedly
the originator of the Virginia plan, and his activity in
the convention has given him the name of the *' Father
of the Constitution." John Jay personified the better in-
fluences which secured the adoption of the Constitution
by New York.^
It has been well said that "The Federalist" is " the first
exposition of the Constitution, and the first step in the long
process of development which has given length, meaning,
and importance to the clauses agreed upon at Philadel-
phia. It has acquired all the weight and sanction of a
judicial decision, and has been constantly used as an
authority in the settlement of constitutional questions."
The primary purpose of its authors was to show that
the Constitution embodied the principles of republican
government; that it was analogous to the state consti-
tutions, and that it was adapted to the wants of America.
The first number appeared just forty days after the ad-
journment of the convention. At first the plan of the
authors was to limit the essays to twenty or twenty-five
numbers, and to have them appear in the Independent
Journal and the New York Packet, at intervals of three
days. In order to influence the people of other states than
New York, in which the question of ratification was pend-
ing, the earlier essays, to the number of thirty-six, were
printed in a small volume, which bears the date of the
17th of March, 1788. The remaining forty-nine essays
were completed early in the following May, and on the
28th of that month were published as a separate volume.
On the 17th of June publication in the newspapers was
1 This fact pretty thoroughly disposes of a number of American
writers who have asserted that Hamilton's views as presented by him to
the convention were impracticable.
2 " The Federalist " consists of eighty-five papers. The distribution
of the authorship has long been a matter of dispute ; twelve of the num-
bers may have been written either by Hamilton or by Madison. From
the best evidence we have, the assignment seems to be as follows : to
Hamilton fifty-one, to Madison fourteen, to Jay five, to Madison and
Hamilton, jointly, three, to Madison or Hamilton twelve; see H. C.
Lodge's " Critical Paper on the Authorship of ' The Federalist,' " in the
introduction of his edition of it.
THE UNITED STATES 37
resumed, and completed on the 15th of August; thus the
first volume of " The Federalist " was in print before the
second was written. It was on the receipt of this first
volume that Washington wrote to Hamilton, as quoted at
the opening of this chapter.
The burden of the argument running through the essays
concerns an alternative : the adoption of the Constitution
or the dismemberment of the Union. Jay, who at this
time was secretary of foreign affairs, and whose famil-
iarity with them made him an authority, wrote of the
American confederation as one of the governments of the
world, which, organized in time of war, had proved in-
effective under the tests of peace. Several confederacies
had been suggested as the remedy for political ills in
America, but the true remedy, he wrote, was a federal
government vested with sufficient powers for general and
national purposes. United America would be the best
security against foreign hostilities. Only through an effi-
cient national government could treaties be made, or the
violation of them be punished. If foreign relations were
under the control of the national government, the states
would not be tempted to commit injustice or breaches of
faith. The nearness of the states to the territory of Spain
and Great Britain ^ was a constant menace to the public
peace. The national government would not be affected
by local interests, but would promote the welfare of the
whole. Availing itself of the experience of the ablest men
of the whole country, it would follow a uniform policy of
administration, which would be impossible if several con-
federacies were formed. " When a people or a family
divide," wrote Jay, " it never fails to be against them-
selves " ; therefore, the first duty of the American people
was to form a more perfect union. -
Jay's papers on the desirability of a union under a
strong national government follow Hamilton's introduc-
tion,^ in which the general plan of the essays is outlined.
Though Hamilton's essays, which form the greater portion
of the entire work, touch upon nearly every detail in the
* I.e. to Florida, Louisiana, New Spain (Mexico, California), Canada.
2 " The Federalist," Nos. II, III, IV, V.
3 Id. No. I.
622 li fJ
38 A CONSTITUTIONAL HISTORY OF
proposed plan of government, the general course of his
argument is direct and easy to follow. In both a political
and an economic sense, the plan of government embodied
in the Constitution would, he said, be the most economical
for the American people to institute, and chiefly because
it provided adequate protection of the paramount interests
of the nation. One national government, supreme in its
jurisdiction, would be cheaper than several confederacies;
for each of these would not only be compelled to maintain
a separate political system, but also to meet the expenses
which rivalries, jealousies, and personal animosities, inci-
dent to adjoining republics, would inevitably produce ; in
proof of which Hamilton cited the civil dissensions which
had broken out in Massachusetts, under Daniel Shays, in
1786; those in the Wyoming valley in Pennsylvania, be-
tween the Connecticut emigrants and those claiming land
under a Pennsylvania title in the same year ; and those in
western North Carolina, between that state and the people
of Franklin, in 1787.^
Could hostile confederacies preserve the peace better
than the states ? Undoubtedly not, because the danger of
wars would be increased. States unfavorably located,
and unable to share in the advantages of ports of entry,
would unite in hostile groups. No state would be willing
to pay tribute to another. Independent and sovereign
states, therefore, meant ceaseless war ; from which pros-
pect the inference lay that the more perfect the union of
the states the less provocation there would be for war.
Union alone would prevent them from falling into irrec-
oncilable factions ; thus in every sense the formation of
the Union complied with the dictates of a true political
economy.
And here Hamilton answered an objection which had
been made to the Constitution, — that it did not provide
against standing armies. ^ A firm union would remove
the tendency toward war. Exemption from the need of
armies would thus become a powerful, if not the chief
deterrent of domestic faction and insurrection ; there-
fore, it was unnecessary to provide in the Constitution
1 "The Federalist," No. VII. 2 i± j^^. VIII.
THE UNITED STATES
39
against standing armies. The people were fully protected,
in this regard, by the limitation on Congress to provide for
an army for a longer period than two years.^ The public
liberties could not be overturned in so brief a time. The
plan gave ample protection to the liberties of the people
by its distribution of civil power into distinct departments,
by its maintenance of checks and balances in legislation,
and by its institution of courts, composed of judges hold-
ing offices during good behavior and thus being inde-
pendent. But above all the system was based upon the
direct representation of the people. It was their govern-
ment, was subject to their will, and was responsive to
whatever changes they might see fit to make in it.-
Montesquieu had maintained in his " Spirit of Laws,"
that a confederated republic could not extend over a large
country because the jealousies inevitable among confed-
erated states would constantly tend to limit the extension
of its jurisdiction.^ The eminent Frenchman's criticism,
Madison explained, did not apply to the proposed plan.
There was a distinction between a national union and a
confederacy; between a mere consolidation of states and
a union of states upon the principle of representation.*
The mechanical organization of the national government
tended to prevent the existence of factions,^ and, there-
fore, to remedy the fatal propensity of republican govern-
ments. Madison remarks that it is natural for men to
hold different opinions, and especially on government;
whence it follows that the first object of government is
to protect the faculties by which these opinions are
formed. Government should protect both the rich and
the poor, and justice should hold the balance between
parties. No faction can permanently settle the gravest
questions which arise in a state; namely, the apportion-
ment of taxes, the regulation of commerce, and the en-
couragement of home manufactures. Interests apparently
so irreconcilable as these can be settled only by enlight-
1 Article T, section 8, clause 12.
2 "The Federalist," No. IX.
8 The " Spirit of Laws," book IX, chap. i.
4 " The Federalist," No. XIV.
6 Id. No. X.
40 A CONSTITUTIONAL HISTORY OF
ened statesmen, and yet enlightened statesmen are not
always to be found in a country, whether great or small.
For this reason the form of the state, that is, its mechan-
ical organization, he believed, should, as far as possible,
contribute to the solution of the problem. If a state has
no enlightened leaders, it must be saved from itself, if
possible, by the form under which the principles of its
government are administered.
This emphasis of the mechanics of government, the
mere form of the state, is made throughout " The Federal-
ist," and reflects the dominant political thought of the
times in America. Madison calls it the great mechanical
power in government.^ He argued, as did Hamilton and
Jay, that there is a necessary connection between the char-
acter of a government and the form which the government
takes. And this harmony between the principles and the
form of republican government was attainable, in Hamil-
ton's opinion, either by awakening like passions and
interests in the majority of the people, or by securing a
mechanical organization in the state which would prevent
concert in oppressive measures. As the first is impossible,
the second must be sought ; ^ whence his emphasis of the
value of the mere form of republican government. The
form proposed in the national Constitution was, he de-
clared, the practical approximation to this ideal.
By the form of the government is understood the divi-
sion of its functions, the separation of its parts, and the
relation existing among them. And, first of all, the form
is republican because it is representative ; the legislative,
the executive, and the judicial embodying and represent-
ing the will of the people in the direction and control of
the public business. The parts are not independent. The
legislative power is vested in Congress, yet the chief exec-
utive participates in legislation. The judicial power is
vested in one supreme court and in inferior courts ; but
the judges are appointed by the President with the consent
of the Senate, and are removable on impeachment by the
House of Representatives and conviction by the Senate.^
The President is removable in the same manner.
1 "The Federalist," No. XIV. « Irl. No. X.
* Article I, section 2, clause 5 ; section 3, clauses 6 and 7.
THE UNITED STATES 41
This statement of the distribution of the powers of the
government does not now give an adequate idea of what
the authors of " The Federahst " meant by the importance
of the civil form. They could not have, save in theory, an
extensive knowledge of the actual working of the form
they advocated in administration. To them the principles
of the government were clear, and the form was, as it
were, wedded to the principles. Adherence to the form,
therefore, meant adherence to the principles; whence it
followed, as a practical matter, that the authors of " The
Federalist " extolled the concrete form of the proposed
government, because in supporting the form the American
people would secure the benefits of the principles on which
the form is based. They referred to the government as
it would be in actual operation, and to the Constitution as
a practical working system ; so they emphasized provi-
sions which we inherit as long accepted facts. The two
Houses of Congress are not chosen at the same time nor in
the same manner, nor for the same term, nor to perform
at all times the same duties. The President is elected in
still another way to perform different duties and for a
different term. The courts are organized in yet a different
way. The government is so composed that there will be
no lapse or hiatus in any department. The Constitution
makes provision for a continuing system in every depart-
ment ; it is planned to be perpetual, but it depends directly
upon the will of the people for its perpetuity.
The evils which government is designed to prevent,
or to overcome, are a constant element in human society ;
and the best that can be hoped for in government will be
realized under that civil form, which, in actual operation,
realizes this purpose with the least violence of principle,
and to the greatest advantage of the people. The authors
of " The Federalist " did not deny that government is an
artificial thing ; they nowhere claimed, as is often claimed
in our day, that it is an organism. They viewed it as an
agreement, or compact, made for a specific purpose.
Madison's notion, — and Webster held to it after him, —
that the people must be saved from themselves, is a
confession of belief in the mechanical theory of govern-
ment which prevailed at the time that our Constitution
42 A CONSTITUTIONAL HISTORY OF
was made. That notion belongs, as many now believe, to
a creed outworn. Whatever may be said of the truth of
that notion as a philosophical proposition, it proved a
working theory in American government. The authors
of " The Federalist " could do no more than argue that the
national system proposed in 1787 would secure the ends
outlined in the preamble to the Constitution : that it would
" form a more perfect union, establish justice, insure
domestic tranquillity, provide for the common defence,
promote the general welfare, and secure the blessings of
liberty."
When the Constitution was framed, that trust in the
wisdom of the people which we find expressed commonly,
by American statesmen through the nineteenth century,
and notably in the time of Lincoln, did not exist. On the
contrary, the makers of the Constitution, with the possible
exception of James Wilson, repeatedly showed during
the debates of the convention their lack of faith in the
capacity of the people to govern themselves wisely. Most
conspicuous among those who doubted the capacity of the
people for self-government was Elbridge Gerry. This
distrust of popular government was in the air at the close
of the eighteenth century, and must be taken into account
in any attempt to trace the growth of popular govern-
ment in America. This distrust lies at the bottom of the
insistence which Hamilton and Madison put upon the
importance of the mere form of the government, — the
mechanics of the state.
The arguments in " The Federalist " were advanced
to show that the adoption and preservation of the repub-
lican form, as embodied in the Constitution, was essential
to the welfare of the American people. The L^nion must
be established, otherwise America would be ruined. And
first, without the Union, the industrial prosperity of the
country would be destroyed.^ A national government like
that proposed could alone protect the commerce and man-
ufactures of the country. This meant in brief, that the
war powers and the resources and functions of the
national government must be adequate to the protection
of the people.
1 "The Federalist," No. XI.
THE UNITED STATES 43
State experience under the Confederation had proved
the impossibiHty of supporting a general government by
direct taxation.^ Laws levying direct taxes had multi-
plied, but the state treasuries remained empty. The sys-
tem of direct taxation had ruined trade. Excises, that is,
internal indirect taxation, had proved unpopular, there-
fore the chief source of national revenue must be a tax
upon imports. The system of taxation must be applied
for the benefit of the people at large, and that could
best be done under a general union. The national gov-
ernment could collect such a tax more cheaply than could
thirteen separate state governments."
" The .Federalist " emphasizes the distinction between
a confederation and a national government : ' the first
'being based upon civil corporations, which in America
were the several states ; the second being founded upon
the people of the country, irrespective of their state affili-
ations. A confederation addresses itself to states, repre-
sented by legislatures and governors, and executes its
laws indirectly through them. A national government
addresses itself directly to individuals and executes its
laws through and upon them. The defect in a confed-
eracy is the lack of a sanction to its laws ; in a national
government the decrees and purposes of courts of law can
be enforced directly upon the individuals affected by them.
As large bodies of men act with no more justice than do
individuals, the civil harmony in a confederation is less
than in a national government, and harmony is preserved
by the form of the government as well as by the self-
interest of the individuals. The principal danger to which
a confederation is subject is the secession of its members,
the eflfect of which is the dissolution of the Union, because
no member of it has power to control the adherence of
the rest.*
Hamilton, in analyzing the defects of a confederation,
dwelt upon its tendency to degenerate into a military
despotism. ° The only means to prevent its disruption
would be in the last resort, — the coercion of arms, which
1 "The Federalist," No. XII. 2 i^i. ^o. XIII.
8 Tfl. No. XV. * Id. No. XVI.
5 Id. Nos. XVII, XVIII.
44 A CONSTITUTIONAL HISTORY OF
means civil war. In a national government peace and har-
mony might be preserved by the coercion of laws ; that is,
by the adjustment of legislation to the changing wants of
the people.
Many of the opponents to the national plan, in 1788,
declared that the proposed government would be too
powerful and would absorb the states. Hamilton and
Madison thought it far easier for the state governments
to encroach upon national authority than for the national
government to encroach upon the states, and they based
their opinion upon the greater degree of influence which
the state governments would possess immediately with the
people, because of their closer relations with them. From
this it followed that until the national government exer-
cised the same means as the states, and possessed the same
powers of reaching individuals, it would be subordinate
to the state governments.^ So Hamilton argued that
there could be but one remedy for the weak attachment
of the people to their national government, and that was
a better administration of the national government than of
the state governments. The strength of the new govern-
ment would be tested by the eflficiency of its administra-
tion. This is the grand political deduction from " The
Federalist."
" The streams of national power flow immediately from
that pure, original fountain of all legitimate authority, —
the consent of the people themselves." ^ This declaration
by Hamilton is in principle the keynote of our national
system, and the principle it figures runs through all the
great decisions of the supreme court on the nature of our
government.^
The Anti-Federalists, in the ratifying conventions,
made common objection to what they called the provision
in the Constitution for a standing army.'' The answer in
" The Federalist " is that a small army is necessary for
the protection of the frontier, and that a navy is essential
1 "The Federalist," No. XVT. 2 i^_ No. XXIT.
' It is applied and elaborated bv Chief-Justice Marshall, in McCul-
louph V Maryland, 4 Wheaton, 316 (1819), and again in Cohens v. Vir-
ginia, 6 Wheaton, 264 (1821).
* Article I, section 8, clause 12.
THE UNITED STATES 45
to the commercial welfare of a free people.^ A person
writing on the subject to-day would speak of the people
of the United States as constituting the equivalent of a
standing army. Our population is now more than one
hundred millions and represents, practically, an irresist-
ible power. The economic force of America in the world
to-day is incalculable; it is sufficient, if justly utilized, to
maintain the peace of the world. " The Federalist,"
however, makes no such reference or explanation. The
army and the navy, made possible by the Constitution,
were to be used to guard the frontiers and to protect the
commerce of the country. The Anti-Federalists empha-
sized the objection to a standing army and made vigorous
references to the attempt of Great Britain, in 1776, to
coerce the colonies. They did not, or would not, conceive
of the government of the United States as being the gov-
ernment of all the American people. They conceived it
to be a thing apart from the people, and therefore its
powers should be reduced to the lowest terms. In defin-
ing the provision for an army and navy, Hamilton applied
his usual economic test : a national army and navy would
be less expensive and more efficient than ships and troops
supported by the several states. They could be directed
more effectively than state forces, especially as they were
to be under the charge of a commander-in-chief.^
At the time the Constitution was made, the tendency in
constitutional reform was but slightly toward the limita-
tion of the power of the legislature, but strongly toward
a limitation of the power of the executive.^ Hamilton
held to the principle that " it is better to hazard the abuse
of confidence than to embarrass a government and en-
danger the public safety by impolitic restriction on the
legislative authority." * To this extent, at least, he was
a democrat, that he would trust the people to watch over
their own interests. He considered the danger, that the
civil authority would be subordinate to the military, as
passed ; indeed, the peril was rather the other way. But
he concluded that public confidence in the government
1 " The Federalist," No. XXIV. 2 id. No. XXV.
3 See the chapters on the state constitutions, /wA
4 " The Federalist," No. XXVI.
46 A CONSTITUTIONAL HISTORY OF
and the obedience of the people to it would be proportioned
to the goodness or badness of its administration; and
here he left the whole matter/
" The Federalist " presumes that the national govern-
ment will be in the hands of men superior to those who
direct the affairs of the several states, because of the
larger questions involved; and this, whether these men
were chosen directly by the people or indirectly by the
state legislatures. But on this point " The Federalist "
spoke to a doubting people who had quite lost confidence in
federal unions because of the failure of the Confederation.
For some time before its collapse, in 1 786-1 787, the ablest
men in the country were in the service of the states, and
it seemed doubtful that service under the United States
would ever again attract them. Washington found it
difficult to secure the right kind of men to fill the offices
in the new government. In this respect men and things
have changed ; federal offices are now preferred to state
offices. Hamilton anticipated this. He believed it would
follow, as soon as the most important interests of the indi-
vidual were in any way identified with the organization
and interests of the national government.
A common objection of the Anti-Federalists to the
Constitution was the power of taxation which they asserted
it gave to Congress. They claimed that the power was
unlimited, and would in all probability be abused. The
reply of " The Federalist " was complete : " Money,"
says Hamilton, " is, with propriety, considered as the
vital principle of the body politic ; as that which sustains
its life and motion and enables it to perform its most
essential functions. A complete power, therefore, to pro-
cure a regular and adequate supply of it, as far as the
resources of the community will permit, may be regarded
as an indispensable ingredient in every constitution.
From a deficiency in this particular, one of two evils must
ensue: either the people must be subject to continual
plunder, as a substitute for a more eligible mode of supply-
ing the public wants, or the government must sink into a
fatal atrophy, and in a short course of time perish." ^
1 "The Federalist," No. XXVII. 2 id. No. XXX.
THE UNITED STATES 47
And he laid it down as a political maxim " That in the
usual progress of things, the necessities of a nation in
every step of its existence will be found at least equal
to its resources." ^ From this follows the inference that
the power of the general government to utilize its re-
sources should be unlimited ; therefore there should be
an unlimited power of taxation. The national govern-
ment would thus secure the first condition of maintaining
public credit.
The exercise of the power would be the test of con-
gressional discretion. In the exercise of this discretion
the people themselves would bear the responsibility, for
they would select their own representatives. The con-
trolling principle in the exercise of the taxing power,
Hamilton maintained, is the same as that which prevails
in the organization of the government itself: a national
government must contain within itself every power that
is requisite to the full accomplishment of the objects
committed to its care and to the complete execution of
the trusts for which it is responsible, and be free from
control, save a regard to the public good.^ He deduced
three principles of administration from his general prin-
ciple of taxation : first, that as there can be no possible
limits assigned to the casualties and dangers to which
a government may be subject, the power of providing
against them should have no other bounds than the exi-
gencies of the nation and the resources of the community ;
secondly, that as revenue is the means for meeting these
exigencies, the power for procuring it should be unlim-
ited ; and thirdly, that the federal government must of
necessity be invested with an unqualified power of taxa-
tion in the ordinary modes pursued by governments ;
which last conclusion he based upon the unhappy experi-
ence of the people under the Articles of Confederation.'
These maxims of administration are only a condensation
of the principle of which the entire " Federalist " is an
elaboration, — that in government the means must be
adequate to the ends proposed.*
1 "The Federalist," No. XXX. 2 jj. Nq. XXX F. s ij.
* This principle was applied by Chief-Justice Marshall, in McCullough
r. Maryland, 4 Wheaton, 316.
48 A CONSTITUTIONAL HISTORY OF
To the common objection of the Anti-Federalists, that
the proposed national government might usurp powers
dangerous to the people, " The Federalist " made one
conclusive reply : " All observations founded upon the
danger of usurpation ought to be referred to the com-
position and structure of the government, not to the
nature or extent of its powers." ^ In other words, no
matter what may be the form of our national government
it must of necessity possess adequate powers, and of these
that of taxation is of first importance. The unlimited
power in the national government to levy taxes does not
conflict with the power in the legislatures to provide state
revenues. The people delegate the taxing power to two
bodies of men, — Congress and the state legislatures, and
rely upon the discretion of these neither to confuse nor to
abuse their authority. The federal convention was very
skilful in avoiding a possible collision between the state
governments and the national government in the matter of
taxation. No limitation of the power of the states to tax,
found in the Constitution, in any way deprives them of
the power to raise an adequate revenue for strictly state
purposes.^ The prevention of excessive taxation is the
preservation of taxable resources.^ If a tax upon an
article is exorbitant, its use will cease, or the law will
be evaded. In either case revenue fails.
The authors of " The Federalist " based their expo-
sition of the administration of national finances upon the
desirability of a tarifif for revenue. The system of taxa-
tion which Congress would be likely to adopt would
bring about a national revenue derived chiefly from duties
on imports, and, to Hamilton's mind, a system of this
kind was more likely to divide the burden of tax equi-
tably among the people than any other that could be
devised. This is a point on which men have difl!^ered,
and their conflicting opinions lie at the bottom of the
doctrines which political parties have enunciated in this
country on the subject of revenue, taxation, and manu-
factures, now for more than a century.
1 "The Federalist," No. XXXI.
2 For an elaljorate analysis and discussion of this point, see Ex parte
Siebold. too U. S. -^71.
« "The Federalfst." No. XXXV.
THE UNITED STATES 49
"Among the difficulties encountered by the (federal)
convention," says Madison, " a very important one must
have lain in combining the requisite stability and energy
in government with the inviolable change due to liberty
and to a republican form." ^ Th£. history of energetic
governments is the history of monarchies. Confedera-
cies and all liberal governments have usually lacked
energy. It was a problem at the time when our Consti-
tution was made, whether the energy requisite to a gov-
ernment could be secured in one of republican form.
The authors of " The Federalist " argued that the prob-
lem had been solved in the Constitution of the United
States by the separation of powers and the definition of
functions, — that is, by the adoption of what they called
" a system of checks and balances." Madison defines a
republic as " a government which derives all its powers
directly, or indirectly, from the great body of people,
and is administered by persons holding office during their
pleasure, for a limited period, or during good behavior." ^
The national government rests upon the people; is re-
publican, that is, representative in form ; contains within
itself the regulation of its own energy for its control or
direction of the public business, and is responsible to
the people.
The means by which the government is thus made re-
sponsive to the public will springs from its organization.
The terms for federal officers vary ; their powers are
defined, and the operations of the government itself are
divided and classified. Thus we come back to the me-
chanical arrangement of the government as the means of
constituting a system of checks and balances for prevent-
ing the abuse of power. The foundation of the govern-
ment of the United States is federal because it was ratified,
not by the individuals who compose the nation, but by the
people grouped in states. It was founded neither by the
decision of the majority of the people, nor, adds Madison,
of a majority of the states, but by the assent of a definite
number of states.^ Its powers are in part from a national,
in part from a federal source; those exercised by the
1 " The Federalist," No. XXXVII. a Id. No. XXXIX.
• Constitution, Article VII.
4
50 A CONSTITUTIONAL HISTORY OF
Senate from a federal ; those exercised by the President
and by the national judiciary from a national; therefore,
the sources from which the powers of the United States
are derived are neither wholly federal nor wholly national.^
In its operation, the government is national, not federal,
because it executes its will directly upon the citizens in
their individual capacities. In the extent of its powers it
is federal, not national, because they are delegated, and
*' its jurisdiction extends to certain enumerated objects
only, and leaves to the several states the residuary and
inviolable sovereignty over all other objects." ^ The pro-
cedure in amending the form of government is partly
national and partly federal. An amendment must be
proposed either by Congress, which would be a national
procedure, or by conventions of the states, — a federal
procedure ; and it must be adopted by a prescribed num-
ber of states, — a federal act.^ The government of the
United States is wholly national, therefore, only in the
operation of its powers. In its foundation, in its source,
in the extent of its powers, and in the mode of its
amendment it partakes both of national and of federal
characteristics.
1 "The Federalist," No. XXXIX. 2 id.
8 The fifteen amendments which have been adopted have emanated
from Congress ; although the first ten were compiled, as it were, from
the one hundred and sixty-one, proposed, in one form or another, by the
ratifying conventions in 1 787-1 788.
THE UNITED STATES 51
CHAPTER IV
First Principles (Continued)
The principle being established that a government must
possess powers adequate to the ends which it seeks to
attain, it follows that the specification of these powers,
either directly by enumeration, or impliedly by adminis-
tration, will be largely a matter of expediency. The prob-
lem is practically a political one, which must be solved in
the best manner possible from time to time. But the
problem involves, as Madison expresses it, " questions of
a very delicate nature." ^ Throughout " The Federalist "
the national government is usually termed the Confedera-
tion or the Confederacy, for the word " national," in the
sense in w^hich it is now employed, did not come into
common use until after i860. One of the questions of a
very delicate nature of which Madison speaks, is of the
right of the federal government to coerce a state in case
of its secession. He offers no direct answ^er to the prob-
lem; he conceives of the Constitution as a compact be-
tween the states, and that if the time ever should come
when a member of the Union would attempt to secede,
it would " find it a difficult task to answer the multiplied
and important infractions " with which it might be con-
fronted. This means, if it means anything, that the
difficulties which the secession of a state would entail
upon it would be so great as practically to prevent seces-
sion. The authors of " The Federalist " relied upon the
provision in the Constitution for its amendment as a pre-
ventive of secession. -
The opponents of the Constitution reiterated their fears
of the abuse of power by the general government. The
answer of " The Federalist " is comprehensive and com-
1 "The Federalist." No. XLIII. ^ ij. No. XLIX.
52 A CONSTITUTIONAL HISTORY OF
plete : that in government it is " a received and well-
founded maxim, that where no other circumstances affect
the case, the greater the power is, the shorter ought to be
its duration, and conversely, the smaller the power the
more safely may its duration be protracted." ^ The entire
change of the House of Representatives every two years,
if the people so will ; the retirement of the President after
a term of four years or sooner, if he should be impeached,
and the retirement of one-third of the Senate every two
years, illustrate the practical working of its mechanisrn.
The organization of the government makes it difficult, if
not impossible, for those in power to abuse it, at least
for a long period of time. The principle thus laid down
in " The Federalist " was stated in somewhat difficult
language, but perhaps more forcibly later by Lincoln:
" By the form of the government under which we live
this same people have wisely given their public servants
but little power for mischief ; and have with equal wis-
dom, provided for the return of that little to their own
hands at short intervals. While the people retain their
virtue and vigilance in administration, only the extreme
of wickedness or folly can very seriously injure the gov-
ernment in the short space of four years." ^
Objection was made to the Constitution, when it was
before the people for ratification, that it did not provide
an adequate popular representation ; that the membership
of the two Houses of Congress was too small. Comment-
ing on this objection, " The Federalist " remarks on the
principle which should be followed in representation :
that the legislative body should be sufficiently large to
guard against too easy a combination for improper pur-
poses, and sufficiently small to avoid the abuses and
interference of the multitude.-'' The number of members,
therefore, in either House, should depend upon the proper
requisites for a working legislative body quite as much
as upon any strictly mathematical basis of representation ;
and this rule has been followed since 1850, in determin-
ing the size of the House of Representatives. Of course
1 " The Federalist," No. LII.
2 First Inaugural ; Works, vol. ii, p. 7 ; Richardson, vol. vi, p. 11.
8 " The Federalist," No. LV.
THE UNITED STATES 53
the number of senators is determined by the number of
states.
A more serious objection was made by the Anti-Feder-
ahsts : that the House of Representatives would make
legal discriminations in its own favor, or on behalf of a
particular class. " The Federalist " answers that such an
invidious discrimination is against the genius of the whole
system proposed.^ The laws of Congress must be of a
general nature, or, if of practical application, be in sub-
stance and spirit a component part of general legislation.
The preventive of odious legislation by Congress must be
the same as the preventive of unjust taxation : that is, the
wisdom and discretion of the law makers. The exclusive
power of the House to originate money bills was regarded
by Hamilton as the most complete and effective weapon
with which any constitution could arm the immediate
representatives of the people for obtaining a redress of
every grievance, and for carrying into effect every just
and salutary measure.^ If in practice this exclusive power
has not proved so strong a check as the authors of " The
Federalist " anticipated, the effect does not diminish the
relevancy and force of their argument. In the eighteenth
century, and especially when the first American consti-
tutions were framed (i 776-1 789), the exclusive right of
the lower House to originate money bills was conceived
to be the chief security of the people.^ The authors of
" The Federalist " in making up their argument on this
point merely utilized a prevailing opinion of their time.*
That the proposed national government contains within
itself the means of its preservation is a major premise of
" The Federalist." ^ It is essential to the exclusive work-
ing of any government that it possesses practically un-
restricted power. In a representative government like
1 "The Federalist," No. LVII. 2 ij. No. LVIII.
" See chap. v.
* The feeble foundation of this popular belief and the impotency in
practice of the exercise of the exclusive right by the house to origi-
nate money bills was soon recognized by the people. The state consti-
tutions adopted after 1820 usually gave either house the right to originate
money bills. The protection of the people lies in the exercise of discre-
tion by the legislature, whether state or natioival, and whether the powers
granted are common or exclusive.
6 "The Federalist," No. LIX.
54 A CONSTITUTIONAL HISTORY OF
our own, the great organisms, its executive and legislative
branches, are the free choice of the people. The source
of danger is in the control of elections by violence and
corruption. The preservation of the national govern-
ment, therefore, means practically, with us, the preserva-
tion of the purity and freedom of elections.^ Hamilton
and his colleagues in " The Federalist " do not emphasize
the vital importance of the purity and freedom of elec-
tions. The subject was one of which they could not speak
authoritatively, because at the time " The Federalist "
was written the Constitution was not yet ratified. It
might reasonably be expected that after the experience
of the revolution the American people would be watchful
of their own interests. Generally speaking, flagrant vio-
lations of election laws were not frequent until after the
extension of the sufifrage to the negro in 1867; and in
1787 universal suffrage was not advocated by any re-
spectable body of people. Indeed, universal sufifrage at
that time, as the debates in the federal convention show,
was feared rather than desired. The founders of our gov-
ernment were familiar with a limited sufifrage, guarded
by property, and by racial, and in some states, by religious
qualifications.^ The whole matter of the control of the
suffrage was left to the states.
When, in " The Federalist," it is said that the national
government should contain within itself the means of its
own preservation, its authors were thinking of the organ-
ization and mechanical arrangement of the national gov-
ernment ; its House of Representatives, chosen by the
voters in the several states ; its Senate, chosen by the
state legislatures ; its President, chosen by a special body
of electors; and its judiciary, appointed by the President
with the consent of the Senate. In other words, they were
thinking of a federal not of a national government. Tliey
were not thinking of national citizenship as the primary
source of national authority.
1 Ex parte Yarborough, no U. S. Reports, pp. 651-667; see also
" Kent's Commentaries," vol. i, p. 201. (Twelfth lulition.)
"^ For an account of the suffrage in the eighteenth century in America,
see the author's " Constitutional History of the American People, 1776-
1850," vol. i, chaps, iii, vii, xii.
THE UNITED STATES 55
The federal character of the general government is
illustrated in the Senate, which, " The Federalist " de-
clares, is " a constitutional recognition of the portion of
sovereignty remaining in the individual states, and an
instrument for preserving that residuary sovereignty." ^
Now it will require but little reflection to reach the
conclusion that to form a clear idea of " residuary sov-
ereignty " is very difficult ; indeed, the phrase is self-
contradictory ; sovereignty means simply absolute and
unlimited power. The term " residuary " signifies a limi-
tation and destruction of sovereignty, yet the notion of
residuary sovereignty, as a paramount quality of the
state governments, has been sustained repeatedly by the
courts,^ and has become a working idea in the American
system. Practically, it means that the states control their
own strictly domestic aflfairs, and that with these the
general government has nothing to do. The recognition
of this local freedom and independence is called residuary
sovereignty in " The Federalist," and the phrase remains
one of vague but generally accepted meaning in our
political vocabulary.
The purpose of the Senate in our national system was
somewhat complex ; namely, to represent the several states
as political corporations, and to perform special functions ;
for example, to act as a court in cases of impeachment
and to participate with the President in the exercise of
the appointing power and in the making of treaties.
The principal reason for assigning it these special prerog-
atives was based on its permanency and size. The Senate
most nearly approaches a permanent body of any depart-
ment of the national government : its membership can
never be large and its members are elected for six years ;
relatively a long term. Hamilton, when discussing the
organization of the Senate in the federal convention,
urged life membership. He desired to approach as closely
as possible the organization of the House of Lords. His
search was for independence and permanency. But a leg-
islative term for life was not in harmony with the repub-
1 "The Federalist." No. LXII.
2 As in Texas v. White, 7 Wallace, 700 (1S68).
56 A CONSTITUTIONAL HISTORY OF
lican system, as understood in America. The term for
six years was a compromise. It is not because a senator
represents a state, but because he holds office for six
years that gives so great value to his functions. As
" The Federalist " expresses it, the Senate is a permanent
guarantee against " the mutability in the public councils
from a rapid succession of new members, however quali-
fied they may be.'' ^
The annual term for the legislature prevailed in all the
states at the time the national constitution was framed.
In Connecticut, during the colonial period, there were
for a time semi-annual elections of the legislature. The
annual term may be said to represent the conviction of
the American people in the eighteenth century, that the
law-making body should closely represent changes in pub-
lic opinion. Under the Articles of Confederation mem-
bers of Congress could be recalled by the legislatures,
which elected them, at any time, — a condition of affairs
which carried the democratic doctrine of representation
to an extreme, and which was one of the primary causes
of the collapse of the Confederacy. The evil results were
realized at the time the Constitution was made. " The
want of confidence in the public council damps every
useful undertaking, the success and profit of which may
depend on a continuance of existing arrangements. . . .
No government, any more than an individual, will long
be respected, without being truly respectable ; nor be truly
respectable without possessing a certain portion of order
and stability." ^
Here, too, " The Federalist " clearly indicates one of
the chief purposes in creating the United States Senate:
namely, to secure order and stability in the government.
In a monarchy, order and stability are secured largely by
distinct and fixed classes of people: the royal house, the
nobles, and the commons. In a republican government,
no such distinctions can exist ; for if they exist, there can
be no republican government. The framers of the Consti-
tution, therefore, had to work out devices and substitutes
for organizations which they had known all their lives
as Englishmen. The Senate was one of these devices.
1 "The Federalist," No. LXII. » Id.
THE UNITED STATES 57
It was the outgrowth of a conscious effort in America
to secure stability in legislation.
" The objects of government may be divided into two
general classes : the one depending on measures which
have single and immediate and sensible operation ; the
other depending on a succession of well chosen and well
connected measures which have a gradual and perhaps
unobserved operation." ^ In other words, some of the
objects of government are temporary, others permanent.
But it requires sagacity and large practical knowledge to
be able to discriminate and to determine what measures
shall be temporary and what permanent. Sooner or later
every government must determine what, in a general way,
its faxed policy shall be ; just as an individual must decide
in a general way on his course in life.
A democracy is by nature the most unstable form of
government, unless a fixed public policy, clearly outlined
in its constitution or its traditions, is adhered to ; or its
people, experienced in government, shall have formed the
unalterable habit of pursuing such a policy. Either of
these conditions is rare. Human nature is uncertain.
The idea is well expressed in the constitution of Massa-
chusetts of 1780, that government should be one " of laws
and not of men." This means in practical politics that the
mechanics or arrangement of the government will be such
as practically to prevent a dangerous departure from the
principle. A fixed public policy will be secured, if se-
cured at all, by the actual workings of the government.
The framers of the Constitution sought to secure this
result by a system of checks and balances ; that is, by
the actual working together of the executive, the legisla-
tive, and the judiciary departments. In the scheme the
Senate represents permanency and stability, and is de-
fended in " The Federalist " because it would possess, or
promise to possess, these quaUties. It promised to be
the chief factor in securing the most desirable thing
in government, — a fixed policy.
The participation of the Senate in the making of treaties
is defended in " The Federalist " by Jay, on the ground
that " the state legislatures who appoint the senators will
1 "The Federalist," No. LXIII.
58 A CONSTITUTIONAL HISTORY OF
in general be composed of the most enlightened and re-
spectable citizens ; there is reason to presume that their
attention and their votes will be directed to those men
only who have become most distinguished by their abili-
ties and virtue, and in whom the people perceive just
grounds for confidence. . . . The inference which nat-
urally results is that the President and senators so chosen
will always be of the number of those who best under-
stand our national interests, whether considered in rela-
tion to the several states or to foreign nations, who are
best able to promote those interests, and whose reputation
for integrity inspires and merits confidence. With such
men the power of making treaties may be safely lodged." ^
A popular assembly would be too large, too volatile, too
liable to prejudice; in other words, could not be trusted.
Treaties are matters often requiring secrecy and despatch :
requisites which could not be expected in a popular
assembly. The treaty-making power was therefore wisely
given to the President and the Senate.
The Anti-Federalists objected to the Constitution be-
cause it declares that treaties are a part of the supreme
law of the land : whence, they asserted, that the President
and the Senate would act " without an equal eye to the in-
terests of all the states." Jay observed that the opponents
of the system seemed "not to consider that the judgments
of our courts, and the commissions constitutionally given
by our governor, are as valid and as binding on all per-
sons whom they concern as the laws passed by our legis-
latures." But the most telling answer went deeper : " In
proportion as the United States assume a national form
and national character, so will the good of the whole be
more and more an object of attention, and the government
must be a weak one indeed, if it should forget that the good
of the whole can only be promoted by advancing the good
of each of the parts which compose the whole." Having
no private interests distinct from that of the nation, the
President and the Senate would be under no temptation
to imperil or neglect the nation by any exercise of the
treaty-making power, and the idea that the President and
two-thirds of the Senate would be open to corruption was,
1 "The Federalist," No. LXIV.
THE UNITED STATES 59
he said, " too gross and too invidious to be entertained.
But in such a case, if it should ever happen, the treaty
so obtained from us would, like all other fraudulent con-
tracts, be null and void by the law of nations." ^
Hamilton defended the plan for utilizing the Senate as
a court for the trial of impeachments on the ground of
economy.^ Some provision must be made for the trial of
impeached persons, and the question resolved itself into
a choice of agencies. The federal courts could not be
used because of the resulting confusion of judicial and
political functions. The House of Representatives could
not be used because its judgments would usually be par-
tisan. The Senate, consisting of men chosen for a long
term, and therefore being of more independent judgment
than the representatives, presumably offered the fewest
objections, and the remaining objections were largely
obviated by the requirement that wdiile sitting as a court
of impeachment the senators should be under oath ; an
additional obligation which it was believed would secure
the end proposed. The alternative was the delegation of
the authority to some new body: a course ruled out by
its expense. The Anti-Federalists' objections that the
Senate while sitting as a court of impeachment might
yield to corruption, was answered as Jay answered an
earlier objection, — that the idea was too gross to be
entertained. It will be noticed that the main reliance of
the authors of " The Federalist " for ability and upright-
ness among senators was on the manner of their selection :
they were to be picked men, chosen by the legislatures;
therefore, they were likely to be the ablest and most
desirable that could be obtained.
Hamilton, in speaking of the mode of the appointment
of the President, observes that it was almost the only
part of the system which escaped severe censure, and
which received the slightest mark of approbation from
its opponents.^ Even Richard Henry Lee, the most
aggressive critic of the Constitution, declared that the
efection of the President " was properly secured." " The
1 " The Federalist," No. LXIV. 2 id. No. LXV.
8 Id. No. LXVIII.
* " Letters of a Federal Farmer," vol. iii.
6o A CONSTITUTIONAL HISTORY OF
provisions respecting the President were the last settled
by the federal convention. At one time, as we know, this
part of the problem seemed insoluble : that the convention
thought of adjourning, and that finally, the matter was
settled by a series of compromises.
James Wilson wished to have the President chosen by
direct popular vote, but this idea was too novel in 1787
to win support. It was at first proposed that the Presi-
dent should be chosen by the national legislature ; then
a body of special electors was suggested as a means of
escape from corruption and intrigue. In the method of
choosing senators, pursued in Maryland in 1787,^ the
convention found a precedent for the method of choosing
the President finally adopted : namely, the choosing by
special electors. That both Federalists and Anti-Feder-
alists approved of this method shows plainly that the
idea of republican, or popular government in America
in the eighteenth century differed widely from the idea
which prevails in our day. The electoral college, as the
presidential electors are popularly called, has become
merely a registering machine, but it stands for an essential
quality of our national government ; namely, its federal
character. The President of the United States is chosen
by the people, voting by states ; that is, by a federal, not
a national act. For this reason the Anti-Federalists did
not object to the provision for presidential electors.
In all the ratifying conventions which suggested amend-
ments, many objections were made to the powers of Con-
gress. The substance of these objections was that the
state governments would be in constant danger from the
federal government ; in other words, that the so-called
residuary sovereignty of the states would be in danger
of being reduced to the lowest terms. The objections
were chiefly to the power regulating commerce, to the
power to control elections, and to the possible abolition
of slavery by the general government.
To all objections of this character the authors of " The
Federalist " gave answers more or less explicit : ^ first,
1 Under its first constitution (1776).
2 "The Federalist," Nos. LVIII-LXVI.
THE UNITED STATES 6i
that the powers delegated to Congress were necessary to
the ends proposed by the government itself ; and secondly,
that the abuse of these powers could speedily be corrected
by the people. The Anti-Federalist objections to the
power of the executive were answered in like manner.^
It was shown that the term of the executive office is too
brief and the limitation of his powers too explicit to
enable him seriously to endanger the safety or the liberties
of the country. The Senate would be a check upon the
appointing power. Congress itself could overrule the
veto and the President could be impeached, convicted, and
removed from office for high crimes and misdemeanors.
But the main reliance of Hamilton, for the excellence
of the proposed system, was on the administration of the
government. " The administration of government in its
largest sense," says he, " comprehends all the operations
of the body politic, whether legislative, executive, or
judicial; but in its most usual and perhaps in its most
precise signification it is limited to executive details, and
falls peculiarly within the province of the executive de-
partment." - The chief thing to be desired in adminis-
tration is stability, and this, he thought, would be secured
by the centralization of the executive authority in a single
person, — the President, — who would thus be clearly
marked as the one man responsible for the condition of
affairs. Here, as in other parts of the plan, the people
would have every advantage, for the President would be
of their own choosing.
Nothing is said, in " The Federalist," of political par-
ties ; their powerful influence and agency is not even
anticipated. No hint is given that the administration of
the government of the United States would fall under
the control of such organizations. " The Federalist " dis-
cusses the philosophy of the proposed civil plan, and is
in no sense a history of American party politics. We
turn to it for an analysis of the principles on which our
system of government rests, and for the opinions of the
Fathers concerning popular government. The true test
of a good government, continues Hamilton, is its apti-
1 "The Federalist," Nos. LXVII-LXXVII.
3 Id. No. LXXII.
62 A CONSTITUTIONAL HISTORY OF
tude and tendency to produce a good administration.^
This reminds one of Franklin's remark made near the
close of the federal convention, that there is no form of
government which may not be a blessing to the people if
well administered. In America the administration of
government has proved a party affair : a matter depend-
ing upon Democrats, Whigs, or Republicans as political
organizations.'
In the old Confederation, the state governments pos-
sessed a transcendent advantage in the ordinary adminis-
tration of criminal and civil justice for which the Articles
made no provision whatever. There were no federal
courts. Hamilton remarks in " The Federalist," that the
administration of justice " of all others is the most power-
ful, most universal, and most attractive source of popular
obedience and attachment. It is that which, being the
immediate and visible guardian of life and property,
1 " The Federalist," LXXVI.
2 Since " The Federalist " was written many books have appeared
discussing government iu America. Two may be said to have attained
the distinction of political classics : De Tocqueville's " Democracy in
America," 1844, and Kryce's "American Commonwealth," 18S8. The
first resembled " The Federalist " in attributing the excellence and the
vitality of the American system of government to the mechanical arrange-
ment as associated with the popular basis of the system. It attributes
great importance to the isolation of America, to the essentially religious
character of its people, and to their practical tendencies. But De Tocque-
ville sees more in the people themselves than in either their institutions
or their laws. Half a century later, in the second foreign commentary
on our institutions, emphasis is laid on the power and operations of
political parties rather than upon the political system as a philosophical
idea. Mr. Bryce attributes more to social conditions as a source of
political power or as adjuncts to the workings of political parties than to
the elements of mechanical organization dwelt upon so earnestly by the
authors of "The Federalist." They saw in the constitution of the
United States little more than a form of legal compact, a fiction agreed
upon, a scheme advanced by sagacious men to promote the general wel-
fare. Mr. Bryce sees in the system a mechanism, a political body, whose
parts and functions are analogous to those of living things. The three
descriptions of government in America, — "The Federalist," "Democracy
in America," and "The American Commonwealth," — seem at first to
^ave little in common, but upon close examination they are found to
irfccord with the ideas of government prevailing at the times they were
written. Hamilton, Mason, and Jay differ from De Tocqueville and
Bryce, because since the days of " The Federalist " men have come to
realize that government is not an abstraction but an organism, and that
the so-called departments of government are not mere arbitrary divisions
but correspond to necessary functions.
THE UNITED STATES 63
having its benefits and terrors in constant activity before
the public eye, regulates all those personal interests and
familiar concerns to which the sensibility of individuals is
more immediately awake, and contributes, more than any
other circumstance, to impressing upon the minds of the
people, affection, esteem, and reverence toward the gov-
ernment." ^ He calls the administration of justice " the
great cement of society," and attributes the weakness of
the old Confederation largely to its lack of a federal
judicial system.
Anti-Federalist objections to the judiciary were to the
manner of its organization and the probable extent of its
power. In the eighteenth century the people were fa-
miliar with the appointment of judges : none were elected ;
and they were also familiar with the life tenure of judi-
cial offices. The unknown quantity in the judicial de-
partment of the new government was " the partition of
the judicial authority between the different courts and
their relation to each other." ^
One of the ends aimed at in the Constitution was an
independence in the judiciary which could alone be se-
cured by tenure of office during good behavior and by
fixed salaries. These conserving elements are secured
by the Constitution. The Anti-Federalists objected to the
powers of the proposed judiciary because they seemed to
endanger the states and to trespass on the jurisdiction of
state courts. This raised the whole question of juris-
diction. In considering this question, " The Federalist "
goes directly to the point : that the purpose in organizing
the federal judiciary is the same as that in organizing the
legislative and the executive, — the peace of the Union.^
Having laid it down as a principle that every governrnent
must possess the means of executing its own provisions
by its own authority, Hamilton was led to the necessary
conclusion, " That in order to secure the inviolable main-
tenance of that equality of privileges and immunities to
1 "The Federalist," No. XVII.
2 Id. Nos. LXXVIII, LXXIX.
' Id. No. LXXX. Hamilton in this number calls the Union the Con-
federacy, a term in common use at the time and continued until the time
of the civil war.
64 A CONSTITUTIONAL HISTORY OF
which the citizens of the Union will be entitled, the
national judiciary ought to preside in all cases in which
one state or its citizens are opposed to another state or its
citizens. To secure the full effect of so fundamental a
provision against evasion and subterfuge, it is necessary
that its construction should be committed to that tribunal
which, having no local attachment, will be likely to be
impartial between the different states and their citizens,
and which, owing its official existence to the Union, \vill
never be likely to feel any bias inauspicious to the prin-
ciples on which it is founded." ^ Many cases must arise
in the settlement of which the state courts cannot be
expected to be impartial. The federal courts are the
proper tribunals for determining controversies which may
arise between different states and their citizens.-
Some of the Anti-Federalists objected to vesting the
judicial power in one supreme court of final jurisdiction.
They preferred to vest it in a branch of the legislature,
and notably in the Senate : a confusion of legislative and
judicial functions which Hamilton was quick to point
out. They asserted that if the federal courts were to be
allowed to construe the laws according to the spirit of the
Constitution, they would mould them into whatever shape
they might think proper; to which objection Hamilton
replied that there was not a syllable in the plan " which
directly empowers the national courts to construe the
laws according to the spirit of the Constitution, or which
gives them any greater latitude in this respect than may
be claimed by the courts of every state." ^ This conclu-
sion he arrived at from his understanding of the general
theory of a limited constitution applicable alike to the
government of the nation and to that of each state.
Another Anti-Federalist objection was to the possible
encroachment of the federal courts on legislative author-
ity, — a fear which Hamilton pronounced to be " in
reality a phantom." No encroachment was possible which
could in any sensible degree affect the order of the politi-
1 "The Federalist," No. LXXX.
2 The extent of the judicial power of the United States is explicitly
declared in the Constitution, Article III.
8 "The Federalist," No. LXXXI.
THE UNITED STATES 65
cal system ; a conclusion to which he arrived after con-
sidering " the general nature of the judicial power, the
objects to which it relates, the manner in which it is exer-
cised, its comparative weakness, and its total incapacity
to support its usurpations by force." The power of insti-
tuting impeachments was a complete security; the judges
could not possibly encroach upon legislative authority.
But the opponents of the plan objected to the pro-
visions for inferior courts, declaring that they were super-
fluous, and that the duties imposed upon them could be
as well, or better, performed by the state tribunals. To
this objection the answer was as before, — the purpose of
the framers of the Constitution to avoid local prejudices
and partisanship. State judges holding their office dur-
ing pleasure, or for a brief period, would not be sufficiently
independent to be relied upon for an inflexible execution
of national law.
Another objection which created much alarm in the
Virginia ratifying convention was that a state might be
sued by an individual in a federal court. This objection
raised the great question of sovereignty, and on this sub-
ject Hamilton said : " An entire consolidation of the
states into one complete national sovereignty would imply
an entire subordination of the parts ; and whatever
powers may remain in them would be altogether depend-
ent on the general will. But as the plan of the convention
aims only at a partial union or consolidation, the state
governments would clearly retain all the rights of sover-
eignty which they before had and which were not by that
act exclusively delegated to the United States." ^
He applied^ this doctrine in his answer to those who
objected to the judicial Article, — that it authorized a
suit to be brought against a state without its consent.
"It is inherent "in the nature of sovereignty not to be
amenable to the suit of an individual without its consent.
This is the general senSe and the general practice of man-
kind ; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every
state in the Union." ^ He concluded, therefore, that
1 "The Federalist," No. XXXII. « Id. No. LXXXI.
5
66 A CONSTITUTIONAL HISTORY OF
unless a state should surrender its sovereignty, the danger
asserted by the Anti-Federalists was purely imaginary.
He could see no purpose whatever in authorizing suits
against a state for the debts it might owe an individual,
because a recovery of the debt by a decision of the court
could not be enforced by the state; and here he left the
whole matter. His opinion was not sustained later by
the supreme court/ but was sustained by the eleventh
amendment to the Constitution, ratified in 1798.^
To the objection that the federal courts might tran-
scend their authority, Hamilton replied that the judi-
cial authority of the United States, as declared by the
Constitution, was particularly specified; that its jurisdic-
tion was limited by the terms of the instrument, and that
there could be no invasion of the rights of the states.^
It must be remembered that "The Federalist" was written
before the first ten amendments were adopted, one of
which, — the seventh, — is an explicit provision for trial
by jury; and another, — the fifth, — is equally explicit
in the trial of criminal cases. These two amendments
answer nearly every serious objection advanced by the
Anti-Federalists to the Constitution when it was before
the ratifying conventions. The able argument made by
Hamilton in " The Federalist," that the Constitution in
its original form did not abolish or diminish the right of
trial by jury, was not accepted by the country as final.
The Constitution left too much to implication ; the ancient
right of trial by jury must be declared in direct terms.
For this reason the seventh amendment was demanded
and added.
Equally ineffective with the argument in defence of the
omission to provide for jury trials was the argument of
" The Federalist," advanced to meet one of the most
serious accusations against the Constitution. — that it
contained no bill of rights. Hamilton asserted that the
Constitution itself was a bill of rights, and that in omitting
a bill in the ancient form it left out no more than did
some of the state constitutions." In vain did he argue that
1 Tn Chisholm v. Georgia, 4 Dallas (1793). ^ See pp. 105, 106.
3 " The Federalist," No. LXXXII. * Id.No. LXXXIV.
THE UNITED STATES 67
a minute detail of particular rights was less applicable
to a national system of government than to a system
intended for a single state. In his opinion the constitu-
tion of each state was a bill of rights to the national Con-
stitution and the Constitution would be the Bill of Rights
of the Union. This opinion was almost universally re-
jected. James Wilson indeed held it, but the public was
not convinced. The opposition may be said to have dic-
tated the seventh amendment.
While Hamilton was writing the last numbers of " The
Federalist," Virginia and New York were holding their
ratifying conventions. Virginia sent up a bill of rights
in twenty articles, and New York another in thirty-two.
A few months later, North Carolina demanded a bill in
twenty articles. The action of these states fairly reflected
Anti-Federalist sentiments on the subject of guarantee-
ing, in the new Constitution, the ancient and undoubted
rights commonly expressed in the bill of rights in the
state constitutions. Rhode Island, which assembled in
convention after the Constitution had been ratified and
the new government inaugurated, adopted a bill of rights
in twenty-one articles, and the Anti-Federalists in Penn-
sylvania, long before Hamilton's number on the judiciary
was written in " The Federalist," had adopted, at Harris-
burg, a bill of rights in fourteen articles. These five
bills of rights, in ninety-three articles, constituted the
quarry out of which Madison took the amendments ulti-
mately adopted as the first ten. But at the time Hamilton
wrote his opinion, in " The Federalist," that the Constitu-
tion was itself a bill of rights, he had no alternative.
He felt that the Constitution must be defended as it left
the hands of its makers.
In summing the teachings of this classic exposition,
"The Federalist," it is well to keep constantly in mind
that its purpose was to show the utility of the Union as
embodied in the plan of government which we call the
Constitution of the United States, and that this Constitu-
tion conforms to republican principles.
If it be asked. Where may a statement of these prin-
ciples be found? " The FederaHst " answers: in the state
constitutions. In these the principles of republican gov-
68 A CONSTITUTIONAL HISTORY OF
ernment were formulated before the national plan of
government was proposed. The several bills of rights in
these earlier instruments declare briefly the political ver-
ities upon which popular government is founded. But
these bills do not include the federal principles : these
the authors of " The Federalist " deduced from the struc-
ture and operation of the confederations known to history,
— and chiefly those of Greece and Holland.
It was not, however, upon the principles disclosed in
these confederacies, that the authors of " The Federalist "
relied for their principal support of the plan which they
were urging upon the American people ; rather did they
depend upon the plain analogy of the proposed plan than
upon the practically uniform plan in the state constitutions.
With these the people were satisfied, for they believed that
under the protection of these organic laws, their rights
were safe.
It becomes necessary, therefore, if one would under-
stand the various stages in the growth of popular govern-
ment in America, to examine the state constitutions in
force at the time when the national government was
formed.
THE UNITED STATES 69
CHAPTER V
THE COMMONWEALTHS
More than ten years before the national Constitution was
framed, or " The FederaHst " was written, the people of
the thirteen colonies transformed them into states, and
save in Rhode Island and Connecticut organized them
under written constitutions. The two New England states
which thus continued their civil organizations under their
ancient charters, possessed in them a working, written,
organic law, which required no change when the civil
affairs of these states were adjusted to the new order of
things. Rhode Island, on May 4th, and Connecticut, on
October 10, 1776, by act of assembly, declared that the
colonial order had ended and that colony had become
commonwealth.^ Meanwhile other colonies had acted or
were acting, and by 1780 were organized under written
constitutions.
Vermont, though not recognized by Congress as a state
until its admission into the Union in 1791, had at that
time been organized under a written constitution fifteen
years. Kentucky, admitted in 1792, and Tennessee, ad-
mitted in 1796, followed, in their constitutional organiza-
tion, — the one, that of Virginia ; the other, that of
North Carolina. By 1800, the sixteen states had framed
and adopted twenty-six constitutions, all conforming to
republican principles, as these were understood at the
time.^
The men, some seventeen hundred in number, who
framed these constitutions, included many of the most
eminent in the country : among them, Jefferson, Franklin,
1 The charter, in Connecticut, was supplanted by the constitution of
1818 ; that in Rhode Island by the constitution of 1842.
2 For the list of state constitutions and dates of their adoption,
see p. 301 (note).
70 A CONSTITUTIONAL HISTORY OF
John Adams, Jay, Gouverneur Morris, James Wilson,
Chancellor Wythe, Witherspoon, Read, Richard Caswell,
George Nicholas, John Breckenridge, and Charles Mc-
Clurg. The state constitutions reflect more perfectly than
does the Constitution of the United States the theories of
government which prevailed in America during the clos-
ing years of the eighteenth century. In " The Federalist "
we find the classic exposition of principles on which the
American system of government rests. In that work, as
we have already seen, much is said of the state govern-
ments. Indeed the purpose in writing " The Federalist "
was to show that the proposed federal government con-
formed to the principles on which the state governments
were founded. The national and the state instruments
were therefore in harmony : the one, applying republican
principles in a general way, for the welfare of the whole ;
the others, applying these principles in particular ways
for local purposes.
The state was conceived as a social compact ; typically
set forth in the Massachusetts constitution; formed for
the security of the natural rights of men ; typically ex-
pressed in the constitution of Virginia. The state was
conceived to exist for the benefit of the individual, and
individualism found expression in the words, " All men
are created equal." The thought behind these words was
the source of the revolt against feudalism. Out of the
effort to formulate a new theory of the state grew the
bills of rights which form the preambles to the state
constitutions : a body of propositions, of which that in
the Virginia constitution of 1776 is a type, formulating
the political dogmas of the age. These bills of rights
are the guarantees of the individual. The state exists
for his benefit.
The popular objection to the national Constitution, as
it came from the hands of its framers, was to its lack of
a bill of rights : an indication of the importance attached
to such a declaration ; and the Constitution was ratified
with the understanding that amendments, in the nature
of a bill of rights, would promptly be made.^ This insis-
^ See clia]). vi.
THE UNITED STATES 71
tence on the recognition, in the national instrument, of
the fundamental rights of the individual citizen is the best
evidence we have of the kind of government which the
American people established in the eighteenth century.
Each clause in a bill of rights in a state constitution is a
survival of numberless attempts to formulate a permanent
civil policy, and erribodies the result of a long struggle.
Indeed, a declaration of rights is an epitome of political
history. To trace through the centuries the history of
one of these propositions, for example, that on the right
to bear arms, — or on trial by jury, — or on the right of
revolution, leads the mind back to the beginnings of
constitutional government. Magna Charta,^ the Petition
of Rights,' the English Bill of Rights,^ and the American
constitutions * mark off epochs in the evolution of consti-
tutional government.
But the state constitutions went farther ; they laid
down the limits of power. As working models, this was
their supreme feature. They were the first written plans
of government, made by the people. They were the first,
in history, which actually worked. The constitution of
Massachusetts is the oldest written constitution now in
force. Amendment has not altered its fundamental
character. Yet this organic law dates back no farther
than 1780. This suggests that the age of written con-
stitutions is recent.
The first state constitutions were made by conventions,
or by legislatures acting as conventions, and, with few
exceptions, were promulgated. The earliest ones were
revolutionary, and imperfect, because hastily made.
Hence the adoption of new constitutions by most of the
states before 1800. Change or amendment was de-
manded, because the first constitutions did not sufficiently
limit the powers granted by the people ; or did not clearly
define the functions of the three departments, — legisla-
tive, executive, and judicial, — or did not specify the
terms, duties, emoluments, and manner of choosing
public officials. In other words, the older instruments
were lacking in administrative detail ; that is, in local
1 1215. 2 1628. 8 1689. i 1776.
72 A CONSTITUTIONAL HISTORY OF
fitness. The bills of rights were not changed, save by the
addition, here and there of provisions, which, in the heat
of the moment, were thought to embody permanent in-
terests ; as, for example, the provision respecting bound-
aries, in the constitution of Vermont, which state was
involved in a bitter boundary controversy with its neigh-
bors. Other temporary provisions 'occur in the early
bills of rights.^ Constitutional conventions have been
prone to insert in bills of rights, the most stable part
of a constitution, provisions of only temporary interest,
but advocated strenuously at the time by the dominant
political party. Usually, these provisions are dropped
by later conventions. He who will read with care the
bills of rights in our state constitutions will discover that
their essential character is derived from their recognition
of two doctrines : that of the social compact, and that
of the natural rights of individuals.
The American bills of rights are suggestively silent
concerning sovereignty. Save the reference to it in an-
other article of the constitutions of Massachusetts ( 1780)
and of New Hampshire (1784), which declares the rela-
tion of the state to the Confederation, the subject is not
mentioned. Looking backward, we can see how the true
concept of sovereignty must be worked out by events, by
the actual administration of affairs. No definition of sov-
ereignty, made in the eighteenth century, would have sat-
isfied the social and political conditions of the nineteenth.
The unwritten constitutions of the states ; the sentiments
and political opinions of the people, a knowledge of which
we derive from the writings, the correspondence, and the
political history of the time, prove that the prevailing
belief was in the " freedom, independence, and sover-
eignty " of each state. The federal government was
looked upon by the majority of the people as the agent
of the states, — indeed, as their creation. In the eight-
eenth century, the governments of the states, as Hamilton
declares in " The Federalist," held first place in the affec-
tions of the people. The national sentiments which now
cluster around the United States government were un-
1 See the first constitutions of Pennsylvania and Tennessee.
THE UNITED STATES 73
known. The change which time has wrought is best
illustrated by the clause in the bill of rights of the con-
stitution of Mississippi of 1890, which declares that the
supreme allegiance of the citizen is due to the government
of the United States.^ No such idea is suggested in any
state constitution of the eighteenth century. State sover-
eignty was unwritten law then as national sovereignty is
now.^ The popular concept of the national government
in the eighteenth century may best be learned in the
history of the alien and sedition acts, and that of the
Virginia and Kentucky resolutions. That concept is ex-
pressed in the oft-used description of the general govern-
ment, as one of " delegated powers," and the majority
believed that these powers were delegated by the states.^
After stating, in constitutional form, the political
dogmas of the age, the authors of these eighteenth cen-
tury instruments set forth the scope and powers of the
three departments of government, — legislative, execu-
tive, and judicial, — with manifest desire to co-ordinate
them, yet so to separate them that neither should perform
the functions of the other. This effort to separate the
three departments is well illustrated in the constitution of
Massachusetts, 1780, and that of Kentucky, 1792. The
separation in each state was incomplete.
English constitutional history consists chiefly in the
history of the struggle of the legislature with the crown,
and notably the struggle of the House of Commons.
That organ of government which controls the purse and
the sword of the nation is most vital to national existence.
At the time of the American revolution, Parliament had
won in the long contest with the crown ; therefore. Eng-
lishmen in America naturally conceived of the legislative
1 Compare the constitutions of Maryland and Nevada, 1864.
^ Justice Wilson's decision in Chisholm 7'. Georgia (1793), 2 Dallas,
419, and Chief-Justice Jay's decision, in this case, cannot be said to
reflect public opinion at the time. The people did not yet comprehend
nationality, as thus early defined by the supreme court. See chap, v,
PP- 72. 73-
' For a detailed account of the subject " sovereignty," see Thorpe s
"Constitutional History of the American People, 1776-1850," vol. i,
chap i, " The First Struggle for Sovereignty " ; and for the growth of
the idea of national sovereignty, see the same author's "Constitutional
History of the United States, 1765-1895." 3 \o\%. passim.
74 A CONSTITUTIONAL HISTORY OF
as the most important department or function of the state,
and, when they came to formulate written constitutions,
they made the legislature the nucleus or centre of the civil
system. They granted power to the legislature in general
terms, with no thought of forbidding that which in later
times came to be called special legislation. The colonial
idea was of frequent elections and short terms for mem-
bers of assembly, and the spirit of the revolution accented
the idea. The colonial organization, — governor, execu-
tive council, assembly, and an appointed judiciary, — was
easily perpetuated ; the council being transformed into
an upper House, which, after the British prototype, — •
the House of Lords, — was organized so as to secure
greater permanency than the assembly. This was ob-
tained by prescribing a longer term, and more exacting
qualifications than those required of members of assembly.
The senator must be an older man ; possessing a larger
estate and having a longer residence in the community
than the assemblyman. The eighteenth century idea of
the state, — that it rests on property and on persons, —
was carried out in the organization of the legislature ; the
Senate representing property, the assembly representing
persons.
The British model was further followed by giving the
assembly the power to impeach, and the exclusive power
to originate money bills. In the three states in which for
a time the single legislature, or unicameral system, was
tried, there were repeated demands for the bicameral sys-
tem, as the only means of preserving those " checks and
balances " which maintain the civil equilibrium.^
The basis of representation was white persons,^ and
the suffrage was limited to white males, except in New
Hampshire, Vermont, Massachusetts, North Carolina,
Tennessee, and New Jersey ; in which states free men of
1 Pennsylvania had the unicameral system, 1776-1790; Georgia,
1777-17S9;' Vermont, 1 776-1836. The defects of the system were set
forth bv the Pennsylvania Council of Censors (see " Proceedings Rela-
tive to Calling"), the Conventions of 1776 and 1790, Ilarrisburg, 1S25;
also the manv reports of the Vermont Council of Censors, whose elabo-
rate statements seem trite.
2 Georgia based representation on the federal number ; constitution,
1798.
THE UNITED STATES 75
color, duly qualified by age, residence, property, and
religious belief, might vote by the letter of the Constitu-
tion. For a time women voted in New Jersey (1776-
1807), the term " inhabitants," which defined the votes in
that state, including them. But white men only were
elected to office.
Of the candidate for office and the office-holder, more
exacting qualifications were demanded than of the voter;
and chiefly a larger holding of real estate, a longer resi-
dence in the community, and of the candidate for gov-
ernor, or for the Senate, an age greater than twenty-one
years.
But the first constitutions, — and they embodied more
liberal ideas than the colonial practices which preceded
them, — were scarcely in force before demands for a
yet more liberal system were heard. Democracy protested
against religious and property qualifications and long
terms of residence for the voter. It protested, as in Ten-
nessee, and later in Massachusetts, against the property
basis of government, and in the former it won its first
victory when, in the new constitution of 1796, it suc-
ceeded in providing that a money bill might be originated
in either House, — an innovation which many states have
since followed. When the eighteenth century closed,
democracy had so changed and amended the earlier con-
stitutions that, speaking of the commonwealths in the
aggregate, only vestiges remained of the religious and
property qualifications for the elector which had been
prescribed in 1776. But the new or amended constitu-
tions, like the old ones, were confessions of faith in the
wisdom and integrity of legislatures. In this respect the
first state constitutions remind one of the faith of child-
hood. One smiles at the suggestion that the state can
be kept in health and order merely by granting general
powers to the legislature : its members of assembly
chosen annually, its senators at least every two years.
This primitive confidence in the mere mechanics of gov-
ernment is analogous to that so elaborately explained in
"The Federalist." The system was everything. '"Let the
government be one of laws, rather than of men," was the
confident desire of Americans in the eighteenth century.
76 A CONSTITUTIONAL HISTORY OF
Therefore the legislature was made the centre of the civil
system.
Far dififerent was the attitude of the people toward the
governors. Confidence in the legislative was counterbal-
anced by distrust of the executive, — a condition of
affairs brought about by the spirit of the revolution. The
constitutional defence of the revolution, in the American
mind, was based on the King's infraction of the social
compact. Otis gave the thought voice when he argued
against the writs of assistance, and the authors of the
constitution of New Jersey in the preamble to that organic
act plainly pronounced the King a law-breaker.^ Colonial
governors for more than a hundred years had been in
ceaseless altercation with colonial assemblies, and the
people had ever sided with the assemblies against the
King's man.
In organizing the executive the authors of the early
constitutions gave free rein to this hostile spirit of dis-
trust and granted to governors only limited powers, for
short periods of time. Annual elections, such as pre-
vailed in New England, were supposed to prevent in-
numerable evils, and the exacting qualifications which
hedged the executive ofifice about, were considered a sure
defence against the candidacy of incapable and unworthy
men. The people of South Carolina exacted ten years"
residence in the state, a clear, settled freehold worth
£1500, belief in the Protestant faith, and the age of thirty
years of the man whom they elected governor ; and they
gave him a term of only two years, and made him ineli-
gible for a second term till four years had passed.- New
Hampshire, Massachusetts, and Pennsylvania required a
residence of seven years ; Georgia, of six ; Maryland and
North Carolina, of five. Ten of the constitutions pre-
scribed a property-qualification varying from five hun-
dred acres to £5000, and in states which prescribed no
property qualification, — Vermont, Delaware, and Ken-
tucky, — the well-established custom was to elect as gov-
ernors only men of known wealth and position. Equally
^ New Jersev, 1776.
2 Constitution, 1790; that of 1778 required ;,^io,ooo freehold.
THE UNITED STATES yy
exacting in letter, if not in spirit, was the requirement of
belief in the Protestant religion which eight of the con-
stitutions demanded ; ^ and the term " Christian," used
in two others,^ meant Protestant. But long before these
religious requirements were omitted in new constitu-
tions, they became unpopular, and at least in one state.
North Carolina, were ignored.^ The change cannot be
said to have come over the public mind until the nine-
teenth century was in its second decade.
The governor was popularly conceived to be a military
man, — at least, ex ofhcio, — and his civil duties were
merely " to execute the laws." His power of appointment
was limited, and there were few offices to be filled. Not
all the constitutions gave him the veto power, but, some-
what paradoxically, much importance was attached to his
messages, which formed important contributions to the
newspapers of the day. They remain an instructive
record of public events.* The constitutions provided for
filling vacancies in the executive office, as in New York,
by the accession of the lieutenant-governor,^ which may
have been the precedent for a similar provision in the
national Constitution. But most of the states had cum-
bersome plans for the succession. ° No change in our
state governments is more notable than that in the execu-
tive department. The rigorous use of the veto power —
the activity of the governor in filling offices, his political
influence in legislation, and, in some states, his power to
veto or to cut down items of expenditure — suggest how
widely different is our conception of the executive from
that of our ancestors. Their idea of a governor was of
an official whose powers were few and limited.
The state judiciary at first was the colonial system in
new hands. English precedents and practice yielded but
1 New Hampshire, 1776, 1784, 1792; Vermont, 1777; New Jersey,
1776: Pennsvlvania, 1776; North Carolina, 1776; South Carolina, 1790.
2 Massachusetts, 1780; Maryland, 1776.
3 See the debate on eliminating the word " Protestant " from the consti-
tution, North Carolina, iS-^S.
* Niles's Register, which began during the second decade of the nine"
teenth century, regularly published the governors' messages.
5 Constitution, 1777.
^ Delaware, 1792 ; South Carolina, 1778, 1790, and others.
78 A CONSTITUTIONAL HISTORY OF
slowly to the spirit of democracy, — " the levelling
spirit," as the Tories and High Federalists were wont to
call it. The common law forms were adhered to, with no
thought of change. Save on the frontier, where the
courts were usually composed of men not learned in the
law, there was little to indicate any change from colonial
times in the administration of justice. Most notable was
the separation of legislative and judicial functions by the
elimination of the executive council as a court of appeal,
and by the organization of courts of last resort. Much
complaint was heard at the time the revolution broke out,
of " the law's delay and the insolence of justice," and
that that complaint was well-founded is attested by no less
authority than the Declaration of Independence.
The authors of the first constitutions attempted to
remedy public evils by simplifying legal processes ; by
organizing courts of various jurisdiction, by removing
judges wholly from participation in other than judicial
business, and, by adopting a system which, in its working,
would hasten litigation to an end, and make the adminis-
tration of justice accessible to all.
Yet the articles on the judiciary in the early constitu-
tions throw little light on the actual system in force. One
must know the old nisi prius practice and the rules of
court ; one must travel the circuit with judge and with
counsel, before he can understand the state judiciary as
it was organized in the eighteenth century. The most
elaborate article on the judiciary was inserted in the
Maryland constitution of 1776.
As yet, executive appointment of judges for a long
term, — usually for life, or good behavior, — was the
notable characteristic in most of the states. Democracy
did not lay its hands on the judiciary, in the eighteenth
century ; as yet it only eyed the courts with longing to
fill the bench with favorites elected by the people. The
federal judiciary remains a monument of eighteenth cen-
tury wisdom. Down to 1803, judges were appointed by
governors. Ohio began the reform in appointment by
intrusting it to the legislature. The popular election of
judges was the next step, delayed till 1840. By the
eighteenth century constitutions the courts and all their
THE UNITED STATES 79
officials were withheld from popular control. The gov-
ernor nominated, and the Senate, or upper House, ap-
proved or rejected appointments. This was in accord
with colonial and British precedents. But before the
century closed, democracy was clamoring for the election
of justices of the peace, district attorneys, and clerks of
the courts, and the more ardent innovators were theoriz-
ing on the popular election of judges. The people con-
trolled the legislative and, in most states, the executive,
though in some the governor was chosen by the legisla-
ture. The next step in popular government was to
organize the judiciary on the basis of popular elec-
tions. As yet, this innovation was in the stage of mere
discussion.
The revolutionary age was productive of legal and
judicial minds of the highest order, and the national Con-
stitution reflects the wisdom of Ellsworth, Johnson, Ham-
ilton, Sherman, Paterson, Wilson, Wythe, Ingersoll,
Pinckney, and Gouverneur Morris. This galaxy of legal
lights shone with a lustre scarcely brighter than that
which fell from the minds that gave the states their
organic laws. It was the age of John Jay and John
Marshall, of Felix Grundy and John Sloss Hobart, of
William Gushing, of Thomas McKean, and Theophilus
Parsons, and it was to the hands of such as these that the
judicial and legal affairs of the states were first intrusted.
Each constitution was adapted to the wants of the
people of the state, and was an organic act separate and
apart from the fundamental law of every other state, yet
there were two prevailing types of constitutions : the
northern, — that of Massachusetts ; the southern, — that
of Virginia. New states followed old models, as Ken-
tucky that of Virginia, and Tennessee that of North
Garolina. Vermont copied after the constitution of
Pennsylvania. New York, early cosmopolitan, framed its
first constitution with remarkable anticipation of the
wants of the future ; as it were, a nineteenth century
instrument made in the eighteenth century. New Jersey,
like New York, anticipated the future, but it is to the
judicial system of New Jersey that we look to-day for
the exemplification of the system in force, commonly in
8o A CONSTITUTIONAL HISTORY OF
the -states, in the eighteenth century. Pennsylvania and
Delaware differed but slightly in their organic laws. The
constitution of Maryland was an example of elaboration
and detail not found in any other commonwealth. South
Carolina made the most rigid provisions for the union of
church and state, in its earlier constitutions, and Georgia,
liberal in its general policy, affords the only instance of
a state's basing representation on the " federal number," ^
as the provision for representation of three-fifths of the
slaves was called, after the adoption of the national
Constitution.
The early state constitutions, with the exception of
that of Maryland, were much briefer instruments than
those framed by conventions in our day. Having incor-
porated a bill of rights and articles organizing the legis-
lative, the executive, and the judicial departments, the
framers of these instruments were usually content to
make an end. The elaborate administrative features of
a modern state constitution are the civil growth of years.
The characteristics of these early fundamental laws
are the characteristics of the political ideas of their age :
a limited suffrage, a government based on property and
persons, a legislature vested with general powers, an
executive vested with limited powers, and an appointive
judiciary, state sovereignty, federal agency, and slight,
if any, notion of United States citizenship. The state
was conceived to exist for the individual, — a social
compact made and maintained for the protection of his
natural rights.
But democracy was writhing under restrictions, and
was raising its voice for their abolition, and for direct
participation in the control of public affairs.
At the time of the founding of the present national
government, the individualistic forces of the country were
on the side of the state governments, and this disposition
of power was bound to remain unchanged so long as —
to use the words of Hamilton — the government of the
United States was not " able to address itself immediately
to the hopes and fears of individuals, and to attract to its
1 Georgia, 1798.
THE UNITED STATES 8i
support those passions which have the strongest influence
upon the human heart." ^ The national government, if it
would attain years and vitality, " must possess all the
means and have a right to resort to all the methods of
executing the powers with which it is intrusted, that are
possessed and exercised by the governments of the par-
ticular states." ^
Here was clearly stated the condition which should
determine the fate of the national plan. But in the ulti-
mate resolution of civil forces in America, state and
nation were alike to embody and to express, in their
evolution, that general law which is slowly working out
the distinctive character of popular government.
1 "The Federalist," No. XVI.
82 A CONSTITUTIONAL HISTORY OF
CHAPTER VI
RATIFICATION AND AMENDMENT
In the closing hours of the federal convention, resolu-
tions were adopted commending the Constitution to the
people of the states, and a special letter was prepared to
accompany it to Congress.^ The prospect of its ratifica-
tion was gloomy. Nearly one-third of the delegates in the
late convention had failed to sign it, and it was certain
that several would oppose it in their own states. The
national party was strongest at the commercial centres ;
the state party could depend upon the support of the
rural districts. The numerous emissions of paper money
by the states had pleased most of the rural communities,
but had alarmed, and in many cases ruined, the merchants
and traders in the towns. The business men of the
country were likely to welcome any plan which ofifered
relief and assurance for the future. The Congress of
the Confederation had lost prestige and was not in the
thought of the people. Its sessions were poorly attended,
and occasionally weeks would pass when a quorum was
with difficulty gathered. There were men influential in
Congress who would oppose the Constitution, and the state
party claimed that its defeat was assured. The only part
which Congress had to play in the matter was to submit
it to the governors, who in turn should submit it to con-
ventions specially elected to consider it. But Congress
must take the first step.
As soon as the instrument was received in Congress,
Richard Henry Lee and other leaders of the state party
1 The proceedings and debates in some of the ratifying conventions
are given in pLlliot's " Debates"; for the authorities in New Hampshire,
Vermont, Massachusetts, New York, Pennsylvania, New Jersey, Dela-
ware, Maryland, North Carolina, and Georgia, see the author's " Constitu-
tional History of the United States, 1765-1895," vol. ii.
THE UNITED STATES 83
began the attack. They demanded a bill of rights ; they
objected to a Vice-president; they thought it dangerous
that a law regulating commerce could be passed by a
mere majority. However, Congress was not authorized
to amend the proposed plan, but only to hand it on to
the states. The contest in Congress, therefore, was over
the manner of expressing approval or disapproval of the
new plan. The national party, to which by this time the
term " Federalist " had been given, as the term " Anti-
Federalist " had been given to the state party, though
desiring that Congress should formally approve the Con-
stitution, soon discovered that nothing of this kind could
be hoped for. The best they could secure was a sub-
mission to the states without comment by Congress. The
two parties were so evenly balanced that neither could
control Congress ; the result was a compromise, on the
28th of September,^ that the Constitution should be sent to
the states with the imanimous consent of Congress but
without comment. It was sent forth to meet its fate in
the state conventions, any nine of which approving it
could thereby make it the supreme law of the land.
Congress was not the first body to act on the Constitu-
tion. It had been formally presented to the Pennsylvania
legislature by Franklin and his colleagues on the morning
after the convention had adjourned. A contest imme-
diately arose in that legislature over the question of call-
ing a ratifying convention. The Anti-Federalists resorted
to obstructive tactics and chiefly to absenting themselves,
so as to prevent a vote, but the Federalists by force com-
pelled the attendance of a quorum, and passed an act call-
ing a convention. It met in Philadelphia on the 21st of
November. Its most distinguished member was James
Wilson. The Anti-Federalist delegates attacked the new
plan as a clear violation of the rights of the states and a
menace to their safety. Wilson and his federal colleagues
attempted to answer these objections by showing that the
Constitution was republican in form ; that it bore a close
analogy to the state constitutions, and that it would
remedy all the defects of the old articles. The Anti-
1 1787.
84 A CONSTITUTIONAL HISTORY OF
Federalists replied that the new plan would establish a
consolidated, not a federal government, and to this
opinion they clung to the end. Wilson made a defence of
the Constitution which remains a classic exposition of its
scope and purpose; but the Anti-Federalists, uncon-
vinced, presented a petition with seven hundred and fifty
signatures, asking for amendments and particularly for
a bill of rights. The ballot was then taken and the Con-
stitution was ratified by a vote of two to one.^ Though
Pennsylvania was the first state to receive the Constitution,
it was the second to ratify. Delaware had ratified a week
before, unanimously.^ Eleven days later New Jersey,^
followed by Georgia, also ratified unanimously.* On the
day before Georgia ratified, Connecticut met in a conven-
tion, which, after nine days' session, ratified by a vote of
three to one.^ There was little contest in Connecticut. It
was one of the small states and realized that it could
receive only benefits under the new plan.
On the day the Connecticut convention adjourned, that
of Massachusetts assembled and was in session nearly a
month, during which time the new plan was debated in
detail. The state had been the theatre of Shays's rebel-
lion, and some who had participated in that insurrection
had been returned as delegates. Elbridge Gerry, on his
return home from the federal convention had begun a
vigorous attack on its work, and chiefly because of its
omission of a bill of rights. The Massachusetts conven-
tion was the largest that assembled, having three hundred
and sixty-four members, of whom the majority were Anti-
Federalists. The hope of the Federalists, therefore, lay
in political strategy. John Hancock, who at heart was an
Anti-Federalist, was made president of the convention,
and was won over to the support of the new plan by the
promise of political honors. Samuel Adams, whose atti-
tude was in doubt, was won through the influence of
the working-men. The weight of ability in the con-
vention lay with the Federalists.
It was the supposed undemocratic character of the new
1 December 12, 1787; 46 to 23. ^ December 7, 1787 ; 30 to o.
8 December 18, 1787 ; 38 to o. * January 2, 178S; 26 to o.
^ January 9, 178S; ij8 to 40.
THE UNITED STATES 85
plan of which the Anti-Federalists most complained ;
only amendments and a bill of rights could give it the
needed qualities. Fully conscious of the strength of their
opponents, the Federalists planned a compromise. To the
amendments demanded, the Federalists should give their
support. The ambition of Hancock should be satisfied,
and Samuel Adams should be induced to bring to the
support of the Constitution an anti-federal vote sufficient
to ratify it. Many of the Anti-Federalists wished to
adjourn and await the action of other states, but the com-
promise plan was carried out ; Hancock was re-assured
of his election as governor, and was told that he might
become Vice-president. Nine amendments were prepared
of which Hancock was made to appear the author.
Though Adams saw little in the Constitution which he
admired, he was too shrewd a politician not to recognize
the significance of the demand which came up from the
business men of the state for ratification. The vote was
taken and the Constitution was adopted, though only by
a majority of nineteen votes, in a total of three hundred
and fifty-five.^ The news of the adherence of Massachu-
setts encouraged the Federalists in other states.
In Maryland the people were friendly, but the political
leaders unfriendly, to ratification. The convention in that
state was therefore composed of a powerful majority in
its favor, somewhat impatient to ratify. After a week's
debate, the vote was taken and the Constitution stood
approved by more than five to one.^ The Anti-Federal-
ists, exasperated by federalist contempt of their objec-
tions, demanded twenty-eight amendments, but to these
the Federalists gave slight attention. Here as in Penn-
sylvania the principal objection to the Constitution was to
its supposed embodiment of a consolidated government.
The people of South Carolina, which was the next state
to act, composed an agricultural community, too long
agreeably familiar with over-issues of paper money and
laws violating the obligation of contracts. The people
were jealous of slavery and fearful lest laws of a federal
character might impose taxes on slaves. As in Pennsyl-
1 February 16, 1788; 187 to 168. « April 28, 17S8; 63 to 11.
86 A CONSTITUTIONAL HISTORY OF
vania so in South Carolina a sharp contest arose in the
legislature over the question of calling a convention, and
during the debate nearly every anti-federal objection and
every federal reply was heard. The Anti-Federalists
lauded the Articles of Confederation and especially state
sovereignty. They deprecated the consolidation of power
in the proposed government and the limit of time for the
importation of slaves. Especially did they disapprove of
the clause forbidding the states to issue paper money.
But a convention was finally called, among whose dele-
gates were John Rutledge, Charles Pinckney, and Charles
C. Pinckney, who had been members of the federal con-
vention. These leaders made a vigorous defence of the
new plan and answered every anti-federal objection to
it. The Anti-Federalists were in the minority and were
forced to pursue a policy of obstruction, but the best they
could secure was the adoption of four amendments,
whereupon the Constitution was ratified by a vote of more
than two to one.^
The ninth state to convene was New Hampshire, an
agricultural community, among whose people the pro-
posed plan did not stand in high favor. The influence
of Massachusetts was felt, and the majority of the dele-
gates chosen to the Exeter convention were undoubtedly
Anti-Federalists, as was proved by the conduct of their
opponents in not venturing to press the vote lest the Con-
stitution should be promptly rejected. The best that the
friends of the new plan could do was to adjourn and carry
on a campaign of education. While the convention stood
adjourned, Maryland and South Carolina ratified, the
news reaching New Hampshire early in June. The effect
was plainly visible when the delegates re-assembled at
Exeter on the eighteenth of the month. Three days later
the vote was taken and the Constitution was ratified,
though only by a majority of eleven votes. ^ As in Massa-
chusetts, the Federalists had to pay the price of ratifica-
tion ; they agreed to sixteen amendments which their
opponents demanded should be added to the Constitution.
New Hampshire being the ninth state to ratify, the Con-
1 May 23, 1788; 149 to 73. 3 June 21, 17SS; 57 to 46.
THE UNITED STATES 87
stittition became, by its own terms, the supreme law of
the land, but no one thought of attempting to inaugurate
the new government until the three remaining states,
which had been represented in the federal convention, —
Virginia, New York, and North Carolina, — should take
action ; for these three states were holding conventions
and their decisions were daily expected.
In Virginia the division of parties was close and the
prospect of ratification uncertain. Randolph and Mad-
ison, who had been prominent in making the Constitution,
were elected delegates, as were John Marshall, James
Monroe, Patrick Henry, and a score more of eminent
Virginians. There had been little struggle in the legis-
lature over the calling of a convention, but the Anti-Fed-
eralists, conscious of their strength, made no serious
opposition. Their spokesman at Richmond was Patrick
Henry, who vehemently attacked every detail of the Con-
stitution, and remained to the end of the debate uncon-
vinced that it possessed notably desirable features. It was
he who named the last clause on the powers of Congress
" the sweeping clause " ; and it was he who made the
most powerful speech against the Constitution heard in
any convention. The new plan was, he said, that of a
consolidated government, and a consolidated government
was the worst government that could be adopted for
America. He was sustained by George Mason, lately a
member of the federal convention ; by James Monroe,
destined to be the fifth President of the United States ;
by William Grayson, who had opposed the Constitution
in Congress, and by a number of lesser though highly
able men.
The defence of the Constitution was taken up by Mad-
ison and Marshall, and to them the final victory in Vir-
ginia was largely due. One other eminent Virginian,
who was not a delegate at Richmond, was perhaps more
influential in the state than the entire party of Anti-
Federalists. Washington, from the moment when the
circular letter had been sent to Congress commending the
Constitution, had not ceased to write and speak on behalf
of the new plan. Had he not been a member of the Phila-
delphia convention, it may be doubted whether the Con-
88 A CONSTITUTIONAL HISTORY OF
stitution would have been ratified by Virginia. Jefferson
was absent as minister to France, but he carried on a close
correspondence with Madison and with the anti-federal
leaders, and thus kept in touch with the course of events
at home. His influence was very great, — second indeed
only to that of Washington. He favored ratification and
an amendment of the Constitution, for he knew too well
the defects of the old Articles. On the 26th of June, after
a session of twenty-six days, the vote was taken. Twenty
amendments were proposed, and a bill of rights in
twenty articles. The Constitution was then ratified by a
meagre majority of ten votes. ^ It may be said that the
ten votes which saved the Constitution in Virginia repre-
sented the influence of Washington. A strong efifort was
made to make the ratification conditional, but happily this
failed.
While the people of Virginia were discussing the Consti-
tution, New York met in convention at Poughkeepsie for
the same purpose. The state was agricultural, and, except
in the city of New York, strongly anti-federal. There
seemed little hope that the Constitution would be approved.
At the head of the opposition stood the governor, George
Clinton, who was actively supported by a powerful per-
sonal following. The federal leaders were Hamilton,
John Jay, who at the time was secretary of foreign aflFairs
in the Confederation, and Robert R. Livingston, the chan-
cellor of the state.
The Anti-Federalists objected to every important fea-
ture of the new plan and especially to the powers of
Congress and the organization of the Senate. They com-
plained of the omission of a bill of rights. Finally, after
a bitter contest, Hamilton and his federal colleagues, by
sheer intellectual efifort and a willingness to compromise,
won the day ; but it was a narrow escape. A change of
two votes would have defeated the Constitution. How-
ever, it stood ratified,^ and the convention sent up twenty-
four amendments and a bill of rights in thirty-two
articles. The recent decision of New Hampshire and
Virginia undoubtedly influenced that of New York,
which had no desire to be isolated from the Union, though
^ June 26, 1788; 89 to 79. 2 July 26, 17S8; 30 to 27.
THE UNITED STATES 89
the Anti-Federalists in the state claimed that the state
was able to maintain a separate government.
It was while the Poughkeepsie convention was in ses-
sion that the series of articles made their appearance in
several New York papers, addressed to the people of the
state of New York urging them to ratify the Constitution.
They appeared over the signature Publius, which, it was
soon discovered, was a pseudonym for Hamilton, Madi-
son, and Jay. These papers, known collectively as " The
Federalist," comprise, as we have seen, the classic expo-
sition, in the eighteenth century, of the American system
of government.^ They were given a wide circulation by
the Federalists and had some influence in determining
the decision of Virginia and New York. For a time it
had seemed that New York would ratify only condition-
ally, but through the efforts of Hamilton this disaster
was averted.
A few days before the New York convention ad-
journed, the people of North Carolina assembled at Hills-
boro, in the persons of two hundred and twenty-eight
delegates, to consider the Constitution. There were no
large commercial centres in the state ; its people were
agricultural, were widely scattered, and hostility or in-
difference to the Constitution prevailed among them.
James Iredell and a few federal colleagues struggled
bravely to carry ratifications, but theirs was a hopeless
task. The Anti-Federalists, realizing their power, merely
tolerated discussion. They attacked every provision of
the Constitution and pronounced the entire plan objection-
able. The adverse vote would be only a matter of major-
ities. The Federalists were helpless ; they could only
utter warnings. Finally, after two days' debate, the vote
was cast. North Carolina demanded a bill of rights in
twenty articles and twenty-six amendments ; if these
were incorporated she would ratify the plan. But on a
clear vote the Constitution would have been rejected by
more than two to one.^ This decision left the state in an
anomalous position.
Meanwhile eleven states having ratified, the new na-
tional plan had been inaugurated. Congress had organ-
^ See chaps, iii, iv. ^ August 4, 1789.
90 A CONSTITUTIONAL HISTORY OF
ized the House on the ist, the Senate on the 6th of April,
1789, on which latter day the electoral votes had been
counted. Washington had been chosen President unani-
mously, and John Adams, the next highest candidate,
was Vice-president. On the 30th of April Washington
was inaugurated in New York City. Within a few days
he sent to the Senate his list of civil appointments : cab-
inet officers, federal judges, and minor officials. All were
confirmed. Before the summer was over, all departments
of the new government were in operation.
Until this time the Constitution had been scarcely more
than a plan on paper. Its inauguration as an actual gov-
ernment worked a great change in public sentiment to
which the people of North Carolina responded. They had
hesitated to approve it before, being fearful that their
rights as a state might be impaired, but the disposition of
the Federalists, who were in the majority in the new
government, to give respectful consideration to the many
amendments which had been proposed by the conventions,
now allayed opposition in North Carolina, and on the
1 6th of November, 1789, its people again assembled in
convention and five days later ratified the Constitution,^ by
a vote of more than two to one. They insisted, however,
upon the adoption of amendments and of the bill of
rights which they had sent up before.
In the aggregate the vote in the ratifying conventions
was two to one in favor of the Constitution, but the votes
in detail made a very different showing. A change of
two in New York, of five in Virginia, and of ten in Massa-
chusetts, on the final ballots, would have rejected the Con-
stitution and left the country with chaos impending.
Connecticut, New Jersey, Delaware, and Georgia sug-
gested no amendments, and none came officially from
Pennsylvania, though the Harrisburg conference pro-
posed fourteen. But the remaining states had dernanded,
in the aggregate, one hundred and forty-five articles as
amendments, and ninty-three articles as bills of rights. ^
1 November 21, 1789; 193 to 75.
2 The amendments proposed by the different conventions are given
with the acts of ratification in the " Documentary History of the Consti-
tution," vol. ii ; most of them are given in Elliot, vol. i.
THE UNITED STATES 91
In every instance the amendments were demanded by the
minority. The narrow margin by which the Constitution
had been ratified, and the strong opposition which had
been manifested, both to its form and to its possible ad-
ministration, made it the first pohtical duty of the new
government to respect and utiHze the demands of the
minority, and to submit such amendments to the states
as would be likely to allay further agitation. In the
House of Representatives, Madison was the leader of that
nascent party soon to be called the Democratic-Repub-
lican, and he was deeply anxious to remove every obstacle,
in the path of the new government. On the 4th of May,
1789, he gave notice of his intention to bring up the
subject of amendments at an early day, and on the 8th
of June he moved that the house go into committee of
the whole for the purpose of considering them.
The opinion of Hamilton, Wilson, and Pinckney,^ that
the Constitution itself was a bill of rights, was not
accepted by the Anti-Federalists. Hamilton or Pinckney,
or, indeed, any member of the late convention, could point
out many passages in the Constitution which were tran-
scripts of clauses in bills of rights in the state constitu-
tions.^ Jefferson had urged the addition of amendments
and had pronounced Wilson's opinion, that the Constitution
itself was a bill of rights, a " gratis dictum, the reverse
of which might just as well be said," ^ and Jefferson
undoubtedly expressed the convictions of those represented
by the minority in the ratifying conventions. On the
other hand, the Federalists looked upon amendments as
untimely and superfluous.* But the request of the gen-
eral assembly of Virginia,^ that Congress should call
another convention, and the evidence of discontent in all
1 "The Federalist," No. LXXXIV; Pinckney in the South Caroh'na
Convention; Elliot, vol. iv ; Wilson's speech at the State House in
Pennsylvania and the Federal Constitution, pp. 143-150; and in the con-
vention, Id. pp. 252-254.
' See for the sources and authorship of the Constitution the author's
"Constitutional History of the United States, 1 765-1895," vol. iii, pp.
463-5^';-
^ Jefferson's Works, vol. ii, p. 329.
* McRee's " Iredell," vol. ii, p. 265.
* Annals, 1789, pp. 258-259.
92 A CONSTITUTIONAL HISTORY OF
parts of the country, made it quite certain that the states
were prepared to adopt amendments which would embody
the purpose of all that had been suggested. Objections
to the Constitution were two-fold, — to its structure, and
to the probable administration of the government by the
Federalists. Their opponents were determined to remedy
the one and to prevent the other.
On the 8th of June, Madison submitted his plan. He
would insert eight amendments here and there in the
Constitution. The preamble should be preceded by a
statement that power is derived from the people ; that
government is instituted for their benefit, and that it is
their right to change it from time to time.^ He found
the precedent for this part of his plan in the Declaration
of Independence, in most of the state constitutions, and
in amendments which had been suggested by nearly all
the conventions. He would strike out the clause on the
apportionment of representatives,^ and would substitute
a provision for a variable ratio, with a final limit of mem-
bership. For these changes he found immediate precedent
in the amendments suggested by the Harrisburg con-
ference, and from those which came up from Massachu-
setts, Virginia, New York, North Carolina, and New
Hampshire. He would change the clause relating to
the compensation of senators and representatives,^ so
that no Congress could increase the salary of its own
members : embodying amendments demanded by Virginia,
New York, and North Carolina.
His fourth amendment was the insertion of ten new
clauses,* forbidding legislation which might abridge free-
dom of worship or infringe the rights of conscience;
making the rights of freedom of speech and of the press
inviolable ; securing the right of peaceably assembling and
the right of petition ; securing the right to bear arms,
and the exemption of all who on account of religious
scruples might be unwilling to go into military service
in person ; forbidding the quartering of soldiers in private
houses without the consent of their owners ; exempting
1 Annals, 1789, pp. 451-453. ^ Article T, section 2, clause 3.
' Article I, section 6, clause i. * Amending Article I, section 9.
THE UNITED STATES 93
a person on trial from being a witness against himself;
forbidding the seizure of private property for public uses
without just compensation, and taking life, liberty, or
property without due process of law. From the EngHsh
bill of rights of 1689 he took the clause on excessive bail
and fines, and cruel and unusual punishments, a provision
confirmed many times by colonial assemblies, embodied
in the declaration of rights of 1765, found in six of the
state constitutions, and demanded as an amendment by
Pennsylvania, Virginia, and North Carolina. The people
should be secured in their person and property against
unreasonable seizures and searches, and warrants should
not be issued without probable cause, supported by oath
or affirmation, particularly describing the place to be
searched and the person or thing to be seized. These
provisions were found in the Declaration of Independence,
in nearly all the state constitutions, and had been de-
manded as amendments by four states.
In criminal prosecutions, the accused should enjoy
those rights and privileges as to witnesses and counsel
with which the country had long been familiar. Madison
found a precedent for this provision in Magna Charta ;
in its confirmation by colonial legislatures ; in the petition
of right of 1628; in the declaration of rights of 1765;
in the Declaration of Independence; in nine of the state
constitutions, and in the amendments demanded by five
states. He also proposed that the exceptions made in
favor of particular rights, in the Constitution, should not
be construed to diminish others retained by the people,
or to enlarge the powers delegated by the Constitution, —
for which "provision the constitutions of three states and
the amendments suggested by seven were the immediate
precedent. It will be observed that these ten clauses,
which he proposed to insert, corresponded closely to the
• amendments finally adopted. His fifth amendment^ would
forbid the violation of the rights of conscience, of the
freedom of the press and of trial by jury; a limitation
which found precedent in all the state constitutions and
in the amendments proposed by five of the conventions.
1 Amending Article I, section lo, by inserting a new clause between
one and two.
94 A CONSTITUTIONAL HISTORY OF
His sixth amendment ^ forbade appeals in cases in
which the value in controversy did not amount to a fixed
number of dollars, and no fact triable by jury according
to the course of the common law should be re-examinable
except as consistent with its principles. This amendment
had been asked for by four conventions. His seventh
amendment substituted two new clauses for the provision
respecting the trial of crimes.- His purpose was to
secure the convenience of suitors, to provide for a change
of venue if necessary, and to amend the practice of the
common law. His provision read much like a rule of
court, but it had a precedent in the constitutions of five
states and in the amendments demanded by six of the
conventions. His eighth amendment would make a new
article, •'* and was intended to secure the complete separa-
tion of the three departments of government, and to pre-
vent the exercise of the power of one by either of the
others. Its second clause provided that the powers not
delegated by the Constitution, nor prohibited by it to the
states, were reserved to them respectively. The first part
of his article was taken from the constitutions of six
states, and was demanded by three of the ratifying con-
ventions. The second part was found in the constitutions
of three states and had been demanded by six of the con-
ventions.
Thus Madison's eight amendments embodied provi-
sions already in force in most of the state constitutions
and demanded as amendments by many of the ratifying
conventions. Several of his provisions were as old as
Magna Charta.
The first thought on reading Madison's amendments
is of the identity of the political principles which they
embody with those principles of republican government
cited throughout " The Federalist." They confirm, too,
the opinion already expressed. The popular conception
of republican principles in 1789 was of those enunciated
in the organic laws of the states. The essential feature
of Madison's purpose was, therefore, to bring the written
1 Amending Article III, section 2, by adding a second clause.
' In Article III, section 2, clause 3.
3 To follow Article VI.
THE UNITED STATES 95
expression of the national government into complete har-
mony with the principles of the state governments.
He based his general argument for his amendments on
their importance as barriers to protect the people against
the federal government and as checks and balances to
prevent each of its departments from encroaching on
the other. The executive, he said, was the weakest
department ; therefore, the power of the legislature should
be limited. He was unwilling to make Congress the
final judge of all public matters. He could not under-
stand why the federal government should not be
restrained by the federal Constitution, as the governments
of the states were restrained by their constitutions. Their
legislatures were the guardians of popular liberty ; Con-
gress could not safely be entrusted with it. Thus, his
amendments forbidding Congress to fix its own compen-
sation, or to infringe the rights of conscience, freedom
of the press, or trial by jury, were equally necessary.
The article on the federal judiciary should be amended
so as to obviate the great inconvenience to which the
people would be subjected in being forced to travel great
distances in cases of appeal, or in actions for a small
debt in a case pending in the supreme court. Having
briefly explained all his amendments, Madison moved
that they be referred to a select committee.
But the Federalists saw little necessity for this, and
thought that Congress should proceed with the more
pressing matter of the revenue bill, then pending. Gerry
pointedly remarked that the salvation of the country
depended upon the establishment of the government,
whether or not the Constitution was amended ; but he
was favorable to Madison's amendments, as they might
win North Carolina and Rhode Island, which had not
yet ratified. Roger Sherman declared it a matter of
wonder that the Constitution had been adopted at all.
Of the eleven states which had ratified, the majority had
not proposed amendments, and he was doubtful whether
any which might be proposed by Congress would be
approved by the states, because there was so slight
demand for them. Would it not be better to wait the
test of experience and thus determine what amendments
96 A CONSTITUTIONAL HISTORY OF
were necessary? Fisher Ames boldly accused Madison
of ang-ling for popularity, and most of the Federalists
were content to pronounce the amendments needless.
But Madison was fixed in his determination to carry
them through. Debate should be cut short and every
proposition of a doubtful or unimportant nature should
be excluded.^ He wished to avoid the risk of a second
federal convention. The amendments, said he, would
not only conciliate all parties but would put public affairs
" into an auspicious train." - The House decided at first
to refer the amendments to the committee of the whole,
but finally, and owing largely to Fisher Ames's activity,
they were handed over to a select committee of one from
each state. Among the eleven appointed were Madison,
the chairman ; and Baldwin, Sherman, Oilman, and
Clymer, who had been members of the federal convention.
On the 13th of August, the committee reported a series of
amendments in eighteen clauses, which in substance were
, Madison's propositions.^ In the debate which followed,
' the Federalists objected to the report because, they said,
if the amendments were inserted in the Constitution it
would appear, unless the archives of Congress were
searched, that Washington and other worthy men in
convention had signed an article which they had never
had in contemplation. Gerry argued that Madison's
plan of incorporating the amendments accorded with the
evident intent of the Constitution itself; Sherman urged
that all the amendments should be added at the end oi
the Constitution so as to avoid confusion ; but the majority
favored incorporation, and Sherman's motion was lost.
Later the matter was reconsidered and his suggestion
prevailed.
On the 14th of August the amendments were taken
up in their order and gradually given the form in
which they now stand. The proposition to establish a
minimum and a maximum number of members in the
House did not meet with great favor. The difficulty was
1 Madison to Randolph, August 21. 1789; Works vol. i, p. 490.
2 Madison to Jefferson, December 12, 1788, Works vol. i, p. 446.
8 The committee's report in Annals, 1789, pp. 733-79° i House
Journal, p. 85.
THE UNITED STATES 97
to fix a number which would prove adequate to the public
business, and no two members agreed as to what this
number should be. The number of members in the state
legislatures was determined by the number of districts
and by population, both of which factors frequently
changed. It was finally decided that the maximum mem-
bership should be two hundred. All agreed that no Con-
gress should have power to increase the salary of its
own members. Much of the discussion turned on the
phraseology of the amendments, and respecting this
Gerry had much to say and was largely instrumental in
settling the final language of the clauses.
It was while the clause on the freedom of religion was
under discussion that Gerry observed that in the ratifying
conventions the difficulty between the two parties con-
sisted in the willingness of the Federalists to racify the
Constitution as it stood, and the unwillingness of the Anti-
Federalists to ratify until it had been amended. " Their
names," he said, " ought not to have been Federalists
and Anti-FederaHsts, but Rats and Anti-Rats," and he
embraced the opportunity to accuse Madison of favoring
a consolidated government. The debate on the rights
of conscience, on freedom of the press, on the right of
petition, and other rights, already guaranteed by custom
and the state constitutions, was languid. Provisions in
the state constitutions securing these rights were already
recognized civil axioms. Now and then a member
objected to the committee's report because it did not
include some particular amendment demanded by his
state, but the report was comprehensive and its omissions
were all satisfactorily explained. When the discussion
reached the provision that the enumeration of certain
rights in the Constitution should not be construed to deny
or to disparage others retained by the people, Tucker
of Virginia, an Anti-Federalist, remarked that it meant
the alteration of the state constitutions and could better
be left to the state governments ; he therefore moved to
strike it out. Madison quickly replied that he considered
it the most important of the whole list. It was equally
necessary to secure the people against the infringement
of their rights by either government, and the House sus-
7
98 A CONSTITUTIONAL HISTORY OF
tained him. The language finally given to the clause was
suggested by Carroll, of Maryland.
Finally, the report of the committee of eleven, as
amended, was handed over to a special committee con-
sisting of Benson, Sherman, and Sedgwick, with instruc-
tions to arrange and report amendments, which they did
on the following day ^ in seventeen articles. These were
then sent to the Senate. Little is known of what was said
of them there, but it is known that the federalist senators
were strongly opposed to them ; and that they were able
greatly to modify the report ; so much so, indeed, that
when it reached the House that body refused to recede
from its own propositions or to accept the report. Finally,
on the 24th of September, the amendments were sent to a
committee of conference, with the result that the House
receded on condition that the Senate should agree to
changes in two articles. On the 25th of September, the
Senate concurred and the amendments, now cut down
from seventeen to twelve, were adopted.^ Of these, the
last ten were speedily approved by the requisite number
of states, and on the last day of June, 1790, Washington
announced to Congress that they had been ratified.
The amendments supplied a bill of rights and satisfied
the " public demand," as Jefferson had expressed it to
Madison, in a letter written soon after the adjournment
of the federal convention.^ Washington had early de-
clared his willingness to embrace any compromise that
would save the country from ruin, and had been confident
that the most violent opponents of the Constitution would
peaceably co-operate in the organization of the government
and be content to ask for amendments in the manner it
prescribed.* But most of the Federalists looked upon
the amendments as a rash innovation.^ Pierce Butler
spoke of them as milk and water amendments," and Ames
called them " rather food than physic, an immense amount
J Their report is in Senate Journal, August 25, 1789.
2 Senate Journal, 1789; Appendix, Elliot, vol. i, p. 338.
' Jefferson to Madison, December, 17S7, Jefferson's Works, vol. ii,
P- 329-
♦ Jefferson's Works (Ford's Edition), vol. xi, pp. 299-321.
6 'FisherAmestoGeorgeR.Minot,July3, 1789; "Life of Ames," p. 165
• McRee's "Iredell," vol. ii, p. 261;.
THE UNITED STATES 99
of sweet and other herbs and roots for a diet drink." ^
But moderate men of both parties incHned to Madison's
view, — that the amendments were necessary to secure
the rights of conscience, freedom of the press, trial by
jury, and protection against general warrants, and that
they could not fail to conciliate the opposition.- Certain
it is that from the time of their adoption, the opponents
of the Constitution grew temperate in speech and at last
vanished as a party.
The states had taken up the amendments willingly,
and their ratification was in progress when North Caro-
lina approved the Constitution. Maryland followed New
Jersey, and North Carolina approved them in December,
1789. By the last of March of the following year five
more states ratified. Another state could make them a
part of the Constitution.
This state was Rhode Island. It had refused to par-
ticipate in the federal convention, and for more than two
years had taken no action on the Constitution. But this
apparent apathy did not reflect the sentiments of many
of its people. The Federalists in Rhode Island were the
minority party, and for two years had struggled in the
assembly in vain to pass a bill calling a convention. Seven
times did the bill fail. The eighth time it was carried,
but only by the vote of the governor, John Collins, who,
on Sunday, January 17, 1790, decided by his vote that a
convention should be called. Though the Constitution
was now in force and the administration of Washington
well under way, the seventy delegates who met at South
Kensington, on the 8th of March, proceeded to discuss
the Constitution as if its fate was in their hands. For
sixty-five days, in two sessions of the convention, they
debated, finding much to object to and little to approve.
Finally by a meagre majority of two votes they ratified
the Constitution, at the same time insisting on the adop-
tion of eighteen amendments and a bill of rights in
twenty-one articles, and this, when the Constitution had
been in operation more than a year.^
1 "Life of Ames," vol. i, p. 154.
2 Madison's Works, vol. i, pp. 446-448, 463, 4S5-486.
» May 29, 1790 ; 34 to 32.
loo A CONSTITUTIONAL HISTORY OF
By this time eight states had approved ten of the amend-
ments which Congress had lately submitted, and these ten
embodied the substance of the reasonable demands of
Rhode Island. Its legislature, now fully satisfied, gladly
took up the congressional amendments, approved them
on the 15th of June, and by its action made them a part
of the Constitution.
Vermont for fourteen years had been an independent
state and standing faithfully by the side of the other states
throughout the revolution. It had long been engaged in
a boundary dispute with New York, a calamity which un-
doubtedly prevented the Congress of the Confederation
from including it within the Union. In October, 1790, this
dispute was settled to the satisfaction of both states, and
the last barrier was removed to the formal admission of
Vermont. Early in January of the following year, its
people, through their representatives, assembled in conven-
tion at Bennington to take action on the Constitution.
There were only four vigorous Anti-Federalists among
the one hundred and nine delegates. For five days the
great question was discussed in a perfunctory way, and
then the Constitution was formally ratified.^ A month
later Congress admitted the state into the Union. In
November the state approved the ten congressional amend-
ments. Virginia ratified them in December. Thus at the
close of the year 1791 all the states which had participated
in the revolution had ratified the Constitution ; and all save
three ^ had approved ten of the amendments which Con-
gress had proposed.
Most of the framers of the Constitution were lawyers,
and several possessed judicial minds of the highest order.
The article on the judiciary, we are informed by Gouver-
neur Morris, received most critical attention, and passed
from the hands of the convention to the committee on
arrangement and style in as perfect a form as men famil-
iar with political theories and grounded in legal practice
could suggest. But on the subject of the judiciary, con-
flicting opinions had been maintained with so much pro-
1 January 10, 1791 ; 105 to 4.
' Massachusetts, Connecticut, Georgia.
THE UNITED STATES loi
fessional astuteness, says Gouverneur Morris, that it
became necessary for him only to select the phraseology
when, as a member of the committee on arrangement and
style, the rough draft of the Constitution was put into his
hands with instructions to write it in final form. He
wished not to alarm others or to shock their self love,
and yet to express his own notions. The result was that
the article on the judiciary " was the only part that passed
without cavil." ^ In the ratifying conventions the article
on the judiciary was viewed with alarm by the Anti-Fed-
eralists. They feared that the jurisdiction of the federal
courts might extend to suits between citizens of a state
and another state. Marshall, in the Virginia convention,
had quieted George Mason's fears on this point by saying
that it was not rational to suppose that a sovereign power, X
like a state, could be dragged before a federal court. A
state might be a plaintiff, but it could not be made a
defendant in a suit brought by an individual. If he had
a just claim against the state, it was to be presumed that
upon application to its legislature he would obtain satis-
faction.^
The same idea was held by Hamilton, who declared
that the alarm of the Anti-Federalists was upon very
mistaken grounds, as it was inherent in the nature of .X^
sovereignty not to be amenable to the suit of an individual
without its own consent. This, he said, was the general
sense and practice of mankind and the exemption was
enjoyed by the government of every state in the Union
as one of the attributes of sovereignty. Such suits
against a state would be contrary to the spirit and pur-
pose of the Constitution. Recoveries could be enforced
only by waging war against a state, and it was altogether >/
forced and unwarrantable to ascribe to the federal courts, A
by mere implication and in contravention of pre-existing
rights of the state governments, a power which would
involve such consequences.'
The opinions of Marshall and Hamilton are sufficient,
if taken in connection with the time and place of their
1 Sparks's Morris, vol. iii, p. 323.
2 Elliot, vol. iii, p. 555.
« "The Federalist," Nos. XXXII, LXXXI.^
I02 A CONSTITUTIONAL HISTORY OF
utterance, to establish the fact that the framers of the
Constitution did not believe that a sovereign state could
be sued by an individual or, to use a phrase of the time,
could be dragged before a federal court. The full power
of the general government was behind the states to sup-
port them in their judicial action, but was not behind the
individual to support him in an action against a state.
Through all the debates in the ratifying conventions ran
the claim that the states would gain by assenting to the
Constitution. Randolph, when presenting the Virginia
plan in Philadelphia, spoke of the jealousy of the states
respecting their sovereignty as a fact familiar to all.
Without attempting to declare the truth or falsity of the
doctrine that the states were sovereign, we must conclude
that it was unquestionably the ruling idea in 1788. Time
might prove the doctrine impracticable as a working
principle, but the strength of the argument lay with the
state-sovereignty school at the time the national govern-
ment was formed. It dominated the ratifying conventions ;
it had been freely expressed in the federal convention.
The national idea as it is now understood had to be
worked out by the harsh tests of administration. It was
not conceived at the time the Constitution was made.
It is a product of a later time. If the idea of state sov-
ereignty should prove destructive of the ends compre-
hensively proposed in the preamble of the Constitution, —
a more perfect union, justice, domestic tranquillity, com-
mon defence, and the general welfare, — then ultimately
the idea must be abandoned. The Fathers, as we fre-
quently call our early statesmen, were opportunists, as
all men must be in revolutionary times. Speaking of
the work of the Fathers, Mr. Lincoln, in his Cooper
Institute speech, undoubtedly laid down the true principle
to follow in interpreting their work : " I do not mean
to say that we are bound to follow implicitly in whatever
our Fathers did ; to do so would be to discard all the
lights of current experience, to reject all progress, all
improvements. What I do say is, that if we would
supplant the opinions and policy of our Fathers in any
case, we should do so upon evidence so conclusive and
argument so clear that even their great authority fairly
THE UNITED STATES 103
considered and weighed cannot stand." ^ Time alone
could tell whether the evidence would ever be so con-
clusive and the arguments so clear that the state-sov-
ereignty doctrines of the Fathers could no longer be
sufifered to prevail. There can be no doubt that when
the Constitution was adopted it was with the understand-
ing that a sovereign state could not be sued in a federal
court without its own consent.-
But among the Fathers there were some who did not
hold this idea, and among them John Jay and James
Wilson, who, it will be remembered, were appointed_ by
Washington; the one chief -justice, the other an associate
justice of the supreme court. In 1792, Alexander Chis-
holm, a citizen of North Carolina, brought suit against
the state of Georgia in the supreme court of the United
States, and thus " a question of uncommon magnitude,
whether such a suit could be maintained," became an
issue. The opinion of the court was given by Wilson.
The question, he said, was whether the people of the
United States formed a nation? He answered it accord-
ing to his understanding of the principles of general
jurisprudence, of the laws of nations, and of the consti-
tutions and laws of the states. From the first two he
developed the general notion of sovereignty and then
proceeded to prove that the federal Constitution vested
sovereignty in the United States and clearly gave the
1 Lincoln's Works, vol. i, p. 604.
2 Delaware in its second constitution. 1792, declared that suits might
be brought against the state as the law prescribed ; and Tennessee, in
1796, authorized such suits with the proviso th'&.t it must be brought by
its own citizens. See Delaware constitution, 1831-1S94 ; Tennessee,
1834-1870. The state constitutions authorizing legislation for bringing
suits against the state are Wisconsin, 1S48, Art. IV, sec. 27 ; California,
1850, Art. XI, sec. 1 1 ; Kentucky, 1S50, Art. VIII, sec. 6 ; 1890, sec. 231 ;
Indiana, 1851, Art. IV, sec.'24; Nevada,1864, Art. IV, sec. 22; Mis-
souri, 1865, Art. IV, sec. 21 ; Florida, 1868, Art. IV, sec. 19; 1885, Art. Ill,
sec. 22; Mississippi, 186S. Art. XV, sec. 21 ; South Carolina, 1868, Art.
XIV, sec. 4; 1895, Art. XVII, sec. 2; Alabama, 1867, Art. I, sec. 16;
Pennsylvania, 1873, Art. IX, sec. 11 ; Washington, 1889, Art. II, sec. 26;
North Dakota, TS89, Art. I, sec. 22; Wyoming, 1889, Art. I, sec. 8; such
suits were forbidden by Illinois constitution, 1870, Art. IV, sec. 26 ;
Alabama, 1875, Art. I, sec. 15; Arkansas, 1874, Art. V, sec. 20, declares
that the state shall never be made defendant in any of her courts. But
see Curran v. Arkansas et al-, 15 Howard, 304, 309; Clark v. IJarnard,
108 United States, 436, 447 ; Beers et al. v. Arkansas, 20 Howard, 527.
I04 A CONSTITUTIONAL HISTORY OF
court jurisdiction over a state in the Union. The state
of Georgia was therefore amenable to its jurisdiction.
He took issue directly with both Marshall and Hamilton,
and claimed that the jurisdiction of the supreme court
over a state was explicitly declared in the Constitution.
A state could be made a defendant before the court;
therefore it was amenable.^ Jay, the chief -justice, sup-
ported him in an elaborate decision. He traced the
history of the country from the outbreak of the revolu-
tion, and agreed with Wilson that the controversy before
the court fell within the exact language of the Constitu-
tion. He went further than Wilson, however, and held
that not only a state but the United States might be sued
by any citizen with whom it might be in controversy, but
with this difference: that in case of an action against
the United States there was no power which the courts
could call to their aid to compel execution of the court's
decree. Therefore the case of a state and that of the
United States were very unlike. But a state was suable
by citizens of another state.
This was a new and an alarming doctrine, and its truth
was denied by Justice Iredell in one of the most famous
opinions in our legal history. He controverted the opin-
ions of Wilson and Jay point by point. He held that
the states were successors to the crown and, like the
crown, could be petitioned but not sued. He denied that
cither the Constitution or the act establishing the federal
courts ^ authorized Wilson's conclusions. The power of
the court was to be strictly construed. The common law,
he said, gave no precedent for Wilson's construction.
Every state in the Union, save in those instances in which
its sovereignty had been expressly delegated to the United
States, was as completely sovereign as were the United
States in respect to the powers surrendered to them.
" The United States," said he. " are sovereign as to all
the powers of government actually surrendered ; each
state in the Union is sovereign as to all the powers
reserved." Reasoning thus from the British Constitution,
* Chishnlm 71. denrGjia, 2 Dallas, 419 (1703).
2 Act of Septenibir 24, 1789; Statutes at Large, vol. i, p. 73.
THE UNITED STATES 105
the common law, the practice of the colonial govern-
ments, the strict construction of the Constitution, and of
the judiciary act of 1789, he reached the conclusion that
the states were sovereign and could not be sued. The
only remedy was by petition to the state legislature. But
Iredell's opinion was not the decision of the court ; that
had declared that a state was suable in the federal courts,
and it was a most startling conclusion of the whole
matter. It practically reversed the Fathers, ignored the
opinions of the ratifying conventions and also " The Fed-
eralist " itself.
The decision was handed down on the i8th of Feb-
ruary, 1793, and, on the following day, Sedgwick of
Massachusetts, gave notice, in the House of Representa-
tives, that he would soon move a resolution for amend-
ing the Constitution, so as to protect the states from being
sued in federal courts. On the 20th, the resolution, in
the form of an amendment, was offered in the Senate,^
but it slumbered for a year, till, on the 2d of January,
1794, it was again brought up, was discussed briefly, and
was passed, on the 14th, by a vote of twenty-three to two.
On that day it was read in the House for the first time,
but it was the 4th of March ^ before it finally passed."''
Three years elapsed before the requisite number of states
adopted it. Its ratification was announced by President
Adams on the 8th of January, 1798.* There was strictly
no precedent for the amendment in any which had been
demanded by the ratifying conventions or in any of the
state constitutions. The nearest approach to a precedent
was one of the amendments, demanded by Virginia, North
Carolina, and Rhode Island, relating to the jurisdiction of
the United States courts in cases arising after, but not
before, the ratification of the Constitution.^
Though there was no immediate precedent for the
amendment, its spirit and purpose may be found in the
^ Annals, 1793, P- 651. 2 id. p. ^77.
' By a vote of 81 to 9. The language of the amendment was suggested
by Albert Gallatin.
* Richardson, vol i, p. 260, and see Adams's special direction to Pinck-
ney, in Works, vol. viii, p. 552.
* In Virginia, Elliot, vol. iii, p. 661 ; in North Carolina, •' Documentary
History of the Constitution," vol. ii, p. 272. Elliot, vol. i, p. 336.
io6 A CONSTITUTIONAL HISTORY OF
ideas of state sovereignty prevailing in the eighteenth
century. In the act of the assembly of Connecticut of
October lO, 1776, which was the response of that colony
to the suggestion of Congress to take up civil government,
the state was described as free, sovereign, and independ-
ent. The Constitution of Massachusetts of 1780 made
a similar declaration, as did that of New Hampshire of
1784. The treaty of peace with England of the pre-
ceding year ^ mentioned the thirteen states each as being
free, sovereign, and independent, and this conception
was a part of the unwritten constitution of states outside
of New England. No southern state used the word
" sovereign " in its constitution, but the opinions of south-
ern statesmen and of southern people respecting state
sovereignty were unwritten law. The government of
the United States was popularly believed to be a confed-
eration of sovereign states,- though a few members of
the federal convention, like King and Hamilton, clearly
pointed out that the states were not sovereign in the
sense in which the general government was sovereign.^
The result of such diverse opinions was a compromise:
that the states possessed residuary sovereignty,* and with
this understanding the Constitution was ratified. The
Anti-Federalists held to a man that the sole purpose of
forming the general government had been to preserve the
sovereignty of the states.^ When, therefore, in 1793,
the supreme court ruled that the states were not sovereign,
but could be brought before a federal court like an indi-
vidual, the country took alarm and the eleventh amend-
ment was the direct consequence.
No part of the national plan of government was more
difficult to settle than that on the executive, and the article
on the subject was almost the last to be completed. The
members greatly differed as to whether the executive
should be single or plural ; for life or for a term of years ;
and especially did they dififer as to the manner of choos-
ing him. Finally, they forsook all state precedents and
adopted a method of choosing, which was novel and
1 September 3, 1783, Article I ; Treaties and Conventions, p. 376.
2 Klliot, vol. V, p. 176. 3 Id. vol. V, pp. 201, 212.
* " The Federalist," No. LXXII. ^ Elliot, vol. v, p. 249.
THE UNITED STATES 107
experimental. Though bearing some analogy to the
method of choosing state senators in Maryland, it will
be found, upon examination, that that method and the
one finally adopted by the convention have little in com-
mon. The difficulty consisted in choosing a national
officer by federal methods. If the new government was
wholly federal, the method of the election of the President
by state legislatures was not the proper procedure ; if
it was wholly national, he should be elected by popular
vote, but as the government was partly federal and partly
national, the method must be a compromise. The method
finally adopted gave general satisfaction and was almost
the only part of the system which escaped censure.^ But
the method did not distinguish between candidates for the
presidency and the vice-presidency, and, in consequence,
the results of an election might be uncertain. The obvious
defect was the omission from the plan of a requirement
lo designate by the electoral votes the candidate for Pres-
ident and the candidate for Vice-president. But this end,
which seemed to have escaped the attention of the con-
vention, was finally reached by events quite accidental.
The framers of the Constitution gave no sign that they
expected the administration of the government to fall
into the hands of parties or the choice of officials to
become a party matter. The Vice-president was consid-
ered a superfluous officer, especially by the Anti-Fed-
eralists. The framers evidently had great confidence in
the virtue of that body of men whom we call the electoral
college. They considered them for a time to be the
agents of the states, chosen by the people to name a
president. Wilson advocated his election by popular
vote, but the proposition was not considered. Distrust
of popular government led the framers to put the choos-
ing of the President and Vice-president into the hands of
a special body of men. In case two persons received
each a majority, and the same number of votes, the
highest vote, by states, should elect the President ; and if
there then remained two candidates with equal votes, the
Senate should choose the Vice-president. The evident
1 "The Federalist," No. LXVIII,
io8 A CONSTITUTIONAL HISTORY OF
purpose here was to secure the choice of these two officers
by a federal act. As long as Washington lived and would
accept the office of President, there was little doubt who
its incumbent would be. But the distribution of the
electoral vote, in 1789 among twelve persons, in 1792
among five, and in 1796 among thirteen, intimated from
the beginning that unless public opinion was explicit and
some person was the unmistakable choice for President,
the vote was likely to be scattered, and that elections by
the House might prove the rule instead of the exception.
The framers could not well have anticipated this con-
dition of things. The debates in the federal convention
indicate that the framers believed that the college could
always find one man of dominating popularity, and
another for second place sufficiently well known to satisfy
the majority of the electors. Time did not realize this
expectation. The men who received electoral votes were
the favorite sons of states, and so strong was the idea of
state sovereignty that it was almost impossible that any
successor to Washington should at all approach him in
national reputation. There was the probability of a dis-
puted election in 1796, when it was doubtful whether
Adams, Jefferson, or Thomas Pinckney would be chosen.
It was soon known that Adams had seventy-one votes,
Jefferson sixty-eight, and Pinckney fifty-nine. The
result, therefore, was a Federalist for President and a
Democratic-Republican for Vice-president.
The incongruity of a divided political responsibility
docs not seem to have occurred to many at the time, but
just two months from the day of election ^ William
Smith, of South Carolina, offered a resolution in the
House that the Constitution be amended so as to prevent
the inconvenience that might arise from the prevailing
mode of choosing the President and Vice-president, and so
to carry into effect the general intention of the electors.
The motion was made a month before the electoral vote
was counted, and received no further attention than to
be ordered printed. Not one state gave its full vote for
Adams and Jeflferson, and the four that cast electoral
votes for them also supported six other candidates.
1 January 8, 1797, Annals, p. 1824.
THE UNITED STATES 109
Adams received the entire electoral vote of eig^ht states ;
Jefferson of four ; Pinckney of five ; Burr and Ellsworth
each of two, and Clinton of one. Considering the
strength of the doctrine of state sovereignty at the time,
it is not surprising that there was dissatisfaction with a
system which gave the country a President who was the
first choice of only one half of the states, and a Vice-presi-
dent who was the choice of only one-fourth of them, and
yet between which two candidates there was a difference
of only three votes.
The result of the election, in 1796, displeased the Fed-
eralists, for they had planned to elect Adams and Thomas
Pinckney. The federalist region lay north and east of
Pennsylvania but included Delaware. Political sentiment
in the remaining portion of the country was strongest for
Jefferson and Burr. Though there were no formal plat-
forms or nominations, there was a more or less common
understanding that Adams and Jefferson represented two
widely different political schools. The election of both,
therefore, raised many apprehensions.
That a month before the counting of the electoral vote,
a resolution should be offered in Congress to amend the
Constitution, so that electors should designate their choice
for President and Vice-president, must be accepted as
evidence that the public mind was not at rest on the
subject. The resolution was, however, soon forgotten;
three years passed, and Adams's stormy administration
was drawing to a close, when Abiel Foster, a representa-
tive from New Hampshire, renewed the electoral amend-
ment on the i6th of February, 1799. Two weeks later,
by a vote of two to one, the House refused to refer the
resolution to a committee of the whole.^ On the 23d
of January, 1800,- James Ross, of Pennsylvania, moved
in the Senate the appointment of a special committee to
report a bill for deciding disputed elections for President
and Vice-president. The bill passed the Senate on the
28th of March, was amended both in the House and the
Senate, but was at last rejected by the House by a vote
of seventy-three to fifteen.
While the Ross resolution was under consideration, the
^ Annals, 1799, p. 2919. * Annals, p. 29.
no A CONSTITUTIONAL HISTORY OF
question of a constitutional amendment to regulate the
election of President and Vice-president came before
the House on the 4th of February. Its purpose was to
require that the electoral vote be designated, but it was
buried in committee of the whole. John Nicholas, of
Virginia, on the 14th of March proposed as an amend-
ment the division of each state into a number of districts
corresponding to its number of electors, but his resolution
was sent back adversely in an elaborate report that no
change in the method prescribed by the Constitution was
expedient.^
Meanwhile the presidential election of 1800 had
occurred ; its results were known and the first disputed
election had arisen. This condition of affairs had been
brought about largely by the party intrigues of Hamilton,
and other leading Federalists, to make Charles C. Pinck-
ney President and to bring Adams to the second place. ^
The formal ballot of electors, on the nth of February,
gave seventy-three votes to Jefferson ; seventy-three to
Burr ; sixty-five to Adams, sixty-four to Pinckney, and
one to John Jay. The election of a President, therefore,
devolved on the House. On the i8th, at one o'clock, the
thirty-sixth ballot was taken ; ten states had voted for
Thomas Jefferson, four for Burr, and two had cast blank
ballots.^ The House had made Jefferson President, and
Burr, having received the next greatest number of votes
in the college, was Vice-president. Thus events speedily
disclosed that the danger which had been discussed
three years before was both real and serious. At the
election in 1800 sixteen states voted, in eight of which
the electors were chosen by the legislatures, and in eight
by the voters ; but the mere method of choosing presiden-
tial electors had little bearing on the final result. In Con-
necticut the electors, appointed by the legislature, had
voted for Pinckney ; the South Carolina electors, appointed
in like manner, had voted for Jefferson and Burr. The
New Hampshire electors, chosen by popular vote, had
cast their ballots for Adams and Pinckney, but the electors
1 Annals, pp. 941-946.
2 " Life and Works of John Adams," vol. i, pp. 576-597.
8 Annals, pp. 1031-1033.
THE UNITED STATES iii
of Kentucky and Tennessee, chosen in the same manner,
had voted for Jefferson and Burr. Thus the Union on
party Hnes was divided into eight repubhcan and six
federahst states. The remaining states were partly fed-
eraUst and partly republican. Though there were no
platforms or nominating conventions, Adams and Pinck-
ney were the recognized federalist candidates, and Jef-
ferson and Burr the democratic-republican. Testing the
election in the House by the electoral vote of the states,
the choice of Jefferson and Burr more fairly expressed
the will of the country than did that of Adams and Jef-
ferson in 1796.
However, the fact most distressing to the Federalists
remained, — that they had failed to bring in either of
their candidates. The rumor spread that the election in
the House had been brought about by collusion, and min-
gled with this tale, which many of the Federalists took
no pains to correct, were the mutterings of the friends
of Burr, who had confidently expected the first place
for him. Thus, suddenly the constitutional method of
choosing the chief magistrate was confused with the
animosities, the schemes, and the disappointments of party
politics. The question thus ceased to be abstract, but
became one of practical politics. The Constitution had
proved defective in an essential part. Jefferson had been
comforted, in the prospect of his missing the presidency,
that though " the federal government would have been
in the situation of a clock or watch run down, there was
no idea of force nor of any occasion for it. A convention,
invited by the republican members of Congress with the
virtual President and Vice-president, would have been on
the ground in eight weeks ; would have repaired the Con-
stitution, and wound it up again." ^ As the Senate con-
sisted of nineteen Democratic-Republicans and thirteen
Federalists, and the House of seventy-one Republicans
and thirty-four Federalists, and as Jefferson was Vice-
president, the Republican members on the ground were
a factor to be reckoned with.
1 Jefferson to Priestley, March 21, 1801 ; Works (Ford's Edition),
vol. viii, p. 322.
112 A CONSTITUTIONAL HISTORY OF
An amendment of some kind, regulating the election
of the President and the Vice-president, now seemed
imminent, but another year passed before further efifort
toward one was made. On the 12th of April, 1802,
DeWitt Clinton in the Senate proposed as an amendment
that the persons voted for as President and Vice-president
be particularly designated,^ but the matter was again
postponed. Meanwhile the House was entertaining
amendments, and one of them providing for the desig-
nation of candidates was carried, on the 2d of May, by
a vote of forty-seven to fourteen ; but the Senate refused
to concur.- Further procedure was prevented by the
adjournment of Congress. The defeated measure was
brought up again on the 3d of January by Michael Leib,
of Pennsylvania. Bayard, of Delaware, called for a com-
mittee on the subject on the 8th of February; and Gris-
wold, of Connecticut, recommended the provision on the
9th ; but the House, without a decision on the matter, dis-
charged the committee and the subject was dropped for
the remainder of the session.
The steady recurrence of the proposition to amend
was a sign of the times. When, on the 17th of October,
1803, the eighth Congress assembled, nearly six years
had passed since the first amendment to designate the
candidates had been proposed. On the first day of the
new session, Dawson, of Virginia, renewed the motion
which Smith had made in 1797, and on the next day,
in committee of the whole, the House set itself seriously
to its consideration.-^ The amendment merely directed
the designation of the electoral votes, but Nicholson, of
Maryland, detecting the imperfection, proposed that
Dawson's amendment be changed so that the person
receiving the highest number of votes for Vice-president
should thereby be elected, unless the vote for two or
more was equal, in which case the Senate should choose.
Clopton, of Virginia, wished the choice, when made by
the House, limited to two instead of to five candidates,
as the Constitution provided. The matter was then
1 Annals, p. 259. 2 jj p ■^04.
* Annals, Eighth Congress, First Session, 372.
THE UNITED STATES 113
referred to a committee of seventeen, along with another
amendment for districting the country for presidential
electors. In the course of the debate a point of order
arose, and the Speaker, Nathaniel Macon, of North Caro-
lina, ruled that a simple majority is competent in Congress
to decide all matters preliminary to the final adoption of
constitutional amendments/
On the 226, Dawson proposed that in cases when the
election went to the House, the choice should be from the
three highest on the list, but when the Vice-president
was chosen by the Senate, the choice should be from the
two highest. The select committee accepted this, but the
limitation to the House of three candidates instead of
five, at once raised the question of the limitation of the
rights of the small states. The debate soon showed that
there was little objection to an amendment of some kind,
but that there was great objection to changing the number
of candidates from five to three. The friends of the
larger number carried the day by a vote of fifty-nine to
forty-seven ; the amendment was ordered engrossed and
passed to a third reading. The debate is of interest
because of its elucidation of political beliefs prevailing
at a time when the Constitution was in the infancy of its
administration. Most of its framers were still living
and were in public life, but the men who were now dis-
cussing the proposed twelfth amendment in Congress
belonged to a new generation. The current of party
passion ran high. Many a devout Federalist believed that
the clock of government had run down the moment when
the House of Representatives chose JefiFerson President.
The assertion, during the debate, that the proposed
amendment would imperil state sovereignty, if the number
of possible candidates was changed from five to three,
seems somewhat curious to us now. The advocates of
state sovereignty agreed with Hugher, of South Carolina,
that the Constitution was a compact and a compromise of
interests, and that the federated government agreed upon
in 1789 was a compact between thirteen separate sov-
ereignties. The inhabitants of the United States in
1 Annals, Eighth Congress, First Session, p. 381.
8
114 A CONSTITUTIONAL HISTORY OF
framing the Constitution, said Hugher, did not act en
masse as one people.^ The balance between great and
small states was the issue when the Constitution had been
ratified, and any variation from that balance would
endanger the states, Hastings, of Massachusetts, re-
minded the House that if the Constitution was to be
amended, the first thing to receive attention was the
article authorizing the rendition of fugitive slaves, which
operated with peculiar inequality in the northern and
eastern states; to which Matthew Lyon, lately repre-
senting a New England constituency, but now a mem-
ber from Kentucky, replied that the sacrifice of which
some complained had been made by the people among
whom slavery was permitted.^ The resolution was then
adopted.^
While it was before the House the Senate had been
discussing a similar amendment, proposed by Clinton on
the 2 1st of October.* Many modifications were sug-
gested, and the whole subject was referred to a select
committee of five, which reported on the 24th of October.
Dayton, of New Jersey, wished to abolish the vice-presi-
dency. The debate dragged along until the 23d of
November, when the Senate, having decided that two-
thirds of the members present could pass an amendment,
proceeded seriously to consider the committee's report.
And first, it rejected both five and two as the number
from which the House might choose and agreed on three.
John Quincy Adams, in a vigorous speech, urged that
as the House had already accepted the number five, the
Senate ought to retain that number. Butler, of South
Carolina, declared that the change which the Senate would
make would violate the compact of the Union, and that
if its amendment was not adopted the Federalists would
elect the next Vice-president. This, he said, was the pivot
upon which the whole matter turned. Finally the com-
mittee's report was adopted by a vote of twenty to eleven.
The debate which followed was like that which had
been heard in the House. Hillhouse, a senator from Con-
necticut, asserted that if the amendment passed, the
1 Annals, p. 522. ^ id. p. 554.
» 38 to 31. * 1803, Annals, p. 16.
THE UNITED STATES 115
election would go to the House nine times out of ten, and
that instead of a comedy, as in the election in 1804, there
would be a tragedy in the election of 1808. So vigorous
was the objection to the number three, it was struck out
and the number was left blank. This precipitated a
debate whether the change from five to a lesser number
would tend to diminish the rights of the smaller states.
On the 25th it was agreed, without debate, that the vote
in the House should be by states, following the language
of the original clause, and that the choice of the Senate
should be restricted to the two highest members on the
list. Some of the federalist senators now made earnest
arguments against changing the Constitution at all, but
they were in the minority. By a vote of more than two
to one it was agreed that the number of candidates before
the House should be three, but this did not determine
how the House should proceed in case more than three
candidates have the same number of votes. So many
amendments were now offered on the subject, all were
ordered printed, that the Senate might discover how the
matter stood, which led Smith, of Maryland, to ask, " Why
not throw dice for the office of President, the highest
number to win ? " Finally, it was decided to insert the
number three instead of five, and to omit the clause limit-
ing the period for which a President could be elected.
The Vice-president, Burr, declared that the resolution
had passed by a two-thirds vote, and it was sent to the
House with a request for concurrence.^
Two resolutions had now been passed : one by the
House, sent to the Senate on the 28th of October ; another
by the Senate, sent to the House on the ist of December.
The essential difference between them was the number
from which the choice should be made. The House
retained five, the original number of the Constitution ; the
Senate inserted three, and the provision that in case no
President was chosen by the House before the 4th of
March, the Vice-president-elect should become President.
The Senate resolution was taken up in the House on the
6th of December,- but the Senate had paid no attention to
* Annals, p. 2io. 2 jj. p 6^5.
Ii6 A CONSTITUTIONAL HISTORY OF
the House resolution. Objection was made in the House
to the Senate amendment, — that it had not been passed
by the constitutional number of senators, for everybody
knew that only twenty-two of the thirty-four members
of the Senate had voted for it, but it was finally decided
that as by the Constitution each House keeps a journal
and determines its own rules and regulations, therefore
the House has no authority to judge the Senate ; therefore
the resolution had come before it in a proper form. In
this conclusion the House agreed by a vote of thirty-five
to eighty-four and thus settled an important question in
congressional procedure.^
There was a strong effort made to abolish the office
of Vice-president as superfluous. At last, after repeated
refusals to adjourn, or to let the committee of the whole
rise, the House agreed to the Senate resolution, but re-
fused, by a vote of eighty-two to thirty-five, to substitute
the number three for five in the report.^ The Senate
amendment was then divided and the first part, containing
the provision for designating the electoral vote, passed by
a vote of eighty-five to thirty. The other clauses were
then agreed to and the Speaker, Macon, arose to put the
whole resolution. The Federalists attempted to delay
the vote until the next day. Randolph moved for an
immediate decision and the House sustained him, though
not by a strictly party vote.
On the 8th, the debate was resumed. Lowndes, Ran-
dolph, and a few other behevers in state sovereignty
took occasion carefully to outline its doctrines. Through-
out the discussion little was said of national sovereignty,
for as yet little was thought or known. Campbell, of
Tennessee, observed that the government was formed by
the people of the United States in their national capacity
and not by the several states convened in their state
capacities, in proof of which he cited the opening words
of the preamble, " We the people of the United States," ^
but he was speedily corrected by many members, who
informed him that the Constitution was adopted by the
states acting in their corporate capacity, and that the
1 Annals, p. 663. ^ Id. p. 683.
8 Id. pp. 718-727.
THE UNITED STATES 117
proposed amendment could not be adopted " without in
fact destroying the very basis of the Confederacy." At
last the debate came to an end, after state rights, state
sovereignty, the Constitution a compact between the states,
intrigue and corruption in elections, the relative merits of
three and five candidates, the use and the uselessness
of the office of Vice-president, the popular will and the
danger of innovation had all been touched on. Then the
vote was taken. Forty-two stood for the resolution and
forty-two against it. The casting vote of the Speaker,
Nathaniel Macon, carried the amendment.^
On the following day, the 12th of December,- the
Senate concurred and the joint resolution was sent forth
to the states for ratification. It made rapid progress
through the legislatures, for the public mind had long
been made up. On the 25th of September, 1804, Madi-
son, then Secretary of State, formally proclaimed that it
had become a part of the Constitution.^ Its adoption may
be said to have completed the Constitution as a piece of
eighteenth century work.
When the first ten amendments passed Congress, all the
f ramers of the Constitution, save one, were living ; eleven
were members of the Senate, and eight of the House.
One was President of the United States, — Washington,
— and his signature was affixed to the twelve amend-
ments which went out to the states on the 25th of Sep-
tember, 1789, and of which ten were ratified. The
eleventh was adopted by Congress on the 5th of March,
1794. During its discussion nine of the framers were
members of the Senate, and five of the House. During
the six years that the twelfth amendment, in one form
or another, was under consideration in Congress, seven
of the framers were members of the Senate, and four of
the House. At the time of its adoption by the eighth
Congress, Dayton, Butler, and Baldwin were in the
Senate; none of the framers then belonged to the House
though thirty-four were still living. The six framers
of the Constitution who were members of the House and
1 Annals, p. 776. 2 1803; Annals, p. 214.
8 For the acts of ratification, see " Documentary History of the Con
stitution," vol. ii, pp. 411, 451.
ii8 A CONSTITUTIONAL HISTORY OF
voted on the first ten amendments, supported them. The
eleventh was supported, in the Senate, by Ellsworth, But-
ler, King, Langdon, Martin, and Strong, and in the House
by Baldwin, Gilman, and Madison. Fitzsimons voted
against it. In 1803, when the twelfth amendment was
proposed, Baldwin voted for it in the Senate, and Butler
against it. Thus the record shows that of the twenty
framers of the Constitution who were members of Con-
gress during the period when the first twelve amendments
were under discussion, only two voted against them. The
attitude of John Quincy Adams toward the twelfth
amendment as it passed the Senate, and his vote against
it, because it limited the House to a choice of three instead
of five candidates, is of interest in the light of his later
history. The second disputed election occurred in 1824,
when the electoral votes for President were divided among
Jackson, Adams, Crawford, and Clay. By the twelfth
amendment, the House could not vote for Clay, the fourth
on the list. Had Adams's wishes, as he proclaimed them
in 1803, prevailed, and the number remained five, as in
the original Constitution and as the House amendment
provided, undoubtedly Clay would have been chosen
President.
Made so soon after the original instrument, these
twelve amendments have long seemed contemporary with
it.^ Turning to their source, it is clear that the first ten,
as Jeff'erson declared they ought to be, are a declaration
of rights and may be said to have emanated from a com-
mon source, the state constitutions. Some of them, as
we have seen, lead back to the Magna Charta, others to
the petition of rights, and one was taken without change
from the famous bill of rights enacted in the time of
William and Mary. At least eight are traceable to the
Declaration of Independence and three to the older dec-
laration of 1765, but the immediate source of most of
them was the state constitutions and the amendments
demanded by the ratifying conventions. The eleventh
and twelfth amendments were administrative in character
and could not have the same source as the first ten.
1 Corfield v. Coryell, 4 Wash. C. C. 371.
THE UNITED STATES 119
They were devices, opportunist measures, originating
in the necessity of the times. Posterity has not accepted
Gouverneur Morris's opinion of the first twelve amend-
ments, — that they are " generally speaking, mere verbi-
age." ^ They have formed a part of the supreme law
so long, they seem to be as much the work of Franklin,
Washington, Wilson, and Madison, and their colleagues
in the federal convention, as the original instrument
itself.
The most notable aspect of the effort to secure the
amendment of the Constitution, is the conscious attempt
of political parties to incorporate in the Constitution pro-
visions which would make reasonably certain a peaceful
administration of the government. The brief period from
1789 to 1805 was of critical importance in the evolution
of popular government in America, because it was the era
when debate of the theory of republican institutions was
giving way, in a preliminary fashion, to examination of
the problems of administration. These problems in-
volved the test which every government, whatever the
form, must stand : the test of practical operation.
Yet, it must be noted, that the twelfth amendment,
regulating the election of President and Vice-president,
is of a different order than any of the preceding eleven.
It was an administrative amendment ; they were additions
and corrections to bring the national plan into conformity
with accepted principles. It can scarcely be said that the
twelfth amendment involves a principle.
It is the first fruit of the awakening to the responsi-
bilities of administration of government, and slight as
many considered its value at the time of its enactment,
it attempted to solve one problem in administration which
public opinion in our own day considers as yet not fully
solved : the best method of electing the chief executive.
In the evolution of popular government in America, this
amendment gives date to the close of an era: the era of
theories of government. The American people, as a
nation, have never abandoned the principles laid down by
the Fathers, and first embodied in the organic laws of
the country in the eighteenth century.
1 Diary and Letters, vol. ii, p. 529.
120 A CONSTITUTIONAL HISTORY OF
In our day, when a new President turns from the
dehvery of his inaugural to take up the duties of his
great office, he finds himself at the head of a thoroughly
organized government. His predecessor has summoned
the Senate in extra session to act on appointments ; several
thousand clerks, distributed among eight executive
departments, are attending to the routine of the public
business all over the land. National courts are adjudi-
cating a multitude of cases in the light of a long line
of precedents. The accession of a new President causes
no jar or entanglement of public affairs. Whatever his
politics he assumes his duties with the aid of a vast body
of experienced subordinates. Whatever his policy, he
does not begin a government. Far different was the
condition of affairs in 1789. A President and a Vice-
president, senators and representatives had been elected,
but there was no federal organization excepting the
imperfect and feeble one of the Confederation. There was
a department of foreign affairs ; a treasury department ;
a war department ; a postoffice department and a navy
department, but under no such organization as their suc-
cessors soon enjoyed. The organization of the new
government straightway became a political issue, — or,
more correctly speaking, a succession of issues. The
settlement of these issues resulted gradually in the organ-
ization of a national government. Let us now see how
this was effected.
THE UNITED STATES 121
CHAPTER Vn
CONTEST
About the time when the first ten amendments were rati-
fied in 1789, an important question in the administration
of the government arose: that of the constitutionaHty
of a national bank. Washington turned to his chief
advisers for counsel, but their opinions were irreconcilable.
Jefiferson held to the letter of the Constitution.^ He
acknowledged that it empowered Congress to borrow
money and to lay taxes, to equip fleets and armies, and to
promote the general welfare, but it said not one word
about a bank. To take a single step beyond its plain
boundaries would be dangerous. True, Congress could
lay taxes for the purpose of providing for the general
welfare, but it could not lay them for any purpose it
pleased, as it was restricted to paying the debts and pro-
viding for the welfare of the Union. It was not intended
to make Congress the sole judge of good or evil, but
rather to lace up Congress straightly within its enumerated
powers. The provision to make all laws necessary and
proper for carrying into execution its enumerated powers
could be administered, he said, without a bank. Evi-
dently such a corporation was unnecessary, and therefore
was not authorized by the Constitution. Granting that
a bank would facilitate the collection of taxes, yet the
Constitution permitted only necessary and not merely con-
venient means for executing the authority of Congress.
A loose construction here would prove in the end most
perilous, for the Constitution would be tortured into an
interpretation which would swallow up necessity in mere
convenience.
^ Works, vol. Tii, p. 555.
122 A CONSTITUTIONAL HISTORY OF
Far different was Hamilton's advice. The Constitu-
tion, he said, plainly empowered Congress to do what was
necessary and proper. Its powers were implied as well
as expressed,^ and the objects entrusted to its manage-
ment were in their nature sovereign. Inseparable from
sovereignty was the right to erect corporations. The
word " necessary " was not to be construed restrictively,
nor as a supreme test of a constitutional right. Necessity
meant expediency. To incorporate a bank would not
stretch the power of the government, because it would
be only the exercise of authority within the sphere of
specified powers. Moreover, the right of Congress to
erect corporations had already been exercised in the
organization of two territorial governments, the one
northwest and the other southwest of the Ohio.^ Thus,
in brief, Hamilton advised Washington that Congress had
power to charter a national bank, because of the sov-
ereignty of the federal government. His opinion pre-
vailed, and the bill, which had passed Congress on the
8th of February, 1791, was signed by the President.^
The principle involved in the creation of a national
bank by Congress was laid down in " The Federalist "
in the general proposition that a government must pos-
sess powers adequate to the ends which it seeks to attain,
and that the exercise of these powers is a matter of
expediency. In brief, the question of establishing the
bank was administrative as well as organic. Public
finance might be regulated, the balance sheet of trade
might be struck, by some other agent than a bank, organ-
ized as was the bank of 1791. But in weighing the
arguments for and those against the bank bill, Washing-
ton could find principle and expediency in the one scale
and neither in the other.
The institution thus authorized had a capital of ten
million dollars, one-fifth of which was subscribed by the
United States. Its charter ran for twenty years and its
bills were a legal tender in all payments to the United
1 Works, vol. iv, pp. 105, T19.
2 Northwest, August 7, 1789; Statutes at Large, vol. i, p. 50. South-
west, May 26, 1790, Id. p. 123.
2 February 25, 1791, Id. p. 191.
THE UNITED STATES 123
States. Branch banks were established in the principal
cities, and the entire career of the parent bank was
prosperous and highly beneficial to the country. Twenty-
eight years after the passage of the bill creating it, the
supreme court declared that Congress had power to incor-
porate a bank ; ^ and five years later the court held that the
United States could protect the bank against a state.^
Not only did Hamilton's opinion prevail with Washing-
ton, but ultimately with Jefferson himself, who, when
he became President, signed the act ^ which had passed
Congress without a division to allow the bank to establish
branches in the territories.
The creation of the bank in 1791 gave rise to the
formulation of two conflicting interpretations of the Con-
stitution, familiarly known as the strict and the loose;
the one of adhesion to the exercise of expressed powers,
the other to that of implied also. This difference of inter-
pretation may be traced throughout the political and con-
stitutional history of the country since the organization
of government under the Constitution. Primarily divid-
ing over the powers of Congress, political parties have,
as time passed, differed in like manner concerning the
powers of the President and of the federal courts. The
seam of this division in public opinion is visible through-
out American political institutions. No party has contin-
uously and persistently adhered to eith,er a strict or a
loose construction of the Constitution. <^ The Federalists,
loose or broad constructionists, in 1791, over the es-
tablishment of a national bank, suddenly became strict
constructionists in 1803, over the acquisition of the Lou-
isiana country, their political opponents changing their
attitude in like manner. But as strict constructionists or
loose constructionists the classification of parties has
long been made : this line of division perhaps being most
easily traced. Generally speaking, the democratic party
has insisted upon a strict construction of the powers of
1 McCullough V. Maryland (1810), 4 Wheaton, 316; Story's Com-
mentaries, 1262. The decision was by Chief -Justice Marshall.
2 Osborn et al. v. Bank of the Northwest (1824), 9 Wheaton, 738;
Marshall, 324; see also page 241 of the present work. Decision by
Marshall.
3 March 23, 1804; Statutes at Large, vol. ii, p. 274.
124 A CONSTITUTIONAL HISTORY OF
the federal government, — legislative, executive, and
judicial ; and the adhesion to the principle has been one
of its cardinal doctrines since the days of Jefferson. The
Federalists, the National Republicans, the Whigs, and
the Republicans, originating as a party in the days of
Hamilton, have favored a broad construction of federal
powers, the exceptional cases only establishing the rule.
But the dictum of Hamilton that " necessity is expedi-
ency " must ever be kept in mind when the attempt is
made to generalize on the history of political parties in
America.
Four years after the incorporation of the bank, a
question of vital importance was raised by the Jay treaty.^
Washington had sent Chief-Justice Jay as a special envoy
to settle all questions of dispute between England and
the United States. These were chiefly compensation
for negroes taken by British troops during the revolu-
tion ; the settlement of the boundary and the removal
of British troops from the Northwest ; the payment of
claims for property illegally seized by British authority;
and the right of the people of the United States to trade,
undisturbed by England, with neutral powers. The
treaty was signed on the 19th of November, 1794. On
the 24th of June of the following year it was ratified by
the Senate, but meanwhile hostility to the treaty had taken
form outside of Congress in the protests of public meet-
ings and state legislatures against its approval by the
President. Washington approved it. The House delayed
voting the necessary appropriation for carrying it into
effect. During the debates in the House, which were
almost continuous from January till May, 1796, the treaty,
which had been both ratified and amended by the Senate,
arrived, after having been approved by the British gov-
ernment. The House was not satisfied, and called for
all papers on the treaty in the possession of the President,
but he refused to deliver them on the ground of expedi-
ency and the lack of authority of the House to call for
them. 2 The House then took the position that, as the
execution of the treaty would depend upon appropria-
1 Treaties and Conventions, pp. 379, 395.
' 2 Sparks' Washington, vol. xiii, p. 112.
THE UNITED STATES 125
tions, and as these were within its control, therefore it
had the right to pass judgment on the expediency of
the treaty/ It also resolved that, if acting within its
authority, it was not bound to declare the purpose for
which it sought information from the President. The
great question was not so much the right of the House
to demand the papers as its constitutional right to refuse
the appropriations for executing the treaty.
The Democratic-Republicans, led by Madison, insisted
on the constitutional right of the House to refuse them,
and it was even argued that the House ought to participate
in the treaty-making power. But even the strictest of
strict constructionists could find no word in the Constitu-
tion which empowered the House to participate in the
making of treaties ; therefore the Republicans were com-
pelled to base their argument on the ground of expediency
and on the exclusive authority of the House to originate
money bills and to regulate trade. The Republicans
asserted that the Constitution clearly gave Congress power
to lay and collect taxes and to regulate commerce with
foreign nations, but as by the Constitution a treaty was a
part of the supreme law of the land, it might follow
that the Senate and the President, who possessed the
treaty-making power, might make laws regulating com-
merce and exclude the House from all participation.
Indeed, treaties and the laws of Congress might conflict.
The Federalists argued from the plain intent of the
Constitution. Fisher Ames spoke so eloquently - in favor
of voting the appropriation to execute the treaty, and
his speech was so unanswerable, that the Republicans
adjourned the House lest a vote should be taken. On the
following day, the 30th of April, the House voted, though
only by a majority of three, to carry the treaty into
effect, and thus solved the question of appropriations.
At the next session of Congress ^ the Senate was fed-
eralist, the House democratic-republican.* Jay's treaty
1 Resolutions of April 7, 1796.
2 April 28, 1796; Johnston's American Orations, vol. i, p. 64.
2 The fifth Congress, May 15, 1797, March 3, 1799.
* Senate, 21 Federalists, 11 Democrats; House, 51 Federalists, 45
Democrats.
126 A CONSTITUTIONAL HISTORY OF
had offended France, and her aggressions upon our com-
merce promised war. The Republicans at home were
in sympathy with France, until the publication ^ of the
insults heaped on Pinckney, Gerry, and Marshall, whom
Adams had sent as special commissioners to France,
turned the tide and so affected the elections as to give
the Federalists control of both Houses. Eager to prevent
a repetition of the late experience of the country at the
hands of noisy foreigners residing within it, who had used
libelous language and had engaged in unlawful enter-
prises on behalf of the French Republicans, the Fed-
eralists determined to increase the army and navy, to
prevent the treason of citizens, and to silence the calumny
of aliens. W'ith a majority in both branches they easily
carried out their program. The naturalization laws were
amended so that a foreigner was required to reside four-
teen years, instead of five, in the country ; and to give
five, instead of three, years' notice of his intention to
become a citizen.'^ An alien enemy could not be natu-
ralized. All resident aliens were to be registered and
thus brought within the surveillance of the government.
The President was empowered to expel from the country
all aliens whom he adjudged dangerous to its peace and
safety, or whom he suspected engaged in treasonable
practices.^ In case of war with a foreign country, the
President, at his discretion, might cause all resident aliens
or citizens of that country to be arrested, and, if necessary,
removed. The second of these laws was known as the
alien act, and provoked widespread hostility.*
The Republicans held ^ that it violated the right of
personal liberty, and therefore infringed upon the state
constitutions ; that it interfered with the right of free
migration, and therefore was a direct injury to the states;
and finally, that it was unconstitutional because it con-
1 The X Y Z despatches, October and November, 1797.
2 Act of June 19, 1798; Statutes at Large, vol. i, p. 566; Annals of
Congress, p. 1570.
8 Acts of June 25, and July 6, 1798; Statutes at Large, vol. i, pp. 570,
577; Annals of Congress, p. 1566.
* For the alien act, June 21;, the alien enemies act, July 6, and the
sedition act, Julv 14, 1798, see Macdonald, pp. 141-146.
^ Madison's Works, vol. iv, p. 524; Annals of Congress, pp. 1631, 1773.
THE UNITED STATES 127
fused executive with judicial functions. They held
essentially the same opinions respecting the other two
acts. By what constitutional right, they asked, could
the President at his discretion declare a resident alien to
be a public enemy? Or where was the constitutional
authority for a law empowering the President to arrest
a person, even an alien, who he might claim was engaged
in treasonable undertakings? Clearly the law violated
the rights of freedom of speech and the press which were
given to every inhabitant of the country by the state
constitutions. It also violated the right of habeas corpus,
a right which every man had under the laws and consti-
tutions of the commonwealths.
In the face of all these formidable objections, the Fed-
eralists persisted in passing the acts. Before they were
on the statute books legislatures and political parties
began a campaign against them.. The master spirit in
this counter-revolution was Jefferson. He saw clearly
that the Federalists were intent upon building up a strong
executive department,^ — too strong, he believed, for the
other parts of the Constitution. He and his followers,
on the other hand, were equally ardent to strengthen the
legislative.
Political parties had not yet been thoroughly organized,
but from the time of the enactment of the alien and sedi-
tion laws are quite clearly defined. The two parties were
the national party, or Federalists, and the state party, or
Democrats. The Federalists would strengthen the gen-
eral government, as the Democrats believed, at the
expense of the states. The Democrats would strengthen
the state governments, as the Federalists believed, at
the expense of the United States. The decision of the
supreme court in the case of Georgia had alarmed the
state party, and it had taken up Iredell's dissenting
opinion as the true and just interpretation of the Con-
stitution. The eleventh amendment, ratified five years,
lacking three weeks, after Wilson's decision, was a pro-
nounced victory for the democratic party. While the
1 "The Constitutional History of the American People, 1776-1850,"
vol. i, pp. 169, 189.
128 A CONSTITUTIONAL HISTORY OF
Federalists were carrying their odious alien and sedition
acts through Congress, Jefferson and his friends sounded
the alarm, and began the campaign which was to over-
throw them. The state party took the ground that the acts
were clearly unconstitutional. Pamphlets and newspaper
articles pronouncing them so, rnultiplied in all quarters.
Public meetings were called, especially in the South and
West, and resolutions drawn up with great care were sent
up to the legislatures. John Breckenridge presented a set
of resolutions to the Kentucky legislature on the 7th of
November, 1797. Jefferson was their author.^ After a
week's debate, which was, in truth, a series of eulogies
of the doctrine of the state party and an attack on the
Federalists, the Kentucky resolutions passed.
A similar set, written by Madison at Jefferson's
request, was presented in the Virginia legislature on the
13th of December, and was adopted on the 24th. ^ These
were the famous Virginia and Kentucky resolutions. A
second set, also written by Jefferson, was adopted by the
Kentucky legislature on the 22d of November, 1799.''
Though differing in phraseology, and somewhat in their
teachings, the three sets of resolutions constituted a body
of political doctrines of the gravest character. The three
sets agreed in declaring that the Constitution was a com-
pact to which the states were a party, and that the powers
of the general government were limited by the plain
sense of the Constitution. In case of a deliberate, palpable,
and dangerous exercise of powers that had not been
granted, the states were in duty bound to interpose and
arrest the progress of the evil. The federal government
was accused of seeking to enlarge its powers by a forced
construction of the Constitution for the purpose of consol-
idating the states into one sovereignty, the effect of which
would be the transformation of the republic into a mon-
archy. The Virginia and the two Kentucky resolutions,
however they vary from a common expression, practically
1 For the resolutions, see Preston's Documents, p. 287 ; Elliot, vol. iv,
p. 540.
^ Preston, p. 284; Elliot, vol. iv, p. 528.
8 Preston, p. 295 ; Elliot, vol. iv, p. 544.
THE UNITED STATES 129
declared the alien and sedition acts unconstitutional, be-
cause they violated the bills of rights, the very foundation
of the state constitutions. And because the states which
had formed the Constitution were sovereign and inde-
pendent, they had the unquestionable right to judge of
its infraction. The rightful remedy, therefore, was " a
nullification by those sovereignties of all unauthorized acts
done under color of that instrument." In brief, the reso-
lutions claimed that the commonwealths were sovereign
powers and denied sovereignty to the general government.
Carried to their ultimate conclusion, the second Kentucky
resolutions plainly asserted the right of a state to nullify
a federal law. From this doctrine the right of secession
was an inevitable deduction.
The fateful idea of state sovereignty had now been
clearly set forth and its practicable form suggested.
Copies of the resolutions were sent to all the legislatures,
and nine states made formal replies.^ Some of them
defended the alien and sedition laws; Delaware declared
that the Virginia resolutions were an unjustifiable inter-
ference with the powers of the general government ; Ver-
mont and Massachusetts asserted that no state legislature
had the right to usurp the powers of a federal court.
Not one state, save Virginia and Kentucky, had approved
the resolutions. Jefferson and his friends did not expect
such a repulse. The replies of the states were referred by
the Virginia house of burgesses to a committee of which
Madison was chairman, and he, taking up the original res-
olutions article by article, labored in an elaborate report ^
to prove that they were in harmony with the express pro-
visions of the federal Constitution. Madison did not hold
to the doctrine of nullification, but he pronounced the fed-
eral government a compact between the states, and declared
that its powers were not original, but derivative. He cited
the history of the country to prove the inaccuracy of the
idea of national sovereignty. The states were the final arbi-
trators. They were the creators of the general govern-
ment ; it was their agent. Just at what time a state might
1 Elliot, vol. iv, p. S32.
3 Id. vol. iv, p. 546.
9
I30 A CONSTITUTIONAL HISTORY OF
pronounce that a federal act was a palpable violation of its
rights, he did not say, but he left the door open. Nulli-
fication was to be worked out in the practical administra-
tion of the government.
The Kentucky and Virginia resolutions embodied the
famous " doctrine of '98," and undoubtedly expressed
the belief of the majority of the voters of the time. That
this is true is shown in the elections of 1800, which put
the democratic party in possession of the legislative and
executive branches of the government. The campaign
against the alien and sedition laws, which Jefferson and
his friends began in 1798, had widened into a state
movement and had taken permanent form in the organi-
zation of a great political party, which, by its representa-
tives in the House, was able, on the 17th of February,
1 801, on the thirty-sixth ballot, to elect Jefferson Presi-
dent of the United States. The repeal of the alien and
sedition acts followed soon after. The triumph of the
Democratic-Republicans in 1800 seemed to establish the
doctrines of the Kentucky resolutions. If they truly
expressed the ruling principles of the American govern-
ment, then the state legislatures were the final arbitrators ^
in all cases in which the constitutionality of an act of
Congress was in doubt.
An opportunity to apply the doctrine of '98 arose soon
after the inauguration of Jefferson, out of the question
of the constitutionality of the purchase of Louisiana.
While the Constitution was before the states for ratifica-
tion, the Mississippi question was one of the important
matters demanding solution. The members of the Vir-
ginia convention from the western, or Kentucky, district
had resolutely stood out against ratification till convinced
by Madison and Marshall, and by other supporters of the
Constitution, that the new government did not intend to
surrender the Mississippi to Spain. In North and South
Carolina, whose territory extended westward to the great
river, opposition was in part allayed by the same under-
1 Per contra Story's Commentaries, p. 1637 ; Marshall, p. 227. United
States V. Peters (1809), 5 Cranch, 115; Gibbons v. Ogden (1824),
9 Whcaton, i.
THE UNITED STATES 131
standing. On the ist of October, 1800, Spain ceded
Louisiana to France, but the cession in no wise diminished
the danger to American interests. A foreign power still
controlled the mouth of the Mississippi, and one more
to be feared than Spain. Jefiferson promptly declared
that the possessor of New Orleans must be the natural
and habitual enemy of the United States,^ and he in-
structed Livingston, our ambassador at Paris, to begin
negotiations with France for the acquisition of the two
Floridas and of the island of Orleans. As Napoleon was
at this time dreaming of a vast colonial policy, the matter
received little attention. The disasters which soon over-
took him compelled him to change his plans, and he let
it be known to the American ambassador that he would
sell Louisiana to the United States. Such an oppor-
tunity could never occur again. On the 30th of April,
1803, a treaty was signed at Paris by which the United
states acquired all of Louisiana for fifteen million dollars.^
By the terms of the treaty, the inhabitants of Louisiana
were to be incorporated in the Union and as soon as
possible were to be admitted to the enjoyment of all the
rights, advantages and immunities of citizens of the
United States ; and they were to be protected in the enjoy-
ment of their liberty, property, and religion.^ A reci-
procity clause opened the port of New Orleans for twelve
years to the commerce and manufactures of France,
Spain, and their colonies, but no other nation was entitled
to like privileges.
Though the purchase was of immeasurable importance I
to the Union, its constitutionality was quickly attacked
by the Federalists, yet not by the most famed member
of the party ; for Hamilton, who seldom agreed with
Jefferson, now agreed with him, that the unity of the
United States and its best interests required the an-
nexation of all territory west of the Mississippi.* The
1 April 18, 1802; Works, vol. iv, p. 431.
2 The aggregate cost for purchase money, interest, and claims assumed
by the United States, paid to June 30, 1880, was ;?27, 267,621. 98; Donald-
son's " Public Domain," p. 105.
8 Article III ; Treaties and Conventions, p. 332.
* Works, vol. vi, p. 541.
132 A CONSTITUTIONAL HISTORY OF
whole transaction was without precedent in our annals.
Livingston and Monroe, who had conducted the negotia-
tions, acknowledged that they had exceeded their instruc-
tions, but at the same time were fully aware that they
were carrying out Jefferson's wishes. The only thing
for the President to do was to have the treaty ratified
as soon as possible and without debate, for he knew the
constitutional difficulty in the way. His plan, which
was executed to the letter, was made easy by a republican
majority in both Houses. On the 19th of October the
senate ratified the treaty by a vote of twenty-four to
seven, — ten votes to spare ; and the House, with equal
promptness and zeal, voted the necessary appropriations
and organized a territorial government, but, strange to
say, on a monarchical plan ; for they empowered the Presi-
ident, in the first act of the session, to take possession of
the territory and to exercise military, civil and judicial
powers over it at his discretion, till a territorial govern-
ment in due form should be established.^
This unique law did not agree with Jefferson's prin-
ciples of strict construction, but he approved it and at
once carried it into effect. It gave the Federalists an
opportunity to retaliate on Jefferson and accuse him of
monarchical tendencies. John Randolph, the Republican
leader in the House, even went so far as to attempt to
prove that the acquisition strictly complied with the Con-
stitution ; but he doubtless knew better. Not one word in
that instrument expressly authorized the purchase. Not
one word of which we have record, spoken in the federal
convention, intimates that the framers anticipated the
annexation of the Louisiana country. The transaction
was at variance with the ideas of the Fathers. Even the
states had not been consulted, and by the doctrine of
'98, of which Jefferson was the chief author, they were
the final arbitrators of the constitutionality of the treaty.
In acquiring the vast domain, Jefferson showed states-
manship of the highest order. He simply ignored the
Constitution and secured for the American people a region
of country most necessary to their general welfare, and he
1 October 31, 1803 ; Statutes at Large, vol. ii, p. 245.
THE UNITED STATES 133
acted the part of an honest man when he frankly admitted
that the Constitution made no provision for acquiring
foreign territory or incorporating foreign nations into
the Union.
He confessed that he had done an act beyond the Con-
stitution, but he beUeved that it was for the good of the
country, and therefore Congress should ratify the treaty,
pay for the acquisition, and then throw themselves on the
country for doing an unauthorized act. But he thought
that the position would be improved if the purchase was
formally ratified in a constitutional amendment, and even
went so far as to draw one up and wished to submit it to
Congress. His political friends, wiser in this respect than
he, but perhaps less scrupulous, failed to respond to his
wishes and the matter dropped. Even while ignoring
the Constitution, if it can be said that he did ignore it,
but certainly in turning his back on his own party, Jeffer-
son applied its teachings in a large way. He was right
in believing that the majority of the American people
would support him in his policy. He was considering
the good of the whole people. His great act, therefore,
remains unique in our history as a singular example of
a party chief repudiating the doctrines of his political
school long enough to carry through a transaction, every
element of which contradicted those teachings. The ac-
quisition of Louisiana was a fine, but not a final example
of the elevation of expediency to principle without viola-
tion to other principles of republican government on
which the American system rests.
The Federalists in like manner repudiated their party
principles and attacked the transaction as unconstitu-
tional. Necessarily their attack was weak, but what they
lacked in argument they made up in threats. They de-
clared that a constitutional amendment was a necessary
preliminary to such a treaty, but the question was fully
answered by Nicholson, of Maryland, that a sovereign
nation always possesses the right to acquire new territory,
and he cited the provision in the Constitution empowering
Congress to dispose of and to make all needful rules and
regulations respecting the territorial or other property of
the United States ; but this was a federalist argument and
134 A CONSTITUTIONAL HISTORY OF
was interpreting the Constitution on principles which the
Republicans had all along held to be highly dangerous.
There was, however, another objection. Pickering, of
Massachusetts, declared in the Senate that a transaction
of this kind, which so seriously affected the Union, could
not be made without the assent of each state. " In like
manner as in a commercial house, the consent of each
member would be necessary to admit a new partner into
the company," ^ but this partnership theory of the govern-
ment was not a true federalist doctrine. Though the
Republicans had made great use of it in exploiting the
Kentucky and Virginia resolutions, they saw no relevancy
in it now. Some of them blandly asked the Federalists
how this partnership theory could be harmonized with
their theory of a national instead of a federal govern-
ment? The debate was altogether curious. Federalists
had turned Republicans, and Republicans had turned
Federalists.
Hamilton was not the only broad constructionist who
supported Jefferson. John Quincy Adams stood with
him. Though differing as to the best means of removing
all difficulty, Hamilton and Adams agreed that the pur-
chase ought to be made. Adams favored ratification by
the state legislatures as equivalent to a constitutional
amendment, iDut this view squinted between the doctrine
of '98 and the national doctrine of the Federalists, though
it differed so widely from theirs that they straightway read
Adams out of the party. Many of the Federalists, though
not their greatest leaders, suddenly professed belief
in the doctrine of '98, and advised its radical applica-
tion. " Rather than approval of the treaty, let the federal-
ist states secede from the Union," ^ but this program was
too much for them, as at this time, only three states had
federalist legislatures. Hamilton opposed this scheme,
for he saw both its dangers and its absurdity. Some of
the federalist leaders found themselves in correspondence
with Aaron Burr, with what ultimate purpose is not
exactly known, but apparently for secession. These dis-
affected politicians persisted in saying that the acquisition
1 Debates of Congress, vol. iii, p. 13.
2 Jefferson's Works, vol. iv, p. 542.
THE UNITED STATES 135
of Louisiana must injure the northern and eastern states
beyond remedy. Not one FederaUst anticipated the ex-
tension of slave territory which the purchase made pos-
sible, and no man at this time foresaw the effect which the
acquisition was to have upon the history of the slave
power.
The Republicans in their defence of the treaty made no
hint at slavery extension. That evil was to come at a later
day. The bitter controversy over the treaty in and out
of Congress showed how political parties are dominate_d_
by their adhesion to expediency. The Louisiana purchase
for a time exchanged the positions of Federalists and
Republicans, nor did the irony of history cease with the
close of the agitation. Twenty-five years after the pur-
chase, the greatest of our judges, and one of the most
uncompromising of Federalists, delivered an opinion, as
chief-justice of the United States, which fully sustained
the constitutionality of the purchase. The Constitution,
said Marshall, confers absolutely on the government of
the Union the powers of making war and of making
treaties ; consequently, that government possesses the
power of acquiring territory either by conquest or by
treaty.^ Marshall was chief- justice at the time of the
acquisition of Louisiana. A few of the more radical
members of the political party to which he belonged, and
they chiefly resided in New England, advocated secession
from the Union rather than acquiescence in the treaty.
It is an interesting question whether, had the case which
reached him in 1828 come before him in 1803, he would
have given a similar decision. It may be confidently
asserted, however, that he would not have sustained an
act of secession.^ In its constitutionality, the purchase
of Louisiana became the precedent for all our later
acquisitions.
The question of secession came up again four years
after the purchase of Louisiana in connection with the
embargo of 1807,^ an act which bore heavily on the com-
^ The American Insurance Company <?/' «/. v. Canter, i Peters, 511.
2 Compare Cohens v. Virginia, 6 Wheaton, 377 ; Ogden v. Saunders,
12 Wheaton, 332.
8 Act of December 22, 1807 ; Statutes at Large, vol. ii, p. 451.
136 A CONSTITUTIONAL HISTORY OF
merce and manufactures of the country, but most heavily
on those of New England, where it provoked serious op-
position. Its defenders claimed that it was made in the
exercise of the war power and also under the authority
of Congress to regulate commerce, but a great majority
of the people of New England believed that the law was
unconstitutional.^ They said that instead of regulating
commerce, it obstructed it indefinitely, for the law was
perpetual. Therefore, they considered it a violation of
the Constitution, Here was a fine opportunity for a New
England state, and especially for Massachusetts, to de-
clare, according to the doctrine of '98, that the embargo
law was " a deliberate, palpable, and dangerous exercise
of power not granted by the Constitution." It was delib-
erate because long continued ; palpable, because no words
in the Constitution, but only a violent construction of it,
suffered the law ; and it was dangerous, since it threat-
ened utterly to ruin the most important interests of the
state. But the state went no further than to petition
Congress for its repeal, and with some eflFect.^ Though
a majority of the New England people believed that the
law was unconstitutional, they were willing that the de-
cision be made by the proper tribunal. It was made and it
was made against them. The constitutionality of the law
was sustained.'' New England submitted and refused to
apply the doctrine of '98.*
Hostility in New England toward the embargo merged
finally into a settled hostility toward the whole republican
theory of administration and found vent seven years later
in the Hartford convention and in opposition to the second
war with England. Though the convention was merely
a vigorous expostulation by a few ardent Federalists
against a political policy, it was construed by the Republi-
cans as preliminary to an overt act of secession, and was
long pilloried before the world as proof of the treasonable
1 " Life of William Plummer," p. 369; Gould's Portland, p. 423.
2 Benton's Debates, vol. iii, p. 629. Webster's Speech.
' Blake's " Examination of the Constitutionality of the Embargo
Laws," U. S. District Court, vSalem, Massachusetts.
* Webster's Second Speech on Foot's Resolution, Works, vol. iiL
P- 327-
THE UNITED STATES 137
intentions of New England in 1814.^ The East was far
from enthusiastic in support of the war. The Federalists,
the strongest party in that quarter, asserted that a conflict
might have been avoided. They were sluggish as a party
in responding to the call of the government for support,
and some of them denied the constitutional power of the
President to call out the militia.
This spirit raised a critical constitutional question,
which, though it did not reach the supreme court till
some years later, finally decided the matter at issue. ^
A militiaman in the state of New York refused to enter
the service of the United States, when summoned by the
President. The court before which the case came, by
appeal, held that the authority to decide whether there
was imminent danger of invasion rested exclusively with
the President, and that his decision was conclusive for all
persons. The power was to be exercised upon sudden
emergencies and under circumstances which might be
vital to the Union. A prompt and unhesitating obedience
to order was indispensable. The law on the subject,'
therefore, was constitutional, and every member of a militia
company was amenable to it. The decision was far-
reaching for it linked the military authority of the United
States to the militia service in every state, and established
beyond controversy the power of the President as com-
mander-in-chief of the militia, when it is called into the
national service. The decision went far to establish that
authority which the national government possesses over
individuals enunciated as a principle of government in
" The Federalist " : * the power to address itself to the
hopes and fears of individuals.
The war of 181 2 left a long train of political problems
incident to the economic re-organization of the country.
Of these the first, of great importance, was the question
of the constitutionality of internal improvements. On
this subject the constitution is not explicit. It empowers
* See Dwight's Hartford Convention and its Journal.
' Martin v. Mott, 12 Wheaton, 19 (1827). The decision was by Mr
Justice Story.
3 Act of February 28, 1795 ; Statutes at Large, vol. i, p. 424.
* " The Federalist," No. XVI,
138 A CONSTITUTIONAL HISTORY OF
Congress to establish post-roads, to regulate commerce
between the states, to control the territories, to levy taxes,
to make appropriations, and, in brief, to make all laws
which it may consider necessary and proper to promote
the general welfare, but, in constitutional discussions,
down to Madison's second administration (1813-1817),
no party had arrived at the conclusion that the Constitu-
tion permits internal improvements at national expense.
Jefferson, early in his second administration, informed
Congress that there was likely soon to be a surplus in the
treasury, and the question to what it should be applied
must be answered. He pointed out two suitable objects,
— internal improvements and public education ; but he
could find no authority in the Constitution to expend
money for either of these purposes ; therefore, he advised
an amendment which would permit such applications of
the public moneys,^ and he repeated his recommendation
in his last annual message.^ His successors, Madison and
Monroe, renewed the suggestion.^ Its repetition must be
accepted as evidence of a settled policy on the part of the
Republicans, that internal improvements at national ex-
pense were not authorized by the Constitution.
The most elaborate argument on the subject was made
by Monroe in his veto of the Cumberland road bill,* the
longest message sent to Congress by any of our Presidents.
He took up each clause in the Constitution, which by any
construction could be applied in authorization of internal
improvements, and after a most searching examination
arrived at the conclusion that Congress had not been
granted power to execute such improvements. These
must be undertaken, if at all, by the states. Whatever the
advantages which might accrue to the general govern-
ment from such an undertaking, they would be no com-
pensation for the violence done to the supreme law. He
admitted that such improvements were of vital impor-
1 Message of the President, December 2, 1806; Richardson, vol. i,
p. 409.
2 November 8, 1808, Id. p. 456.
8 Madison, December 5, 1815, Id. p. 567; Monroe, December 2, 1817,
Id. vol. ii, p. 18; December 3, 1822, Id. p. 191; December 2, 1823, Id
p. 207 ; May 4, 1822, Id. p. 142.
* May 4, 1822, Id. vol. ii, p. 144.
THE UNITED STATES 139
tance ; but the only way in which they could be made was
through an amendment to the Constitution. The states
individually could not transfer the power to the United
States, nor could the United States receive it from them.
Any compact between the general government and a state,
which was not common to all, would bear most pernicious
consequences. Thus the answer of the Republicans to the
demand for internal improvements at national expense in
1818 was non possiuiius. In this opinion Monroe closely
followed Madison, who in an earlier veto message had
taken nearly the same ground.^ These opinions, hov/-
ever, were not shared by the whole country, as the reso-
lutions of the House of Representatives passed a year after
Madison's veto indicated. ^ These asserted the right of
Congress to make appropriations for such improvements,
but as yet they had not the support of a majority of the
people, and therefore were only the opinion of a minority
party. The whole question of internal improvements in-
volved the vital question of sovereignty. If the principle
was admitted that the federal government was sovereign,
then supreme economic interests might ignore state
boundaries, and the economic welfare of the people would
take precedence over the dicta of state sovereignty.
The treaty of 1803, by which Louisiana was acquired,
bound the United States to protect its inhabitants in the
enjoyment of their religion, liberty, and property. Slavery
already flourished among them, and property included
slaves. At the time of the admission of Louisiana^ there
were about one hundred thousand people in the entire
acquisition, of whom twenty thousand resided within the
present bounds of Missouri. In ten years (1810-1820)
the population of Missouri increased to nearly seventy
thousand, of whom ten thousand were slaves. In 1819
there were about sixteen hundred slaves in Arkansas.
The treaty also provided for the admission of new states
that might be formed out of the purchase, on an equal
footing "with the original thirteen ; thus, the United States
was under obligation to protect slavery and to admit new
states from the region without discrimination.
1 March 3, 1817 ; Richardson, vol. i, p. 585.
2 March 4, 1818. » April 8, 1812.
I40 A CONSTITUTIONAL HISTORY OF
In March, 1818, John Scott, the delegate in Congress,
from Missouri territory, submitted a petition for its ad-
mission into the Union. At the next session of Congress,
Henry Clay, the Speaker, on the i8th of December, sub-
mitted the Missouri petition to the House, but it was not
seriously considered until the 13th of February, when the
House discussed the report of the committee of the whole,
which was in the usual form for the admission of a state,
that its constitution be republican in form and not in-
consistent with the Constitution of the United States.
Tallmadge, of New York, immediately proposed two re-
strictions : first, against further introduction of slavery in
the new country, except as a punishment for crime ; and
secondly, for the gradual emancipation of all slave-born
children within the state at the age of twenty-five years. ^
The first restriction was taken from the ordinance of 1787,
and the second was suggested by the practice of several
northern states. Tallmadge and his supporters declared
that the restrictions were just and expedient, but their
opponents argued with equal vigor that Congress had no
authority to impose conditions on a state government
other than that it be republican in form. It was asserted
that the authority of Congress was clear, as the Constitu-
tion authorizes it to dispose of and to make all needful
rules and regulations respecting territorial and other
property of the United States. In proof the restrictionists
cited the enabling acts of Ohio, Indiana, and Illinois,
which complied with the ordinance of 1787.
As Missouri lay directly west of these states, the re-
strictionists believed that it should be subject to the same
anti-slavery law. But what of the treaty of 1803, which
put Congress under obligation to protect the property of
the citizens of the Louisiana country? True, replied the
restrictionists, but nothing was said in the treaty about
the organization of new states ; and even if such a pro-
vision had been inserted, who would claim that a treaty
made by the Senate and the President could bind Congress
in the admission of new states? That it could not bind
Congress was evident from the organization of the terri-
1 February 15, i8ig; Benton's Debates of Congress, vol. vii, p. 334.
THE UNITED STATES 141
tories of Louisiana and Orleans, and the admission of
Louisiana into the Union. The enabUng acts imposed
conditions and thus settled the whole matter. If Congress
had the power to purchase the Louisiana country, it had
the power to regulate its territorial government and to
provide for the gradual abolition of slavery within its
limits.
But to exclude slavery would depreciate the value of
its pubUc lands. Not so, rephed the restrictionists ; the
price would rise. Lands always sold higher in free than
in slave states. The exceptions in the Constitution in
favor of slavery and the slave states, the restrictionists
argued, applied to the original states but not to new
states. The Constitution guarantees to each state a repub-
lican form of government which would be violated if
slavery was extended into Missouri. Clay replied that
the proposed restriction would violate that clause in the
Constitution which declares citizens of each state entitled
to all the privileges and immunities of citizens of the
several states, but he was promptly asked, whether slavery
could be called a privilege. He feared that there would
be no end of conditions if restrictions were allowed, but
he was assured that the only one demanded was that of
a republican form of government. Until 1808, said the
restrictionists, the immigration or importation of slaves
could not be prohibited by Congress, but that time had
now passed, and immigration, if it meant anything at all,
meant the transportation of slaves from one state to an-
other. The time limit having long since expired, Congress
was free to prevent a further extension of slavery. But
to all these arguments of the restrictionists there was one
constant rejoinder, that if the citizens of any one of the
old states had the right to determine whether they would
tolerate slavery, why should not the citizens of Missouri
have the same privilege? The states were equal, sov-
ereign, and independent, and if Congress discriminated
among them the Union would be destroyed. Finally, in
spite of the arguments against them, both the Tallmadge
restrictions were adopted by the House, though by a
sectional vote.^
1 February i6, 1819; Eenton, vol. vi, p. 450.
142 A CONSTITUTIONAL HISTORY OF
On the following- day Taylor, of New York, moved that
the clause excluding slavery should be embodied in the
bill then pending for a territorial government for Arkan-
sas.^ This at once alarmed the supporters of slavery.
Was slavery to be excluded both from new states and
from territories ? By what right could Congress impose a
distasteful condition upon the citizens either of a state
or of a territory? Were not the people themselves the
proper judges of their constitutional rights? McLane,
of Delaware, well knowing the interpretation which the
southern people, and, indeed, the majority of the people
of the United States put upon the ordinance of 1787, that
the region north of the Ohio River had been given up
exclusively to freedom, with the understanding that the
region south of the line should be exclusively for slavery,
now proposed that some line should be fixed west of the
Mississippi, north of which slavery should be forbidden.
It was believed that such an arrangement could easily be
made, as the vast region west of the river would give
ample room both for freedom and slavery ; but the clause
to forbid the introduction of slavery west of the Missis-
sippi was lost by one vote. For the establishment of a
dividing line the majority was two, but on reconsideration
the matter was struck out ; the small majority indicating
the even division of opinions. Taylor then proposed the
line of 36° 30' north latitude. Several other lines were
suggested, but Arkansas was organized as a territory with-
out restriction of slavery. On the 17th of February the
Senate took up the Missouri bill, struck out the Tallmadge
amendments and passed the bill. Thus the House had
passed a bill for the admission of Missouri with restriction
of slavery, and the Senate had passed one without it ;
neither would recede from its position, and Congress
adjourned. -
When it re-assembled, on the 6th of December, the
Missouri question had become a great national issue, the
first clearly defined sectional issue since the organization
of the government. On the 8th, Scott, the delegate from
Missouri, again presented petitions for its admission, and
1 Henton's Abiidgment, vol. vi, p. 666.
* Annals, p. 1572.
THE UNITED STATES 143
Strong, a New York member, announced that, at an early
day, he would introduce a bill prohibiting slavery within
the territories of the United States. Meanwhile the
people of Maine had asked for admission, and a bill to
that end was introduced in both Houses. The House bill
passed on the 3d of January. Might not the fate of Maine
and Missouri be settled by a single bill ? On the 6th, the
enabling act for Maine which had been passed by the
House was taken up in the Senate, and it was proposed to
incorporate within it a clause for the admission of
Missouri. In vain did the restrictionists attempt further
amendment by adding the clause from the ordinance of
1787, forbidding slavery; the Senate as a body had little
sympathy with "the idea. On the i8th, Jesse B. Thomas,
a senator from Illinois, offered a bill which forbade slavery
in territories organized north and west of the proposed
state of Missouri, and it passed to a second reading.
Meanwhile, the state legislatures had taken up the Mis-
souri controversy and were sending resolutions to Con-
gress, some opposing, some favoring the restriction of
slavery. The sentiment of the country was divided.
Finally, by a majority of two votes, on the i6th of Feb-
ruary the Senate united the enabling acts for Maine and
Missouri.^ Senator Thomas then proposed his compro-
mise, that in all territories west of the Mississippi and
north of 36° 30' slavery should be prohibited, except
within the limits of the state of Missouri. ^ On the next
day he added a fugitive slave clause to the compromise,
which as thus amended passed the Senate by a majority
of thirty-four to ten. The Maine-Missouri bill, which
now contained the Thomas compromise as it had passed
the Senate, went to the House, but there it entered into a
very different atmosphere. The House speedily rejected
the Missouri rider and the Thomas amendment, and took
up its own bill, which contained the Taylor restrictions,
and the debate plainly showed that no bill was likely to
pass that did not contain a clause of some kind restricting
slavery. The Senate gave notice that it would insist on its
amendment, and the majority seemed in favor of limiting
slavery. The Senate gave notice that it would insist on its
^ Benton, vol. vi, p. 450. 2 February 17, 1820; Id. p. 451.
144 A CONSTITUTIONAL HISTORY OF
own amendments, and the House, by a vote of ninety-
seven to seventy-six, insisted on its disagreement to the
Senate bill.
The situation was complex. The friends of Missouri
were willing to vote the Thomas compromise because it
would admit the new state with slavery, but they knew
that the House would not pass the Maine and Missouri
acts in one bill. There was only one means of solution,
which Thomas proposed in the Senate ; namely, a com-
mittee of conference. To this the House agreed. Mean-
while the House had passed its own bill with Taylor's
restrictions, on the ist of March, and sent it to the Senate.^
On the next day the Senate substituted the Thomas com-
promise for the Taylor restriction, and returned the bill
to the House. The two bills then went to the conference
committee, which soon reported. The Senate should
abandon its attempt to unite Maine and Missouri in one
bill, and Maine should be admitted. The House should
abandon the slavery restrictions within the state of Mis-
souri ; the Thomas amendment should be accepted and
slavery be forbidden north and west of Missouri. The
conference report was finally accepted on the 2d of March. ^
Maine was admitted, on the 15th, and the people of
Missouri were authorized to frame a constitution.
The state convention assembled on the 12th of June,
at St. Louis, and completed its work in seven weeks, but
the constitution which it framed contained a provision,
suggested by Thomas H. Benton,^ which at once renewed
the Missouri controversy. The general assembly of Mis-
souri was instructed to pass, as soon as possible, such laws
as might be necessary to prevent free negroes and mu-
lattoes from coming into the state, or settling in it, under
any pretext.*
On the 23d of November, the select committee of the
House, to whom the Missouri constitution had been re-
ferred, made its report. Benton's provision was its chief
theme. It might be repugnant to the Constitution, if it
was construed as applying to citizens of the United States,
' Annals, p. 1572. ^ Id. p. 471.
8 Thirty Years' View, vol. i, p. 8.
* Missouri Constitution, 1820, Article III, section 26.
THE UNITED STATES 145
but as the clause might be found in the laws of five states,
it was not without precedent. If too broad a construction
were put upon the provision affecting the privileges and
immunities of citizens of the several states, their powers
of self-defence would be broken, and the result would be
a consolidated government. The constitutions of all the
states in the Union settled beyond controversy the right
of a state to discriminate between white and black men
both in civil and political privileges. As soon as a people
formed a state government, they became sovereign and
independent, and the courts, not Congress, must determine
the constitutionality of laws. The committee briefly con-
cluded its report in favor of the admission of the new
state of Missouri.
A new question was now before Congress. Granting
that it could impose conditions upon a territory, was it true
that it could impose them upon a state? The constitu-
tionality of the Benton provision should be left to be de-
termined by the supreme court. True, the clause excluded
free persons of color who were citizens of another state,
but they were excluded by state constitutions already in
force. Why attack Missouri rather than any of these
states ? Missouri had organized a state government,^ and
was already sovereign. To this it was replied that Mis-
souri was not yet a state, for her senators and repre-
sentatives had not yet been admitted to Congress. Her
constitution had not yet been approved, and her people had
been authorized to form one that would not be repugnant
to that of the United States. Whether her constitution
was satisfactory could alone be decided by Congress. In
seven states ^ free persons of color were citizens, and there
was nothing in the constitution of these states prohibiting
free men of color from voting. It was not claimed that
the right of citizenship gave the right to vote, but only
that the right of free locomotion was indispensable to
citizenship.
The question of the status of free persons of color had
not before arisen in Congress. There were more than
1 XIX, Niles's Rrs^ister, p. 51.
2 New Hampshire, Vermont, Massachusetts, New York, Pennsyl-
vania, North Carolina, and Tennessee.
10
146 A CONSTITUTIONAL HISTORY OF
three hundred thousand such people in the country in
1820, of whom nearly sixty thousand were males of voting
age/ The subject of negro suffrage was a reform agi-
tated in New York at this time, and was soon embodied
in its constitution of 1821, which made explicit provision
for admitting free negroes as electors. It imposed a
property qualification of two hundred and fifty dollars in
realty upon them, and required a longer residence than
for white men ; but having complied with these condi-
tions, a free man of color in that state was empowered to
vote at any election. At the time of the Missouri com-
promise the election laws of New York enabled free
persons of color to vote. Such persons had voted in
Tennessee ^ and North Carolina,^ and had long been ac-
customed to vote in New Hampshire, Vermont, and
Massachusetts ; but public sentiment in the two southern
states practically abrogated the right, and in New Eng-
land, New York, and Pennsylvania, by the strict letter of
whose law they might vote, public opinion practically
kept them from the polls. But public sentiment was not
the strict letter of the Constitution. This was evident
from the debate in Congress on the constitution of Mis-
souri. It was precipitated there somewhat suddenly by
the motion of Cobb, of Georgia, presented on the 12th of
January, 1821, that the journal should be corrected so as
to read', " the state of Missouri," referring to three memo-
rials on the public lands which had been presented to the
House on the preceding day from the Missouri legislature.
The vote was a tie. The House had refused to recognize
Missouri as a state, therefore it must be a territory, but
by a vote of one hundred and fifty to four it refused to
designate it on the journal as a territory.
In the Senate, meanwhile, the committee to whom the
Missouri constitution had been referred, had reported a
resolution on the 29th of November, declaring the state
admitted. The Benton provision was the subject of con-
1 For their status in the country, see "The Constitutional History of
the .American People, 1776-1S50," vol. i, chap. xii.
2 Caldwell's " Constitutional History of Tennessee," p. 93.
8 Proceedings and Debates of the North Carolina convention, June 4-
July II, 183s, pp. 355 2ind passim.
THE UNITED STATES 147
tention here as in the House. Eaton, of Tennessee, pro-
posed to avoid all difficulty by declaring that the act of
admission should not be construed as giving the assent
of Congress to any provision in the Missouri constitution
which might be contrary to the Constitution of the United
States; but his proposition was rejected. The senators
knew that in every state in the Union at this time there
was an acknowledged discrimination against the African,
whether slave or free. Morrill, of New Hampshire, proved
from the records of his own state, and from those of
Vermont and Massachusetts, that free men of color had
exercised the privileges and enjoyed the immunities of
citizens, which he thought was enough to warrant the
rejection of the Missouri constitution. On reconsider-
ation Eaton's amendment was then carried.
The House then took up the Senate resolution, admit-
ting Missouri.^ Clay promptly declared himself in favor
of it, but most of the members from the slave states
declared against it. Opinions were so various and con-
flicting that the House failed to adopt either the Senate
resolution or one of its own. It was at this time that
Clay came forward with another compromise. Let the
Senate resolution be referred to a special committee of
thirteen ; substitute for the Senate resolution one ad-
mitting Missouri, upon the condition that the state should
never pass a law preventing any description of persons
from going into the state and settling there, who were,
or who might become, citizens of any state in the Union.
The legislature of Missouri should be given until the 4th
of November to pass an act in conformity to the resolution
and to communicate it to the President, who should pro-
claim the fact, and Missouri should be admitted without
further action of Congress.
The House took up the report of Clay's committee on
the 1 2th, and at first rejected both Clay's amendment and
the Senate resolution, but reconsidered its action on the
following day and resumed the debate. General Pinckney
of South Carolina, a member of the convention that
framed the Constitution, was at this time a member of the
1 January 29, 1821.
148 A CONSTITUTIONAL HISTORY OF
House. He declared that he was the author of the clause ^
in the Constitution relating to the privileges and immuni-
ties of citizens of the several states, and that at the time
he drew it, he knew perfectly that there was no such thing
in the Union as a black or colored citizen, and that, not-
withstanding all that had been said on the subject, he did
not believe that such a person existed in 1821. He then
proceeded to show that free persons of color had never
been citizens of the United States, or possessed the rights
of white men, and that they were incapable of exercising
them.
The time for counting the electoral vote of 1820 was
fast approaching, and the friends of peace and order were
anxious to avoid possible tumult in case any effort was
made to have the vote of Missouri counted. When the
day arrived, and the vote of Missouri was announced, all
semblance of order in the House vanished ; but, happily,
the result of the election did not depend on the three votes
of Missouri ; otherwise, so great was the excitement,
there might have been civil war. The restrictionists were
immovable in their hostility to the Benton clause in the
Missouri constitution, but it was believed that the friends
of the proposed state were willing to make a compromise.
This condition of things made possible the amicable settle-
ment which Clay now initiated. On the 22d of February,
1821, he moved for a grand, joint committee of confer-
ence, liis wishes prevailed ; the Senate concurred ; the
House elected twenty-three members, and the Senate ap-
pointed seven. Clay was made chairman of the House
committee, and John Holmes, one of the senators from
Maine, was made chairman of the committee from the
Senate.^ The committee weighed carefully the evidence
before it ; on the one side, the vigorous sentiment of a new
state hostile to negro suffrage ; on the other, the equality
of the states, the civil rights of negroes in some states, and
the rights of citizens of one state to civil privileges in
another. On the 28th the grand committee reported, and
its conclusions after a short debate were approved by both
Houses, but not until the 2d of March did its report
become a law. The Missouri legislature should repudiate
^ There is no other direct evidence that P^nckney was the author of
the clause in question; see Madison's testimony, Elliot, vol. v, p. 578.
'^ Annals, pp. 1219 et seq.
THE UNITED STATES 149
the Benton provision. This it did in June, and, in August,
President Monroe by proclamation declared that Missouri
was a state in the Union. ^
The constitutionality of the Missouri compromise was
not decided in the courts until thirty-seven years had
passed,- and the decision then rendered was speedily set
aside by the civil war; but during the intervening time
the question was discussed continuously in one form or
another. At the time of the original agitation, the consti-
tutionality of federal laws in restriction of slavery was
maintained by no less an authority than John Jay, who
held that the power of Congress to prohibit the importa-
tion and immigration of slaves was unquestionable, and
applied alike to old states and to new, at its discretion.
He considered slavery repugnant to the principles of the
revolution.^ Webster's opinion was embodied in a me-
morial, of which he was the author, against the extension
of slavery sent forth by a meeting of the citizens of
Boston.* He argued that the power to regulate commerce
gave Congress complete authority to regulate, and there-
fore to restrict, slavery. But there were contrary opinions
of which the most influential was Madison's,^ declaring
the restriction of slavery by Congress unconstitutional,
and thus anticipating the decision of the supreme court
in the Dred Scott case.
The controversy of the admission of Missouri into the
Union clearly involved the supremacy of the principles of
republican government, and chiefly the rights of the citi-
zen and the sovereignty of the nation. There was bound
to come a time when free persons of color, in a country in
which most of the race were slaves, would be the anom-
alous factor in practical politics. H all negroes in
America, in 1820, had been slaves, or all had been free
men, the controversy over Missouri could not have arisen.
But the anomaly of free negroes as citizens in a country
in which the legal status of the race was for the greater
part one of slavery, compelled one of three conclusions :
1 Richardson, vol. ii, p. 95.
2 Dred Scott z^. Sandford, 19 Howard, 393 (1857).
3 Jay to Elias Houdinot, November 17, 1819.
* Ni'les's Register, vol. xvii, p. 242; Wilson's " Rise and Fall of the
Slave Power," vol. i, p. 150; see also Niles, vol. xvii, p. 241.
^ Works, vol. iii, p. 149.
I50 A CONSTITUTIONAL HISTORY OF
either the negro must be denied pohtical rights, or the
domain within which he might possess those rights must
be dearly defined ; or he must be admitted to political
rights without discrimination. The essential question was
whether, under the constitutions and laws in force in
America, he had the same rights as the white man.
The agitation over Missouri brought to light the ele-
mental forces in conflict within the country over slavery
and the rights of free negroes. Had the federal govern-
ment authority to restrict slavery by excluding it from any
part of the public domain? Had it authority to pre-
scribe conditions for the admission of a state into the
Union which would recognize practically the citizenship
of free negroes ?
The controversy in 1820 terminated triumphantly for
the principle that the sovereignty of the general govern-
ment enabled it both to restrict slavery in territories, and
to protect negro citizens as it would protect white citizens :
a state could not refuse admission to either.
Looking backward now, upwards of a century after the
time of this profound agitation, culminating in the Mis-
souri compromise, we can see that the settlement of the
controversy marks a distinct phase in the evolution of
popular government in America. Unquestionably the
agitation was the most serious and alarming which arose
during the first half century of our national existence.
The compromise was more than a mere giving and taking
between the states and the United States. It was a clearer
definition of national sovereignty and of federal relations
than had before been made. It was a practical illustration
and application of the principle laid down by Hamilton in
" The Federalist," that " the government of the Union
must possess all the means and have a right to resort
to all the methods of executing the powers with which it
is intrusted that arc possessed and exercised by the govern-
ments of the particular states.^ More than this, the
government of the Union must possess and exercise
the powers necessary to its own preservation,^ and this
1 "The Federalist," No. XVI.
2 Id. No. LIX.
THE UNITED STATES 151
principle, truly applied, signifies more than the mere con-
tinuance of the Union. It signifies that the general govern-
ment is identified with the essential interests of the entire
people. Had Missouri, in 1821, been suffered to inaugu-
rate a state government which would discriminate against
citizens of other states and refuse them residence, the
consequence must have been inter-state hostility. It mat-
tered not whether other states so discriminated ; or whether
the objectionable citizens were negroes. The principle of
equality, as a w^orking power in a republic, was involved.
It was the primary purpose of the Union to obliterate
aggravating differences among the states. Thus the con-
clusion, in the case of Missouri, marks a phase in the
evolution not merely of a doctrine in republican govern-
ment, but also of a true, because an equitable, political
economy. Of the two elements in the compromise of
1820, that affecting and recognizing the citizenship of
free negroes was of greater importance than that limiting
slavery by the parallel 36° 30'. If the citizenship of the
free negro was once established, the time must come when
negro slavery must cease. The mere limitation of slavery
by an arbitrary line could not imply citizenship for the
negro. The compromise of 1820 clearly marks also the
close of a phase in the growth of popular government in
America which may fittingly be called the era of federa-
tion. The experiment had worked ; the political theories
which took form with the revolution had proved adminis-
trable. Government is ever in a state of flux ; crystalli-
zation may mean death. But organization means life.
The principles laid down by the Fathers were becoming
clear to the people. Actual participation in government
enabled the people to grasp them. In 1820 there existed
what did not exist among the people in 1787, a conscious-
ness, however obscure, of nationality. Overhead there still
hung the clouds of provincialism, and the economic isola-
tion of groups of the people, North, South, East, West,
and the more serious isolation incident to obstructions to
the exchange of thought no less than of the material
products of life, darkened and hindered progress. It was
yet the day of small things, but the light of a more perfect
union was breaking.
152 A CONSTITUTIONAL HISTORY OF
CHAPTER VIII
COMPROMISE
The law of the Constitution has been written as clearly
and authoritatively by custom and public opinion as by
Congress or the courts, a truth well illustrated during the
five years following the Missouri compromise. For three
centuries European governments had looked upon the
American continents as a free field for colonization, but
the policy so long pursued received a sudden check. The
Spanish American states in 1820 had revolted and were
asking the United States for recognition. France, Russia,
Prussia, and Austria, after the fall of Napoleon formed
the Holy Alliance ^ for the purpose of maintaining peace
and repressing revolutions within one another's territory.
The revolt of the Spanish colonies in South America was
immediately followed by the rumor that the Alliance
contemplated their subjugation to Spain. But interference
of this kind was considered with such disfavor by Eng-
land that George Canning, Secretary of State, suggested
to our representative, Richard Rush, that the United
States should take decided ground against it. The wishes
of the British minister were at once communicated to
President Monroe, and by him submitted to his cabinet
and also to Jefferson and Madison.
In a brief and masterly review of the subject, Jefferson
declared that the question involved was the most momen-
tous which had come before him since that of American
independence. " That," said he, " made us a nation ; this
sets our compass and points the course which we steer
through the ocean of time opening on us," ^ and he laid
it down as a fixed and fundamental maxim in our govern-
1 September, 181 5.
2 October 24, 1823; Works, vol. vii, p. 315.
THE UNITED STATES 153
ment, that we should never entangle ourselves in the broils
of Europe, nor suffer Europe to intermeddle with public
affairs this side of the Atlantic. " America, north and
south," said he, " has a set of interests distinct from those
of Europe, and peculiarly her own. She should, therefore,
have a system of her own, separate and apart from that
of Europe." The governments of the old world were
laboring to become the home of despotism, but our en-
deavor should be to make the western hemisphere the
home of freedom. In the pursuit of our true policy only
one nation, he believed, could disturb us and that was
England. If we acceded to her propositions we would
detach her from European alliances unfriendly to us and
would bring her mighty weight into the scale of free
government. " Great Britain," he concluded, " is the
nation which can do us the most harm of any or all on
earth ; and with her on our side we need not fear the
whole world."
Six days later Madison replied to the President ^ and
in the same spirit. The opinion of the cabinet coincided
with that of Jefferson and Madison.^ Thus reinforced,
Monroe sent a message to Congress proclaiming a policy
which has ever since been known by his name, that the
time had come when it was proper to assert as a principle
in our government that the American continents, by the
free and independent condition which they had assumed
to maintain, were henceforth not to be considered as sub-
jects for colonization by any European power.^ The
announcement was received with unconcealed delight * by
the British ministry. Canning declared that it would
prevent drawing a line of demarkation which he most
dreaded, — the arraignment of America against Europe.
Monarchy in Mexico and Brazil, he thought, " would cure
the evils of universal democracy ; " and prevent drawing
this line. He washed to counterbalance the power and
1 Works, vol. iii, p. 338.
- For the opinions of the Cabinet, see Adams's Memoirs, vol. vi,
pp. 177 et seq., November 7-26, 1823.
3 December 2, 1823; Richardson, vol. ii, p. 218. December 7, 1824;
Id. p. 260.
* Wharton's International Law, vol. i (First Edition), p. 276.
154 A CONSTITUTIONAL HISTORY OF
influence of the United States. He was far from desiring
the extension of popular government, but the Monroe
doctrine, if carried out, would aid Great Britain in execut-
ing her own plans. He welcomed the doctrine for its
advantage to his own government and not, as Monroe
primarily intended, and as Jefferson had expressed, be-
cause it would make the western hemisphere the home of
freedom.
But Monroe was not the first American statesman to
advocate this doctrine. Hamilton, in 1788, in " The Fed-
eralist " ^ had urged neutrality and a strong national gov-
ernment, remarking that our geographical situation gave
us the ascendancy in American affairs, and that, if we
were bound together in a strict and indissoluble union
we would be superior to transatlantic influences and would
be able to dictate terms between the old and new world.
Washington enunciated the same doctrine as the true
policy of the nation in his proclamation of neutrality of
1793, at the opening of the French revolution,^ and again
in his seventh annual message to Congress,^ sent at the
time when the French revolution was changing the polit-
ical systems of Europe. He repeated his advice in his
Farewell Address,* that we should steer clear of alliances
with any portion of " the foreign world." Adams and
Jefferson urged the same policy, though in very different
ways. Adams supported the alien and sedition laws,
because they contributed to this neutrality, but Jefferson
commended the policy in his first inaugural as the one
which nature had laid down for us,^ and later in a mes-
sage to Congress."
When nearly eight years had passed and Great Britain
w'as threatening to take possession of East Florida, Mad-
ison urged the seasonableness of declaring that the United
States could not, without serious inquietude, see any part
of a neighboring territory, such as Florida, in which we
had deep concern, pass from the hands of Spain into
1 "The Federalist," No. XI.
'^ April 22; Richardson, vol. i, p. 156.
8 December 8, 1795; ^^- v°'- '< P- '^-■
< September 17, 1796; Id. vol. i, p. 113.
5 March 4, 1801 ; Id. vol. i, p. 321.
6 October 17, 1803; Id. p. 357.
THE UNITED STATES 155
those of any other foreigni power.^ It was while the
United States was engaged in the second war with Eng-
land that the series of revolutions broke out in Mexico,
Central and South America, which led American states-
men again to consider the application of the doctrine of
neutrality, in a more practical way than before. Monroe,
in his first inaugural, had urged that our military defences
be strengthened and that we no longer rely upon our dis-
tance from Europe as our chief security.- The war of
181 2 had impressively brought the idea of neutrality
before the American people and led them to sympathize
with the struggling republics south of them. The policy
which Monroe's predecessors had advocated was, there-
fore, an easy one for him to follow, and the success which
attended the revolutions in South America offered the
occasion for the United States to apply the doctrine. The
affairs of these southern republics were in such a stage, in
18 1 7, that our government was obliged to pursue a policy
of neutrality with Europe and of commercial reciprocity
with them, thus marking a complete transition in our
policy. These new conditions were the principal subject
of discussion in Monroe's annual message, in 1817.^ So
complete was the change in our commercial relations with
the world that from this time every political party has
advocated a policy of neutrality.
In a later message * Monroe returned to the subject,
announcing that the tJnited States had good cause to be
satisfied with the policy which it had adopted. During the
summer of 1819 the revolutions in South America had
gone so far that the new republics had assumed stable
governments. Monroe commented on the evident inability
of Spain to subdue her former provinces and urged the
revision of our lavv^s so as to prevent all violations of
neutrality ; but in his general discussion of the policy he
carried its interpretation a step nearer one of a guarantee,
by the United States, of republican institutions in both
North and South America.^ In 1824 the people of the
1 January 3, l8li; Richardson, vol. i, p. 488.
2 March 5, 1817 ; Id. vol. ii, p. 4. ^ December 2 ; Id p. 11.
* November 17, 1818; Id. p. 39.
s December 7, 1819; Id. p. 54. Adams to Canninp;. October 2, 1820,
Memoirs, vol. v, p. 1S2; see also Monroe's Fourth Annual Mes-
156 A CONSTITUTIONAL HISTORY OF
United States were more or less convinced that by the
very form of their poHtical institutions, and their situation
in the world, they were under obligation to exercise their
influence to protect the younger American republics.^
Thus far our government had never been consulted re-
specting any European policy, and South America had
been viewed by European nations as an open field to be
exploited for their own interests at their will. This was
the situation when Canning opened correspondence with
our government on the subject in 1820.
The immediate effect of the promulgation of the doc-
trine was to assure the new republics their independence ;
but opinions have widely differed whether it pledged the
United States to maintain a protectorate over them. There
is no doubt that it put an end to plans of European inter-
vention in American affairs and anticipated the retirement
of Spain from the new world. In January, 1824, Clay
offered a resolution in the House" embodying the doctrine,
but it was not carried, and Congress has never incorporated
it in legislation. The principle of the doctrine was, how-
ever, clearly laid down by the House of Representatives in
its resolution of April, 1826, that the people of the United
States, in case of European interference in American
affairs, would consider themselves free to act as their
honor and policy might at the time dictate.^ The doctrine
has been reasserted in later times, on critical occasions,
by no fewer than seven of our Presidents,* and it may now
be said to have become a part of the unwritten law of the
land.
No question of constitutionality was raised at the time
of enacting the tariff bills of 1789 and 1816, but it came
sage, November 14, 1820; Second Inaugural Address, March 4,1821;
Fifth Annual Message, December 3, 1821 ; special message, March 8,
1822, in Richardson, vol. ii ; Gallatin to Chateaubriand, Gallatin's Writ-
ings, vol. ii, p. 271 ; Adams to the Russian Minister, Memoirs, July 17,
1823, vol. vi, p. 163; Adams to Richard Rush, July 22, 1823, Register of
Debates, 1825-1826, vol. ii, part 2, p. 31.
1 Webster's Works, vol. iii, p. 203.
2 January 20, 1824; Benton's Debates, vol. vii, p. 650.
* April 20, 1826; House Journal, p. 451.
* Tyler, 1S42; Polk, 1845, 1847, 1848; Buchanan, 1858, i860; Grant
(twice). 1870; Hayes, 1880; Harrison, 1889; Cleveland (twice), 1895.
THE UNITED STATES 157
forward forcibly with the tariff of 1824. The protection-
ists urg-ecl that the power of Congress to lay taxes, to reg-
ulate commerce, and to promote the general welfare,
clearly gave authority for a law of which the chief purpose
should be protection of American manufactures, and they
used the argument, sustained by the supreme court at the
time, that the powers granted to Congress were not to
be construed strictly ; ^ from which was deducible the
conclusion that Congress was empowered to act at its dis-
cretion in levying taxes. But many supporters of the tariff
took the view held by Webster that the whole question was
one of expediency.^ If protection was carried too far, it
would destroy commerce, but the opponents of the pro-
tective feature in the tariff held to the doctrine which
Webster enunciated in 1820, — that Congress had no
power to declare what occupations should be pursued in
society, and what should not. They held that Congress
could exercise the right of taxation no further than to raise
money necessary for the lawful purposes of the govern-
ment. Any departure from this rule would violate the
Constitution. But if the right to pass a tariff act depended
wholly upon expediency, its exercise became purely a
political matter and would depend upon the results of the
elections. The tariff question was soon to bring the
country to the verge of civil war.
Forty years had now passed since the making of the
Constitution, but its general character was by no means yet
agreed upon. The most important fact in its history was
that it had proved a working system of government.
Parties had struggled over its meaning, and the supreme
court had handed down a number of decisions placing some
of its principles beyond dispute. The states seemed to
have fallen into their proper orbits. Less was now heard of
the need of constitutional amendments. The government
had proved its capacity to protect itself, and the Missouri
compromise had demonstrated its sovereignty. The ad-
ministration of John Quincy Adams, 1825-1829, was
crowded with political problems, many of which were left
1 Gibbons v. Ogden, 9 Wheaton, i (1824).
2 Works, vol. iii, p. 94; Speech of April ist and 2d, 1824.
158 A CONSTITUTIONAL HISTORY OF
unsettled. His nomination of special envoys to attend the
Pan-American Congress, an assembly proposed by the new
republics for the purpose of considering the interests of all
America, precipitated a stormy debate in both Houses ^
over the diplomatic powers of the President ; but the
debate was rather for the purpose of accumulating polit-
ical capital against Adams than to settle a constitutional
question. The appropriation finally granted - for the
envoys was a confession by Congress that the President
had acted fully within his powers. The tariff of 1828,
known as the tariff of abominations, renewed the whole
controversy over the power of taxation and was the imme-
diate cause of the fierce political struggles which followed.
Jackson came to the presidency in 1829, convinced that
he was commissioned by the people to institute public
reforms.^ He declared that the revenues of the govern-
ment ought to be raised without discrimination in favor
of any of the important interests of the country, and
referred with care to the distinction between the rights of
the sovereign members of the Union and the powers
which they had granted to the Confederacy, — the name by
which he designated the national government. He be-
lieved that the powers of the President were limited to
the administration of the laws. It was not long before
he had ample opportunity to put his theories to the test.
The tariff of 1828 was as provocative of critical events in
our history as the alien and sedition acts. Six southern
states * immediately protested against it as destructive of
the best interests of their people, and for such protests
against congressional legislation there were some famous
precedents. Had not New England threatened to nullify
the acts of Congress growing out of the Louisiana treaty
of 1803? Had it not then threatened secession, and again,
when the Hartford convention met? So, too, had not
Georgia repudiated the decision of the supreme court in
the Chisholm case, in 1793, ^^^ again, thirty-five years
1 April, 1826; Benton's Debates, vol. viii, pp. 482, 534.
2 April 22, 1826; Slatutes at Large, vol. iv, p. 158.
8 Inaugural, March 4, 1829; Richardson, vol. ii, p. 436.
* Virginia, North Carolina, South Carolina, Georgia, and Alabama ;
1828 and 1829. Also Mississippi.
THE UNITED STATES 159
later, when she refused to abide by the decision of the
court in the case of the Creek and Cherokee Indians.^
The South was agricultural, and believed, primarily for
that reason, that the tariff was inimical to its interests.
It was on this economic interpretation of the tariff that
the whole case of nullification rested. Low tariff and free
trade opinions were by no means limited to the South.
They were heard here and there all over the land.- But
the classic and accepted exposition of all anti-tariff views
was embodied in the South Carolina " Exposition " of
1828. Sympathizing with this, Calhoun elaborated its
doctrine in one of the most famous letters in our history.^
Before outlining this important letter it is necessary to
trace, briefly, the course of events in Congress which may
be said to have led up to it.
The tariff protests of the southern states were received
by most of the protectionists as of no more importance
than customary party resolutions. Their deep significance
was not at first understood. Soon after their appearance
a question relating to the public lands came up in the
Senate,* and it was seized by the leaders of the nullification
movement as an opportunity for attacking, not only the
tariff, but the system of constitutional interpretation which
it exemplified. The southern protests represented the
tariff as a discrimination against portions of the Union ;
and declared that Congress had exceeded its powers, and
had violated the true meaning of the Constitution by im-
posing burdens of taxation unequally upon the several
states of the Confederacy.
The debate on the Foot resolution attracted slight
attention till the 19th of January, when Senator Hayne,
of South Carolina, made a powerful speech, in which he
1 Niles's Register, vol. xxxvi, p. 258; vol. xxxvii, p. 189; vol. xliii,
p. 227. W^orcester v. State of Georgia, 6 Peters, 515.
2 See Preamble and Resolutions adopted at the Exchange Coffee
House, Preparatory to choosing delegates to the Anti-tariff Convention,
Boston, August 16, 1S31 ; Journal of the Free-Trade Convention, Phila-
delphia, September 30-October 7, 1831 ; Memorial Address of its Com-
mittee to the People of the United States, New York, 1832.
'^ To James Hamilton, Governor of South Carolina, August 28, 1832;
Calhoun's Works, vol. vi, pp. 144-193.
* Foot's Resolution on the Public I^ands, December, 1S29.
i6o A CONSTITUTIONAL HISTORY OF
charged New England with harboring the design of check-
ing immigration into the West and South, and called upon
those portions of the country to unite against the East in
a policy of free trade and public lands on easy terms. To
this attack on his native region Webster replied/ on the
following day, and showed how groundless were Hayne's
charges. His speech was a concentration of merciless
logic which, he believed, reduced Hayne's accusations to
absurdity. Mr. Webster's manner rather than the matter
of his speech offended Hayne, who, on the 21st, again
addressed the Senate.^ and particularly Mr. Webster (who
he insisted should be present), on the great question of
the time, and indeed, of all time, the foundations of our
government. The primary question, he said, was whether
the colonies, when they became independent nations, in-
tended to form a federal or a national Union. The
question was older than the government, for it had been
discussed to the last detail in the ratifying conventions
of 1788.
Mr. Webster had ridiculed the idea, embodied in the
South Carolina protest, that a state has a constitutional
remedy, in the exercise of its sovereign authority, for a
gross, palpable, and deliberate violation of the Constitu-
tion, He had stigmatized a union on such a basis as a
mere rope of sand. But the weight of Webster's personal
authority had not satisfied Hayne. He threw into the
opposite scale the authority on which, he said, South Caro-
lina relied, — the doctrine contained in the report of its
legislature in December, 1828, and known as the " South
Carolina Exposition." He believed that this authority far
outweighed Webster's personal opinions ; for it was " the
good old republican doctrine of '98, — the doctrine of the
celebrated Virginia resolutions of that year and of Madi-
son's report of '99, that the powers of the federal govern-
ment result from the compact to which the states are
parties ; are limited by the plain sense and intention of the
instrument constituting the compact, and are no further
valid than as they are authorized by the grants enumer-
ated in that compact." In case of a deliberate, palpable,
1 January 20, 1830 ; Works, vol. iii, p. 248.
2 Johnston's American Orations, vol. i, p. 213.
THE UNITED STATES i6i
and dangerous exercise of powers, not granted by the com-
pact, the states, which he said were the contracting parties,
had the right and were in duty bound to interpose for
arresting the progress of the evil and for maintaining,
within proper Hmits, their own authorities, rights, and Hb-
erties. Nor was this all. Kentucky had responded to Vir-
ginia, and, on the loth of November, 1799, had sent forth,
through its legislature, the celebrated resolutions penned
by Jefferson, which declared that the states, each acting
for itself, were the final judges of the extent of power
delegated to the general government. The doctrine of
these resolutions, continued Hayne, had gone to the
country, had become a great issue in 1800, and had been
settled by the election of Jefferson, and by turning over to
him and his associates the control of the federal govern-
ment, and, as Jefferson himself had said, had thus saved
the Constitution at its last gasp.
Elaborating this idea in masterly style, Hayne con-
cluded with the assertion that the tariff had prostrated,
and would soon ruin, the South ; but this great disaster,
he said, was not the chief ground of her complaint : it
was the principle involved in the contest which concerned
her. The discretion of Congress had been substituted for
the limitations of the Constitution, and thus the states and
their people had been brought to a dependence on the vote
of the federal government, and were left nothing which
they could call their own. If opposition continued, there
remained only one remedy, that which the immortal Hamp-
den had applied, — " resistance to unauthorized taxation."
The South thus spoke with no uncertain doctrine and
in no uncertain tone. If a reply could be made, who was
there to make it? Those who had listened to Hayne, and
who sympathized with him, believed that the strength of
his speech lay in the historical and economic treatment of
his subject. Many who heard him were living when the
Constitution was ratified, and they remembered the opin-
ions of that time. They knew that ratification had been
a federal not a national act, and that the states had then
jealously asserted their claims to sovereignty. They knew
that while Hayne was speaking, Madison, the author of
the Virginia resolutions and of the report which Hayne
i62 A CONSTITUTIONAL HISTORY OF
had cited as his chief authority, was yet among the Hving,
and was the most venerated man in America. They knew
that the Union almost from its inception had been under
the control of the South. Southern statesmen had directed
its policy and filled its most important offices. They knew
that the American people had long since favorably accepted
the doctrine of '98, and that the party which stood for that
doctrine had been in power in both Houses of Congress,
and had filled the office of chief magistrate, save during
what they considered the interregnum of John Ouincy
Adams, since the election of Jefiferson.
Only one man could reply to Hayne, and his friends
were not sure of him. Webster had sat, a most attentive
listener, throughout the speech ; but even the New Eng-
land delegation, and those who knew him best, faltered
in their hopes that he could make an adequate reply.
Senator Bell, of New Hampshire, plainly stated his fears
to Webster, remarking, somewhat sadly, that it was high
time that the people of the country knew what the Con-
stitution meant. " By the blessings of Heaven," answered
Webster, " they shall learn this day, before the sun goes
down, what I understand it to be."
Of the reply which Webster made to Hayne on the 26th
and 27th of January ^ the world has long made note. He
spoke of the Union as it was in 1830, not as it existed in
its infancy and during its early struggles. The nation
was no longer a mere compact, but a living, breathing,
sentient organism. The Union was an object of human
sentiment and affection, not a mere legal contract between
thirteen governments in thirteen petty states. Every point
made by his adversary was answered, but all not equally
or fully. The strict letter of the law and the history of the
country were largely on Hayne's side. He knew his
ground, and had made the most of its opportunities.
Webster, equally familiar with our history, knew the
weakness of the South Carolina doctrine as a fixed national
policy. He knew that no government can be administered
solely on its history. He knew that the organic life of the
Union is the true corrective of its history, and therefore
1 Works, vol. iii, p. 270.
THE UNITED STATES 163
he raised the whole discussion to a higher level than
Hayne had attained. It was time to leave the past with its
abstractions, its doctrinaire policies, its hair-splitting dis-
tinctions in constitutional construction, and to turn to the
American people as a nation among the powers of the
earth. The moral comprehensiveness of the sentiment
of union must forever efface the doctrine of '98. Hayne
had rebuked New England for disloyalty at the time of the
Hartford convention. Webster replied that if New Eng-
land had been disloyal, and he said that she had not been
disloyal, Hayne should extend his buffetings in like man-
ner to all similar proceedings, wherever else found.
Turning to the main proposition, on which he said the
whole debate hinged, the question was, " Whose preroga-
tive is it to decide on the constitutionality or unconstitu-
tionality of the laws ? " He did not defend the tariff, nor
attempt to prove that a policy of protection is essential to
the maintenance of the Union. He discussed the issue
from a larger outlook, maintaining that the Union could
not endure, if its own judgment was not final on the con-
stitutionality of its laws. This raised the question of sov-
ereignty, and he planted himself by the side of the authors
of " The Federalist." He argued for sovereignty in the
nation and for residuary sovereignty in the states.^ Like
William Penn of old, Webster placed the power with the
people, in whom he declared is ever to be found the ulti-
mate political sovereignty of the nation. And then he
gave that definition of the Union which may be said to be
the most complete in our history. " I hold it to be a pop-
ular government elected by the people ; those who admin-
ister it responsible to the people, and itself capable of
being amended and modified just as the people may choose
it should be. It is as popular, just as truly emanating from
the people as the state governments. It is created for one
purpose, the state governments for another. It has its
own powers, they have theirs. There is no more authority
with them to arrest the operation of a law of Congress than
with Congress to arrest the operation of their laws. We
are here to administer a Constitution emanating immedi-
1 "The Federalist," Nos. XXXII, LXXXI.
i64 A CONSTITUTIONAL HISTORY OF
ately from the people and trusted by them to our admin-
istration. It is not the creature of the state governments."
Direct colHsion, therefore, between force and force, said
he, must be the unavoidable result of the remedy for un-
constitutional laws for which Hayne had contended. The
South Carolinian's doctrine, said Webster, went the length
of revolution. It was incompatible with any peaceful
administration of the government, and led directly to civil
commotion and disunion. When Webster had concluded,
and the last words of his speech, " liberty and Union, now
and forever, one and inseparable," had ceased reverber-
ating through the Senate chamber, no man who heard him
was longer in doubt what the Massachusetts statesman
understood by the Constitution of the United States. His
great speech went forth to the world, and lovers of the
Union everywhere hailed him as the " Expounder and
Defender of the Constitution."
Calhoun, who sat opposite Hayne, during his speech,
drank in his words and was satisfied. Nullification had
found a voice more eloquent though no more faithful than
his own. The youth of the South henceforth need only
to recite the burning words of Hayne to arouse an op-
pressed people to sacred resistance to unjust laws, and
history was to be Hayne's best friend. His speech passed
at once into literature, and became a popular selection at
school and college. W'hatever he had failed to do, Hayne
had not failed to embalm his memory in the minds of the
southern people. So, too, did W^cbster's reply pass into
our literature. Cicero took delight that during his life-
time the boys of Rome were taught in the schools to recite
his orations. W^ebster's reply to Hayne was honored in
like manner. The memory of thousands to-day goes back
to the district schoolhouse, sunning itself beside the dusty
road, and to the time when the neighborhood gathered
within it to hear the boys declaim. One recited Hayne's
speech and another Webster's reply, and even feeble repe-
tition stirred the passions of the listeners. It was a tribute
to the power of ideas. Webster's reply is a mile-stone in
our constitutional history. It was the first forensic utter-
ance which put our political institutions into perspective
and clothed them with the imperishable beauty of liter-
THE UNITED STATES 165
ature. It projected them into all time. Appealing to the
sensibilities of the American people, he put their aspira-
tions into palpable form, and since the day of his great
reply to Hayne, writers and speakers of every political
school have quarried from the rich mines of his imagina-
tion and eloquence.^
Webster forsook economic ground and made his argu-
ment almost wholly constitutional. The two debators
were advocates of antagonistic political systems. At the
time when they spoke, industrial homogeneity did not exist
in the United States, and without homogeneity it is impos-
sible to have a national Union. Thus the discussion was
largely one of abstract propositions, not of concrete, indus-
trial interests. Had Hayne limited the discussion to
economic conditions, it has been said that Webster never
would have presumed to make reply; but as soon as
Hayne attempted to meet Webster on constitutional
grounds he was defeated.
The great debate by no means settled the question at
issue. South Carolina called a convention,^ which issued
an ordinance of nullification.^ The governor about the
same time sent a message of like import to the people of
the state.* Calhoun resigned the vice-presidency in order
to be free to defend nullification. It is his great defence
in his letter to Governor Hamilton which embodies the
most complete exposition of the doctrine. This celebrated
letter, though it may more properly be called a treatise
on nullification, followed the lines which Jefferson had
drawn in the Kentucky resolutions. The Constitution,
according to Calhoun, was framed and adopted by the
states and not by the people of the United States. Col-
lectively the people had never performed a single political
act. Between the individual citizens of a state and the
general government there was no direct and immediate
connection ; the relation was through the state ; therefore,
the Union was one of states as communities and not one
1 For Lincoln's reference to him, see Herndon's Lincoln (Ed. 1889),
pp. 400, 478.
2 Octoiier 24, 1832 ; Niles's, vol. xliii, p. 152.
8 November 24th ; Cone;res.sional Debates, vol. ix, App. p. 154.
* November 27, 1832; Niles's, vol. xliii, p. 159.
i66 A CONSTITUTIONAL HISTORY OF
of individuals. The Constitution had been submitted to
the states for their separate ratification, and the ratification
of any other state,, or of all the others without its own,
created no connection between a state and the general gov-
ernment, and imposed not the slightest obligation. Thus,
said Calhoun, North Carolina and Rhode Island for a time
stood in the relation of foreign states to the general gov-
ernment. As a sovereign body in the Union, a state was
empowered to declare an unconstitutional act of the gen-
eral government null and void.
Calhoun did not claim that a state had the right to
abrogate an act of the general government, for he con-
ceived that the Constitution itself annulled an unconsti-
tutional act. Such an act was void of itself. He claimed
that the state had the right to declare the extent of its
obligation; from which it followed that the citizen was
bound primarily to obey every act of the state. The Con-
stitution was analogous to a treaty entered into by a sov-
ereign state without consulting its citizens; from which
it followed that the general government was the mere
agent of the states, and to them the United States was
responsible. This interpretation, he claimed, agreed with
the original intention of the makers of the Constitution,
who had not authorized the general government to exer-
cise any control over a state in any way. They had even
refused this high power to the supreme court. The gen-
eral government was purely a confederation. In the case
of the alien and sedition laws the government had been
saved from the consequence of its own errors by public
opinion. Nullification was the rightful remedy for its
unconstitutional acts. It could not coerce a state, nor,
without violating the Constitution, infringe upon any
rights of the states. Nullification might result in secession,
which would be placing a state beyond the pale of her
federal relation, so that a state would stand to the others
in the relation of a foreign power. He distinguished be-
tween nullification and secession ; the one being a refer-
ence of disputes to the parties themselves, the other to
their agents. The purpose of secession would be the dis-
solution of the Union, but nullification was to confine the
THE UNITED STATES 167
agent within the Hmit of his powers ; therefore nulHfication
was the true constitutional remedy for unlawful acts of
the general government.
These ideas, composed in less technical form and ad-
dressed to the people of the United States, were sent forth
by the South Carolina convention of November, 1832/
The convention had declared the tariff laws, and par-
ticularly the acts of Congress of May 29th, and July 14,
1832, null and void. True to the theory long held at the
South, the nullifying act was done by a sovereign con-
vention especially called for the purpose and not by a
state legislature.- The ordinance of nullification led the
President to issue a proclamation in which he tersely
defined the issue, and which remains the most famous of
his state papers. " I consider the power to annul a law
of the United States assumed by one state," said Jackson,
" incompatible with the existence of the Union ; contra-
dicted expressly by the letter of the Constitution ; un-
authorized by its spirit ; inconsistent with every principle
on which it was founded and destructive to the great
object for which it was formed." ^ The proclamation
was followed on the i6th of January by a nullification
message,* in which the ordinance was exhaustively dis-
cussed and the relations between a state and the United
States set forth. The proclamation and the message
immediately raised Jackson to a degree of popularity, and
with many it must be said of unpopularity, which few
Presidents have known. The response of public opinion
was immediate and overwhelming, and from no source
was it more vigorous than from the state legislatures,
which with few exceptions passed resolutions commend-
ing the President's course and condemning that of South
1 Journal of the Convention of the People of South Carolina, assem-
bled at Columbia on the 19th of November, 1832, and again, March 11,
1833; Reports and Ordinances, Columbia, 1833.
2 For the doctrine of sovereignty in the convention see the report of
the chief of the department of justice and police on the powers of the
convention (I. W. Hayne to Governor Pickings) in the Appendix of the
Fourth Session of the Convention of the People of South Carolina, held
in i860, 1861, 1862; Columbia, South Carolina, 1862, pp. 649, 667 ; also
Sproule V. Fredericks (1892), 62 Mississippi, S98.
^ December 10, 1832; Richardson, vol. ii, p. 640.
* Id. p. 610.
i68 A CONSTITUTIONAL HISTORY OF
Carolina.^ But it was the action of the President and of
Congress which constituted the most important reply to
the ordinance and to the argument of Calhoun in his letter
to Governor Hamilton. The President sent troops to
South Carolina,- and appropriations were made to collect
the duty by force.
Amidst the agitation, the compromise tariff act of 1833,
originating with Clay, was passed,^ as a result of which
the South Carolina ordinance was suspended and soon
after repealed.* The conclusion of the whole matter is
depicted in a private letter ^ sent to President Jackson
from, Columbia by one of his political lieutenants on the
day after the repeal by the convention. Only four nulli-
fiers had voted against the repeal, and chiefly because they
thought that Clay's bill " did not fully abandon the prin-
ciple of protection." But McDuffie, who had been most
aggressive for nullification, spoke lovingly of Clay as " our
great ally in the West, whom we have recently gained,"
and congratulated the convention on the triumph of nulli-
fication through Clay's compromise act. Governor Ham-
ilton made a conciliatory speech. Jackson's opinion was
endorsed on this letter in his usual unique and forceful
style. " The Ordinance & all laws under it repealed —
so ends the wicked & disgraceful conduct of Calhoun
McDuffie & their co nullies. They will only be remem-
bered, to be held up to scorn, by every one who loves
freedom, our glorious Constitution & government of laws."
On the constitutionality of nullification men differed
then as they differ now. The issue was as old, and even
older than, the government, and involved the question
whether the Union was a Confederacy or a nation. To the
1 For a typical set of resolutions (with citation of those of other
.states), see the resolves of the General Court of Massachusetts, January,
i832-Ai)nl, 1834, pp. 290-408, 646; see the New Hampshire resolutions
against legislation " On the Subject of the Tariff and the Doctrine of
Nullification," July 6, 1833. Laws of New Hampshire, Concord, p. 137.
■■' October 29, 1832: Congressional Debates, vol. ix, App. p. 187, et seq.
8 March 2, 1833; Statutes at Large, vol. iv, p. 629. The Force Bill
passed March 2, 1833.
* March 16, 1S33; Statutes at Large, vol. iv, p. 632.
^ Augustus Fitch to the President of the United States, Columbia,
S. C, March 16, 1833, MS. letter.
THE UNITED STATES 169
arguments of Webster and Calhoun on this question
nothing has ever been added. The issue running to the
very vitals of the government was settled at the time partly
by the vigor of Jackson and partly by the compromise
measure of Clay. The pacificatory act with which Clay's
name is associated reduced the tariff by a definite scale,
and without abandoning the theory of protection, prac-
tically made the concession which moderate anti-tariff
men at the South demanded.
In all his acts Jackson carried out the conception for-
mulated in his inaugural, — that he was especially com-
missioned by the people to conduct a reform in the
administration of the government, and the vigor with
which he handled the nullification question was displayed^
in all his works. In his message vetoing the act to re-
charter the United States bank, he took issue with the
supreme court as to the constitutionality of the bank, and
insisted that it was neither necessary nor proper for Con-
gress to transfer its legislative power to a bank : there-
fore, the act creating it was unconstitutional. Congress,
the executive and the court, he said, must each for itseLL
be guided by its own opinion of the Constitution. " Each
public officer, who takes an oath to support the Consti-
tution, swears that he will support it as he understands
it, and not as it is understood by others," from whichjt-
followed that it was as much the duty of the House of Rep-
resentatives, of the President and of the Senate to decide
upon the constitutionality of an act as it was of the
supreme judges before whom it was brought for settle-
ment.^ " The opinion of the judges has no more authority
over Congress than the opinion of Congress has over the
judges, and on that point the President is independent of
both. The authority of the supreme court must not, there-
fore, be permitted to control Congress or the executive
when acting in their legislative capacities, but to have only
such influence as the force of their reasoning may de-
serve." ^ This was a novel theory of constitutional inter-
pretation, but it harmonized strictly with the form of
^ See per contra Webster, vol. iii. pp. 416, 432.
* Veto Message, July 10, 1832; Richardson, vol. ii, p. 582.
\
I70 A CONSTITUTIONAL HISTORY OF
Jeffersonian democracy which Jackson developed, and
was accepted by the party to which he belonged. As
Jackson applied the doctrine, it made him the most pop-
ular President in our annals. He considered the bank
dangerous to the safety of the government and to the
morals of the people as well as unconstitutional ; there-
fore, as part of his policy he directed the secretary of the
treasury no longer to deposit the money of the United
States in the bank, but to deposit it in state banks which
he designated.^ The secretary, Taney, defended the re-
moval on the ground of expediency. The re-election of
Jackson was understood by his followers to have settled
the question of the constitutionality of the bank.
The secretary's course was fully investigated in the Sen-
ate. On the 26th of December Clay declared against the
President. He took issue with Jackson that his re-election,
however it might be construed as expressing the will of
the people, did not authorize him to do unconstitutional
acts, and he offered two resolutions : the first declaring'
that the President had assumed the exercise of a power
over the treasury not granted him by the Constitution, and
the second, that Taney's reasons for the removal were
insufficient." There was nothing new in the long debate
which followed, as all the arguments had been heard at
the time of the first bank controversy. Tlie friends of the
bank argued that the President's conduct violated the prin-
ciple of contracts which the supreme court had laid down
in the Dartmouth College case.^ The immediate result
of the debate was a resolution of censure of the President,
passed by the Senate, and embodying the constitutional
views which Clay had expressed. The President protested
against this left-handed method of impeachment, ■* and,
with his friends, began a vigorous campaign, which re-
sulted, three years later, in the adoption of a resolution by
1 R. B. Taney, Secretary of Treasury, December 4, 1833 ; Executive
Document, No. II, vol. i, 1833-1834.
2 B .nton's Del)ate,s, vol. xii, p. 208.
^ Dartmouth College v. Woodward, 4 Wheaton, 518 (1819) ; also
Providence Bank v. Billings et al., 4 Peters, 514 (1830), both decisions by
Marshall.
* Jackson's Protest, April 15, 1834; Richardson, vol. iii, p. 69. The
Senate oidcred that it be not entered on the Journal.
THE UNITED STATES 171
the Senate, by which the record of Clay's vote of censure
was expunged from the journal. Webster, and others of
the whig party, protested against the unconstitutionality
of a resolution thus altering the records, but the demo-
cratic majority practically settled this point when it or-
dered the resolution expunged and carried out the order.^
Clay and his disciples, who saw no constitutional
obstacle to internal improvements at the expense of the
general government, were utterly unable to harmonize
Jackson's attitude toward nullification with his vetoes of
internal improvement bills. The contradiction is not dif[i-~
cult to explain, if we remember that Jackson, at heart,
was a believer in the sovereignty of the state over all
matters exercisable wholly within its limits. He accepted
the practice of the government in the question of sov-
ereignty, and held that the power to carry on internal
improvements within a state, at federal expense, though
frequently and strenuously attempted, had never been
exercised by the government. He believed that Congress
possessed no such power, and early in his administration
announced that no bill which admitted it would receive his
official signature. He cited Jefiferson, Madison, and
Monroe as authorities for the opinion that the only cases
in which the consent and cession of particular states
could extend the power of Congress were specified in the '
Constitution ; therefore, he opposed every bill which ap-
propriated money from the national treasury for internal
improvements in a state, even if the state had consented
and Congress had disclaimed any jurisdiction.- But this
view of the Constitution, which forbade internal improve-
ments, enabled Jackson to advocate the distribution of the
treasury surplus among the states in 1836. Testing his
interpretation of the Constitution by the opinions of earlier
statesmen, it will be found that he and they held to the
doctrine of residuary sovereignty in the states advocated
by Hamilton and Marshall, and sustained by the supreme
court in later times. ^ Jackson differed from our earlier,
1 January i6, 1837 ; Benton's Debates, vol. xili, p. 155.
2 Veto Message, May 27, 1830; Richardson, vol. ii, p. 483.
8 As in Texas v. White, 7 Wallace, 700 (1S68).
172 A CONSTITUTIONAL HISTORY OF
and especially from our later statesmen, in the quantity
of residuary sovereignty which he imputed to a state. His
pet theory of administration was to preserve the nice
adjustment of sovereignty in the nation and of residuary
sovereignty in the states which the fathers had attempted
in the Constitution.
Van Buren, at the time of his inauguration as President,
commented on the nice balance of power between the fed-
eral and the state authorities as the chief object of his
administrative care. His opinions of the Constitution re-
echoed those of his illustrious predecessor, and he asked
no more than that his own administration might continue
Jackson's policy. The most important positive declaration
in his inaugural was that of his inflexible and uncompro-
mising determination to oppose the abolition of slavery
in the District of Columbia against the wishes of the slave-
holding states, and to resist the slightest federal interfer-
ence with slavery in states where it existed.^ But there
were forces at work in the land of which the President
made at least no public note. In the early days of De-
cember, three years before the election of Martin Van
Buren to the presidency, sixty persons assembled in the
city of Philadelphia and organized the American Anti-
Slavery Society. Among that company were Arthur
Taj^pan, William Lloyd Garrison, Robert Purvis, John
Grcenleaf Whittier, and Lucretia Mott. The object of the
society which these earnest people then proceeded to or-
ganize was nothing less than " the entire abolition of
slavery in the United States." ^ No organization devoted
to a more stupendous task was ever formed. Its members
were looked upon as fanatics, and their purpose as hope-
less of realization. The constitutions and laws of the
country were against them, and no existing political partv
would tolerate them. Yet these private citizens, most of
whom were obscure men and women, calmly, yet boldly,
organized a movement which was to transform govern-
ment and the conceptions of government in America. Van
Buren's inaugural was interpreted by the pro-slavery men
as a promise on the part of Van Buren that he would with-
^ March 4, 1837 ; Richardson, vol. iii, p. 318.
' December 4, 1833 ; Macdonald, p. 304.
THE UNITED STATES 173
stand every attempt of the abolitionists even to petition
Congress for the overthrow of slavery. The constitutional
aspect of his administration is chiefly of interest on account
of the efforts which the pro-slavery party made to deny the
right of petition when exercised for the abolition or re-
striction of slavery. Calhoun did not hesitate to pronounce
such petitions a violation of the federal compact,^ and
throughout Van Buren's term the pro-slavery party at-
tempted to administer the government on the basis of
Calhoun's interpretation. But the right of petition was
too ancient and well settled, and too well acknowledged
as essential to a republican form of government to be
questioned ; therefore, Calhoun's resolution, that Congress
would not receive abolition petitions, precipitated a debate
which continued practically throughout Van Buren's term.
Reviewing the period from the point of time at which we
now stand, we can easily see that the true objection, if there
could be any, to petitions of any kind was against their
expediency rather than against their constitutionality ;
but in the heat of party passion their inexpediency was
considered by pro-slavery men as proof of their violation
of the Constitution. In conformity to pro-slavery senti-
ment the right of petition was attacked and the House
passed its notorious gag rule,^ by which, on a motion for
the previous question, debate could be cut off. For seven
years this mere rule of the House violated a principle of
the Constitution. It may be said that from the adoption
of this rule dates the national movement against slavery.
The election of Harrison and Tyler, in 1840, was hailed
by the Whigs as the opening of an age of reform. Whig
principles of construction would now triumph, and whig
principles were supposed to be broad and liberal. But the
sudden death of the President struck down their hopes.
Tyler had never been a whig, nor sympathized with whig
principles, of which fact his veto messages were speedy
proof. He surpassed Monroe in zeal, though not in pro-
lixity, in his river and harbor vetoes,^ and outdid Jackson
1 See his resolutions, February 27, 1S37 ; Benton's Debates, vol. xiii,
P- 567-
2 May 26, 1836, renewed January 18, 1837 ; repealed December 3, 1844.
' June II, 1844; Richardson, vol. iv, p. 330.
174 A CONSTITUTIONAL HISTORY OF
in his hostility to a bank/ and his hostiUty to a tariff bill
possessing any quality of protection was equal to Cal-
houn's.- No other President has taken so narrow a view
of the Constitution. But his policy had its contradictions,
of which not the least conspicuous was his attitude toward
Texas and his recommendation to Congress to annex
Texas by a joint resolution.^ Such a mode of acquiring
territory was without precedent, yet, if Louisiana could be
acquired by purchase, might not Texas be acquired by a
joint resolution? Had Tyler been true to his strict con-
struction theories, he would have proceeded in a different
way. Like Jefferson he would have advised a constitu-
tional amendment, or, like John Quincy Adams, that the
states be first consulted and their approval secured. But
the temptation was too great, as has usually been the
case for any President who has had an opportunity to
extend the boundaries of the country. Tyler, like Jeffer-
son, for a time abandoned strict construction. His sug-
gestion of a joint resolution was approved both by
Congress * and the Texas convention,^ and the new state
was admitted into the Union without passing through the
usual preliminary territorial stage, or even submitting a
constitution, as did Missouri, that should accord with the
principles of the Constitution of the United States.®
But Tyler's policy was approved by the democratic
convention of 1844, which nominated Polk and Dallas,
and the final disposition of the Texas question accorded
closely with the resolution in the democratic platform,
that Texas should be re-annexed to the United States at
the earliest practical period. The Whigs were silent on
the question. For the time being the constitutional doc-
trines of the two parties were interchanged much as they
had been at the time of the acquisition of Louisiana, and
both parties stood reversed on the question of expediency
^ August 16, 1841 ; Richardson, vol. iv, p. 63 ; September 9, 1841 ; Id.
p. 68.
2 June 20, 1842; Id. p. 180; August 9, 1842; Id. p. 183.
' December 3, 1844; Id. p. 345.
* March i. 1^45.
^ July 4, 1845; Journal of the Convention, July 4-August 28, 1845;
Austin, 184s; Debates, W. F. Weeks, Reporter; Houston, i?46.
6 March i, 1S45; Mncdonald's Select Documents, p. 343.
THE UNITED STATES 175
in the Mexican war that followed. It would be difficult to
harmonize the policy of conquest during Polk's adminis-
tration, by which the California country was added to
the United States, with the strict construction doctrines
which Polk and the members of his party before him had
professed.^ The law of constitutional interpretation is
usually the law of opportunism and the pro-slavery wing
of the democratic party saw in the acquisition of the
California country a new domain over which slavery could
be extended. Yet from a constitutional point of view the
United States, by reason of its sovereignty, could acquire
territory either by treaty or conquest. The economic
results of the Mexican war were so vast that the question
of constitutionality scarcely attracted attention. It is one
of the paradoxes in our history that the boldest applica-
tion of loose construction theories was made by the dem-
ocratic party during the administrations of Tyler and Polk.
The explanation is simple : that construction, it was dis-
covered, offered the easiest method of administering the
general government so as to please the majority of the
American people. National morality was at the point of
degradation.
The conflicting and ominous elements in our national
affairs, at this time, were plainly shown in the resolutions
of state legislatures respecting the expansion of our
national domain and the extension of slavery. Alabama
led off boldly, in 1837, with a demand for the annexation
of Texas,- and it was speedily followed by other southern
states. The neglect or refusal of some northern com-
munities to aid in executing the fugitive slave act of 1793,
was construed by the South as a dangerous and alarming
attack upon its pro-slavery rights,^ which, above all others,
it considered higher and deeper than the Constitution.*
It considered that Congress had no power whatever over
slavery,^ though every southern state did not use the
1 See his message on the war, May II, 1846; Richardson.vol. iv, p. 437.
2 Joint Resolution, December 25, 1837; January i, 1842. Laws.
8 Alabama Resolutions, February 14, 1843. Laws.
* Alabama Resolutions, January 27, 1845; Kentucky Bill of Rights,
Constitution 1850, Article XIIL section 3.
6 Virginia Resolutions, March 8, 1847. Laws.
176 A CONSTITUTIONAL HISTORY OF
words of the Louisiana legislature, — that the people of the
South must maintain respect for their institutions, " peace-
ably if they can, forcibly if they must." ^ Public opinion
in every slave state vindicated the Mexican war, consid-
ered the acquisition of Texas as no more than its re-
annexation, and held that Congress had no power to
impose conditions on slavery extension or in any way to
trespass on state sovereignty.^ Florida and South Carolina
went so far as to advocate putting the South in a state of
military defence.^
Similar but less extreme resolutions were passed by
some of the northern states. They agreed that the joint
occupancy of Oregon with Great Britain should cease ; *
several strongly favored the re-annexation of Texas ; but
their attitude toward slavery was pronounced for its re-
striction.^ New York demanded that it should be for-
bidden in the newly acquired regions. The most liberal
public sentiment toward slavery was twice expressed by
the legislature of Ohio, which demanded that the ordi-
nance of 1787 should be extended over all the territory
acquired from Mexico.** Thus there was a solid South
demanding the expansion of the country to the Pacific,
and the extension of slavery over it all ; and a divided
North, though not on the question of expansion. The
North demanded that the ordinance of 1787 and the prin-
ciple of the Missouri compromise should be applied to the
new acquisitions. The extremes of public opinion were
expressed by the legislatures of Vermont and Virginia, the
one declaring that the perpetuation of slavery was a viola-
tion of the national compact,^ the other that any limita-
1 Resolutions, February 20, 1837. Laws.
2 Mississippi Resolutions, February 25, 1842; South Carolina, Decem-
ber 17, 1841 ; Tennessee, February 7, 1842. Laws.
* Florida Resolutions, January 13, 1849; South Carolina Resolutions,
December 20, 1850. Laws.
* Michigan Resolutions, March 11, 1844; Illinois Resolutions, Feb-
ruary 21, 1843, February 27, 1845. Laws.
^ Massachusetts, April 23, 1838; Delaware, February 25, 1847; New
Hampshire, July 10, 1846, January 4, 1S49; New York, January 27, 1847,
January 13, 1848; Pennsylvania, January 22, 1847; Vermont Acts and
Resolutions, p. 23.
^ Resolutions, February 13, 1847, February 25, 1848. Laws.
^ Vermont Resolution, 1844. Laws.
THE UNITED STATES 177
tion of slavery or the attempt to prevent the removal of
slave property to a territory was unconstitutional.^
The great national issue could not be mistaken; the
struggle over slavery extension constitutes the chief sub-
ject of our national activity from the close of the Mexican
war to the adoption of the thirteenth amendment. One
phase of this question was whether slavery should be
permitted in California, Oregon, and the region between
Oregon and Iowa.
On the 6th of August, 1846, Stephen A. Douglas re-
ported a bill to the House organizing the territory of
Oregon, to which the committee of the whole added the
anti-slavery clause from the ordinance of 1787; but the
session came to a close without further action. When
Congress re-assembled, Douglas reported his bill again,
but the committee of the whole voted down the anti-
slavery amendment. Burt, of South Carolina, then re-
newed the amendment,^ inasmuch, he said, as the whole
territory lay north of the Missouri compromise line. His
purpose was plain enough ; namely, to legalize slavery
south of the line, and thus to settle a precedent for future
uses. Texas was already acquired, and the southern
legislatures, as we have seen, were demanding more slave
territory. Burt's amendment, however, was rejected.
Congress again adjourned without organizing a territorial
government for Oregon. When it re-assembled, in De-
cember, 1847, it was met by Polk's message urging action,^
and on the 29th of May the President sent a special mes-
sage on the subject. Congress then set seriously to work
to pass a territorial bill. The House refused to strike out
the anti-slavery provision, and passed the bill on the 2d
of August by a sectional vote : * the North against the
South. It went to the Senate on the 3d, where it was
amended ; and, on the loth, the anti-slavery provision
was rejected, but the amendment proposed by Douglas
was carried ; namely, that the provision affecting slavery
in the territories, embodied in the Missouri compromise,
1 Resolutions, March 8, 1847, January 20, 1849. Laws,
2 December 15, 1846.
8 December 7, 1847 ! Richardson, vol. iv, p. 532.
* Yeas, 128 ; nays, 71.
12
178 A CONSTITUTIONAL HISTORY OF
should extend to the Pacific Ocean. On the i ith the House
rejected the Douglas amendment and passed its original
bill/ Thus the principle of the ordinance of 1787 was
finally embodied in the organization of our first territory
on the Pacific.
The acquisition from Mexico, commonly called the
California country, at this time was the only portion of
the national domain remaining unorganized. Oregon
was no longer comprehended in the great issue of the
hour; slavery extension and the organization of Oregon
as free soil were construed by the slavocrats as an offset
to California. They demanded the right to carry their
slaves into any part of the new country, which they in-
sisted should be organized as slave soil. This would
compensate the South for its losses under the Missouri
compromise and the recent territorial act. for Oregon.
With the California country open to slavery, with a
stricter fugitive slave act, and with a complete, and, if
necessary, enforced cessation of anti-slavery agitation,
they thought the country might have peace.
These southern views were shared by many people at the
North, but others there had quite opposite opinions ;
namely, that the Oregon question was settled, and that
the principle which had excluded slavery from the terri-
tory ought to be applied to the whole country south of it.
Under Mexican law this country had been free soil, and
the anti-slavery party demanded that it should so continue
under the laws of the United States. Congress had the
right both to exclude slavery from a territory and to make
its permanent exclusion a condition binding on new states.
The new territories to be organized in the California
country should be free soil. The fugitive slave act of
1793 was sufficiently odious without any amendment to
make it more exacting. Slavery and the slave trade should
be forbidden in the District of Columbia, and California
should be admitted at once as a free state.
Its boundaries were as yet undefined. Just at the close
of the Mexican war, when the industrial conditions of the
1 Act of August 14, 1848 ; Statutes at Large, vol. ix, p. 323 ; 29 to 25.
All negative votes from slave states.
THE UNITED STATES 179
country were more or less disturbed, the discovery of gold
was announced in California. The political condition of
Europe at this time compelled a multitude of families to
emigrate to America, and the veterans of the Mexican war
on their return home met this army of foreigners search-
ing for homes. The news of the discovery of gold turned
the faces of many toward California, and of nearly all
toward the West. The ominous political prob'lem of the
extension of slavery into the territories was for a time
forgotten under the excitement for gold.
By the middle of the year 1849, nearly two hundred
thousand men from the older states and from Europe
were in California, and its inhabitants petitioned for its
admission into the Union. Congress ignored the request.
No state in the Union had emerged so suddenly from
the wilderness ; no population in America was equally
composite. On the ist of September, 1849, its people
met in convention at Monterey ^ and framed a constitution.
The economic necessities of the new state excluded slavery,
for if it were permitted the slaveholder would have the
monopoly of the mines ; and though many of the members
of the Monterey convention were from slave states, and
represented thousands of southern men in California, yet
they fully recognized the inexpediency of introducing
slavery. But all members of the convention agreed that
free persons of color should be excluded, and though
they did not incorporate a provision to this end in the
constitution, they well knew that public opinion would be
law on the subject.
Nearly half of the California country extended below
the Missouri compromise line, therefore the demand of the
anti-slavery party for its admission as a state alarmed
the South. If admitted as a free state, even with the
smallest area which was likely to be established, the region
left open to slavery would not balance the free soil of the
North. The region lying west and northwest of Texas
was an unbroken wilderness, excepting a few old Spanish
settlements and the new city of the saints which the
1 For an account of the first constitution of California see "The
Constitutional History of the American People, 1776-1850," vol. ii,
chaps, x-xii.
i8o A CONSTITUTIONAL HISTORY OF
Mormons had built near Salt Lake. If the demands of
the anti-slavery North were to prevail, the slave soil of the
country would extend no further west than Texas, nor
further north than the line of 36° 30'. Slavery would
thus be hedged in and in course of ultimate extinction.
At this time, 1848, the thirty states of the Union were
equally divided between free soil and slave soil, but the
House of Representatives consisted of one hundred and
thirty-nine members from free states and ninety-one from
slave. The population of the free states was above thir-
teen millions,^ that of the slave states above nine mil-
lions.^ Over a million and a half of immigrants had
arrived in the country during the preceding eight years,^
and most of them had settled in the free states. Unaccus-
tomed to African slavery at home, they avoided it on
coming to America, and they knew also very well that
they were not welcome in any southern state except
Louisiana.*
Hostility to foreign immigration was characteristic of
the South at this time. It was freely expressed on every
side, but nowhere more vigorously than in the con-
stitutional conventions. The European immigrant came
to America to work for a living and naturally sought
a home where labor was not under a social stigma.
Slavery was eulogized by many of its defenders at the
South as its best protection against the foreigner. The
effect of this hostility to free labor turned the tide into
the free states and developed and strengthened all their
institutions and industries.
The tremendous significance of this accession to the
number of laborers, who quickly imbibed the political
notions of the North, may best be comprehended after an
examination of the wealth and productivity of the North
at this time. The evidence was the census of 1840, and
it was first used to emphasize the contrast between free
1 In 1S50, 13,599,488. 2 jn 1850, 9,663,997.
8 The number from 1841 to 1850 was 1,713,251.
* In Louisiana the percentage of foreign born was 13- 18; in 1850, in
California, 23.55; '" Wisconsin, 36.18, Kentucky, 3.2; Tennessee, .56;
Massachusetts, 16.49; Pennsylvania. 13.12; Census of 1890, part i, Pop-
ulation, pp. Ixx-lxxiv.
THE UNITED STATES i8i
states and slave states by a member of the Kentucky
convention of 1849, assembled at Frankfort in October
of that year to frame a new constitution for the common-
wealth.^ A minority in the convention had favored a
policy of gradual emancipation for the state, and it was
as an argument for the restriction of slavery that the
facts from the census were cited by a member who rep-
resented the counties of Knox and Harland.
The tobacco, the rice, the cotton, and sugar exported
from the South to foreign countries in one year amounted
to nearly seventy-five millions ($74,866,310), but the
agricultural products of the state of New York alone
were of the value of one hundred and eight millions
($108,275,281). The slave states manufactured articles
to the value of forty-two miUions ($42,178,184) ; the free
states, to nearly five times this amount ($197,658,400).
The aggregate earnings of the slave states were four hun-
dred millions ($403,429,718), but of the free states, more
than six hundred and fifty millions ($658,705,108). The
income of the state of New York alone was greater by
over four millions than the aggregate income of Alabama,
Georgia, Mississippi, Louisiana, and the Carolinas. One
county in Massachusetts, the county of Essex, with a
population of only ninety-five thousand, produced as much
as the entire state of South Carolina with a population of
nearly five hundred and fifty thousand.
More striking was the contrast in educational privileges.
In the primary schools on slave soil, two hundred thou-
sand (201,085) pupils were in attendance; but in the free
states such schools were attended by more than eight times
as many children (1,626,028). The primary schools of
Ohio alone enrolled nearly eighteen thousand more pupils
than all the slave states. The high schools of the South
were attended by thirty-six thousand (35,935) scholars;
those of the North by over four hundred and thirty thou-
sand (432,388). The attendance in the high schools of
the smallest free state, Rhode Island, exceeded that in
the largest slave state, Virginia, by a thousand pupils.
1 Debates and Proceedings of the Convention for the Revision of the
Constitution of Kentucky, 1849, pp. 870, et seg.
i82 A CONSTITUTIONAL HISTORY OF
The high schools of Massachusetts enrolled nearly four
times as many students as were enrolled in such schools
in all the slave states. Taking the schools and colleges
of the North all together, the attendance was more than
two millions of pupils (2,213,444). At the South it was
less than one-third of a million (301,172). At the South
one person out of every ten of the white population could
neither read nor write; in the free states the proportion
was one to one hundred and fifty-six.
The supporters of slavery in the Kentucky convention
did not deny the accuracy of the census, but did deny the
truth of the deductions which anti-slavery men drew
from them.^ The contrast between the North and South
which the census of 1840 disclosed, they claimed, was
not due to slavery. They preferred an agricultural to
a manufacturing condition ; they did not want to live the
life of the North ; they were satisfied with southern polit-
ical economy, and they demanded that they should be
permitted to establish it in any territory in the United
States. If the relative strength of the two sections of the
country was accurately shown by the census of 1840, — and
nearly nine years had now passed, — and if the demands
of the North and those of the South as to the extension
of slavery could not now in some way be compromised,
the days of the Union seemed numbered. In case a com-
promise was made, it must, in order to prove stable, be
founded upon a true economic basis.
When Congress met in 1849, it was commonly under-
stood that a compromise of some kind would be attempted.
The last serious attempt at excluding slavery from the
California country had failed. It had been made by David
Wilmot, of Pennsylvania, on the 8th of August, 1846,
and had been offered as a proviso to a bill appropriating
$2,000,000 to be expended in the peace negotiations with
Mexico.^ The proviso excluded slavery forever from all
soil that might be acquired and was carried in the House,
in committee of the whole, by a vote of eighty-three to
sixty-four. It would probably also have carried in the
1 Kentucky Debates, 1849, p. 877.
' See Polk's Message, August 8, 1846; Richardson, vol. iv, p. 459.
THE UNITED STATES 183
Senate had not John Davis, of Massachusetts, persisted
in delivering an untimely speech, in the midst of which
Congress adjourned, and the opportunity for carrying the
proviso was forever gone. All efforts to revive it in the
next Congress failed. The pro-slavery men considered
it a plain violation of the Constitution, and the Whigs
as a party inclined to the same view. In place of so
radical a measure, the pro-slavery party, of whom Cal-
houn was the leader, demanded that the Constitution and
laws of the United States applicable to a territory should
be extended over the new acquisition.^ This would have
made the new region slave soil.
On the 29th of January, 1850, Henry Clay came for-
ward in the Senate with eight resolutions which, he said,
covered all points of the question, and would amicably
adjust upon a fair and equitable basis all the controversies
ajising out of the institution of slavery. These resolu-
tions were, in brief : to admit California as a free state ;
to organize the territories of Utah and New Mexico with-
out reference to slavery ; to include a portion of the state
of Texas within the boundaries of New Mexico, and in
compensation to assume the public debt of Texas con-
tracted before its annexation ; to abolish the slave trade,
but not slavery, within the District of Columbia ; to enact
a more effective fugitive slave law, but to leave the trade
in slaves between the slave-holding states wholly to their
control.^ Clay supported his resolutions in a speech
which he was not unwilling should be considered the
greatest of his life. To this ambitious scheme of com-
promise the support of Webster and some of the lesser
whig leaders was first secured. Both Houses were
willing to concede its principles, and it seemed destined
to speedy adoption.
The resolutions were reported in one bill in May, but
were no sooner reported than the elements of discord
in the bill were recognized as fatal to its passage, and
after a debate running through the summer session, its
^ Calhoun's Works, vol. iv, pp. 346, 498.
* Benton's Debates, vol. xvi, p. 386.
i84 A CONSTITUTIONAL HISTORY OF
propositions were taken up and passed separately.^ Every
prominent member of Congress spoke on the resolutions,
but their constitutional aspects were best interpreted in
three great speeches, — those of Calhoun,^ Webster,^ and
Seward.*
Calhoun began by saying that the continued agitation
of the subject of slavery would end in disunion. The
United States was a slave-holding power, its Constitution
a pro-slavery instrument. It recognized the right of
property in slaves, and on that right lay the foundation of
the civil organization of the South. Every denial of that
right, therefore, tended to destroy the very purpose for
which the Union had been organized. The South had
an equal right with the North to all territories. To
deny that equal right could mean nothing less than dis-
union. Hitherto the balance of power had been maintained
through the admission of an equal number of free and
slave states, but now by the admission of California that
equilibrium had been destroyed. So aggressive had been
the anti-slavery North, that the South was excluded from
all but about one-fourth of the vast area which had been
acquired since the formation of the compact between the
states. The policy of tariff protection had enriched the
North at the expense of the South, and had attracted immi-
gration from all quarters of the world. For these reasons
the North had acquired a preponderance in every depart-
ment of the government. The ordinances of 1787 and
the Missouri compromise had excluded the South from
its portion of the great West ; otherwise the contrasts
shown by the census of 1840 could never have been
possible. By concentrating all the power of the federal
system in itself, the government of the United States had
become entirely changed from its original character. It
now claimed the right to decide in tlie last resort as to
the extent of its powers, wholly ignoring the sovereign
rights of the states. To all this discrimination against
1 The Texas bill, the territory of New Mexico, the admission of Cali-
fornia, the Utah bill, September 9th ; the fugitive slave law, Septem-
ber i6th ; the slave trade in the District of Columbia, September 20,
1850; Statutes at Large, vol. ix, pp. 446-467.
* March 4, 1850. ^ March 7. 1850. * March 11, 1850.
THE UNITED STATES 185
the South was to be added the hostile sentiment of pow-
erful organizations at the North which were demanding
the abolition of slavery. Their demands since 1835 ^'^^^^
become more and more exacting, until they practically
dominated the general government. The cords which
held the two sections of the Union together were snap-
ping one by one. The Constitution had been violated ;
the Union was in peril of dissolution, and Clay's com-
promise could not save it. Nothing could save it but
a return to the original meaning of the Constitution as a
compact between sovereign states, vinder which all pos-
sessed equal rights ; therefore Calhoun opposed the com-
promise.^ He spoke for slavocracy and proclaimed its
ultimatum.
Three days later Webster replied in his famous 7th
of March speech,^ an appeal for the preservation of the
Union. He sympathized with the South, fully agreeing
that it had many and serious grievances against the North,
chief of which were northern violations of the fugitive
slave act. The institution of slavery was a recognized
part of the constitutional organization of the country and
should be respected. He admitted that the Mexican war
had been prosecuted for the sole purpose of adding terri-
tory over which slavery should be extended, and as the
acquisition was of a region which lay in a warm climate,
the South naturally expected that it would become slave
soil. Whether the region should be free or slave, he
believed, was fixed by an irrevocable law beyond the power
of Congress. Nature herself would regulate the extension
of slavery, and against her laws he believed it folly to con-
tend ; therefore the fate of slavery in the California coun-
try should be left to the laws of climate. He did not fear
that slavery could be maintained against natural law.
Though opposed to slavery extension, he considered the
United States pledged to create just such states out of
Texas as its people might demand respecting slavery.
His interpretation of the law of nature in the California
country seems now quixotic, but he believed that Califor-
1 Calhoun's Speech in Johnston's American Orations, p. 246.
2 Works, vol. V, p. 324.
i86 A CONSTITUTIONAL HISTORY OF
nia and New Mexico were destined to be free soil " by
the arrangement of things ordained by the Power above
us." On the principle of the Wilmot proviso he cast
every aspersion. He believed that Clay's compromise
plainly contained a working principle which would pre-
serve the Union, and for this reason he supported it.
But the burden of his speech was a defence of the South
in its complaints against the North.
While the debate was running on in Congress, the state
legislatures were passing elaborate resolutions. The
northern, favoring the admission of California as a free
state, demanded the exclusion of slavery from the new
territories, and the abolition of the slave trade in the
District of Columbia ; the southern, emphasizing state
sovereignty, denied the power of Congress to legislate
as to slavery ; attacked the principle of the Wilmot pro-
viso, and in substance supported Calhoun's opinion of
the compromise.^ The South was calling for a conven-
tion of slave-holding states to consider the defence of
its rights, and Calhoun was secretly arranging that one
should assemble at Nashville early in June. Clay and
Webster had spoken for the compromise, Calhoun had
spoken against it, but the faces of all three were set
toward the past.
The great speech against the compromise was Seward's,
delivered four days after Webster's. Seward realized
that the period for compromises had passed. The title
which he gave to his speech, " California, the Union, and
Freedom," indicated its scope and purpose. He found
little in the proposed compromise that he could approve.
California, he said, was already a state, and he answered
every objection which had been made to its admission.
Looking into the future, he foretold with remarkable
accuracy the growth of the nation for the next half
century. It would increase from twenty to eighty mil-
lions, and the faces of all would be set toward the West.
There lay the future of the nation. The balance of
^ For a resume of these resolutions, see " The Constitutional History
of the American People, 1776-1850," vol. i, pp. 337-340. Typical resolu-
tions with those of Mississippi, March 5 and 6, 1850; of New York, Jan-
uary 16, 1850.
THE UNITED STATES 187
political power would be in its keeping. The organization
of civil government in the California country would,
therefore, affect the destiny of millions yet unborn.
The speeches of Webster and Clay were cast in the
same political mould, but those by Calhoun and Seward
had nothing in common. Calhoun spoke of the compact,
of state sovereignty, and of slavery as a permanent
national institution. Seward spoke of the nation and
universal freedom, and of the permanent restriction of
slavery in the slave-holding states. Congress, he said,
had power to exclude it from the territories, and in so
doing would carry out the principles of the founders of
the government. New states would cling to a closer
alliance than would the older ones, therefore Congress
should make the new states free. Calhoun had appealed
to the Constitution as the final and only test of legislation,
but Seward boldly announced that there was a law higher
than the Constitution which regulated the authority of the
American people over their domain and devoted it to the
noblest purpose. That domain, constituting no inconsid-
erable portion of the common heritage of mankind, had
been bestowed upon them by the Creator of the universe.
They were stewards, and must so discharge their trust
as to secure happiness in the highest attainable degree,
which was to be won not by the extension of slavery
but by the extension of freedom throughout the national
domain.
Is it strange that when Seward appealed to the " higher
law," Calhoun declared that a man who could utter such
a doctrine was unfit to be a member of the Senate?
The debate on the compromise of 1850 brought to
light how deeply seated among the different sections of
the American people were the doctrines of 1798, the prin-
ciples of the Missouri compromise of 1820, and the antag-
onistic principles discussed at the time of the South
Carolina ordinance of nullification of 1832. The debate
brought plainly to view the seam running through our
civil institutions.
The thirty years following the Missouri compromise
form a period whose political agitations largely grew out
of that compromise. Slavery had become an economic
i88 A CONSTITUTIONAL HISTORY OF
factor in America, and during these thirty years slave
labor was profitable — as measured by monetary values.
The great migration into the West began, and the frontier
was a movable line. Had slavery been unproductive, as
production was measured by the standards of that time,
gradual emancipation must slowly have undermined
the institution. But America was still in the agricultural
stage, and agricultural methods were rude. The virgin
soil had not yet been exhausted by slave labor; there
seemed to be an endless supply of new soil in the West,
and slavery, as most men thought, was a permanent and
inseparable element in the economic life of the country.
Because of the prevailing notions of labor and economy,
slavery found aggressive supporters. The Constitution
and the laws were evoked because the interests of slavery
were the interests of property. The human element was
wholly subordinated to the jus rerum. Sifted of verbiage
and legal technicalities, the numberless speeches, in and
out of legislative halls, in defence of slavery, were merely
a defence of the rights of property. At no time preceding
this period was there, anywhere in the world, so ardent
a defence of slavery by civilized men as was heard during
these thirty years in America. And the paradox seems
inexplicable that statesmen of the acumen of Calhoun
and Webster should spend the best years of their lives in
defence of slavery. Unquestionably they had the law of
the land on their side. Ours was a slave-holding republic :
a political aggregation in itself a paradox.
The long debate of slavery, from the Missouri compro-
mise to the compromise of 1850, came, as it may be said,
naturally in the evolution of government in America.
Every period of prolonged, serious, and critical debate
precedes, in every country, a political revolution. Viewed
as a question in government, slavery was bound to divide
the country, economically and politically, and this the
statesmen of the period clearly foresaw. The advocates
and the opponents of slavery agreed touching one thing,
and only one thing, — that the agitation of the issues of
slavery meant disunion ; yet everybody was agitated, more
or less, over slavery.
The sovereignty of the federal government was involved
THE UNITED STATES 189
in the debate, as it was later involved in the consequences
of the agitation.
A compromise opened and a compromise closed the
period. But the startling fact is the indifference of events
to the plans of the debaters and the compromises of the
law-makers. A mighty economic change was transform-
ing the country. Because America was the land in which
labor must be honorable, free, and productive, slavery was
doomed to extinction. Slave labor and free labor have
never gone on side by side peaceably. Both laborers must
be slaves or both must be free men. The law which was
annulling all other laws in America was that law of
economy which proclaims human labor free.
We must not be misled by the apparent and overlook
the real forces which were shaping the history of America
during these years. It was the open, untilled West, the
accessible mines, the economic opportunity in America,
which determined its political because it determined
its economic history. Nullification, extension of slavery,
state sovereignty, were passing phases in the evolution
of popular government in America. Removed from us
as the period is by scarcely two generations, it seems as
distant as the revolution. A false economy _ prevailed,
and consequently a false conception of political ideals.
Statesmen might deliver 7th of March speeches, but the
fate of the country was in the hands of the plain people,
the toilers on the farms. The rights of free labor were
yet to correct the faults in the Constitution.
190 A CONSTITUTIONAL HISTORY OF
CHAPTER IX
SLAVERY EXTENSION
At the time the last of the compromise acts of 1850
was passed, it is doubtful whether there were a dozen
white families living in the wilderness between the present
boundaries of Minnesota, Iowa, Missouri, and the Mormon
settlements at Salt Lake ; but within two years immigra-
tion set in toward this region, and settlements were made
along the Kansas and Nebraska rivers. At the session
of Congress of 1851-1852, several petitions were presented
for the organization of a territory west of Iowa, but it
was not until the 2d of February, 1853, that a bill to
organize a territory under the name of Nebraska was
reported. It passed the House on the loth, was referred
to the committee on territories in the Senate on the follow-
ing day, and was reported without amendment by Stephen
A. Douglas on the 17th; but the Senate gave the subject
no further attention during the session. During the brief
debate, the purpose of the pro-slavery party was disclosed
by Senator Atchison, of Missouri, — namely, to oppose
the organization of the territory unless the restrictions of
slavery by the Missouri compromise were removed.
President Pierce in his inaugural ^ pronounced the com-
promise measures of 1850 strictly constitutional, and
declared himself bound to carry them into effect ; but this
policy could not be carried out if the purpose of Atchison
and his supporters was to prevail. Much was said in the
thirty-third Congress, which assembled December 5, 1853,
of the prospective territory of Nebraska, and a bill for its
organization was reported by Senator Douglas on the 4th
of January, 1854. The accompanying report of the com-
1 March 4, 1853; Richardson, vol. v, p. 195.
THE UNITED STATES 191
mittee on territories reaffirmed the compromise measures
of 1850, and rested the bill upon three propositions : ^
that the question of slavery in the territories and in new
states formed from them should be left to the decision
of the people residing in them ; that all cases involving
the question of personal freedom — that is, the title to
slaves — should be referred to the local judicial tribunal,
with right of appeal to the supreme court of the United
States ; and that the fugitive slave act should be faithfully
executed.
Douglas proposed, as an amendment to the bill, that
the Missouri restriction on slavery should be declared
inoperative and void ; but this was lost. However, as
a compensation, the Senate struck out the passage in the
bill that the Missouri restriction was superseded by the
principle of the compromise of 1850; but this did not
satisfy Mr. Douglas, who, on the 15th of February, suc-
ceeded in substituting his amendment, that the Missouri
restriction was inconsistent with the compromise of 1850
and, therefore, void ; " it being the true purpose of the
new territorial bill neither to legislate slavery into a ter-
ritory or state, nor to exclude it, but to leave the people
of either free to regulate their domestic institutions in
their own way, subject only to the Constitution of the
United States." Senator Chase, of Ohio, wished to amend
further by adding that the people of a territory, if they
saw fit, might prohibit slavery, but this was rejected.
Instead of this plain provision the Senate added a proviso
that the bill should not be construed as putting in force
any law that existed before the 6th of March, 1820, either
establishing or abolishing slavery. At Senator Clayton's
suggestion, immigrants from Europe who had declared
their intention to become citizens should not be allowed
to vote unless otherwise qualified. Chase wished to
amend the bill further so as to allow the people of a
territory to choose their own governor, but this application
of " squatter sovereignty " was defeated. The principal
speech against the bill was delivered by Senator Seward,
who detected in the measure a device for establishing
^ Senate reports, 33d Congress, First Session, vol. i, No. XV.
192 A CONSTITUTIONAL HISTORY OF
slavery in Nebraska; but his objections were not sustained
and the bill passed the Senate as a pro-slavery measure.^
In the House a separate territorial bill for Nebraska had
been introduced on the 22d of December, but on the 31st
of January, 1854, the committee on territories reported a
bill to organize both Nebraska and Kansas in one act.
It was substantially the Douglas bill. An ineffective
attempt was made to incorporate the doctrine of " squatter
sovereignty " in a provision authorizing the inhabitants
to determine the question of slavery for themselves. On
the 2d of May the bill was finally passed,^ the majority
in its favor being from slave states. The Senate took it
up practically as a substitute for its own measure. The
bill passed on the 24th and was approved by the President.^
It extended the fugitive slave act over the territory;
declared the Missouri compromise inconsistent with the
principle of non-intervention by Congress with slavery
in the states and territories as recognized by the com-
promise of 1850, and left the question of slavery to be
settled by the inhabitants in their own way.
The bill was arraigned in an open letter by the Inde-
pendent Democrats * as a gross violation of the recent
compromise and of the earlier one of 1820. The signers
of the expostulation held that the constitutionality of
slavery restriction embodied in the Missouri compromise
was established not only by President Monroe and his
cabinet, but also by the acquiescence of the American
people for nearly thirty-five years. The consequence of
the Kansas-Nebraska act could not be measured. It
re-opened the whole question of slavery restriction; its
prospective economic effects were more alarming. Its
first operation, as it permitted slavery in Nebraska, would
cut off the free states of the Pacific from those of the
Atlantic. It would defraud untold millions of Americans
and of immigrants from securing homes in free soil.
Free men would not work by the side of slaves. The
1 March 3, 1854. 2 113 to 100.
* May 30, 1854; Statutes at Large, vol. x, p. 277.
* Signed by S. P. Chase, ('harles Sumner, J. R. Giddings, Edward
Wade, (".errett Smith, Alexander DeWitt; January 19, 1854; Congres-
sional Globe, 33d Congress, First Session, part i, pp. 281-282.
THE UNITED STATES 193
vast territory to be organized would extend the domain
of slavery northward ; it would imperil the Union.
The " squatter-sovereignty " act of 1854 indicated the
slight respect which the democratic party had for any
interpretation of the Constitution, or any law which tended
to restrict slavery. In vain did Senator Chase, of Ohio,
attempt to amend the act by adding that the people of
the territory might prohibit slavery through their repre-
sentatives ; the dominant party refused any modification
of the new act which might be construed as either estab-
lishing or abolishing slavery : that should be left with the
people of the territory. Fair as this seemed on its face,
the act of 1854 was practically a pro-slavery measure.
The revelation of its true character depended upon its
execution, and that was in the hands of pro-slavery men.
The immediate effect of the act was to stimulate immi-
gration to Kansas. Two streams of population poured
in ; one from the North, hostile to slavery ; the other from
the South, determined to establish it in the new region.
Each party attempted to secure a constitution for Kansas,
the one anti-slavery, the other pro-slavery. The immediate
result was civil war in Kansas for nearly two years. The
Topeka constitution,^ which made the territory free soil,
and the government instituted under this constitution,
were not recognized by the President. The Lecompton
constitution,^ which was pro-slavery, was so ingeniously
submitted to the people that it was bound to be adopted
whether free state men voted for or against it. Like the
constitution of Kentucky of 1849, it declared the right of
property (meaning particularly slave property) to be
above and higher than any constitutional sanction, but
went further than the Kentucky or any other state con-
stitution, and asserted that the right of an owner of slaves
to them and their increase was as inviolable as the right
of the owner of any property whatever. This declaration
was the last of its kind ; never again was a pro-slavery
clause to be incorporated into an American constitution.
The Lecompton constitution was also the last to define
a state as " free, independent, and sovereign." Free
1 December 15, 1855. 2 December 21, 1857.
13
194 A CONSTITUTIONAL HISTORY OF
negroes were forbidden to enter the state. The ratifica-
tion of this constitution was wholly fraudulent, for the
vote stood twenty-four for the constitution, with slavery ;
one hundred and thirty-eight, without slavery ; and ten
thousand two hundred and twenty-six, against the consti-
tution in any form.^
President Buchanan sent the constitution to Congress
on the 2d of February, 1858,^ with a special message
declaring that it had been made according to every prin-
ciple of constitutional law, and at the same time pro-
nouncing the Topeka constitution and the legislature
existing under it a revolutionary government. This was
not the President's first praise of the Lecompton instru-
ment, for he had dilated on its excellencies in his annual
message ^ of the preceding year. His support of it was
due to his conviction that it conformed to just principles
of government. What these principles were was made
known two days after the inauguration in the decision of
the supreme court in the Dred Scott case, an impending
dicision to which the President referred in his inaugural.
Whether he had knowledge of the forthcoming decision
is not known.
Scott was a slave of one Dr. Emerson, a citizen of
Missouri, who, in the course of his military duties had
removed to Rock Island in Illinois, and later to Fort
Snelling, which at the time was in the territory of Wis-
consin. While at Fort SnelHng, Scott, with his master's
consent, had married a negro woman who also had been
brought from Missouri. Two children were born to
them in Wisconsin. In 1850 Emerson was again living
in Missouri, whither he had brought Scott and his family.
The negro brought suit for the freedom of himself and
family on the ground that they had lived in Illinois and
Wisconsin, which were free states. The St. Louis local
court sustained his suit, deciding that he and his family
were free persons.* Emerson appealed the case to the
state supreme court, which promptly reversed the decision.
1 It was claimed that it was ratified by 6,226 votes to 589.
2 Richardson, vol. v, p. 471.
8 December 8, 1857; Id. pp. 452-454.
* 15 Missouri, 581.
THE UNITED STATES 195
Not long after, Scott and his family were sold to one
Sandford, a citizen of New York, and Scott again brought
suit for his freedom ; this time in the United States circuit
court at St. Louis, which pronounced them the property
of Sandford.^ They appealed the case to the supreme
court of the United States, before which the case was
twice argued ; first, in the spring of 1856, when, on account
of the approaching presidential election, the opinion of
the court was withheld ; and the second time in December,
1856, when the issue was enlarged to include the question
whether the Constitution empowered Congress to exclude
slavery from the territories. This involved the constitu-
tionality of the ordinance of 1787, of the Missouri com-
promise of 1820, and of all acts resting upon them.
The court consisted of nine judges, five of whom were
from slave, and four from free, states. Seven were Dem-
ocrats. The majority of them agreed that the decision
of the Missouri circuit court should be sustained ; there-
fore Scott and his family were slaves. But not content
to leave the matter here, the court undertook to give peace
to the country and to settle the critical question in dispute.
The chief-justice, Taney, determined to give an opinion
covering all the issues in the case. Each associate justice
also wrote an opinion. Seven of them - agreed with
Taney, though for different reasons, that the court had
no jurisdiction in the case, but Curtis and McLean dis-
sented wholly from him. Slaves, the court held, were
property, and had never been citizens in contemplation
of law since the organization of the general government ;
therefore all laws prohibiting slavery were unconstitu-
tional. The mass of legislation upon which the govern-
ments of the old Northwest rested, that is, the ordinance
of 1787; the Missouri compromise; the Oregon bill; the
constitutions of the six states west of Pennsylvania,'^ in
so far as they forbade slavery ; and all laws in restriction
of it made under them, and all territorial acts in restraint
of slavery, were unconstitutional. Congress could pro-
tect or extend slavery, but could not limit or prohibit it.
1 May, 1854.
2 Campbell, Catron, Daniel, Grier, Nelson, Wayne, Clifford.
* Ohio, Indiana, Illinois, Michigan, Wisconsin, Iowa.
196 A CONSTITUTIONAL HISTORY OF
The states were sovereign and the United States were
not for all purposes a nation.
In a prolix opinion which reviewed the history of the
legal status of the negro, the chief-justice excluded the
African race from all participation in the privileges of
free men/
Mr. Justice Curtis delivered a dissenting opinion. In
five of the thirteen original states, said he, persons of color
had been electors and had participated in ordaining and
establishing the Constitution. It had not been made ex-
clusively by the white race nor for them. They were
entitled to all the rights and privileges of free men ; with
the substance of which opinion McLean agreed. No
decision of the court throughout its history has provoked
so widespread public interest. The victory was for state
sovereignty and slavery, and the democratic party and
all friends of slavery accepted it as a final settlement of
the whole matter. The President applied it in his inter-
pretation of afifairs in Kansas and Nebraska. He knew,
as did thousands of other American citizens, that twenty-
seven of the thirty-one state constitutions then in force de-
nied the right of citizenship to free persons of color. The
anti-slavery party promptly pronounced the court's dis-
cussion of slavery extension mere obiter dicta, and that
in attempting to settle the slavery question the court was
interfering in political matters.
Public opinion in the North was well exemplified in the
utterances of Senator Douglas and Mr. Lincoln. Douglas,
devoted to what he called " the great principle of popular
sovereignty and self-government," boldly claimed that he
found that the principle sustained the decision. But if
Congress could not keep slavery out of a territory, how
could the people of a territory keep it out ? A non sequi-
titr which Douglas ignored.^ Far diflFerent was Mr. Lin-
coln's comment on the decision. It was made, said he,
by a divided court, whose decisions on constitutional
questions, " when fully settled, should control not only
the particular cases decided but the general policy of the
1 Scott V. Sandford, 19 Howard, 393 (1857).
2 Nicolay and Hay's Lincoln, vol. ii, p. 84.
THE UNITED STATES 197
country, subject only to be disturbed by amendments to
the Constitution. More than this would be revolutionary."
But Lincoln did not hesitate to pronounce the decision
erroneous. The court had often overruled its own
decisions, and he declared that the party to which he
belonged would do all it could to have it overrule this
one. This party — the republican — would offer no re-
sistance to the decision, but would labor so to change
public sentiment as to compel a new decision.^ Instead
of forever settling the slavery issue, the Dred Scott de-
cision broke up old parties, dividing them anew into one,
the democratic, favoring slavery extension, and into an-
other, the republican, demanding its exclusion from the
territories.
On the 1 8th of May, i860, the republican party, in
national convention at Chicago, nominated Abraham Lin-
coln and Hannibal Hamlin for President and Vice-presi-
dent on a platform which said that the new dogma,
that the Constitution of its own accord carried slavery
into the territories was a dangerous political heresy. The
platform asserted that the normal condition of all the
territories of the United States was one of freedom.
The democratic party was a house divided against itself.
The followers of Douglas nominated him for the presi-
dency at Baltimore in June,^ on a platform declaring that
the party would abide by the decision of the supreme
court ; but the extreme wing of the party, assembled also
at Baltimore in convention, nominated John C. Brecken-
ridge and Joseph Lane, on an out and out slavery exten-
sion platform ; the two most important resolutions of
which declared it to be the duty of the federal govern-
ment to protect the property and rights of all persons in
the territories ; that under the right of state sovereignty,
the people in forming a state constitution were free to
adopt or to prohibit slavery, and that a state thus organ-
ized ought to be admitted, whatever its constitution
might provide respecting slavery.
The election of i860 was final and startling proof of
1 Speech of June 26, 1857 ; Works, vol. i, p. 228.
2 Herschel V. Johnson was later put on the ticket with Douglas, by
the executive committee, for vice-president.
198 A CONSTITUTIONAL HISTORY OF
sectionalism in the country. Lincoln and Hamlin were
both northern men; the one from Illinois, the other
from Maine, though Lincoln was a native of Kentucky.
They received no electoral votes and but few popular
votes from any slave-holding state. Douglas and John-
son carried New Jersey and one slave state, Missouri.
Breckenridge carried eleven slave states, but not one free
state. Three slave states supported Bell and Everett,
the nominees of the Union party.^ So all the slave
states voted against Lincoln and all save one of the free
states voted for him. Long before his nomination, a
secession program had been drawn up at the South, and
his election was declared a sufficient cause for dissolv-
ing the Union. Threats of secession had at times been
uttered North and South, from the day of the inauguration
of the government down to the South Carolina ordinance
of nullification. They had been freely spoken during the
debate on the compromise of 1850, and had colored the
speech and action of radical pro-slavery men since that
time.
The working elements of secession were state sov-
ereignty, free trade, slavery extension, and confederacy.
In every great struggle in which either of these elements
had hitherto come to the front as a national issue, save
in the repeal of the compromise of 1850 by the Kansas-
Nebraska act, the adherents to slavery had lost ; but all
that they had lost seemed now regained by the decision in
the Dred Scott case. From the time when the legislature
of Alabama, in 1837, advocated the annexation of Texas,
to which most of the southern states responded, the South
had spoken in a military tone. During Pierce's admin-
istration the South had been gradually put into a condition
of military defence, largely through the energy of the
secretary of war, Jefiferson Davis. Ultra-slavocrats, like
William L.Yancey, had long been demanding " immediate,
absolute, and eternal separation," ^ This was the south-
1 Virginia, Kentucky, and Tennessee. The Union party's platform
was " Tiie Constitution and the laws " ; a party of siafu quo pacification.
2 See his speech delivered in the Democratic State Convention of the
State of Alabama, held at Montgomery, January 11-14, 1S60. Pamphlet,
Montgomery, Advertiser Book and Steam House Job Print, 1S60, p. 31.
THE UNITED STATES 199
ern program, if Lincoln should be elected. The issue was
plainly put by the governor of North Carolina in October,
1860/ when he said that Lincoln's election on a platform
demanding the exclusion of slavery from the territories
imperilled the institution throughout the South.
Down to 181 5 the ultras among the state sovereignty
party complained that the government of the LTnited
States was consolidated. Then, until 1833, the complaint
ran that the government had adopted a protective policy-
destructive to southern interests. From this time until
i860 the federal government was accused of seeking to
exclude slavery from new soil. But at the bottom of all
these complaints were the radical and permanent differ-
ences between the two social and industrial systems exist-
ing in the country. These differences were accurately
portrayed in the " Declaration of the Causes of Secession,"
issued by South Carolina on the 20th of November,
i860.- The convention which passed this ordinance ^
also issued an " Address to the People of South Caro-
lina " * and another to the " People of the Slave-Holding
States." The declaration and the address cited as prece-
dents for secession, the Declaration of Independence, the
Articles of Confederation and the Constitution of the
United States. The compact between the states, so ran
the declaration, had been broken by the northern states,
and particularly by their enactment of personal liberty
bills, and by their long continued hostility to slavery. As
the result of this agitation, a geographical line had been
drawn across the Union ; and the states north of the line
had united in the election of a President who had declared
that " the government could not endure permanently half
slave and half free, and that the public mind must rest
in the belief that slavery was in the course of ultimate
extinction." The guarantees of the Constitution no longer
existed. The equal rights of the states were lost ; there-
1 Gov. John W. Ellis to Gov. W. H. Gist of South Carolina, October
18, i860; Nicolay and Hay's Lincoln, vol. ii, p. 307.
2 Journal of the Convention of the People (i South Carolina held in
i860, 1861, and 1862, together with the Ordinances, Reports, Resolutions,
etc. Columbus, South Carolina, 1S62, p. 873.
3 Id. p. 4. * Id. p. 467.
200 A CONSTITUTIONAL HISTORY OF
fore, South Carolina resumed her position among the
nations of the world as a separate and independent state.
But the irremediable differences between the two sec-
tions were industrial as well as political, as was clearly
stated in the South Carolina address : " The union of
the Constitution was a union of slave-holding states. It
rests on slavery by prescribing a representation in Con-
gress for three-fifths of our slaves. There is nothing
in the proceedings of the convention which formed the
Constitution to show that the South would have formed
any other union ; and still less, that they would have
formed a union with more powerful non-slave-holding
states having a majority in both branches of the legis-
lature of the government. They were guilty of no such
folly. Time and the progress of things have totally
altered the relations between the northern and southern
states since the Union was established. That identity of
feelings, interest, and institutions which once existed has
gone. They are now divided between agricultural, manu-
facturing, and commercial states ; between slave-holding
and non-slave-holding states. Their institutions and in-
dustrial pursuits have made them totally different peoples.
That equality in the government between the two sections
of the Union which once existed no longer exists. We
have but imitated the policy of the Fathers in dissolving
the Union with non-slave-holding confederacies and seek-
ing a confederation with slave-holding states.
" Experience has proved that slave-holding states can-
not be safe in subjection to non-slave-holding states. The
fairest portions of the world elsewhere have been turned
into a wilderness, and the most civilized and prosperous
communities have been impoverished and ruined by anti-
slavery fanaticism. The people of the North have not
left us in doubt as to their design and policy. United
as a section in the late presidential election, they have
elected as an exponent of their policy one who has openly
declared that the states of the United States must be
free, not slave. It is true that amidst those who aided
his election there are various shades of anti-slavery hos-
tility, but if African slavery in the southern states be
the evil their political campaign affirms it to be, the
THE UNITED STATES 201
requisites of an inexorable logic must lead them to eman-
cipation. If it is right to preclude or abolish slavery in
a territory, why should it be allowed to remain in the
states ? The one is not at all more constitutional than the
other, according to the decisions of the supreme court of
the United States. And when it is considered that the
northern states will soon have the power to make that
court what they please, and that the Constitution has
never been any barrier whatever to their exercise of power,
what check can there be in the unrestrained counsel of
the North to emancipation ? "
Separation from the northern states, it was urged,
invaded none of their rights or interests. The Constitu-
tion of the United States had been made and adopted by
independent states, each acting for itself. South Caro-
lina, " acting in her sovereign capacity," now thought
proper to secede from the Union, assured that she had not
parted with her sovereignty in adopting the Constitution.
Circumstances beyond her control, it was said, had placed
her " in the van of the great controversy between the
northern and southern states." She asked her sister
slave-holding states to be one with her in a great slave-
holding Confederacy, stretching its arms over a territory
larger than that possessed by any power in Europe; with
a population four times greater than that of the whole
United States when they achieved their independence;
with common institutions to defend and with productions
which made its existence more important to the world
than that of any other people.^
The spread of secession was rapid. By the 5th of
February, 1861, six slave states had joined South Caro-
lina and had adopted similar ordinances of secession. -
On the day before Texas seceded, a convention of these
states assembled at Montgomery, Alabama, and adopted
a provisional constitution for the Confederate States of
America.^ On the nth of March, just a week after the
1 Journal of the Convention of the People of South Carolina held
in i860, 1861, and 1862, together with the Ordinances, Reports, Reso-
lutions, etc. Columbus, South Carolina, 1862, pp. 472-475.
2 Alabama, January 4 ; Mississippi, January 9 ; Florida, January 10;
Georgia, January 19; Louisiana, January 26 ; Texas, February 5, 1861.
For these ordinances see the Journals of the Conventions.
3 February 9, 1861.
202 A CONSTITUTIONAL HISTORY OF
inauguration of President Lincoln, a permanent consti-
tution was adopted, and, on the i8th, Jefferson Davis,
lately a United States senator from Mississippi, was inaug-
urated President of the Confederacy, and Alexander H.
Stephens, Vice-president. The secessionists attempted to
bring the remaining slave-holding states into the Con-
federacy, and were successful in Virginia ^ and North
Carolina,^ though probably a majority of the people in
both states were opposed to the movement, and they were
likewise successful in Arkansas ^ and Tennessee, though
the people of the eastern or mountainous portion of Ten-
nessee refused allegiance to the Confederacy and remained
loyal to the Union. The Confederate government was re-
moved to Richmond, and every effort was made to secure
the co-operation of the border slave states. Though for-
mally admitted* into the Confederacy, the border states did
not secede from the Union. ^ But in Kentucky and Mis-
souri, as in Tennessee, there was a powerful and, at times,
a dominating sentiment favorable to the Confederacy.
The constitution of the Confederacy was modelled after
that of the United States, but varied from it in important
particulars. Its preamble declared that the Constitution
was ordained and established by the people of the Con-
federate states, " each state acting in its sovereign and
independent character." The importation of negroes was
forbidden except from the United States.® The term of
the President and Vice-president was six years, and the
President was not re-eligible.'' In place of the figurative
language " all other persons " in the national Constitution
describing those in bondage, the constitution of the Con-
1 Its ordinance of secession passed April 17, 1861.
'^ May 20, 1861 ; Journal of the Convention, pp. 13-16.
8 May 6, 1861.
* The acts admitting these states into the Confederacy are in Statutes
at Large of the Provisional Government of the Confederate States of
America; for Tennessee, May 17, 1S61, p. 19; for Kentucky, December
10, 1861, p. 222 ; for Missouri, November 28, 1861, p. 221 ; for Arkansas,
May 21, iS6r, p. 120.
5 See its resolutions of the Confederacy relating to the accession
of Maryland, December 21, 1861 ; Confederate Statutes at Large,
p. 281.
•' Article XII, section r, clause i.
^ Article I, section g, clause i.
THE UNITED STATES 203
federacy used the word " slaves." The foundation of the
new government was slavery and state sovereignty, but
the constitution contained the apparent contradiction that
no state could enter into any treaty, alliance, or confed-
eration with another state.^
The earliest exposition of the new government was made
by its Vice-president in a public address at Savannah, in
March, 1861, in which he pointed out the provisions in
its constitution superior to those of the United States.
According to Stephens, these improvements were the
" removal of the old thorn of the tariff " ; the inability of
the Confederate Congress to make internal improvements^
at the expense of the Confederacy ; the privilege of cabi-
net ministers and heads of departments to participate in
the debates of the two Houses ; - the longer term for the
President, and " the removal of the rock upon which the
old Union had split," namely, agitation against African
slavery. The foundations of the new government were
laid, he said, and its corner-stone rested, " upon the great
truth that the negro is not equal to the white man ; that
slavery, — subordination to the superior race, — is his
normal and natural condition." And he declared that
it was the first government in the history of the world
" based upon this great physical, philosophical, and moral
truth." ^ The Confederacy speedily organized its Senate
and House. The territory of Arizona was created, treaties
were made with the Indian tribes, and each state and the
territory of Arizona was constituted a judicial district.'
In spite of the Vice-president's declaration, — that the old
thorn of the tariff had been forever removed, — the Con-
federate Congress, just two months later, passed an act
imposing duties upon imports,^ and planned to rely upon
the efficacy of the act for carrying on the government.
Thus, within ninety days after the inauguration of Presi-
1 Article I, section lo, clause i.
2 Article I, section 6, clause 2. This imitation of the British system
proved a failure ; the heads of the departments could not sustain them-
selves against the common attack of the members.
•^ Speech, March 21, 1861 ; Johnston's Orations, vol. iii, p 164.
* Confederate Statutes at Large, Index "Judicial Districts."
^ Act of May 21, 1861 ; Statutes at Large of the Provisional Gov-
ernment, pp. 127-135.
204 A CONSTITUTIONAL HISTORY OF
dent Lincoln, the United States was confronted by a thor-
oughly organized rebellion, extending over one-third of
the national domain and including nearly one-third of
the population of the Union.
The program of secession, which had been in process
of formation during i860, had received no check from the
national government under Buchanan, who, in his last
annual message, sent to Congress a month after the elec-
tion of Lincoln and Hamlin, put the responsibility for
the dissolution which then threatened the Union upon
the northern people, and particularly upon the abolition-
ists. There was a striking similarity between a portion
of this message and Webster's 7th of March speech,
in that the message took up the grievances of the South
against the North and emphasized how the North had
violated the Constitution, particularly in its personal lib-
erty bills and in its refusal to execute the fugitive slave
law. But the abstract question of the power of Congress
to coerce a state had become concrete since Webster's
day. Buchanan could find no authority under the Consti-
tution for the coercion of a state. It was a power not
specified or enumerated, and had been expressly refused
by the federal convention ; therefore Buchanan saw no
escape from the dissolution of the Union, unless, perhaps,
the Constitution should be amended in three particulars,
and each for the benefit of slavery : first by expressly
recognizing the right of property in slaves, secondly by
protecting slave property, and thirdly by executing the
fugitive slave law everywhere in the Union. Such an
amendment might save the Union. ^ Thus the whole
attitude of Buchanan's administration toward the secession
movement followed a let-alone policy, which perhaps
would have been less disastrous if it had been strictly
followed by Buchanan. He was at best a feeble Presi-
dent, and some of the members of his cabinet shared
much of his feebleness. The secretary of the treasury,
Howell Cobb, of Georgia, the secretary of war, John
B. Floyd, of Virginia, and the secretary of the interior,
Jacob Thompson, of Mississippi, were in active sympathy
^ Message of December 3, i860; Richardson, vol. v, p. 626.
THE UNITED STATES 205
with secession and in constant though secret touch with
its leaders. They strengthened secession by every act
in their power, and at last, when forced by public opinion
North to resign from the cabinet, Cobb and Floyd loudly
boasted of the services they had rendered to the Confed-
eracy.^ Congress responded to Buchanan's advice by
devoting the last session of i860 to perfecting and pass-
ing a constitutional amendment protecting slavery. This
was the last of several attempts to compromise a question
which had already passed beyond compromise. The
other important attempts were the Crittenden resolutions
and the Peace Conference.
The resolutions - which originated with John J. Crit-
tenden, a senator from Kentucky, were based upon the
principle of the Missouri compromise, and were approved
by the legislatures of Kentucky, Tennessee, Virginia, and
New Jersey. The line 36° 30' should divide the territories.
In those lying to the north of this line slavery should be
forever prohibited ; but in those to the south, slavery
should be recognized, protected, and never interfered with
by Congress. The people of these southern territories,
when they became states, should settle the question of
slavery for themselves. Congress should not abolish
slavery within the forts or other federal territory in slave
states, nor in the District of Columbia, so long as it was
permitted in Maryland and Virginia. The interstate
slave trade should never be prohibited. For every fugi-
tive slave rescued by violence, the United States should
pay the owner full value ; but might sue the county in
which the rescue occurred for the amount paid, and the
county, in like manner, might sue the wrongdoer. These
resolutions were presented at various times in Congress,
up to the 2d of March, 1861, but were defeated in both
Houses.
The Peace Conference was suggested by the Virginia
legislature,^ assembled at Washington on the 4th of Feb-
ruary, and represented twenty-one states.* Virginia fa-
1 Nicolay and Hay's Lincoln, vol. ii, chaps, xviii, xxv.
2 Macdonald, Select Documents, p. 438.
8 January 19, 1861.
* See Report of its Debates and Proceedings, 1864.
2o6 A CONSTITUTIONAL HISTORY OF
vored making the Crittenden resolutions an amendment
to the Constitution, but the Conference finally adopted a
set of resolutions which it proposed should be made the
thirteenth amendment to the Constitution. These resolu-
tions differed from the Crittenden resolutions in important
particulars, but were like the Crittenden resolutions in
their general purpose of perpetuating slavery. The Con-
ference was presided over by John Tyler, lately Presi-
dent of the United States, a moderate man, and all
parties hoped that its suggestion might conciliate the sec-
tions. But its proposed amendment was rejected by both
Houses.^
A multitude of resolutions were now offered in both
Houses as suitable constitutional amendments. In the
Senate a special committee of thirteen ^ was created and in
the House a committee of thirty-three,^ who, it was hoped,
might work out the desired change. The movement to
secure it amounted to little more than an opportunity for
senators and representatives to express their ideas of
the true method of saving the Union. Little was said,
however, by the Republicans in either House, for they
knew that they were yet in the minority. The senators
and representatives from states which had seceded or
were planning to secede, though they said much, took little
real interest in the discussion. As secession was a fore-
gone conclusion, — a plan already agreed upon, — any
amendment that might be adopted seemed to them wholly
unimportant. They were preparing their farewell
speeches, to be delivered when they should resign from
Congress and join their friends at the South. But the two
committees entered faithfully upon their work, well aware
that while they were laboring zealously to preserve the
Union by concessions to the South, the Gulf states were
passing ordinances of secession and organizing a slave-
holding confederacy. Finally, on the 26th of February,
Thomas Corwin, of Ohio, the chairman of the committee
of thirty-three, moved, as a substitute for the amendment
1 February 27-March 3, 1861,
2 December 18-20, i860; Globe, p. 158.
8 Lecember 4-6, 1S60; Globe, pp. 6, et seq.
THE UNITED STATES 207
which the committee had advised, a resolution to be known
as " Article XIII," in these words : —
" No amendment shall be made to the Constitution
which will authorize or give to Congress the power to
abolish or interfere within any state with the domestic
institutions thereof, including that of persons held to
labor or service by the laws of said states." ^
The House agreed to Corwin's substitute by a vote of
one hundred and twenty to sixty-one, but when engrossed
and read the third time the journal showed that two-
thirds of the members had not voted in the affirmative
and it thus stood defeated. But on the following day
the question was reconsidered and the amendment passed
by one hundred and thirty-three to sixty-five.^ The House
resolution was sent to the Senate on the day when Crit-
tenden reported the resolutions of the Peace Conference,
and William H. Seward brought in a joint resolution call-
ing for a national constitutional convention. The Corwin
amendment was made the order of the day for the 2d
of March. An unsuccessful effort was made to substitute
the Crittenden resolutions. Wilkinson, of Minnesota, who
opposed both Corwin's amendment and the substitute
which had been offered, declared that the Constitution was
not in need of amendment. " The people of the North-
west," said he, " will never consent that the southern Con-
federacy take possession of the mouth of the Mississippi
River. This act of itself will lead to war." And he
offered an additional section to the amendment before the
Senate, that " no state has the power to withdraw from
the Union," but this was rejected by a vote of twenty-
eight to eighteen.
Douglas at this point reminded the Senate of the short-
ness of the time, and urged it to pass the Corwin amend-
ment, and then to take up the propositions .of the peace
conference. " This is not a question of compromise,"
said Zachariah Chandler, of Michigan, " but a question
whether we have a government or not." " What has all
this to do with the question before the country ? " blandly
1 Journal H. R., i86o-r86i, p. 416. See the report of the Committee
in H. R. Report, No. XXXI, 36th Congress, Second Session.
2 Id. p. 426; Globe, pp. 1 263-1 264, 1 284-1 285.
2o8 A CONSTITUTIONAL HISTORY OF
inquired Wigfall, of Texas. " The Union is dissolved ;
Texas went out to-day; what do you propose doing?"
The Senate then took a recess until seven o'clock Sun-
day evening, long before which time the galleries and all
available space on the floor were filled with spectators.
They had come, not to witness the end of Buchanan's
administration, but the beginning of Lincoln's.
Crittenden made a long, eloquent, but unsuccessful
appeal for his resolutions. Finally, the Corwin amend-
ment was read the third time, and the roll was called.
Twenty-four votes were recorded in its favor and twelve
against it, and the presiding officer, Trusten Polk, of
Missouri, announced that it had passed.^ The President,
as is the custom at the close of the session, was in his
room at the capitol busily signing his name to public acts.
Shortly before the time fixed for the inauguration of his
successor, Buchanan signed the proposed amendment
which would make slavery in the United States national
and perpetual. About an hour later, toward the close
of his inaugural, Mr. Lincoln referred to the amendment,
and said that " he had no objection to its being made
express and irrevocable." ^
The amendment went forth to the states, and a year later,
on the 14th of February, 1862,^ was ratified by the consti-
tutional convention of Illinois. On the 14th of June fol-
lowing, the people of that state repudiated the convention
by rejecting the Constitution which had been submitted,
and thus made its ordinance of ratification of no effect.*
The Ohio and Maryland legislatures also ratified the
amendment, but it went no further, and was forgotten
amidst the crisis of civil war.
The right and expediency of secession were discussed
by President Lincoln in his inaugural. The central idea
of secession, said he, is the essence of anarchy, the abdi-
cation of popular government ; and in a message to Con-
gress convening on the 4th of July, he declared that
1 Senate Journal, pp. 382, et scq. ; Globe, pp. 1402, et seq.
2 Works, vol. ii, p. 6.
8 Journal of the Convention, pp. 358, 450, 451 ; "Documentary His-
tory of the Constitution," vol. ii, p. 518.
* Yox the Constitution, 125,052 ; against it, 141,103.
THE UNITED STATES 209
the issue expressed more than the fate of the United
States, for it represented to the whole family of man the
question whether a constitutional republic could maintain
its territorial integrity against domestic foes. The sophism
consisted in the claim that a state could constitutionally
withdraw from the Union. The Union, said he, is older
than the states, and in fact created them as states. Their
reserved powers do not include that of destroying it. This
truth was the more forceful with respect to the newer
states which had been organized from the domain acquired
by the nation. Was it lawful and consistent that they
should secede and repudiate their part of the national
obligation ? The seceders insisted that secession was con-
stitutional, but in the Constitution of the Confederacy,
which they had organized, they had discarded the prin-
ciple of secession. If secession was justifiable, where was
it to end, and what would prevent the continuation of
anarchy and the formation of endless confederacies? If
secession was right, then there must be an end to the re-
publican form of government.^
The national government took measures to suppress the
rebellion as speedily as possible. By the law of August
6, 1861,^ rebel property was declared confiscated, and also
slaves, whose labor contributed to the strength of the Con-
federacy. Before the close of the month, the act was
interpreted in an unexpected way by a proclamation of
General Fremont, declaring free the slaves of persons in
the state of Missouri who had taken up arms against
the United States.^ The government was not ready for
so radical, so unlawful, a measure, and the President soon
ordered its modification ; but the practical efifect of Fre-
mont's act was favorable to emancipation. Slaves were
hedged about by the laws securing every man's property
from seizure for public uses without his own consent and
without compensation, and though slave labor was now
the sinews of the rebellion, all who supported the Confed-
eracy insisted that the United States must respect the
1 Message, July 4, 1861 ; Works, vol. ii, p. 55 ; Richardson, vol. vi,
p. 20.
^ Statutes at Large, vol. xu, p. 319.
2 August 30, 1S61 ; War Records, vol. iii, p. 446.
14
210 A CONSTITUTIONAL HISTORY OF
principle. The government did not enter upon the sup-
pression of the rebelHon with the purpose of exterminat-
ing slavery ; its sole purpose was to preserve the Union.
The border states had not joined the Confederacy, and
it was essential to the existence of the Union that they
should remain loyal. A war on slavery would antagonize
them and perhaps imperil the Union. But the war was
changing social conditions and public sentiment. As the
national armies advanced into the slave-holding states,
fugitive slaves gathered about them in such numbers as
to cause embarrassment. Were they persons or property ?
Should they be seized under the act of confiscation?
Should they be returned to their masters, or should they
be utilized as " contraband of war " for the benefit of the
Union? Gradual emancipation had been tried in the
older states in the early part of the century, but had been
rejected in all the border states. Emancipation with or
without compensation by the United States raised a new
and a grave constitutional question. As a step toward its
solution, the President drafted a scheme for compensatory
emancipation in Delaware, in which state there were the
fewest slaves.
Meanwhile, Congress had amended the confiscation act,^
by providing that slaves escaping from masters engaged in
rebellion and taking refuge with the army were to be
treated as captives of war, and to be forthwith and forever
free, and the President was authorized to employ as many
negroes as he thought necessary in aid of the suppression
of "the rebellion. This authority to organize negro regi-
ments was without precedent. On the 19th of June
Congress abolished slavery in the territories of the United
States,^ and thus put into legal form a clause in the plat-
form on which Lincoln had been elected, — that the normal
condition of all the territories of the United States is that
of freedom. A week later slavery was abolished in the
District of Columbia, and the laws discriminating against
persons of color in judicial proceedings were repealed.
On the 7th of April the United States and Great Britain
1 July 17, 1862 ; Statutes at Large, vol. xii, p. 589.
2 Id. vol. xiii, p. 432.
THE UNITED STATES 211
concluded a treaty for the suppression of the African
slave trade, ae^reeing to employ their navies to prevent
the traffic.^ Thus, in the months of June and July, 1862,
Congress overruled the decision in the Dred Scott case as
to its power to restrict slavery in the territories.
Delaware refused to co-operate with the President in
a policy of gradual and compensatory emancipation ; nev-
ertheless the President sent a special message to Congress
recommending the adoption of the policy. It was favor-
ably received by Congress, but no state expressed a will-
ingness to co-operate until co-operation was too late.
Congress could abolish slavery in the territories, but, as
Mr. Lincoln explicitly declared, his compensatory plan
must be accepted by a state voluntarily, as " emancipation
was a subject exclusively under the control of the states
and must be adopted or rejected by each for itself." The
United States had no right to coerce a state.^ The Presi-
dent, foreseeing the extinction of slavery, now appealed
to the representatives of the border states in Congress to
avail themselves of his compensatory policy. He argued,
after an economic fashion, that the money necessary to
carry out the policy, — one hundred and seventy- four mil-
lion dollars, — was no more than the cost of the war for
eighty-seven days, and that it had better be saved in
emancipation than sunk in war.^
The first form of the confiscation bill had not met the
President's approval. It was startling, he said, to say
that Congress could free a slave within a state; and yet,
if it were said that the ownership of the slave had first
been transferred to the Union, and that Congress had then
liberated him, the difficulty would vanish."* This was rec-
ognizing the rights of property, and the right of a state
to control its domestic affairs ; in other words. Congress
had no power to invade the right of a state by declaring
slaves within it free. Emancipation must, therefore, pro-
ceed in the exercise of the war power. The slaves were
equivalent to an effective Confederate army. If they were
treated as munitions of war and eliminated from the con-
test, the rebellion would be so much nearer suppression.
1 Treaties and Conventions, p. 454. 2 Works, vol. ii, p. 132.
3 March 14, 1862; Works, vol. ii, p. 137. * Id. p. 210.
212 A CONSTITUTIONAL HISTORY OF
On the 22d of July, 1862, the war department author-
ized army and navy commanders to employ as laborers,
and for military and naval purposes, as many persons of
African descent as could be used advantageously. On
the same day the President submitted to his cabinet the
first draft of an emancipation proclamation. It provided
that on the 1st day of January, 1863, all persons held as
slaves within any state in which the constitutional author-
ity of the United States was not practically recognized and
maintained should " then, thenceforward, and forever be
free." ^ This proclamation would free many slaves, but
would not, because it could not, abolish slavery. It was
conditional. If the people in the states in rebellion re-
turned to their allegiance it would not be issued. The
President was convinced that the proclamation would be
supported by public sentiment in the loyal states, but he
awaited a favorable moment for issuing it. On the 17th
of September the army was victorious at Antietam, and
five days later the proclamation was issued.- It freed the
slaves in states and parts of states carefully designated,
that might be engaged in rebellion on the ist of January,
1863. It was issued as a war measure, and, as the Presi-
dent believed, was fully warranted by the Constitution.
The majority in Congress and the mass of the northern
people were in sympathy with it.^
Soon after Virginia had passed the ordinance of seces-
sion,'* the people of the forty counties in the western part
of the state organized a loyal government at Wheeling
and proceeded to form a new state. In November a
convention prepared a constitution, which in the following
April was ratified by popular vote.^ The petition for the
admission of West Virginia raised a new question. Had
the consent of Virginia been given in a lawful manner?
1 Works, vol. ii, p. 213. -
2 Lincoln's Works, vol. ii, p. 237.
3 See the action of the House, December 1 5, 18^2. as civen in Nicolay
and Hay's Lincoln, vol. ii, p. 171 ; also Congressional Globe, December,
1862.
* June, 1861.
^ The convention assembled November 26, 1861-February 18, 1862.
The vote was 18,862 to 514.
THE UNITED STATES 213
Could Congress admit it as a new state ? Its constitution
provided that no slave or free person of color should be
suffered to enter the state, but this restriction was elim-
inated by Congress in the enabling act, which substituted
a clause for the gradual emancipation of slaves after the
4th of July, 1863.^
The admission of West Virginia and the condition of
gradual emancipation raised a constitutional question on
which the cabinet was divided.- Congress put the respon-
sibility of the decision on the President, who, though he
thought it more properly a question for Congress to decide,
did not evade it. To the argument of expediency, which
was strong and unanswerable, was added one of authority.
Had a majority of the qualified voters of Virginia partici-
pated in the decision favoring the organization of the new
state? The consent of the legislature of Virginia was
constitutionally necessary to the law allowing West Vir-
ginia to become a state. A body claiming to be such a
legislature had given its consent. This could not well be
denied, said the President, unless upon outside knowledge
this body had not been chosen by a majority of the electors.
" But," said he, " it is a usual practice in popular elections
to give no legal consideration whatever to those who have
not chosen to vote as against the effect of those who choose
to vote ; hence it is not the qualified voters, but the qualified
voters who choose to vote, that constitute the power of the
state." ^ As Lincoln expressed it, there is a difference
between secession against the Constitution and secession
in favor of it. He signed the bill, and on the 19th of
June, 1863, West Virginia was admitted. It was the
first slave-holding state which provided for gradual
emancipation. So swift were changes in public opinion
that in less than two years from the day of its admission
its legislature was busily preparing a constitutional
amendment for the immediate abolition of slavery.
In his annual message in December, Lincoln recom-
mended to Congress an amendment to the Constitution
providing compensation from the United States to every
1 Enabling Act, December 31, 1862 ; Statutes at Large, vol. xii, p. 634.
2 For its opinions, see Nicolay and Hay's Lincoln, vol. vi, p. 300.
^ December 31, 1862; Lincoln's Works, vol. ii, p. 285.
214 A CONSTITUTIONAL HISTORY OF
state that might abohsh slavery before January i, 1900.
Slaves freed by the chances of war during the rebellion
should remain free, and provision should be made for
colonizing free colored persons, with their own consent,
at any place outside of the United States.^ The President's
policy was to recognize the loyal population of the states
in rebellion as the body truly constituting these states,
and to protect this population with national troops. This
idea was the germ of Lincoln's policy of reconstruction,
the true nature and operation of which, because of his
sudden death, can never be known. Military governors
were appointed for Tennessee, North Carolina, Louisiana,
and Arkansas,^ with the understanding that the national
troops should be withdrawn as soon as the loyal inhab-
itants of these states had organized civil governments in
conformity to the Constitution and were able to protect
themselves.
When the ist of January, 1863, came, the loyal people
of the country were prepared to welcome the emancipation
proclamation both as a military and as a political ultima-
tum. Its opponents denied that it freed a single slave.^
Whether or not the proclamation was constitutional, it
shook the institution of slavery to its foundations, for it
made property in slaves wholly insecure. The admission
of the negro into the army and navy put a new value
upon him, both in his own estimation and in that of all
loyal people. As soon as he was risking his life in battle
for the Union he was on the way to admission to the
civil and political privileges of white men. Thus the
proclamation involved the ultimate question of United
States citizenship for the negro, and aided to set aside the
decision in the Dred Scott case.
Missouri did not come within the operation of the
proclamation, but a policy of emancipation had been
rapidly developing in that state.* In February, 1861, a
1 December i, 1862; Lincoln's Works, vol. ii, p. 261.
2 March-May, 1862.
2 See Joel Parker's Law Lectures delivered at Harvard College, 1866
and at Harvard and Dartmouth, 1 867-1 868 ; Hurd and Houqhton, New
York, 1 866- 1 869.
* The authorities for statements respecting Missouri are the Journals
THE UNITED STATES 215
convention met at Jefferson City, and its loyal members
succeeded in preventing the adoption of an ordinance of
secession. Missouri had nothing to gain by joining the
southern Confederacy. It had no sympathy with the
policy of free trade, but at this time many of its people
imagined that it might play the part of peacemaker be-
tween the sections. Some of its citizens believed that
whatever side it favored would ultimately prevail. Pro-
slavery men talked of " forty millions of slave property in
the state that must be protected." They denied the right
of the government to coerce a state, but recognized that
the real coercion in the country was the force of events
transpiring about them : the influx of foreign population,
the rapid increase of the old, free states in wealth, and
the prospective strength of new free states of the North-
west. Thus Missouri would soon be nearly surrounded
by free soil, and the safety of her property in slaves would
be imperilled. The issue in Missouri, therefore, was to
pursue a policy most advantageous to the state. Though
the peril to slave property was clear, none the less clear
was the danger from negro emancipation. What would
be done with the slaves if they were made free? How-
ever, these questions were not freely discussed in the state
until about the time of the emancipation proclamation.
Most of the officials in power in the state, at the out-
break of the war, had been in sympathy with the Confed-
eracy. The shock of war cleared the political air and
laid bare the true interests of the state. This was shown
by the action of the convention. It re-assembled on the
22d of July, 1861, declared the state offices vacant, passed
ordinances affirming the loyalty of the state, and forever
settled the question of its conjunction with the Confed-
eracy. Thus, the act of the Richmond government which
had admitted the state into the Confederacy ^ was made
of no effect. Again, assembling in October at St. Louis,
the convention denied the right of secession, but demanded
that the national government should renounce any purpose
of its Conventions in 1861, 1862, 1863, and 1865; six volumes, February
28, i86t-April 10, 1865.
1 November 28, 1861 ; Statutes at Large, C. S. A,, 1861-2, p. 221.
2i6 A CONSTITUTIONAL HISTORY OF
to interfere with slavery. This was the last demand of
the kind from any state.
In June, 1862, public opinion in Missouri had reached
the point at which it was willing to tolerate gradual eman-
cipation, and Judge Breckenridge offered an ordinance
to this effect in the convention, on the 7th. He proposed
that after the ist of January, 1865, all negroes born in
slavery in the state should be considered slaves until they
reached the age of twenty-five. This was a remarkable
ordinance to emanate from a slave-holding state. Its
distinguished author told the convention that in Missouri
the institution of slavery was doomed, for the war had
already settled its fate. He wished to put the state on a
plane with its free neighbors, and to attract its share of
immigrants and foreign capital. He would develop its
resources, which would never be developed as long as
slavery was continued. But the state was in debt and
could not bear the expense of compensatory emancipation,
— this should be partly borne by the general government.
On the preceding loth of April, Congress, by a joint
resolution, had offered to co-operate with any state in a
compensatory policy of abolition.^ But the majority of
the members of the Missouri convention were unwilling
at that time to accept the policy. The opportunity was
never presented to them again.
Just three days after this decision of Missouri respect-
ing slavery was made, one himdred and seventy-five men
from the loyal counties of the state met in convention at
Jefferson City for the purpose of inaugurating a cam-
paign of emancipation. The President's proclamation
followed soon after their assembling. The November
elections indicated clearly enough the trend of public sen-
timent at the North, and a bill was introduced in the
national House of Representatives, by one of the Missouri
members, appropriating twenty millions to aid the state
in the abolition of slavery. Its constitutionality was ques-
tioned. Could the United States perform a task which
properly belonged to a sovereign state? The Missouri
legislature also discussed the question, but reached no con-
1 Statutes at Large, vol. xii, p. 617.
THE UNITED STATES 217
elusion, and the whole matter remained unsettled. Thus,
at the close of the year 1862 no state had taken active
measures to abolish slavery. In the following June, the
governor of Missouri, Hamilton R. Gamble, reassembled
the convention expressly to act upon the subject of eman-
cipation. He still hoped that Lincoln's compensatory
policy might be carried out, but the Missouri legislature
would do nothing because it considered itself limited by
the state constitution. Slavery, as every member knew,
was doomed. There remained only to provide against the
worst disasters which might follow. The evil days might
be delayed. On the first day of the convention, Charles
F. Drake, of St. Louis, submitted an ordinance for gradual
emancipation and the abolition of slavery.^ Various dates
were suggested ; and the committee finally reported a plan
by which slavery should cease in the state on the 4th of
July, 1876.
As in Kentucky in 1849, so now in Missouri, free and
slave states were contrasted. Ohio, Indiana, Illinois, and
Iowa, none of which by nature surpassed Missouri in
wealth, it was said now far outranked her in production,
population, and prosperity. The cause of the backward-
ness of Missouri was slavery. It was too late to expect
compensation for slaves from the general government.
Missouri must emancipate her slaves and thus give them
up voluntarily, or be a witness to their flight from the
state, and sufifer from the loss of their labor. After an
exciting debate, a constitutional amendment was adopted
on the 1st of July. The scheme of gradual emancipation
should begin on the 4th of July, 1870, but the scheme did
not reflect the advanced thought of the state. An agita-
tion, lasting two years, for abolition, now shook the state.
The radical emancipationists took up the question, and at
the presidential election of 1864 obtained full control of
the government. Another convention was called, and met
on the 6th of January, 1865, at St. Louis. On the nth
slavery was abolished, and an amendment, the language
of which was taken from the ordinance of 1787, was
adopted by an overwhelming vote. The news was tele-
1 June 15, 1863.
2i8 A CONSTITUTIONAL HISTORY OF
graphed over the Union. Yates, the famous war-governor
of IlHnois, returned a congratulatory message. The news
was laid before the House of Representatives at Washing-
ton, by the Speaker, Schuyler Colfax, on the i6th, and the
official communication from the governor of Missouri was
ordered to be preserved among the archives of the nation.
The policy of emancipation, with the political trans-
formation which it implied, was also taken up in other
slave-holding states. The emancipation proclamation
applied to Arkansas, but not until August, 1863, did
military movements enable its loyal people to gain control
of the state. On the 8th of December the President issued
a proclamation of amnesty and reconstruction,^ very lib-
eral and humane, offering full pardon to all persons, with
few exceptions, who had been implicated in the rebellion.
If not less than one-tenth of the number of persons who
had voted in the state at the presidential election of i860,
and had taken the required oath and observed it, would
unite in political action, the President was willing that
they should be permitted to re-establish a state govern-
ment. On the 5th of January, 1864, he sent to the
commanding federal officer in Arkansas the necessary
blank-books to be used in inaugurating the new govern-
ment, and this day may be taken as the beginning of the
so-called era of reconstruction. But the loyal people of the
state had already assembled in convention,- and had de-
clared the ordinance of secession null and void. On the
22d of January they abolished slavery. The President
recognized the convention as a lawful body, and ordered
General Steele to support it. The new constitution was
ratified ; loyal state and county officers were chosen, and
the new government was inaugurated on the i ith of April,
Congress refused to admit the senators and representatives
which the new government chose, and showed a dispo-
sition to oppose the President's policy of reconstruction ;
but the state, trusting to the justice of its course, declared
itself allegiant to the Union. It was the first slave-holding
commonwealth to abolish slavery immediately and without
condition. This was a state, not a national, act.
1 T,incoln's Works, vol. ii, p. 443.
2 Journal of the Convention, January 4-23, 1S64.
THE UNITED STATES 219
Virginia at this time was in an anomalous condition.
It seemed to have two governments : a disloyal one at
Richmond, a loyal one at Alexandria. The Pierpoint
government at Alexandria had authority over only a small
portion of the state, but it represented the loyal people.
On the 13th of February, 1864, a convention assembled
at Alexandria,^ representing the loyal citizens of the state,
and on the nth of April promulgated a new constitution,
one clause in which abolished slavery. The President
treated Virginia as he had treated Arkansas. Congress
refused to recognize the validity of the Pierpoint gov-
ernment, but by one of those paradoxes which it is im-
possible to harmonize with precedents, Congress later
considered the ratification of the thirteenth amendment by
the Pierpoint government as the authoritative act of the
state of Virginia.
The President's policy of reconstruction, which recog-
nized loyalty wherever found at the South, led him in
October, 1862, to lend a helping hand to the people of
Louisiana.- He was anxious that the state should adopt
a free constitution which would provide adequately for
the education of the negro, but this should be done as far
as possible without the aid of federal troops. The city
of New Orleans and some adjacent parishes were under
their control. Largely under the direction of the Presi-
dent, the government of the state was re-organized, and in
January, 1864, Michael Hahn, the free state candidate,
was elected governor. In a private letter to him,^ Lincoln
suggested that in defining the elective franchise the ap-
proaching convention should let in some of the colored
people, as, for instance, the very intelligent, and those who
had fought in the ranks of the Union. This was the first
suggestion from President Lincoln that the right to vote
might be given to the negro.
The convention assembled at New Orleans on the 6th
of April, and after an exceedingly stormy session, amidst
great excitement it abolished slavery on the nth of May.*
1 Journal of the Convention, February 13-April 8, 1864; Alexandria.
2 Lincoln's Works, vol. ii, p. 247.
3 March 13, 1S64; Works, vol. ii, p. 496.
* Debates of the Louisiana Convention, 1S64, PP- 208,
220 A CONSTITUTIONAL HISTORY OF
The President's suggestion about the franchise was par-
tially carried out; the new constitution, while restricting
the right to vote to white males, empowered the legis-
lature to extend the suffrage " to such other persons as by
their intelligence or military services might be considered
entitled to it." ^ All able-bodied men in the state, irre-
spective of race, were to be enrolled in the militia, a more
liberal provision than could be found at this time in the
constitution of any free state. In October the legislature
elected United States senators, but Congress refused to
admit them.
Maryland, like Missouri, did not come within the oper-
ation of the emancipation proclamation. Since the open-
ing days of the war public opinion had greatly changed in
the state, so much so that its representatives in Congress,
in January, 1863, had raised the question of compensatory
emancipation in its behalf. A year later public opinion
had advanced so far that the legislature appointed the
6tli of April as the day when the people should decide the
question of choosing a constitutional convention, the issue
being plainly understood, and the question being answered
by the election of sixty-one delegates, — out of ninety-six,
— known to be in favor of emancipation.- Three weeks
later the delegates met at x^nnapolis and began a discus-
sion of public issues which ran on until November. The
whole constitutional history of the Union was reviewed.
Unlike Missouri, Arkansas, and Louisiana in 1864, Mary-
land was not under military pressure of any kind. It
therefore discussed the question of emancipation with a
freedom and completeness not elsewhere recorded. The
argument of the emancipationists was economic ; but that
of the pro-slavery members was legal and, as they believed,
strictly constitutional. To emancipate the slaves of Mary-
land, said the opposition, would violate the rights of prop-
erty and set free a multitude wholly unfit to take care of
themselves. At last, on the 24th of June, the vote was
reached, and slavery in Maryland was abolished by a vote
of nearly two to one ; and in October the new constitution
1 Louisiana Constitution, 1864; Title III, Article XV.
2 See Debates of the Convention, April 27, 1864-September 6, 1864;
3 volumes.
THE UNITED STATES 221
was ratified, though by a majority of only three hundred
and seventy-five votes. These epoch-making votes were
cast by the Maryland soldiers in the various national
camps.
While Maryland was discussing emancipation, the
people of the territory of Nevada were engaged in fram-
ing a state constitution.^ The territory had been organized
scarcely three years. ^ It was needed as a state in 1864,
much as West Virginia had been needed to help strengthen
the national government in 1863. A convention assembled
on the 4th of July, 1864. The majority of the members
were natives of free states, and nearly one-third of them
were natives of New York. Oregon had been organized
as free soil, and California had been admitted as a free
state. The prohibition of slavery, therefore, was to be
expected in Nevada, and the prohibitory clause in the con-
stitution easily passed without objection. But the dele-
gates were not merely hostile to slavery ; they believed that
the paramount allegiance of every citizen was due to the
federal government. This doctrine had come up in the
Maryland convention and had been approved and em-
bodied in the constitution of that state. But the delegates
of Nevada carried the doctrine further, and declared in
their bill of rights that the Constitution of the United
States confers full power on the federal government to
maintain and to perpetuate its existence, and that if within
any portion of a state the people should attempt to secede
from the federal Union or forcibly to resist the execution
of its laws, the federal government, by warrant of the
Constitution, might employ armed force in compelling
obedience to its authority. This doctrine had been adopted
by a constitutional convention in Nevada the preceding
year, but the language was now slightly modified to ex-
press the idea that the federal government must operate
within its constitutional powers, though the right of co-
ercion was maintained.^ But no delegate advocated negro
1 Constitutional Convention, Debates and Proceedings, July 4-27,
1864.
2 March 2, 1861.
8 Nevada constitution, 1864; Article I, section 2. Debates of the
Convention, p. 53.
222 A CONSTITUTIONAL HISTORY OF
suffrage, though the idea was less novel than that of para-
mount" allegiance to the general government, or its right
to coerce a state. The Nevada constitution was ratified by
the people, and on the last day of October the state was
admitted into the Union by proclamation of the President.
It was the twenty-sixth to forbid slavery.
Tennessee was soon added to the free list. It consisted
of two parts, an eastern and a western. The eastern was
loyal. The state was not included in the emancipation
proclamation. During 1863 and 1864 the portion of the
state under the control of loyal citizens and national troops
enlarged until it included nearly the whole state. Andrew
Johnson, the military governor, declared in favor of eman-
cipation. But Tennessee was in a condition of great polit-
ical confusion. The party in power, for the time being,
was loyal or disloyal, according to the successes of the
national or of the Confederate armies. Finally, on the 9th
of January, 1864, a convention, which at best was a rev-
olutionary body, assembled at Nashville, and on the 14th
adopted a constitutional amendment abolishing slavery.
The amendment was ratified by popular vote.
Thus, while Missouri was feeling its way to emancipa-
tion, Arkansas, Louisiana, Virginia, Maryland, and Ten-
nessee, abolished the institution, and two new states, West
Virginia and Nevada, were added to the Union, the one
adopting gradual emancipation, the other prohibiting
slavery. An amendment to the national Constitution must
be ratified by three-fourths of the states. Tennessee was
the twenty-seventh state to prohibit slavery, and made
up the number necessary to ratify an amendment abolish-
ing the institution. While Missouri and other states had
been adopting emancipation. Congress had been consider-
ing an abolition amendment. What reception would it be
given by the people of America? Would they so amend
the plan of the national government as to abolish slavery?
Could the Union and slavery be preserved ?
There was no escaping the issue. Events compelled
decision. The threats, the warnings, the prophecies
uttered during the years of compromise were now realized.
An era of acrid discussion had been followed by civil war.
The rights of free labor had refused longer to be mis-
THE UNITED STATES 223
managed. A true national economy compelled the abo-
lition of a false sectional economy. There were no new
principles brought to light; antagonistic systems had
come to deadly conflict. The abolition of slavery meant
the recognition of the rights of labor. Free, honorable
labor was the chief corner-stone of national life. The
natural condition of labor was not that of slavery.
Thus, behind the principles which the Fathers laid down
in the eighteenth century, the American people were learn-
ing, by terrible experience, that there lies economic neces-
sity. Equality of condition, as has often been pointed out
by thoughtful men, and by none more forcibly than by
De Tocqueville, in his classic work on " Democracy in
America," — published six years before the compromise
of 1850, — equality of condition is the fundamental con-
dition demanded by modern civilization, and it has been
the destiny of the human race since the beginnings of its
history.
The mighty law of economy was shaping government
in America, in spite of constitutions, statutes, and judicial
decisions. How vain, how feeble, appear these man-made
barriers to its progress. And the equality of condition
which was to be won in the battles of civil war was
equality of industrial condition: the rights of free labor.
Unfortunately for America, political and industrial
rights were confused, and industrial rights were recog-
nized only so far as they could be expressed in political
form. Seemingly, the American people had developed
little capacity as yet to know that the foundation of a
stable popular government is the universal recognition
of the right of free labor. But there were seers and wise
men who saw truly. Foremost among these was Abraham
Lincoln. Running through his state papers, and his public
and private utterances, is the solemn recognition of the
rights of labor. " Fondly do we hope — fervently do we
pray — that this mighty scourge of war may speedily pass
away. Yet if God wills that it continue until all the wealth
piled by the bondman's two hundred and fifty years of un-
requited toil shall be sunk, and till every drop of blood
drawn with the lash shall be paid by another drawn with
the sword, as was said three thousand years ago, so still it
224 A CONSTITUTIONAL HISTORY OF
must be said, ' The judgments of the Lord are true and
righteous altogether.' " ^
This man " who by the benignant favor of republican
institutions rose from humble beginnings to the heights
of power and fame,"^ exemplified in no uncertain way and
voiced in no uncertain language the conviction which the
American people were slow of heart in believing, — that
the evolution of government discloses a moral order, the
determining force in which is the right of all men to
freedom in labor. Popular government depends for its
beneficence and perpetuity on the rights of requited toil.
In its political application this essential right took the
form of emancipation in America during the period of
the civil war. State sovereignty, protective tariffs, internal
improvements, the acquisition of new territory paled in
comparison. But the reformation — and it is a sorrowful
comment on human government, that the abolition of
slavery must come as a reformation — lay with the people
themselves. Missouri touched the vital spot when she con-
fessed that the alternative was emancipation or industrial
stagnation. There was a higher, a moral law ; and men
and women were not wanting who confessed that slavery
meant national degradation.
But great political and industrial changes proceed by
a program of accepted precedents, or by innovations
which shake the foundations of society. The re-con-
structive process initiated by the civil war may be best
understood if its examination is approached through
avenues laid out by the organizers and administrators in
public affairs.
The principles of popular government in America, as
laid down by courts of law and the constitutions of the
commonwealths from the opening of the nineteenth cen-
tury to the time of the civil war, if properly examined,
enable us to understand more intimately the significance
of the phase through which popular government in
America was passing from 1850 to 1865.
' Second Inaugural, March 4, 1865; Works, vol. ii, p. 657.
2 Resolutions of Senators and Representatives, April 17, 1865;
Richardson, vol. vi, p. 290.
THE UNITED STATES 225
CHAPTER X
THE COMMONWEALTHS
From the opening of the nineteenth century to the civil
war the Union increased from sixteen to thirty-four states,
which in the aggregate adopted thirty-seven new constitu-
tions and above one hundred and fifty amendments/ — an
activity indicative of poHtical ferment and social unrest.
The large events were the acquisition of the Louisiana
country,^ the Floridas,^ Texas,* California,^ and Oregon, **
and the extension of civil government, state or territorial,
over the entire public domain/ It was the period of the
acquisition and pioneer settlement of the West.
The movements of population — immigration and migra-
tion — largely determined the character of the civil insti-
tutions set up in the new states. New England and the
Middle States overflowed into the old Northwest and
across the Mississippi valley into Iowa, Minnesota, Cali-
fornia, and Oregon, and the new constitutions of the West,
in states above the latitude 36° 30', perpetuated the dis-
tinguishing provisions of the organic laws of the free
states.
South of the Missouri line, 36° 30', Arkansas, Louis-
iana, and Texas perpetuated the distinguishing provisions
of the constitutions of the slave-holding states, and it was
expected that by subdivision Texas would develop into
five commonwealths. But the line of cleavage between
the political institutions and sentiments of the people of
the North and of the South was not fully disclosed by the
arbitrary Missouri line. The confluence of the two streams
of population into the West, plainly traceable in the
Ohio valley, as in southern Ohio, Indiana, Illinois, in
1 See p. 301, note 2. 2 1803. 8 jSig.
* 1845. 6 1848. 6 ,792-1846. 7 1850.
IS
226 A CONSTITUTIONAL HISTORY OF
Kansas, and in the composite population on the Pacific
coast, resulted in the growth of antagonistic ideas: pro-
slavery and anti-slavery, which marked this central zone as
one of political agitation. In spirit and practical admin-
istration the people of this middle zone were in sym-
pathy with southern rather than with northern ideas of
government.
The new constitutions of old states and the constitutions
of new ones,^ adopted during this period of sixty years,
repeated the eighteenth century bills of rights, but with
significant though few additions. New states at the
North included in their bills of rights the anti-slavery
clause of the ordinance of 1787. The new South incor-
porated in its organic law the declaration of the right of
property in man.^ In theory, at least as far as discernible
from the bills of rights, the eighteenth century ideas of
government still prevailed ; but an examination of the
articles on the legislative, the executive, and the judiciary,
and of the distinctively new provisions on administration
easily lead one to conclude that democracy in America
was changing its ideas and ideals.
All the states now had the bicameral system, Vermont
falling into line in 1836. But the traditional difference be-
tween the two Houses, — the exclusive right of the lower
to originate money bills, — was passing away, and the
state Senate was exercising the privilege with the House.
Even more notable was the appearance, in new constitu-
tions, in all quarters of the Union, of provisions limiting
the power of the legislature, and chiefly its power to
create corporations.-'' The panic of 1837 ^^d to a revision
of legislative authority to establish banks. The constitu-
tions of New York and Iowa, of 1846, illustrate the con-
servative spirit of the times, and the early attempt of the
people to protect themselves and the states from bank-
ruptcy. With the development of the public land system,
after 1834, came the provision common to the constitu-
tions of western states, regulating land grants for educa-
tional purposes, and by i860 these provisions in some
1 For the list and chronological order of new constitutions, see the
note to chap, xiii, pp. 301-302.
2 Kentiickv constitution, 1S49.
8 New York, 1846, and later constitutions in other states.
THE UNITED STATES 227
states had expanded into an elaborate article. The care
of the free public schools was made a solemn obligation
of legislatures. Indiana, Illinois, and Michigan illustrate
the educational effort which as time has passed has become
characteristic of the West.^
Another sign of change was the gradual adoption of
specific limitations of legislatures : the beginning of the
revolt against special legislation. Acts of assembly were
still " public " or " private," under which latter title legis-
latures granted special privileges to individuals, often to
the detriment of the public : changed local boundaries ;
granted divorces ; manipulated county, township and city
politics ; created corporations ; exempted property from
taxation, and, in general, passed innumerable acts con-
fusing to justice and in violation of economic principles of
government. The development of canals and railroads
was swift and extended, and legislatures granted fran-
chises, and voted state aid, with dangerous liberality. The
industrial evolution which distinguishes the period had
its counterpart in questionable legislation, and it was in
remedy of much of this legislation that new constitutions,
and amendment of old ones, were made.' The people
were learning by hard experience the peril of enthroning
legislatures with unlimited powers, such as the early consti-
tutions had granted. For the first time constitutions fixed
the limit of state debts by naming the amount beyond
which legislatures should not pledge public credit.^
Political parties appeared and disappeared, divided as
was public sentiment, on the subject of reform. An ele-
ment of no slight importance was the apportionment of
representation : the division of a state into senatorial and
assembly districts so as to secure the equities of repre-
sentation. Every constitutional convention struggled
with the problem, and put a solution of it into a clause of
the Constitution. The single district system as worked out
in Michigan, and incorporated in its constitution of 1850,
1 Constitutions, Ohio, 1S03, 1851 ; Indiana, 1816, 1851 ; Illinois, 1818,
1848; Michigan. 1836, 1850.
^ See particularly the western constitutions, 1835-1860.
3 See the Kentucky constitution of 1849, ^"d the debates on state
debts in the convention of that year.
228 A CONSTITUTIONAL HISTORY OF
was one of the notable results of the struggle. But the
constitutions present, in the aggregate, a rather confused
mass of unsuccessful effort to apportion representation
and maintain an equitable ratio.^ No constitution proved
a preventive of a gerrymander. The elaborate provisions
for a state census, for utilizing the federal census, for
regulating the area of counties, for equalizing urban and
rural representation, and for redistricting the state at
fixed periods of time, remain an index to much of the
thought of the period.
Property and religious qualifications quite disappeared ;^
the vestiges remaining having slight practical importance.
The period of required residence in the state, for voters
and public officials was shortened, and a new requirement
— United States citizenship — was imposed in all the
states, save in one or two of the original thirteen. This
constitutional recognition of the national government was
consequent upon the admission of new commonwealths
by Congress. It signified that these states were the crea-
tion, not the creator, of the United States : a very different
basis of federal relations than that attributed by believers
in state sovereignty, to the states in the Union, old or new.
The concept of nationality was evolving in the public mind.
Of all the constitutions made during the period, that of
Wisconsin, of 1848, was most liberal and complete, if
tested by the principles which underlie American civil
institutions. It granted manhood suffrage, irrespective
of race, and was the only organic law in America which
allowed an Indian to vote. Its concept of the functions
of the state ; its organization of the legislature ; its pro-
visions for education ; for the safeguarding of public
funds ; for the equities of representation ; for the per-
formance of executive functions and for the administra-
tion of justice, mark it as a high type, — probably the
highest type of constitutional work done by the people of
a state during the period. Its continuation in force tends
to confirm this estimate of its character.
1 Ohio, 1851, adopted an elaborate method of securing proportional
representation.
2 Except in Delaware, property qualifications for state senators, con-
stitution of 1831 ; in Connecticut, a freehold; in New York, constitution
of 1S46, for negro electors ; North Carolina, 1835.
THE UNITED STATES 229
One cause of the limitation of legislative powers was
the sorry experience of the people with lotteries, which
in multitudinous form were legalized by legislatures
during the early years of the century. But the lottery was
hard to kill, and the silence of a constitution regarding
it was evidence too often that the evil might be tolerated.^
It was one limitation of legislative power — the clause in
the Missouri constitution of 1820, respecting free persons
of color — which precipitated a discussion that, over-
spreading the country, fixed public sentiment, and deter-
mined an essential part of the Missouri compromise.^ In
1848, the people of Illinois adopted a constitution which
contained a clause almost identical in language with that
in the Missouri constitution of 1820, excluding free
negroes and mulattoes from the state, and it remained a
part of the organic law of the state till 1870. But the
Illinois provision attracted little or no attention, and pro-
voked no controversy. Public sentiment outside of the
states along the Canadian frontier — the extreme northern
states — was hostile to the negro, slave or free. He was
excluded by the state constitution from enrolment in
the militia, and, except in five northern states,^ was ex-
cluded from the suffrage.* But government in all the
states was distinctively the white man's. There were no
officials of the negro race.
In respect to this race, the constitutions adopted between
the years 1800 and i860 differed notably from those
adopted during the eighteenth century. The earlier in-
struments are silent respecting the negro; the later ones
explicitly discriminate against him. The unwritten con-
stitution, public sentiment, and the actual administration
of government, were hostile to the negro, slave or free.
He was a man without a country. Anti-slavery agitation
set in early in the century, and a powerful political party
^ See Constitutions of Louisiana, 1812, 1845, 1852, and compare with
those of Illinois, 1S48; Wisconsin, 1848; Michigan, 1835, 1850; Tennes-
see, 1834, et 111.
^ See pp. 139-150.
3 New Hampshire, Vermont, Massachusetts, New York, Wisconsin.
* For a detailed account of the Constitutional Status of the free
negro, see the author's "Constitutional History of the American People,
1776-1850," vol. i, chap. xii.
230 A CONSTITUTIONAL HISTORY OF
whose creed was the exclusion of slavery from the terri-
tories, obtained control of national affairs in i860; yet
little evidence of the political agitations which grew out
of slavery can be found in the state constitutions. Even
the most liberal of these recognized the superiority and
supremacy of the white race. But a period of agitation,
debate, political ferment, and even of civil war may pre-
cede a revolution in public sentiment. The effects of anti-
slavery agitation, it might be expected, would be traceable
in later constitutions, adopted after the great issues were
settled. Then the organic law would respond to new con-
ditions. The years from 1800 to i860 were years of
agitation which culminated in civil war. We shall see,
later, what changes this war wrought in the organic law
of the states.^
Americans were learning, to their sorrow, that the mere
mechanism of civil organism is not enough to guide and
guard the welfare of the state. They were losing con-
fidence in the theory of " checks and balances " which
had appealed so seductively to the Fathers. Legisla-
tures had multiplied foolish and evil laws, and the people
were now devising checks and balances for the legislature.
Clearly there were things which no legislature should be
suffered to do ; notably, to over-reach the credit of the state
in support of so-called internal improvements ; to char-
ter wild-cat banks and permit issues of fiat money ; to
enact innumerable and contradictory private acts ; and to
gerrymander the state at the will of the party in power.^
These and other offences legislatures had repeatedly com-
mitted ; therefore they should be shorn of much of their
power, and be compelled to act the wise law-maker.
To this end prohibitory clauses were inserted in new
constitutions, and in amendments of old ones ; the era
of the restriction of legislative power began.^ As an
aid in reform, the power of the executive was utilized.
The old distrust of governors was vanishing, and their
civil value was appearing. Military notions which largely
dictated the organic laws of the eighteenth century were
1 .See chap. xiii. 2 Kentucky, 1S49
" Western state constitutions, 1S46-1S57.
THE UNITED STATES 231
passing, and governors should be entrusted with the care
of a respectable portion of the civil estate. One man, the
governor, could be made responsible; many men, the
legislature, had escaped responsibility. The new consti-
tutions speedily expressed the conversion of the public to
the new theory of executive place and power, and hence-
forth governors in America should participate in civil
affairs by the exercise of the veto power, and by filling
offices hitherto filled by the legislature ; and the executive
term should be lengthened so as to enable the head of the
state to establish and carry out his own policy.^ Hope
and confidence went further ; as was expressed in the
substantial increase of governors' salaries, in the erection
and furnishing of executive mansions, and in modest ap-
propriations for the miscellaneous expenses of the execu-
tive department. But the substantial change was in the
power of the governor ; he was now a civil as well as a
military factor in the business of the state.
The effect of this change was undoubtedly beneficial
to the states, one evidence of which is the high charac-
ters who filled the executive office. For forty years of the
sixty prior to the civil war, the Presidents and Vice-presi-
dents were ex-governors. Notable among them were
Madison, Monroe, Van Buren, Tyler, Gerry, and Tomp-
kins. Scarcely less famed were Edward Everett, Seward,
Marcy, Silas Wright, Oliver Wolcott, De Witt Clinton,
Hamilton Fish, Robert Y. Hayne, Thomas Corwin, and
Levi Lincoln, each of whom had served his state as
governor.
The middle and later years of the period give date to
the founding, by the states, of many charitable institu-
tions, such as schools for the deaf, the dumb, the blind ;
asylums for the insane, and reformatories for criminals.
Into the hands of governors was given the official care
of these establishments, for the legislatures could not be
trusted with the responsibility. Legislative partiality
would fill these institutions with incompetent officials.
The governor would appoint capable men. The appoint-
ing power of the executive began, and that notable change
1 Constitutions, 1850-1860.
232 A CONSTITUTIONAL HISTORY OF
in American civil affairs which tends to place the execu-
tive nearer the centre of our civil system may be traced
through the constitutions adopted after 1837.
In the stite judicial systems the most notable change
was the substitution of popular election for executive ap-
pointment. Democracy demanded this, and with no
uncertain voice in the newer states. Every constitutional
convention debated the relative merits of the two methods
of securing judges, and the discussion in Kentucky, in
1849, remains a classic on the subject. As judicial busi-
ness increased, the problem arose how best to perform it ;
whether by establishing new courts or by increasing the
membership of the old ones. But democracy which is
voracious for offices made a short solution by " branch-
ing the courts," as it was called in some quarters, and
thus finding new rewards for faithful politicians.
In spite of the unreasonableness of democracy and the
instability of the public mind, the courts suffered less than
the conservative citizen feared they would suffer. The
federal judiciary, firmly seated in its constitutional rights,
was a check and balance in public affairs, and established
a standard which even politicians wearing the state ermine
could not wholly ignore. In spite of popular elections,
short terms, and low salaries, the state judges, clothed
with brief responsibility, made records which were not
wholly discreditable. Legal procedure and practice
steadily became simpler than in the eighteenth century.
Earnest efforts at codification were made, as in Michigan
and New York, a reform which the maze and multiplicity
of the laws compelled. The brief provisions on codifica-
tion suggest, however, that revision rather than codifica-
tion was understood : as is attested by the volumes of
revised statutes which were issued by the state printers.
Having boldly transformed the court into an elective
body, democracy easily laid its hands on subordinate court
offices, and long before the days of the civil war, these
offices had changed from appointive to elective offices,
according to the will of the dominant party. But in the
old states the change from the appointive to the elective
system was more gradual and less complete than in the
West.
THE UNITED STATES 233
A notable change in the judicial systems was the in-
crease of jurisdiction in district and county courts, inci-
dent to the establishing of new courts. The constitutions
not infrequently specified the monetary limit of the juris-
diction, as in Georgia,^ Mississippi,- Alabama,^ Louis-
iana,* lowa,^ and Michigan." The states of the South
made fewer changes in their judicial systems than did
those of the North. The South did not hasten to adopt
the elective system, nor to multiply courts, nor to shorten
judicial terms, nor to decrease the compensation of
judges. Michigan, in 1850, by its constitution, fixed the
salary of its circuit judges at $1500; Louisiana at this
time paid $5500." The southern and eastern bench and
bar enrolled men of power and brilliancy unsurpassed
in the annals of other portions of the Union in which the
judicial innovations of the times were more hastily made.
With the spread of these innovations, there went a pop-
ular disregard of the courts. The ancient sentiment of
respect for the ermine faded away when the ermine was
worn for a day by mere politicians not " learned " in the
law. Much of the disrespect for courts, which character-
izes the present time, is the consequence of changes and
innovations in the judicial systems of the state, made be-
fore the civil war. One evidence of this is the different
estimation in which Americans now hold the state and
the federal courts.
It is in a new field, however, that the organic laws made
during these sixty years indicate the changes through
which the country was passing. Constitutional provisions
respecting public lands, education, internal improvements,
charitable and reformatory institutions, corporations,
banks and banking, sinking funds, public indebtedness,
taxation, and local government, indicate that the admin-
istrative function was securing attention as well as the
legislative, the executive, and the judicial functions of
the state. Seldom, as yet, did a constitution classify
provisions under an administrative title, but distributed
them in a confusing way, under the legislative or the
1 1812. 2 1817^ 1832. 3 1819. 4 1845.
* 1846. 6 18 so. 7 Constitution, 1845.
234 A CONSTITUTIONAL HISTORY OF
executive, or simply grouped them in miscellaneous mass
at the end. But the beginnings of the administrative de-
partment were made. The theories and dogmas set forth
in the first constitutions had proved too vague and uncer-
tain guides, and explicit requirements were now inserted.
Local and state indebtedness above a fixed amount must
not be created, — a sharp antithesis to the general grant of
power to legislatures in 1776. Thus the more evident
details of a working administrative system were enu-
merated, though with loose notions of their operation
or trend.
The country was awaking to industrial life. The peo-
ple were attempting the first, the primitive development of
its resources. State constitutions, like laws, follow but
never lead public opinion, and in consequence are often
behind the times. The organic laws of the states from
1800 to i860 are an imperfect index to the industrial
volume which was unrolling. Rather do these laws sug-
gest the laborious efiForts of men to adjust old theories
to new conditions, with abundant evidence of the com-
plexity of the civil problem.
Of state sovereignty the new constitutions contained not
one word, and, save the constitution of Maine, of 1820,
none recognized the paramount authority of the national
government. The last attempt to insert the claim of sov-
ereignty in the organic law of an American state was in
Kansas in 1857, and this constitution was rejected both
by Congress and the people of the state. But federal rela-
tions had become clearer to the people than in the eight-
eenth century. In all new states public officers must be
citizens of the United States and must be inducted into
office under an oath of allegiance to the general govern-
ment. The acquisition of the vast domain between the
Mississippi and the Pacific transformed the United States
into a world power, and as the West was settled and the
resources of the country were developed, the idea of
nationality became clearer to all the people. Their
thoughts moved more readily toward the capital city,
Washington, and Congress, than to their state capitals
and the legislatures. The President personified a higher
authority than that of governor. The national courts were
THE UNITED STATES 235
the last resort in interstate and federal cases. And in the
eyes of the world the American people were a nation.
However splendid the annals of a commonwealth, those
annals were only chapters in the history of the United
States.^
1 For a detailed account of the constitutional development of the
states during this period, see the author's "Constitutional History of
the American People, 1776-1850," 2 vols. Harper & Bros., 1S98.
236 A CONSTITUTIONAL HISTORY OF
CHAPTER XI
INTERPRETATION OF PRINCIPLES
Shortly before his death, President John Adams told a
son of John Marshall that the appointment of his father
as chief-justice of the United States was the proudest
act of his administration. The appointment was made on
the last day of January, t8oi, and Marshall served as
chief-justice thirty-four years, durino^ which time he may
be said to have enunciated the principles of the Constitu-
tion and to have laid judicially the foundations of Ameri-
can organic law. He was at the age of forty-five at the
time of his appointment, and was perhaps surpassed in
mere learning by several distinguished lawyers then in
active practice. He has never been equalled by other
American jurists in his faculty of discriminating prin-
ciples and comprehending moral and legal rights. Wil-
liam Pinckney antici}mted the judgment of posterity when
he said that Marshall was born to be chief- justice of any
country in which he lived. As a judge, he derived great
assistance from the arguments of counsel, and the supreme
court of his day was enlightened by the learning of Web-
ster, of Ingersoll, of Pinckney, and of Choate, and of a
large company of counsellors scarcely less famed. The
cases which came before him may be said to have involved
the fate of the national government. In the disposition of
all of them his intellect shone with a brilliancy which has
penetrated later times.
There is no doubt that Marshall's political opinions
affected his decisions. He had supported the Constitution
in the Virginia ratifying convention, and was recognized
as one of the leaders of the federalist party. He took
a broad and philosophical view of our national system,
and interpreted it as one established for all time. While
THE UNITED STATES ^2,^
he was chief-justice, sixty-one decisions involving consti-
tutional questions were handed down by the court, and
of these thirty-six were given by him. '* A constitution,"
said he, in one of these decisions, " is formed for ages to
come, and is destined to approach immortality as nearly
as human institutions can approach it." ^ The immortal-
ity which he bespoke for the Constitution invests his
decisions interpreting it. Not one principle which he
laid down has ever been shaken, nor has one of his
great decisions been reversed. Entrenched as is the su-
preme court in our civil system, its decisions may long
run counter to the doctrines of a party in power. This
was the case throughout nearly the whole of Marshall's
judicial service. Between his decisions and the doctrines
of the Democratic-Republicans there was nothing in com-
mon, and his decisions were given, as it were, between
two extremes, Jefferson and Jackson. Could the Jeffer-
sonians have aliolished the court or changed the life ten-
ure of its members to a tenure for years, it may well be
doubted whether the Constitution would ever have re-
ceived that national interpretation which distinguishes all
of Marshall's decisions.
Perhaps the most remarkable fact pertaining to these
decisions and to the administration of the general govern-
ment by the democratic party from John Adams to Lin-
coln, was the survival of the principles as laid down in
" The Federalist," and the abandonment by the people of
many doctrines held by the democratic party during its
early years. The most famous decision by Marshall's
successor was in the Dred Scott case,- and that was speed-
ily overruled by the results of the civil war. After the
inauguration of President Lincoln, and the death of Chief-
Justice Taney in 1864, the national executive and judiciary
may be said to have held in common Marshall's views
of the scope, character, and purpose of the Constitution.
During the long period from the death of Marshall in
1835 to the appointment of Chief-Justice Chase in 1864,
during which time the able and upright Taney was chief-
justice, the national executive and judiciary were in sym-
1 Cohens v. Virginia, 6 Wheaton, 377 (1821). 2 See p. 194.
238 A CONSTITUTIONAL HISTORY OF
pathy, and may be said to have interpreted the Constitution
strictly according to its letter, and, generally speaking,
according to the doctrines of the Jefifersonian school.
But during this long period of twenty-eight years the
supreme court did not reverse any of Marshall's decisions
excepting indirectly in the Dred Scott case in 1857, and in
this it was rather the dictum of the court than its judicial
opinion which would neutralize Marshall's doctrine of
the national character of the federal government. After
the civil war the supreme court adhered closely to Mar-
shall's principles of construction.
The court, prior to the appointment of Marshall as chief-
justice, had existed eleven years, and had handed down
decisions in six cases in which the Constitution had been
construed. The most important of these cases was de-
cided in 1794,^ when the court maintained the supremacy
of the national government and the right of a citizen to
sue a state. But the decision, as we know, was soon over-
ruled by the adoption of the eleventh amendment.^ Mar-
shall found the Constitution an almost unknown political
quantity. He came as it were a new force in American
government, and at the most opportune time.
The first case in which a court had declared void a
law conflicting with the Constitution, had been decided
in New Jersey ^ only twenty years before Marshall's
appointment, and the decision was almost an innovation
in judicial history. In 1803, he sustained the principle*
in considering the right of one Marbury to a judicial
office to which he had been appointed by President Adams,
his appointment having been confirmed by the Senate, and
his commission made out, signed, and sealed, but not de-
livered. He held that Marbury had a legal right to the
office, and also that the provision of the judiciary act of
1789. which purported to give the supreme court original
jurisdiction in such a case, was not warranted by the Con-
stitution. The decision was of the highest importance,
for it tended to establish the principle that the courts have
^ Chisholm v. Georgia, 2 Dallas, 480.
2 See chap, vi, pp. 103-106.
8 Holmes v. Walton (1781), American Historical Review, April, 1899.
* In Marbury t/. Madison, i Cranch, 137 (1S03).
THE UNITED STATES 239
jurisdiction to determine the constitutionality of acts which
come before them in due course of law. Thus a broad
distinction was laid down between the Constitution and
laws that might be enacted by Congress. That it was the
right and duty of the judicial department to say what the
law is, was clearly laid down. In other words, the Consti-
tution was the paramount law of the land. The decision
was at every point corrective of the doctrine of the Ken-
tucky and Virginia resolutions, and was in itself an
augury of the long struggle for sovereignty which began
soon after the enunciation of the doctrine of 1798. The
decision was also of importance because it established
the rank of the judicial department as co-ordinate with
that of the executive or of the legislative. It declared that
the Constitution had provided a tribunal for its final con-
struction and for that of the laws and treaties of the
nation.^
Having laid down the principle of national sovereignty,
Marshall in later decisions deduced important corollaries
from it. As the supreme law of the land, it outlined the
characteristic distinction between the government of the
Union and that of the states, and its language spoke not
only the authority of the American people but also of the
states themselves. Therefore the national government
has authority to protect itself and execute its laws in all
cases. The Constitution was formed for all time ; and
though its course cannot always be tranquil it is pro-
vided with the means of self-preservation. Being thus
a national government in every respect,^ its departments,
— the executive, legislative, and judiciary, — are organ-
ized to act accordingly ; whence it followed that Congress
must possess the choice of means in making all laws which
it might think necessary and proper, and the choice of
means in carrying into execution the powers vested by the
Constitution in the national government, or in any of its
departments.^
^ Marbury v. Madison, i Cranch, 137 (1803).
2 Contrast this with the decision on this point in the Dred Scott case
p. 194, ante.
* Cohens v. Virginia, 6 Wheaton, 377 (1821) ; U. S. v. Fisher, 2 Cranch
358 (1804). Compare " The Federalist," No. XVI.
240 A CONSTITUTIONAL HISTORY OF
The principle involved was expressed by the chief -jus-
tice in the following words : " Let the end be legitimate,
let it be within the scope of the Constitution, and all
means which are proper, which are plainly adapted to
that end, which are not prohibited, but consist with the
letter and spirit of the Constitution, are constitutional.'' ^
Because the national government possesses sovereign
power, it can acquire territory either by conquest or
treaty,- and thus the constitutionality of the treaty under
which Louisiana was acquired was sustained.^ As the
nation has sovereign power, the states cannot, by taxation
or otherwise, impede its operation, or in any way control
the exercise of its authority.* The force of this decision
is clear. If the states could tax an agent of the national
government, they could destroy that agency; and if they
could destroy one agency, then they could destroy all.
The American people, said Marshall, did not design to
make the government dependent on the states. Because
of its own sovereign powers, the national government
could regulate the interstate commerce of the country, and
all state laws conflicting with acts of Congress on the
subject were inoperative.^ From this principle of the
power of the national government to regulate commerce,
the supreme court has never departed."
During the forty years following the adoption of the
Constitution many public questions were practically set-
tled by political interpretation, but others by very famous
decisions which the court handed down. It held that it
could declare an act of Congress unconstitutional, but that
it could not point out the proper remedy for defects in
an act.'' This was the first great decision determining
the jurisdiction of the federal courts. No less important
1 McCullough V. Maryland, 4 Wheaton, 421 (1819).
2 The American Insurance Co. v. Canter, 4 Peters, 511 (1S2S).
3 See chap, viii, pji. 130-135.
* McCullough V. Maryland supra ; Osborn v. The Bank of the United
States, 9 Wheaton, 738 (1S24) ; Weston t^. Charleston, 2 Peters, 449(1829).
^ Cibbons v. Ogden, 9 Wheaton, i (1824); Brown v. Maryland, 12
Wheaton, 419 (1827); Wilson v. Blackbird Creek Marsh Co., 2 Peters,
245 (1829).
«5 See Kidd v. Pearson, 128 United States, 16 (18S8).
■^ Marbury z/. Madison, i Cranch, 137 (1803).
THE UNITED STATES 241
was its decision, that it could pronounce a state law uncon-
stitutional, and that it was the final judge of the validity
of a treaty.^ So, too, the court defined its jurisdiction
to include cases in which a state was a party and in which
a right under the Constitution is involved.^ The decisions
also fully maintained the powers of Congress, whether
expressed or implied ; thus, it could establish territorial
governments, or create a corporation like the bank, and
could do all those things which in its judgment were
necessary and proper to promote the general welfare.^
Shortly after the Missouri compromise, a great decision
sustained the constitutionality of the act creating the bank,
holding that the general government could protect the
bank against invidious state legislation.'* The character
and extent of the powers entrusted to the executive were
fully defined soon after the time of the Missouri com-
promise, in the decision that the President of the United
States is the judge whether it is expedient to call out
the militia to prevent insurrection or repel invasion.®
The position of the states in the American system of
government was also clearly defined. No state legislature
might annul a judgment of a United States court " or
repudiate its own grants,^ or pass legislation violating con-
tracts either private ^ or public.'' All these decisions save
one ^° were by Chief-Justice Marshall. They clearly and,
as time proved, permanently defined the constitutional
boundaries of the great departments of our government.
No less important was Marshall's clear elucidation of
tlie principle of contracts and of the sanctity of their
obligation. Though the principle is embodied in the
words, " no state shall pass any law impairing the obli-
1 Martin v. Hunter's Lessee, i Wheaton, 304 (18 16).
2 Cohens v. Virginia, 6 Wheaton, 224 (1821).
3 McCullouRh V. Maryland, 4 Wheaton, 316 (1819) ; Story's Coirr
mcntaries on the Constitution, pp 12^,"] , et seq .
* Osborn et al. v. The Bank, 9 Wheaton, 738 (1824).
5 Martin v. Mott, 12 Wheaton, 19 (1827).
^ United States v. Judge Peters, 5 Cranch, 115 (1809).
T Fletcher v. Peck, 6 Cranch, 87 (1810).
* Sturges V. Crovvninshield, 4 Wheaton, 122 (1819).
^ Dartmouth College Case, 4 Wheaton, 519 (1819).
1" Martin v. Mott, 12 Wheaton, 19.
16
242 A CONSTITUTIONAL HISTORY OF
gation of contracts," and it would seem at first reading
that no statement could be clearer, it was reserved for
Marshall first to explore the recesses of the principle
and bring its full meaning to light.^ The case involving
the principle of contracts which attracted the greatest
popular attention was that of Dartmouth College, in 1819.
It was of no more intrinsic importance than some other
cases in which Marshall sustained the principle involved,
but the brilliant argument of counsel, particularly Web-
ster's, and the wide application of the decision to multi-
tudinous matters growing out of contracts, have rescued
the case from oblivion, and have given it primary impor-
tance. The great learning and eloquence of the counsel
in the case, the character of the court, and the magnitude
of the principle involved, make the case the leading one
in our constitutional history establishing the inviolability
of contracts.
Though ever watchful of the sovereign character and
paramount rights of the national government, Marshall
was equally careful to recognize the true position of the
states and their relation to the national system. He never
departed from the principle of residuary sovereignty which
Hamilton had laid down in " The Federalist," and which
he himself had advocated in the Virginia ratifying con-
vention. Within its own sphere a state is as supreme as
is Congress in national affairs.^ His decisions in this re-
spect are the precedents for Chief-Justice Chase's famous
decision in later times, that the Union is an indestructible
union of indestructible states.^
In Marshall's time much was said of the strict con-
struction of the Constitution. " What do gentlemen mean
by a strict construction?" inquired he, in one of his
greatest decisions, rendered in 1824. " If they contend
only against that enlarged construction which would
extend words beyond their natural and obvious import,
1 Fletcher v. Peck, 6 Cranch, 87 (1810); New Jersey v. Wilson, 7
Cranch, 164 (1812); Sturges v. Crowninshield, 4 Wheaton, 122 (1819);
Ogden V. Saunders, 12 Wheaton, 332 (1827); Dissenting opinion by
Marshall ; Trustees of Dartmouth College v. Woodward, 4 Wheaton,
518 (1819) ; Providence Bank v. Billings, 4 Peters, 514 (1830).
2 Barron v. The Mayor, etc., of Baltimore, 7 Peters, 243 (1833).
* Texas v. White, 7 Wallace, 700 (1868) ; see chap. xiii.
THE UNITED STATES 243
we may question the application of the term, but should
not controvert the principle. If they contend for that
narrow construction which, in support of some theory
not to be found in the Constitution, would deny to the
government those powers which the words of the grant,
as usually understood, import, and which are consistent
with the general views and objects of the instrument, —
for that narrow construction which would cripple the
government and render it unequal to the object for which
it is declared to be instituted, and which the powers given
as fairly understood render it competent, — then we can-
not observe the propriety of this strict construction, or
adopt it as the rule by which the Constitution is to be ex-
pounded." ^ Marshall's principle of construing the Con-
stitution is here clearly set forth ; namely, to render it
equal to the objects for which it was instituted, according
to its own language. This is identical with the principle
of Hamilton's well known political maxim, — that the
means must be adapted to the end proposed.
It was very fortunate for the American people that a
man of Marshall's capacity and character was at the head
of the supreme court during the critical period when the
national government was in process of organization and
the foundations of our civil system were not known to the
people. The country was no less fortunate in his asso-
ciates, most of whom, during nearly the whole of his
judicial life, sustained him. Had the supreme court
leaned toward a strict construction of national authority
during the first forty years of our history, there is little
doubt that the general government would have been re-
duced to a mere agency for the states.
The closing years of Marshall's life were disturbed by
changes in the court which threatened to overthrow the
principles which he had laid down. The long continued
triumph of the democratic party, beginning with the
election of Jefferson to the presidency in 1800, culminated
toward the close of Marshall's life in the election of
Jackson,- and the transformation of the supreme court
into a body of strict constructionists. Nearly all of Mar-
1 Gibbons v. Ogden. 2 1828.
244 A CONSTITUTIONAL HISTORY OF
shall's associates at the time of his appointment as chief-
justice held poUtical sentiments in sympathy with his own,
but their successors, appointed by democratic presidents,
were men of a different pohtical school. Thus, by 1830
the court was so reorganized, by appointments to fill
vacancies caused by the deaths of Marshall's earlier asso-
ciates, that he stood almost alone. The appointment of
his successor, Roger B. Taney, in 1835, by President
Jackson, completed the change, and for the next twenty-
five years the court was as democratic as under Marshall
it had been federalist in its decisions. But during this
long period of Taney's incumbency, fewer cases of the
rank of those which Marshall had decided reached the
court. Though the principle of the obligation of contracts
was sustained, the court did not carry it so far as Mar-
shall carried it in the Dartmouth College case, but left
the state governments a larger discretionary power.^
Mr. Justice Story, who ranks with Marshall as a jurist,
dissented from the opinion of Chief-Justice Taney in one
of these cases, ^ holding that it departed from the principle
laid down in the earlier cases. The court avoided political
questions, at least during the earlier years of Taney's
term. In one case, the celebrated boundary controversy
between Rhode Island and Massachusetts, the chief-justice
sustained the jurisdiction of the United States courts over
such controversies.^ In another case, growing out of a
provision in the constitution of Mississippi of 1832, pro-
hibiting the introduction of slaves into that state as mer-
chandise, or for sale after the first of May of the following
year, the court held that the constitution of the state was
not self-executing, but required an act of the legislature
to carry it into effect.* It was in this case that Webster
advanced the argument that as the legislature of Missis-
sippi had made no prohibitory law on the sale of slaves
introduced into the state in a manner contrary to its
constitution until 1837, therefore the act was unconstitu-
1 In Charles River Bridge v. Warren Bridge, ii Peters, 420 (1837).
2 Id.
3 'I'he State of Rhode Island v. The State of Massachusetts, 12 Peters,
657 ; see also Luther v. Horden, 7 Howard, I.
* Groves z'. Slaughter, 15 Peters, 449.
THE UNITED STATES 245
tional by the clause in the federal Constitution which gives
to Congress the power to regulate commerce.
A case of great interest arose in 1842/ involving the
constitutionality of the fugitive slave law of 1793, and
the manner of its execution. Mr. Justice Story and the
majority of the court held that the authority to make laws
relating to " fugitives from labor " rested exclusively in
Congress. This identified the national government with
slavery, and made it one of the chief corner-stones in
the national civil structure. The chief-justice dissented,
holding that the duty of executing the law, and of pro-
tecting the privileges and immunities of the citizens of the
different states under it, rested with them. The political
conclusions of these decisions were necessarily very dif-
ferent. If the chief -justice was right, then the fate of
the fugitive slave law rested practically with the states:
a doctrine very unpalatable to extreme slavocrats, who had
ever insisted that it was the primary duty of the federal
government to protect slavery in all its interests.
The dissenting opinion of Mr. Justice McLean in this
case was quickly utilized by the Liberty party as a consti-
tutional foundation for its anti-slavery doctrines. The
party declared its approval of the doctrine "maintained
by slave-holding jurists, that slavery is against natural
rights and strictly local, and that its existence and contin-
uance rest on no 'other support than state legislation, and
not on any authority of Congress." ^ There was a strik-
ing analogy here to the tactics of the Democratic-Repub-
licans in "1796, when they based their state sovereignty
doctrine on the dissenting opinion of Mr. Justice Iredell
in the case,'' in which he held that a sovereign state could
not be sued. Out of the claim of the Liberty party grew
the doctrine which at last triumphed in the election of
Mr. Lincoln, — that slavery was a local institution. The
democratic-republican advocacy of the principle of Ire-
dell's dissenting opinion culminated in the adoption of
the eleventh amendment. The advocacy of the anti-slav-
1 Pricg V. The Commonwealth of Pennsylvania, i6 Peters, 539.
2 LibeVty Party, Buffalo platform, August 30, 1843.
3 Chisholm z/. Georgia, see p. 103.
246 A CONSTITUTIONAL HISTORY OF
ery principles of the Liberty party culminated at last in the
adoption of the thirteenth amendment.
Marshall had clearly outlined the character of the
national government, and as clearly, though less in detail,
that of the states. Taney repeatedly emphasized the equal
rights of the states and their sovereignty within their
respective spheres of action. He held that it would be con-
trary to the first principles on which the Union had been
formed to confine these rights to the Atlantic states, and
to deny them to citizens dwelling on the Great Lakes
or the navigable streams flowing through the western
states.^ The great object of the framers, he said, was
to secure " a perfect equality in the rights and privileges
of the citizens of the different states ; not only in the laws
of the general government but in the mode of administer-
ing them." The tone of Taney's decisions has, unfortu-
nately, been taken almost wholly from his decision in the
Dred Scott case.=' Unquestionably that case, as events
proved, was the most celebrated which came before him.
The issue at law involved no more than a question of
jurisdiction, and had this issue been strictly considered
the court would have done no more than to dismiss the
case and leave it as it had been determined by the supreme
court of Missouri ; but the desire of the judges to give
peace to the country led them to depart from a decision
strictly resting on the legal matters involved and to enter
upon a political excursion.
In contrast to Marshall's notable decisions on American
nationality, Taney now held, in the Dred Scott case, that
the United States were not for all purposes a nation ; and
in contrast to Marshall's broad construction of the powers
of Congress, he now decided that Congress had no power
to restrict slavery, and therefore that the ordinance of
1787, the Missouri compromise of 1820, and the multi-
tudinous acts incorporating their provisions, were uncon-
stitutional. Soon after the Dred Scott decision, the court
sustained the constitutionality of the fugitive slave law of
1850;^ but the decision was speedily overruled by events.
1 Genessee Chief v. Fitzhugh, 12 Howard, 443 (1851).
2 Died Scott z/. Sandford, 19 Howard, 393 (1857) ; for a further account
of this case, see chap, x, p. 194.
8 Ableman v. Booth, 21 Howard, 506.
THE UNITED STATES 247
The strict construction of the Constitution, as contained
in the.Dred Scott decision, was continued in a number
of later cases. ^
In almost the last case in which Chief-Justice Taney
sat,- he denied the authority of President Lincoln to sus-
pend the writ of habeas corpus at his discretion, holding
that its suspension must be by an act of Congress. This
decision, rendered in April, 1861, was at once given a
political construction at the North. There could no longer
be doubt that the chief- justice and the President disagreed
fundamentally on the principles of constitutional inter-
pretation. The habeas corpus case gave rise to a very
wide discussion. The President's supporters took issue
with the court, and the supporters of the chief-justice took
issue with the President. The majority of northern peo-
ple who made any examination of the case held to the
President's view of it. " The Constitution," said he, " con-
templates the question (the suspension of the habeas
corpus) as likely to occur for decision, but it does not
expressly declare who is' to decide it. By necessary impli-
cation, when rebellion or invasion comes, the decision is
to be made from time to time ; and I think the man whom
for the time the people have under the Constitution made
the commander-in-chief of their army and navy is the
man who holds the power and bears the responsibility of
making it. If he uses the power justly, the people will
probably justify him; if he abuses it, he is in their hands
to be dealt with by all the modes they have reserved to
themselves in the Constitution." ^
Soon after the civil war, the supreme court decided that
the President cannot suspend the writ, but may be author-
ized to do so by Congress.* President Lincoln's suspen-
sion of the writ was almost immediately ratified by Con-
gress. He had acted in accordance with the principle
1 Steamer " St. Lawrence," i Black, 522 ; The Prize Cases, 2 Black
635-
2 Ex parte Merryman, Campbell's Reports, p. 646
8 Letter to M. Birchard and others, June 29, 1863; Works, vol. i,
p. 361. For the decision of Chief-Justice Taney in the Merryman case,
and the principal opinions which it drew forth from men of various
parties, see Campbell's Pamphlets, Philadelphia, 1862.
* Ex parte iMilligan, 4 Wallace, 114 (1867).
248 A CONSTITUTIONAL HISTORY OF
that in time of public danger, so imminent and grave as to
admit of no other remedy, the President, as the chief exec-
utive and commander-in-chief of the armies of the United
States, is justified in suspending the writ, under the pres-
sure of visible public necessity. Congress merely did its
duty in passing the act ratifying the President's conduct.^
As Marshall's opinions were characterized by a liberal
construction of the Constitution, so Taney's were distin-
guished by a construction correspondingly strict. If it
can be said that Taney had judicial predilections, he
leaned toward the states rather than the United States.
No more learned or upright judge has ever sat in the
supreme court. He sought to maintain the even balance
of the judicial scales. His later decisions, especially in
the Dred Scott and Merryman cases, were so speedily
reversed by the civil war that they possess only historical
interest. It is clear that the trend of decisions in the
highest court in the land were, from the opening of the
nineteenth century to the years of Lincoln's admin-
istration, toward an interpretation of principles of gov-
ernment such as was first given in " The Federalist."
The supremacy of the national government was main-
tained. This conclusion aided immeasurably in preparing
the way for the abolition of slavery. We can see this
now. The currents of national life were set strong
toward industrial freedom. Conscious of the direction
of the flow, a large portion of the American people, in
1857, considered the decision of the court in the Dred
Scott case as an anachronism. Yet that decision was
already the law in more than half the states in the Union.
Equality in condition might seem afar ofif, when the
highest court in the country was pronouncing such
equality unlawful. And the prospect of realizing that
condition seemed forever closed by the laws and constitu-
tions of the majority of states in the Union. There was,
for practical purposes, however, a mighty force which our
supreme judicial tribunal had fully recognized: the power
of the people themselves to amend the system of govern-
ment which the Fathers had instituted. This force, which
' Ilalleck, International Law, 3S0.
THE UNITED STATES 240
the founders of the government had recognized as one of
the chief corner-stones, is essentially moral, and therefore
essentially social. It has been called the principle or right
of revolution ; a better name is the right of adaptation.
And it was the capacity of the American people to apply
this principle in the crisis of 1860-1865 which ranks them
as worthy descendants of the generation by whom the
republic was founded.
As the years pass, and the mighty events crowded into
the years of civil war are seen in their right perspective,
the changes then wrought in the popular ideal of repub-
lican government are recognized as an adaptation ; a civil
adjustment, such as may be likened to the adaptation of
fauna and flora to climate or geographical area. The
law of evolution determines the course of government
among men, as it determines the condition of society from
age to age. Adaptation, civil adjustments, are not made
without struggles, revolutions, or even death.
In vain may statesmen legislate, judges decide, and
rulers decree, if their will is contrary to the shaping law
of adaptation. They who win fame among their fellows
because of the triumph of their ideas are they whose ideas
are in harmony with the overruling principle in govern-
ment, the principle of adaptation.
Seen in this light, the organism which we call govern-
ment is a natural condition ; society is essentially an expo-
nent of the moral order. Popular government in America
is not a fiction agreed upon by a dominant political power.
It is not a mechanical device, attempted by men to protect
the weak from the strong. If this is not true, then comes
chaos.
Looking again into the most important decisions of the
supreme court, one is cheered by the light they shed. The
supremacy of justice, the law of peace, the rights of men,
are the theme. We venerate the name of John Marshall
because his thought, like Washington's and Lincoln's, was
profoundly humane.
The large orbit of the moral order, which their thought
pursues, seems the fitting course of national life.
250 A CONSTITUTIONAL HISTORY OF
CHAPTER XII
AMENDMENT
Let us resume the narrative of the evolution of political
and civil ideas at the point in the prelude of war at which
we delayed to consider the organization of the common-
wealths and the interpretation of the Constitution by the
courts.
On the 14th of December, 1863, James M. Ashley, of
Ohio, offered an amendment in the House abolishing slav-
ery, and on the nth of January following, John B. Hen-
derson, of Missouri, offered a similar one in the Senate.
The Henderson amendment and one offered by Senator
Sumner were referred to the judiciary committee, which
on the loth of February reported an amendment in the
language of the ordinance of 1787. Senator Henry Wil-
son, later Vice-president of the United States, who repre-
sented the moderate anti-slavery sentiment of the country,
pronounced the proposed amendment " the crowning act
of a series restricting the extension of slavery." Senator
Saulsbury, of Delaware, denounced it as unconstitutional
and " beyond the power of the general government."
The requisite number of states, he said, could not be found
to ratify it; if the federal troops were removed from the
South, not fifty of its citizens would approve the amend-
ment, or recognize the authority of Congress. Senator
Henderson, speaking for the border states, answered that
war had changed the opinions of loyal slave owners there ;
they now agreed that the price of union must be the abo-
Htion of slavery. Sumner wished the amendment to read,
" all persons are equal before the law," — a phraseology
taken from the first constitution of France. But his col-
leagues believed that the language of the French constitu-
tion could not be made applicable to America, but that the
language of the ordinance of 1787, which was well set-
THE UNITED STATES 251
tied by the courts, should be followed. The amend-
ment was adopted in the Senate by a vote of thirty-eight
to six, and was sent to the House, but there received no
attention for seven weeks. When at last it was briefly
debated, the discussion disclosed that though there would
be votes enough to pass it as a resolution, there would
be far too few to adopt it as a constitutional amendment.
Its opponents pronounced it a violation of the original
compact between the states, and insisted that slavery, if
abolished at all, must be abolished by the act of the states
themselves. The final vote was reached on the 15th of
June. During the call, Mr. Ashley, foreseeing the result,
changed his vote to the negative, that he might submit a
motion for reconsideration at the proper time.^
During the week preceding the final vote, the national
republican convention had been in session at Baltimore.
Senator E. D. Morgan, of New York, in calling it to
order, asserted that the convention would fail of its mis-
sion if it did not demand a prohibitory amendment : a
sentiment received with applause, and embodied in the
party platform. It was soon known that the idea origi-
nated with Mr. Lincoln. The President was thus renom-
inated on a platform pledging the republican party to the
adoption of an abolition amendment, and his re-election
was interpreted as popular approval of an abolition policy.
In due time Mr. Ashley gave notice of reconsideration,
and on the 6th of January, 1865, again proposed the joint
resolution, defending it in a speech of great power. Rati-
fication by twenty-seven states was necessary, but he
claimed that ratification by three-fourths of the states
recognized by Congress would be sufficient. Much was
said against the amendment : that it would centralize
authority in the general government ; that it would violate
the rights of the states and would drive the loyal slave-
holding states out of the Union. It was answered that
the amendment was both necessary and expedient. The
principal objection was stated by George H. Pendleton,
of Ohio, the late democratic candidate for Vice-president,
who argued that even if three- fourths of the states rati-
1 The vote stood 93 yeas, 65 nays ; 23 absent.
252 A CONSTITUTIONAL HISTORY OF
fied the amendment, this action would not make the
amendment obHgatory upon any state which might choose
to resist it.
In his message, December 6, 1864, the President re-
marked on the recent failure of the amendment in the
House, and recommended its reconsideration and passage.
The November elections, he said, had shown almost cer-
tainly that the next Congress would pass the measure if
this one did not ; and as it was to be passed, then the sooner
the better. Holman, of Indiana, one of the most influ-
ential Democratic members, saw in the amendment the
entering wedge to the extension of the suffrage to the
negro. As slavery was dead, he thought the amendment
unnecessary and a dangerous precedent without benefit.
The vote was cast on the 31st of January. Colfax, the
Speaker, was the last member to vote, and he voted in
the affirmative. The amendment was passed, but the
victory was not strictly a party victory. Seventeen Dem-
ocrats had voted with the Republicans, and eight Demo-
crats who absented themselves and were not paired had
contributed to its adoption. As is not infrequent in the
passage of important resolutions, some members, less pa-
triotic than selfish, had been influenced to withdraw their
opposition by the promise of important offices for their
friends, and of the adoption of legislation in which they
were interested.^
On the 1st of February the President signed the joint
resolution and it went forth to the states. Illinois ratified
on the same day that the President signed the amendment.
By the 7th of April, twenty states had ratified, including
Maryland, West Virginia, Virginia, Missouri, Louisiana,
and Tennessee. Amidst the joyous progress of the
amendment, Lincoln, its real author, was assassinated, and
Andrew Johnson became president. On the 29th of May
the new President appointed provisional governors in
seven of the insurrectionary states, and began the task of
carrying out a policy of reconstruction. He advised each
governor to call a convention that should frame a new
state constitution and restore the state to its former federal
^ Nicolay and Hay's Lincoln, vol. x, p. 84.
THE UNITED STATES 253
relations. Fourteen classes of persons were excepted from
the benefit of the proclamation of amnesty which the Presi-
dent now issued. This proclamation had been prepared by
President Lincoln, and his successor issued it without al-
teration. Mississippi was the first to convene.^ Governor
Sharkey advised the delegates to submit to the results of
the war and to harmonize all difficulties. The sentiment of
the convention was not ardently responsive to the Presi-
dent's appeal. The delegates insisted that slavery had been
abolished by force, and therefore that the United States
ought to take care of the freedmen. The convention com-
plained of the presence of negro soldiers in the state as
a source of social disturbance. The popular feeling was
that all the blacks, in a general way, now belonged to
the whites, and that they could expect no favors from their
former masters. The freedmen were now considered as
free persons of color had been considered before the war.
They were a people without a country. The effort of
northern people to open churches and schools for them
at the South was resented.
In his amnesty proclamation, and in his proclamation
inviting the southern states to reorganize their govern-
ments. President Johnson had said nothing of negro suf-
frage, but he suggested privately to Governor Sharkey
the expediency of extending the right to vote to all per-
sons of color who could read and who owned real estate
valued at no less than two hundred and fifty dollars. -
But the governor, knowing that the suggestion was pre-
mature, did not submit it to the convention. It is doubt-
ful whether any northern state at this time, excepting
perhaps New Hampshire, Vermont, or Massachusetts,
would have given equal suflfrage to the black man. New
York had refused to do so in i860, and refused again
eight years later.
The Mississippi convention adopted an amendment
abolishing slavery and declared the ordinance of secession
null and void. But there was a strong party which
* August 14, 1865 ; see the Journal of the Proceedings and Debates
of this Convention.
* See p. 293, /£7jA
254 A CONSTITUTIONAL HISTORY OF
thought that the prohibitory amendment should have a
preamble declaring that slavery was abolished in the state
because it had already been abolished there by the action
of the general government. The members had a horror
of negro equality ; they could not tolerate the thought of
negro government. Now that slavery was abolished,
would not negro suffrage soon be foisted upon them ? The
United States should compensate loyal men at the South
for property lost during the war, and in justice should
compensate the slave owners.
President Johnson had held out the hope that the rati-
fication of the thirteenth amendment by Mississippi would
practically restore the state to the Union. The convention
would make the condition that, as the compensation for
ratification, the representatives and senators of the state
should be admitted to Congress. But an astute member
observed that if the South wished to get back into the
Union speedily, and to unite with the conservative party
at the North in a struggle to control the next presidential
election, it should not attempt to impose conditions ; other-
wise the northern radicals would keep the state out of the
union. Give the negro the security of liberty and prop-
erty, but go no further. The conservative delegates
thought that they detected in the second clause of the
proposed amendment something that might be destructive
to the South. Under the power " to enforce the amend-
ment by appropriate legislation," might not Congress
attempt to extend the franchise to the negro?
Meanwhile Alabama, South Carolina, North Carolina,
Georgia, and Florida had elected delegates to conventions,
and these assembled during September and October, 1865.
Texas convened in February following. The Mississippi
delegates had expressed the sentiments of the people of
the Gulf states : Slavery was dead because of the fatal
blow which the federal government had struck, but the
South should be compensated for its loss. In Alabama
there was no doubt of the adoption of the amendment
abolishing slavery ; the only question was whether to make
its acceptance conditional. The vote was reached on the
21 St of August, and slavery was declared abolished.
When the Mississippi convention abolished slavery in the
THE UNITED STATES 255
state it refused to take action on the thirteenth amendment,
and not until December did the legislature take up the
question, when, in the form of a long committee report,^
similar to reports adopted by the legislatures of Delaware
and Kentucky, it declared the amendment a violation of
the reserved rights of the states, untimely, and not free
from the latent purpose of elevating the negro race to
social and political equality with the white race.
But the insuperable objection to the amendment was
that it " broke down the efficient authority and sovereignty
of the state over its internal and domestic affairs." The
refusal of the legislature to ratify the amendment delayed
the restoration of the state to the Union and continued it
under federal military rule. The Alabama legislature rat-
ified the amendment almost unanimously two days before
the legislature of Mississippi adopted its unfavorable
report. The governor of the state, Parsons, was anxious
that Secretary Seward might announce it as the twenty-
seventh to ratify, which, if true, would, as the secretary
said, " fill up the complement of two-thirds and make the
amendment a part of the organic law of the land." But
the consent of two more states was necessary. Alabama
was the twenty-fifth state to ratify and the thirtieth tc
abolish slavery.
In South Carolina, as in the other late insurrectionary
states, there was no money to defray the expense of re-
storing federal relations, and they were defrayed by the
national government. It was no less difficult to secure a
capable convention in South Carolina than in other south-
ern states, so few were its citizens who could be elected
delegates, by the conditions of the President's proclama-
tion. In order to have a convention, the President found
it necessary to send pardons to twenty of the delegates
chosen. It assembled in September,- and proceeded to
re-organize the state government. The independent tone
of its debates was somewhat paradoxical, the delegates
appearing to think that they could yet regulate the con-
dition of the African race to suit themselves. On the first
1 December 4, 1865, House Journal.
2 September 13-27, 1865; see its Journal, 216 pages.
256 A CONSTITUTIONAL HISTORY OF
day of the session, John A. IngHs, who, as chairman of
the committee, had reported the ordinance of secession
on the 20th of December, i860, introduced an ordinance
to aboHsh slavery. The language of the ordinance was
the subject of much discussion. Should it not declare
that the slaves had been emancipated by federal authority ?
The institution could never be re-established in the state.
Finally, in language which simply declared slavery abol-
ished, the ordinance was passed almost unanimously.^
A new constitution for the state was also adopted, by
which, though slavery was abolished, all persons of Afri-
can race were excluded from the basis of representation.
Meanwhile the President had become anxious over the
dilatory proceedings, and had telegraphed Governor
Perry, that if the convention was acting in good faith,
the legislature ought immediately to ratify the amend-
ment. This it did on the 13th of November, but with
the provision that any attempt by Congress to legislate on
the political condition of the negro would be unconstitu-
tional and in conflict with the President's policy as out-
lined in his amnesty proclamation.
The President found it more difficult to secure a conven-
tion in North Carolina than in Mississippi or South Caro-
lina ; but one finally assembled on the 2d of October.^
The ordinance of secession was repealed, and slavery was
abolished by a unanimous vote,^ but there was no approach
to unanimity on any other subject. The President's anxi-
ety for the amendment was soon relieved by the legisla-
ture, which, with but six dissenting votes, ratified the
thirteenth amendment on the ist of December.
A convention was out of the question in Georgia if the
President's proclamation was to be strictly construed.
But having declared his willingness to grant a pardon
to all in the state who deserved pardon, the President
made it possible for the Milledgeville convention to meet
on the 2ist of October with a full list of delegates. The
most distinguished member was Herschel V. Johnson,
^ Septem'ier 19th.
2 October 2-19, 1865; May 24-June 25, 1S66; see the Journals of the
two sessions.
* October 7th.
THE UNITED STATES 257
the candidate for Vice-president with Stephen A. Douglas
in i860. Georgia compHed with the President's poHcy
differently from any of its neighbors. It abolished slav-
ery, not by an ordinance, but by inserting a prohibitory
clause in the bill of rights of the new constitution of the
state. But it did this with a sense of necessity. Just a
month before the convention adjourned, the legislature,
without debate, ratified the thirteenth amendment almost
unanimously.^ Georgia was the twenty-seventh state to
ratify, and on the i8th of December, 1865, Secretary Sew-
ard, by proclamation, announced that the amendment had
become a part of the Constitution. Oregon, California,
and Florida ratified in December, New Jersey and Iowa
in January, 1866; but Texas did not ratify till four years
later, and Delaware and Kentucky rejected the amend-
ment.
At the time the amendment was ratified, the negro pop-
ulation of the country numbered a little more than five
millions, of whom four and one-half millions had shortly
before been slaves. Government North and South was
distinctively the white man's. Free persons of color were
here and there allowed to vote, but were nowhere suffered
to hold office. Emancipation and abolition were forced
upon the South ; they were the results of the war ; but
the stoutest southern heart might well tremble at the
thought of four millions of enfranchised slaves suddenly
let loose amidst a scarcely larger white population. Pres-
ident Johnson had held out the hope to the South that
its ratification of the amendment abolishing slavery would
restore it to its former federal relations, — a condition as
bitter as inflexible. In every southern state which had
ratified the amendment, there had been heard a voice of
warning against any attempt to extend the elective fran-
chise to the negro. In only one state, Texas, did a dele-
gate suggest the admission of the negro to the right to
vote at some future time.^ But the refusal of Texas to
ratify the amendment showed the prevailing sentiment
in the state.
1 December 9, 1865.
2 Journal of the Texas Convention, February 7-April 2, 1866, p. 91.
17
258 A CONSTITUTIONAL HISTORY OF
With the exception of four northern states, all the others
North and South had ever been hostile to negro suffrage.
The thirteenth amendment secured freedom to nearly five
millions of human beings. There were now above a mil-
lion male negroes over the age of twenty-one years, and
excepting about sixty-two thousand all these were in the
former slave-holding states. If the franchise was ex-
tended to them, for every negro voter at the South there
would be two whites, but at the North eighty-four whites.
There were more negroes than whites in South Carolina
and Mississippi. The races were about equal in Louisiana,
and nearly so in Florida, Georgia, and Alabama. Presi-
dent Johnson held that the southern states which had
ratified the thirteenth amendment were entitled to resume
their place in the federal system. He disclaimed any con-
stitutional authority to extend the elective franchise to
the negro, and believed, although he had suggested the
experiment to Governor Sharkey, that it was not yet time
for so radical a change. Each state should act as it
thought best in the matter. Congress had no power to
make the extension.
The President undoubtedly had the letter of the Con-
stitution and the laws and practices of government,
both state and national, on his side ; but the abolition of
slavery raised a new problem in the solution of which
these laws and precedents were of little use. The southern
legislatures which convened under the provisional gov-
ernments of 1865 passed many acts affecting the status of
the freedmen. As a body of laws, these acts discriminated
against the negro, but they were a most liberal departure
from the old slave code. At the time they were made,
negroes did not stand on an equality with white men in
any state in the Union. The problem of making the polit-
ical condition of whites and blacks equal affected every
commonwealth in the Union. It provoked a counter-rev-
olution which has not to this day ceased.
The belief at the South that Congress was responsible
for the negro was held by Congress itself, in whose hands
it took the form of the civil rights bill, presented by
Lyman Trumbull, of Illinois, in the Senate on the 5th of
January, 1866. Its advocates declared it next in impor-
THE UNITED STATES 259
tance to the thirteenth amendment. Its purpose was to
obliterate all discrimination against the negro. On the
13th of March it passed, and was promptly vetoed by the
President on the ground that Congress had no power to
confer state citizenship. The negro, he said, was not
qualified to vote or to stand on an equality with the
white man. Moreover, eleven of the thirty-six states
were as yet unrepresented in Congress, and these were
the ones most deeply concerned in the whole question.
But the President's chief objection to the bill was to its
invasion of the rights and immunities of the states. By
a very large majority in both branches, the bill was passed
over the veto.^ It was the first great act of congressional
legislation on behalf of the African race.
In July, Congress, by joint resolution, restored Ten-
nessee to her federal relations. Though Johnson signed
the resolution, he objected to it as " anomalous, unneces-
sary, and inexpedient," claiming that as Tennessee had
ratified the thirteenth amendment, and its action had been
accepted by Congress, the state was already in the Union.
On the 8th of January, 1867, Congress conferred the right
to vote on negroes in the District of Columbia. The
President vetoed the bill as " inexpedient and forcing negro
suffrage upon the inhabitants of the District." He used
the argument against it which had been often heard in
constitutional conventions, — that to allow negroes to vote
would invite multitudes of them into a state ; but Congress
passed the bill over the veto.
There was a striking analogy between this act, which
gave negroes in the District of Columbia the right to vote,
and the act abolishing slavery in the District of Columbia
and the territories, which had preceded the joint resolu-
tion that became the thirteenth amendment. Congress
now followed the suffrage act by another,- — that in
territories of the United States the right to vote should
not be denied " on account of race, color, or previous con-
dition of servitude." It became a law without the Presi-
dent's signature. Its first application was to Nebraska,
which had already been organized as a territory. The
1 April 9, 1866. 2 January 25, 1867.
^ 260 A CONSTITUTIONAL HISTORY OF
legislature of this territory in February, 1866, submitted a
constitution to the people, which was ratified, but it lim-
ited the right to vote to white persons. Congress promptly
amended the former enabling act for Nebraska, so that
the territory could not be admitted until the elective fran-
chise " should not be denied to any person on account of
race or color, except Indians not taxed," and its legisla-
ture, by a solemn public act, should assent to the con-
ditions. Thus the precedent of Missouri in 1820 was
applied strictly to Nebraska in 1867. The Nebraska bill
was returned by the President with a veto message. He
denied the authority of Congress to impose the electoral
condition ; for from the foundations of the government,
each state had been left free to determine the qualifications
of the voter. The whole matter, therefore, should be left
to the decision of the people of Nebraska. But the bill
was passed over the veto by a large majority in both
houses. Nebraska complied with the condition, and was
admitted as Missouri had been admitted in 1821.^
While Congress was effecting these radical changes, it
was also engaged in discussing an amendment to the Con-
stitution which would secure civil and political rights to
the African race. To this end a joint committee of recon-
struction had been appointed, consisting of six members
of the Senate and nine members of the House.^ Both
before and after its appointment, many amendments were
proposed in both Houses, involving the issues of recon-
struction, namely, the extension of the franchise to the
negro, the repudiation of the Confederate debt, the estab-
lishing of the basis of representation, and the definition
of eligibility to office. Finally the joint committee com-
bined the essentials of the many amendments which were
offered in a joint resolution, which, modified through
debate, became the fourteenth amendment, and was sent
to the states for ratification.
This amendment, in the form of a resolution, was pre-
sented to the House on the 30th of April by Thaddeus
Stevens, the chairman of the House committee. It con-
sisted of four parts : the first, forbidding the states to
' See p. 148. 2 December 13, 1865.
THE UNITED STATES 261
abridge the privileges or immunities of citizens of the
United States ; the second, enlarging the basis of repre-
sentation by including within it all persons excepting
Indians not taxed ; in case of the denial of the elective
franchise to any male citizen duly qualified, except for
participation in rebellion or for other crimes, the basis of
representation in the state should be proportionately re-
duced ; the third, excluding all participants in the rebellion
from the right to vote for members of Congress or presi-
dential electors until July 4, 1870; and the fourth, repudi-
ating the Confederate debt and all claims for loss of slaves.
The debate covered a wide field. Supporters of the reso-
lution held with John A. Bingham, of Ohio, that as all
citizens of the United States were now free men, no state
had the right to abridge their privileges and immunities.
If a state persisted in discriminating against one class of
the population, a corresponding decrease in the number
of its representatives in Congress would be the just conse-
quence. Moreover, such an arrangement would be an
inducement to the southern states to extend the suffrage
to the negroes, as it would increase the number of their
representatives in Congress. The repudiation of the Con-
federate debt and of all claims for the loss of slaves was
due to the people of the country; it, too, was an act of
justice.
The opponents of the measure, ably led by Samuel J.
Randall, of Pennsylvania, maintained that it violated the
policy of discrimination which had always been exercised
by the states, each of which should be left free to regulate
the franchise. If the United States could interfere in
behalf of one group of rights, it would soon be tearing
down every barrier. The amendment would make an
entire change in the basis of representation, and this, too,
while eleven southern states were excluded from repre-
sentation in Congress. " The President," said Mr. Ran-
dall, " has steadily pursued Mr. Lincoln's policy. The
states are in the Union ; indeed, they have never been out
of it ; they have declared their ordinances of secession null
and void and are legally entitled to representation. The
amendment involves the whole issue of reconstruction and
means war, and not peace." James A, Garfield wished the
262 A CONSTITUTIONAL HISTORY OF
resolution amended so as to forever exclude all persons
who had voluntarily adhered to the southern Confederacy,
or given it aid or comfort, from holding any office of
trust or profit under the government of the United States.'-
But the House refused to make any change, and passed the
resolution as reported by the committee.^
More than two weeks elapsed before the resolution was
taken up in the Senate. Senator Howard, of Michigan,
proposed several changes, the history of which has iden-
tified his name with the fourteenth amendment. It should
define United States citizens and those qualified to hold
office under the United States or in a state, and should
declare the inviolability of the national debt. The How-
ard amendments had been carefully considered in caucus,
and were now submitted to Congress as the opinion of the
republican leaders. The definition of United States citi-
zenship was taken bodily from the civil rights law, and
Howard argued that it would settle a great question long
in need of settlement in the jurisprudence of the country.
It was objected that this definition of United States citi-
zenship would include Indians and Mongolians. But the
objection was not sufficient to stand, and Howard's amend-
ment was agreed to. His second provision, " which," Sen-
ator Fessenden said, " would prevent a state from saying
that though a person is a citizen of the United States he
is not a citizen of a state," was adopted with like unanim-
ity of party support, Reverdy Johnson and other con-
servative Democrats objected that the provision went too
far. Hendricks, of Indiana, thought that the exclusion
from office should be limited to those who had participated
in the rebellion. But there was no strong opposition to
the repudiation of the Confederate debt, and of claims for
loss of slave property.
Plainly there was much heterogeneous matter in the
Howard resolution, but the grand committee, knowing
well the party strength behind them, sagaciously combined
the propositions so that all should stand or fall together.
The opposition, therefore, was out-manoeuvred. It might
object to particular propositions, but the fate of one would
1 Globe, May lo, 1866, pp. 25-45. 2 127 to ^j, May 10.
THE UNITED STATES 263
be the fate of all ; because of the g^reat republican majority
in both houses, the adoption of each was a foregone con-
clusion, though had each been presented separately the
vote might not have been the same. The stock argument
of the Democrats against the amendment was the plain
assumption by Congress of the right to prescribe electoral
qualifications. On the 31st of May a test vote, thirty
yeas and ten nays, disclosed the strength of parties in
the Senate, and from this time opposition to the amend-
ment was perfunctory. On the 8th of June the joint reso-
lution, as amended by Senator Howard, received the vote
of two-thirds of the Senate.^ Five days later Thaddeus
Stevens presented the Senate resolution to the House, at
the same time announcing that the Republican members
of the grand committee were unanimously in favor of the
resolution and were willing that the vote should be taken
at once. He congratulated the House that the privileges
and immunities of every citizen were now to be extended to
a race hitherto outlawed. It had been the dream of his
life, he said, to see racial discrimination obliterated.
Schuyler Colfax, the Speaker, put the question of concur-
rence, and the amendment was adopted.^
The attitude of the republican party toward the ques-
tions involved was well defined by the joint committee on
reconstruction in its report submitted to Congress on the
day when it offered the amendment. The President, so
ran the report, had inaugurated military rule in the South.
The provisional governors whom he had appointed had
no authority to organize civil governments, for this power
belonged exclusively to Congress. The President's act
meant no more than that he would withdraw military rule
just in proportion as the southern people manifested a
disposition to preserve order and to establish civil govern-
ments. Congress was not in possession of the information
that such governments had been organized. In all the
insurrectionary states, excepting Tennessee and Arkansas,
the elections had resulted in the choice of men notoriously
hostile to the Union ; therefore it remained with Congress
to say whether these states were restored to their federal
1 Yeas, 23; nays, ii. 2 120 yeas, 32 nays, and 32 not voting.
264 A CONSTITUTIONAL HISTORY OF
relations. In waging war against the Union, the southern
states became subject to all the rules of war and of its
ultimate consequences. The question whether these states
were in the Union or out of it was an unprofitable abstrac-
tion. It was a question for Congress to decide. The
thirteenth amendment had abolished slavery but left the
freedmen in an anomalous condition. Congress could
not abandon them without first securing them their rights
as citizens. The fourteenth amendment now proposed
embodied the policy of Congress toward the southern
states.
But this was not all. Congress proceeded to criticise
the President's policy to restore the South to the Union.
The southern conventions had all been irregular. The
South had shown no disposition to change its opinions,
but with very few exceptions had elected as senators and
representatives in Congress men who had actively partici-
pated in the rebellion. Thus the South was not in a
repentant state. It showed no disposition to place the
colored race, though composing two-fifths of its popula-
tion, upon terms of equality with the white race. On the
contrary, the South exhibited on every hand intense hos-
tility to the national government, and an equally intense
love for the late Confederacy.
Confronted with such evidence as this. Congress felt
itself forced to the conclusion that the states lately in
rebellion were disorganized communities without civil
government and without constitutions and other forms
by virtue of which political relations could legally exist
between them and the federal government.^
But the democratic minority of the joint committee
held to another view ; the states had never been out of
the Union, they had complied with every demand of the
national government ; they had amended their constitutions
and ratified the thirteenth amendment ; they had elected
senators and representatives who were entitled to their
scats in Congress. Secession, tested by the ordeal of battle,
had failed, and the South utterly abandoned it as an im-
practicable doctrine. These conflicting opinions within
1 Report of the Joint Committee on Reconstruction, pp. vii-xxi.
THE UNITED STATES 265
the committee accurately reflected opinion outside of
Congress, and the two great parties of the country had
marshalled their hosts accordingly.
The prospect of the ratification of the amendment was
not assuring. New England might be counted on favor-
ably, but the border states and the whole South were sure
to reject it; the West would probably ratify. New York
was hostile to negro suffrage, and would probably reject
the amendment. Ohio, Indiana, California, and Nevada
were hostile. The consent of thirty states was necessary,
therefore it was not without anxiety that the republican
Congress sent the amendment forth to the states. At the
North its ratification was made a party issue,^ and as the
Republicans controlled most of the legislatures it w^as
ratified. The democratic members of the New Jersey
senate refused to vote on the amendment, and the result
\vas, practically, an adverse action. Oregon ratified by
a majority of one.
In seven northern states ^ the Republicans at this time
were uniting their forces to obliterate the word " white "
from the constitutions. Minnesota had recently rejected
an amendment to its constitution granting impartial suf-
frage, but it adopted the fourteenth amendment. A large
portion of Pennsylvania, especially the eastern counties,
was hostile to negro suffrage, but the legislature ratified.
Nebraska adopted it on the 15th of June, 1867, which was
a year lacking a day from the time when the amendment
passed Congress. Twenty-two states had now approved
it, including Tennessee, West Virginia, and Missouri. But
in the fifteen southern states it had been almost unani-
mously rejected. Their legislatures, largely under the
direction of the governors, had taken the ground that the
South, having had no part in preparing the amendment,
should not be asked to adopt it. As it had been prepared
irregularly, its validity might well be doubted, even if it
were ratified. Its adoption would signify that the Con-
stitution was at the mercy of whatever party might be
strongest for the time being.
1 This is shown in the platforms of the State Conventions ; see the
Tribune Almanacs for 1S66-1S69.
" New York, Pennsylvania, Ohio, Michigan, Wisconsin, Minnesota,
and Kansas.
266 A CONSTITUTIONAL HISTORY OF
The attitude of the South was exempHfied by North
CaroHna, whose legislature, in rejecting the amendment,
adopted the unfavorable report of the joint select com-
mittee of both houses.^ The report went over the whole
ground in controversy ; namely, the exclusion of the
southern states from representation in Congress ; the origin
of the amendment ; its doubtful constitutionality ; its re-
pugnance to the constitutions, laws, and practices of the
southern states ; and above all, its invasion of the exclusive
right of a state to regulate the suffrage. Moreover, it
was destined solely to affect the South and to disfranchise
a large and the most intelligent portion of its population.
Its provision respecting the federal debt was superfluous,
as the honest intention of the people was to pay it. As
it empowered Congress to enforce all its provisions by
appropriate legislation, it opened wide the door for sec-
tional interference with a subject wholly beyond the range
of federal legislation. In brief, the amendment indicated
that the federal government had radically changed, and
now threatened to concentrate all power and dignity within
itself and to swallow up the states.
No less hostile were the legislatures of Delaware,
Maryland, and Kentucky, which in elaborate resolutions
declared against the amendment as violating state sov-
ereignty and forcing negro suffrage on the people. Lou-
isiana and Texas took no action. Thus, in the spring of
1868, the amendment stood rejected by nearly one-half the
states in the Union.
Meanwhile testimony had been accumulating before
Congress as to the condition of public affairs at the South.
The committee on reconstruction had gathered a mass of
evidence, all given under oath, which proved unparalleled
acts of hostility and cruelty had been committed at the
South toward the freedmen. Special committees were
appointed, each of which thoroughly investigated the sub-
ject in charge, and in due time laid its report before Con-
gress. The terrible aggregate was more than sufficient
to compel Congress to enter upon a policy of reconstruc-
tion. A system of peonage had been substituted for
1 December 13, 1866; Pamphlet, Raleigh, 16 pp.
THE UNITED STATES 267
slavery in parts of the South. Congress, on the 2d of
March, 1867, aboHshed and prohibited the system every-
where in the Union. But the day of the enactment of this
humane law is memorable for the enactment of the first
reconstruction act, " to provide for the more efficient gov-
ernment of the rebel states." The act divided the South
into five military districts, and put each district under
martial law. The purpose of the act was to establish state
governments, republican in form. As soon as any of the
late Confederate states organized a government in con-
formity to that of the United States in all respects, and
adopted a constitution acceptable to Congress, and the
state legislature ratified the fourteenth amendment, Con-
gress would admit representatives and senators from that
state. The President vetoed the bill, '' because,'' he said,
" it makes the military paramount to the civil authority."
He denied that no legal governments existed in the South,
and asserted that Congress was intent upon creating there,
instead, an absolute despotism. But notwithstanding his
objections, the bill passed.
In a supplementary act, passed on the 23d of March,
Congress required that the new constitutions at the South
must be ratified, each by a majority of the whole vote in
a state, at least one-half of the voters voting. This also
was passed over the President's veto. In July, a second
supplementary act was passed, which pronounced all the
governments in the ten insurrectionary states illegal, and
authorized the appointment of negroes to serve as mem-
bers of boards of registration.^ The President vetoed the
bill for reasons he had given before. A contest had now
begun between Congress and the President, and raged
during the remainder of his administration.
Negro sufifrage was almost as objectionable to the North
as to the South. Maryland, in 1867, adopted a new con-
stitution limiting the sufifrage to white men, and Michigan
in the same year rejected a constitution which proposed
to give the negro the right to vote. New York assembled
in one of the ablest of conventions,- and discussed negro
1 July iS. 1867.
2 Proceedings and Debates of Convention, Tune 4, iS67-Februarv 28,
1S68, 5 vols. ^
268 A CONSTITUTIONAL HISTORY OF
suffrage at great length ; but under the guiding hand of
its democratic leaders, shifted upon the people the respon-
sibility of deciding on negro suffrage. In the November
election of 1869, the electors refused, by a majority of
forty thousand votes, to abolish the property qualification
required of colored men by the constitution of 1821.
Thus, while Congress was attempting to compel the south-
ern states to adopt negro suffrage, Maryland, Michigan,
and New York, to which the reconstruction acts did not
apply, were rejecting the principle.
The first state to convene under the reconstruction acts
was Alabama.^ The registration showed a majority of fif-
teen thousand for a convention ; but nearly all the whites
had refused to vote. The negroes voted as in the other
states in the South, — by virtue of the provision of the
reconstruction acts, and under the protection of federal
troops. The Alabama delegates framed a constitution,
but it failed of ratification by about eight thousand votes,
though seventy thousand had been cast in its favor. The
clause in the reconstruction acts, which required that a
constitution must be ratified by at least one-half the voters,
was devised to protect the colored vote, but the hostile
whites knew that they could defeat the law by remaining
away from the polls. In order to save the work already
accomplished in reconstruction in Alabama, Thaddeus
Stevens, on the nth of March, reported a second supple-
mentary act, to the reconstruction law, providing that
henceforth the adoption or rejection of a constitution by
a southern state should be determined by the majority of
the votes cast.^ Stevens's proposition became law.
It was now practically impossible for a southern state
to escape the adoption of a constitution to which its white
citizens were opposed, and from this time reconstruction
ran on speedily. The state conventions, for which the
negroes voted unanimously, enrolled many negro dele-
gates. The result was the production of a body of state
constitutions made in strict conformity to the reconstruc-
tion acts. But the martial hand of Congress could not
change the opinions of the intelligent white men of the
1 November 5-December 6, 1S67. 2 Act, March 11, 1S68.
THE UNITED STATES 269
South, who looked upon the whole procedure as tyrannical
and unconstitutional. In each convention there was a
vigorous minority opposed to negro suffrage, who did not
hesitate to tell the negro that he was unfit by nature to
participate in civil government ; who declared that the
whole motive of Congress in thus dragooning the South
into a compliance with the fourteenth amendment was
simply partisan in order that the Republicans, for a time
in power, might control, through the negro vote, those
lately in rebellion. But the minority was powerless, except
to talk and to enter its protest on the journals. In every
state it voted and acted against negro suffrage.
The registration in South Carolina showed nearly twice
as many black as white voters.^ All the blacks voted for
a convention, and the two thousand whites who voted,
voted against it. Nearly two-thirds of the delegates
chosen were negroes. Never was there a more curious
spectacle than that of 1868 in the state of South Carolina,
which a little more than eight years before had inaugu-
rated a secession movement in a convention of slave
owners. There now assembled, at Charleston, to form a
constitution, sixty-three negroes and thirty-four white
men. No less curious was the history of the constitution
which they formed ; it continued in force until 1895, out-
lasting every other reconstruction constitution. Every
convention which assembled by authority of the recon-
struction laws, was the scene of more or less disorder and
violence. The members usually undertook to act as a
legislature as well as a constitutional convention, and also
at the same time to play the part of a political convention.
Thus, they formed state constitutions, enacted ordinances,
and ran a political campaign. The South Carolina con-
vention nominated a state ticket, which was elected in due
time.
The Florida convention speedily fell to quarrelling, and
finally divided into two factions, each of which organized
as a convention. At last, by the intervention of General
Meade, a compromise was effected and a constitution was
adopted. The reconstruction acts were carried out with
1 78,982 blacks, 46,346 whites.
270 A CONSTITUTIONAL HISTORY OF
difficulty everywhere in the South, and especially in Texas,
where a reign of terror prevailed, and a convention would
have been utterly impossible had it not been for the pres-
ence of federal troops. The state officials corroborated
the appalling- reports, which had already reached Congress,
of the lawless condition of Texas, and no evidence of the
carnival of crime was more discouraging than that given
by the attorney-general, William Alexander. His testi-
mony, and that of other state officials, as well as the testi-
mony of the special committee appointed by the convention
itself, showed that crime had never before been so rampant
nor lawlessness so wide-spread. The people had been
forced to take their protection into their own hands. The
condition of Texas differed only in degree from that of
other parts of the South.
Meanwhile legislatures had been ratifying the four-
teenth amendment. Nebraska adopted it in June,^ and
was followed by Iowa in April of the following year.^
Arkansas ratified unanimously,^ and by a special act of
Congress was readmitted to the Union. Florida, North
Carolina, South Carolina, and Louisiana ratified by the
9th of July; Alabama ratified on the 13th. Individual
bills for the admission of these states were immediately
reported in Congress. The Republicans supported and the
Democrats opposed them, for reasons which the respective
parties had given when supporting or opposing the recon-
struction acts.
Ohio, Oregon, and New Jersey withdrew their rati-
fication of the amendment, and Delaware, Maryland,
Kentucky, and California rejected it outright. But its
adoption by Alabama enabled the secretary of state, Wil-
liam H. Seward, to announce its ratification conditionally ;
if the original adoption by Ohio and New Jersey was to be
considered as in force, the fourteenth amendment had been
ratified by three-fourths of the states in the Union.* On
the 2 1 St of July, Congress adopted a joint resolution, of
which John Sherman was the author, declaring the amend-
ment a part of the Constitution, and instructing Seward to
1 June 15, 1S67. 2 April t„ i86S. 3 April 6, 1868.
* " Documentary Ili.story of the Constitution," vol. ii, pp. 783-787.
THE UNITED STATES 271
issue the necessary proclamation. Thus the states of New
Jersey and Ohio were counted as having ratified. The
adoption of the amendment by the southern states was
immediately followed by proclamation of the fact by the
President, and by the passage of the " Omnibus Act " re-
storing these states to their federal relations. Virginia,
Mississippi, and Texas had virtually rejected the amend-
ment by refusing to entertain it. The senators and repre-
sentatives of the South, excepting from these three states,
were permitted to take their seats in Congress on the
25th of June, 1868. The South had not been represented
in Congress for seven years.
The ratification of the fourteenth amendment placed the
reconstruction measures of Congress beyond repeal. But
might they not be nullified by the southern people ? In one
most important particular the amendment had failed ; it
had not induced the South to admit the negro to the
suffrage for the sake of securing a greater number of rep-
resentatives in Congress. The South felt that the amend-
ment had been forced upon it at the point of the bayonet,
and that the negro had been made the instrument of
coercion. Thus it happened that all hatred of the amend-
ment was now concentrated upon the unfortunate negro.
On the 2 1 St of May, 1868, General Grant and Schuyler
Colfax were nominated by the Republicans at Chicago,
on a platform which approved the reconstruction policy
of Congress. In July, at New York, Horatio Seymour and
Francis P. Blair were nominated by the Democrats, on a
platform which declared those acts " unconstitutional,
revolutionary, and void " ; and that the control of the suf-
frage "belonged exclusively to the states." Virginia, Mis-
sissippi, and Texas did not participate in the election, and
by a concurrent resolution Congress ruled that the electoral
vote of Georgia should not be counted so as to affect the
result. The election of Grant and Colfax, and of a con-
gress republican in both branches, by large majorities,
was construed at once as proof that the majority of the
people of the country approved the reconstruction policy
of Congress.
The republican leaders now bestirred themselves to
make secure all that remained uncertain, and particularly
272 A CONSTITUTIONAL HISTORY OF
to safeguard the right of citizens to vote " irrespective of
race, color, or previous condition of servitude." A con-
stitutional amendment to this effect had been proposed
while the fourteenth was under discussion. The earliest
proposition emanated from Senator Henderson of Mis-
souri, who, on the 7th of March, 1867, had introduced a
resolution which is of interest because it finally became
the fifteenth amendment. But the attention of Congress
was at that time concentrated on the fourteenth amend-
ment, and the absorbing interests of reconstruction so
dominated both houses, that not until six months after the
fourteenth amendment had become a part of the Consti-
tution did Congress seriously take up the resolution for
securing impartial suffrage. It was discussed in its every
aspect. The question, though a part of the general recon-
struction policy, was different from any involved in the
thirteenth and fourteenth amendments. Had Congress
the right to pass a suffrage amendment? A very able
discussion of this question followed. Each house passed
a joint resolution, but finally the refusal of the House of
Representatives to concur in the Senate amendments and
the refusal of the Senate to recede from its position de-
feated the amendment. The long debate apparently had
come to a lame and impotent conclusion.^
The negative vote was scarcely announced in the Senate,
however, before Senator Stewart, of Nevada, moved to
take up the joint resolution which Senator Henderson, of
Missouri, had at first proposed, and which had been
dropped for the resolution lately sent up by the House.
Though very weary of the debate, the Senate refused to
adjourn. The members of each House knew very well
that the majority were in favor of a suffrage amendment,
and that the failure to pass one was due merely to disa-
greement over the wording of the resolution. The matter
had been discussed so long both Houses were in a queru-
lous temper. Senator Howard wished an amendment that
would clearly confer upon Congress the power to prescribe
the qualifications of voters and office holders, both in the
states and in the United States, but few of his colleagues
1 February 15-17, 1S69.
THE UNITED STATES 273
were prepared to support so radical a measure. Demo-
cratic members, like Senator Hendricks, were convinced
that an amendment of some kind would pass, and wished
to make it as free from objections as possible. At last,
after many attempts to adopt an amendment in other
forms, the Senate passed the Henderson resolution in its
original form.^
On the 20th of February, the House took up the Hender-
son resolution. Bingham, of Ohio, moved to amend it
so as to provide that the right of citizens of the United
States to vote and to hold office should not be abridged or
denied by any state on account of race, color, nativity,
property, creed, or previous condition of servitude. This
gave it nearly the form of the Senate amendment, which
the House had just rejected. The end of the session was
fast approaching, and the general sentiment was for a
suiTrage amendment, yet it seemed that none could be
adopted. General Butler urged the House to concur with
the Senate resolution lest nothing be done, and it be for-
ever too late to pass an amendment. Boutwell, who con-
trolled the time of the House, found more to object to in
the modifications suggested by his colleagues than to the
Henderson resolution. Finally, on the 20th of February,
Bingham's amended resolution was passed, and the House
requested the concurrence of the Senate.
In the Senate, Buckalew called his colleagues' attention
to the fact that the resolution now did not differ substan-
tially from the one which had originated with the Senate,
and had been lately rejected by the House. Agreement,
therefore, was quite possible, and the Senate decided to
ask for a conference. Senators Conkling, of New York,
and Edmunds, of Vermont, were appointed managers on
the part of the Senate, and Boutwell, of Massachusetts,
Bingham, of Ohio, and General Logan, of Illinois, on the
part of the house. On the 25th, Boutwell made his
report in a proposition, which, with the exception of three
words,^ was the same as that which had originated with
the Senate. The report of Boutwell's committee was
accepted by a vote of one hundred and forty-five to forty-
1 February 17, 1869.
2 The words " to hold office " were struck out in conference.
18
274 A CONSTITUTIONAL HISTORY OF
four, Colfax, the Speaker, voting in the affirmative. On
the following day the Senate also accepted the committee's
report, and on the 2d of March a concurrent resolution
was adopted instructing the President to transmit the
article to the executives of the states, as the proposed
fifteenth amendment to the Constitution.
The Republicans considered the amendment to be the
crowning work of reconstruction. Its language had been
used in the civil rights bill of April, 1866, and in the
enabling act for Wyoming, of July, 1868, both very recent
precedents for so radical a measure. But the prospect of
its adoption by the states was gloomy. Seven northern
states had rejected negro suffrage within two years, and
in five others the Democratic party might be strong
enough to defeat the amendment. Even John Sherman,
while defending the amendment in the Senate, had given
warning of its possible defeat in Ohio. So uncertain was
the prospect, Congress resolved to strengthen the chances
of ratification by making the admission of Virginia, Mis-
sissippi, and Texas to federal representation conditional
on the adoption of the amendment by these states. The
situation of the freedmen had become serious in the last
two years. The reports of outrages unsurpassed in cruelty
were accumulating from every part of the South. The
most ominous reports were from Virginia, Mississippi,
and Texas.
The evidence submitted by the Texas constitutional
convention ^ showed that that state was not ready for civil
government. A rigorous act was passed by Congress on
the 1 8th of February, 1869, affecting Virginia and Texas.
All persons holding office under the provisional govern-
ments in the states, who could not subscribe to the oath
of loyalty under the reconstruction act of July, 1862, were
to be removed, and the President was authorized to submit
the constitutions, which had been framed in these states
and in Mississippi, to the people that they might take a
separate vote on certain objectionable clauses which the
conventions had adopted. All the objectionable clauses
1 See its Journal, June ist-August 31, 1868 ; December 7, 1S68, Feb-
ruary 6, 1869, 2 volumes.
THE UNITED STATES 275
were repudiated, and the constitutions were adopted. On
the 8th of October, 1869, Virginia ratified the fourteenth
and fifteenth amendments ; Mississippi ratified both on the
17th of the following January, and on the i8th of Febru-
ary, 1870, the legislature of Texas, by joint resolution
ratified the thirteenth, fourteenth, and fifteenth. These
states were immediately admitted to representation in
Congress. Texas had been unrepresented since the nth
of July, 1861, a period of nearly ten years.
At the time Texas ratified the fifteenth amendment it
had been approved by twenty-eight states. New York had
ratified on the 14th of April, 1869, but the legislature,
democratic in both branches, elected in the following
autumn, straightway adopted a resolution, introduced by
Tweed, of New York City, withdrawing the act of rati-
fication. In May, Ohio rejected the amendment, but
meanwhile, the Republicans, by a new election, having
secured a majority in the legislature, the amendment was
ratified on the 27th of January, 1870. On the 19th of
February, Minnesota made up the number of ratifying
states required by the Constitution, and on the 30th of
March, the Secretary of State announced that the amend-
ment had become a part of the Constitution. Nearly a
year later, on the 21st of February, New Jersey ratified.
The amendment was rejected by Delaware, Maryland,
Kentucky, Tennessee, Oregon, and California.
The fifteenth amendment was passed by Congress to
complete the civil reforms wrought by the war. In the
light of our later history, it may seem to some that Con-
gress should have gone further and submitted an amend-
ment which would have given to the United States full
authority to define and regulate the right to vote and to
hold office, and that such an amendment and no other
would have prevented many subsequent evils which befell
the negro at the South. But if we make a careful exami-
nation of the condition of public afifairs at the time of
the submission of the fourteenth and fifteenth amend-
ments, we can understand the practical impossibility of
securing the adoption of more radical measures than
those then adopted. The fifteenth amendment would
never have been ratified had it not been for the coercive
276 A CONSTITUTIONAL HISTORY OF
reconstruction acts. The state of public affairs enabled
Congress to compel the late insurrectionary states to ratify
the amendments ; but the South ratified the thirteenth,
partly in confidence that ratification would restore it to its
federal relations, and partly because of the necessity of the
situation. It ratified the fourteenth and fifteenth amend-
ments under the coercion of reconstruction, — the coer-
cion of the federal bayonet and of negro votes.
At the North the ratification of the thirteenth amend-
ment, abolishing slavery, was an easy matter, but the
ratification of the fourteenth and fifteenth amendments
was strictly a party procedure ; the Republicans favoring,
the Democrats opposing them.
The nomination of General Grant for the presidency, —
and he was the most popular man in the nation, — greatly
helped the fifteenth amendment at the North, for it was
known that he supported the reconstruction policy of Con-
gress. Seymour and Blair stood committed against this
policy, and they received nearly two-fifths of the popular
vote of the country, which may be said to indicate fairly
the strength of the opposition to the fifteenth amendment.
It may be said also, that this amendment was carried, in
so far as the policy which it embodied was made an issue
at the polls, by three hundred thousand votes in a total of
nearly six millions.^ But this vote recorded far more
than the triumph of a party ; it recorded the triumph of
a great principle in government and reversed the practice
of the United States and of the states since their organi-
zation, and overthrew many cherished traditions of the
American people. The thirteenth, fourteenth, and fif-
teenth amendments recorded in the most solemn manner
a vital change in the American civil system.
The adoption of the three amendments of the civil war
period was an adaptation of the supreme written law of
the country to the industrial and political demands of
the American nation. They were a vindication of pop-
ular government. In this adaptation no violence was
done to any principle of government which the founders
1 The popular vote, November 3, 1868, stood for Grant and Colfax,
3,01 5,07 r ; for Seymour and Blair, 2,709,613; Virginia, Mississippi, and
Texas not votincr.
THE UNITED STATES 277
of the American system had advocated. Freedom and
representation, — which the amendments give to the negro
race, — were recognized as essential to popular govern-
ment in 1776. The amendments extended the rights hith-
erto possessed and exercised by the white race in America
to the black race. Adaptation was in this case an exten-
sion of a privilege, — the right to vote ; and the recog-
nition of a right, — freedom and representation.
The supreme law, by the addition of these amendments,
reached a stage of adaptability to American conditions
which may be said to approach completion. As a working
plan of popular government this law now attained effi-
ciency. The history of the growth of this supreme law,
— this national Constitution, — is the history of more than
the evolution of a form of words. All the efficiency of
this Constitution might have been attained in another mode.
The flexible English system comprehends and secures
civil and industrial rights as completely as does the inflex-
ible American system. A written constitution like ours
does not of itself make life and property secure. It is
the administration of the law which tests the law. An
administrative rule may appeal so favorably to a people
that they will incorporate it in their constitution of gov-
ernment. The constitution of Pennsylvania of 1873 pro-
vides that no law shall be passed except by bill; no bill
shall be so altered on its passage through either House as
to change its original purpose ; no bill shall be considered
unless referred to a committee, returned therefrom and
printed for the use of the members ; every bill shall be
read at length on three different days in each House ; and
all amendments shall be printed for the use of the mem-
bers before the final vote on the bill is taken.^
Each of these provisions is a transcript of the House
and Senate rule on the subject at the time this constitution
was made. Every state constitution illustrates a similar
adaptation. So, too, does the national Constitution. The
thirteenth amendment is a transcript of a portion, and the
most important portion, of the ordinance of 1787. Several
sections of the national Constitution are the direct out-
1 Article III, sections i, 2, 4.
278 A CONSTITUTIONAL HISTORY OF
growth of rules of Parliament, — such as the section de-
fining the organization of the Houses, their rules of
procedure and the rights and privileges of members.^
Close analysis of a constitution of government, written
or unwritten, discloses that the supreme law is a compo-
sition of many laws which survive ; it is an embodiment of
civil experience. An entirely new constitution is practi-
cally impossible. It is not impossible that a constitution
should carry meaningless and dead clauses, — an apposite
illustration of which is afforded by existing state constitu-
tions which describe the voter as a white man. No fewer
than five states ^ still retain this discriminating word,
though the discrimination was abolished in 1870 by the
adoption of the fifteenth amendment. Similar and no less
notable vestiges of the old order may be found in every
state constitution in force in America. Veneration of
forms, the love of the immediate and familiar, and the
unwillingness of conventions to evoke hostility to a pro-
posed constitution contribute to retain words, phrases,
and clauses the value of which is largely historical. Any
constitution at any time in force in America, stripped of
its strictly administrative and of its effete provisions,
would become a brief statement of rights ; indeed, a brief
bill of rights. But it is the administrative feature of a
written constitution which gives it working value. The
" ancient and undoubted rights " of men ; the " natural
rights of man," — of which so much was said at the
time of the revolution, — are accepted by the mass of
citizens in much the same spirit as they accept the ten
commandments. It is the administrative changes and
amendments which now stir the passions of men. The
landmarks of the American civil system have been located.
The problem now is to discover and utilize a svstem of
administration which will realize for the citizen the rights
and privileges expressed and implied in the principles.
Thus it follows that the easier it is to amend a constitu-
1 Article I, sections 5, 6. For a detailed account of the authorship
and sources of the constitution, see the author's " Constitutional History
of the United States, 1765-1895." vol. iii, pp. 463-515,
2 Maryland, constitution of 1867 ; Ohio, 185 1 ; Michigan, 1850; Nevada
1864; Oregon, 1859.
THE UNITED STATES 279
tion, the more frequently it is amended; a working rule
which goes far to explain why, out of some eighteen hun-
dred amendments which have been offered in Congress
to the national Constitution since 1789, only fifteen have
been adopted. Yet since 1789 nearly one hundred state
constitutions and above three hundred amendments to
them have been ratified, the union increasing meanwhile
from thirteen to forty-five members.
The difBculty in modifying the national plan of gov-
ernment by adopting amendments has necessitated resort
to administration, which means reading into the text of
the supreme law a meaning which, had it been possible,
would have been expressed by verbal change. The in-
flexibility of the national Constitution has compelled polit-
ical parties to depend on congressional legislation in order
to adapt the national system to the needs of the country.
Not so in the states. There the constitutions have
been made as flexible, practically, as laws. Delaware
alone of the states made a new constitution excessively
difficult to change, but the almost impossible conditions
fixed by the constitution of 183 1 ^ were met in 1896 and
the new constitution of 1897 ^^^^ straightway prepared.
No fetters of like kind can ever be forged again in an
American commonwealth. New York, Virginia, and
Maryland made a new constitution possible once in twenty
years. ^ But the conservatism of these states and of Dela-
ware was not characteristic of American commonwealths.
The newer communities, — those west of the original
states, — placed few difficulties in the way of new consti-
tutions. As frequently as the voters may will, the two
Houses having voted a convention necessary, and the people
having ratified this decision at the polls, Michigan auth-
orized the calling of a convention once in sixteen years,^
1 Article IX. The difficulty in Delaware was to obtain a majority of
votes for a convention (/. e., of the highest number of votes cast in the
state at any one of three general elections next preceding the day of
voting for a convention), and then to elect an assembly which should
"deem a convention necessary." Amendment of the old constitution
(1831) was almost as difficult.
2 New York constitution, 1846, Article XIII, 2; Maryland consti-
tution, 1S67, Article XIV; Virginia, 1S70, vol. xii, p. 2.
8 Beginning with 1866, constitution, 1850.
28o A CONSTITUTIONAL HISTORY OF
and New Hampshire every seven years. ^ The possibility,
and, in some sections of the country, notably the West,
the probability of frequent revision of the state consti-
tution, practically transformed this instrument into a
code, which was responsive to changes in public opinion.
It is to the states that we must turn if we desire to
follow the evolution of government in America after 1870.
Their constitutions register changes in the popular concept
of the organic law. A civil war, itself a mighty revolu-
tion, made possible the adoption of the thirteenth, four-
teenth, and fifteenth amendments to the plan of the
national government, and it may be affirmed that no
equally radical change in that plan is probable save by the
compulsion of events as imperiously dominating as were
the causes of the civil war. The last three amendments
were made in recognition of the changed condition of
the negro race in America. That condition was both
industrial and civil, and, therefore, political. The amend-
ments confirmed the truth of judicial decisions, — that
government in America as organized and administered
down to 1870 was exclusively for the white race. To
whatsoever extent persons of African blood participated
in that government, the participation was exceptional,
and not recognized by the supreme law of the land. It
was local and not general in character.
The iconoclastic amendments transformed slaves into
United States citizens. This change revolutionized gov-
ernment in all the states, but most radically in those which
had been slave-holding. The necessity which the amend-
ments, — or, more perfectly speaking, which the amended
Constitution imposed on the people of the several states,
— was to adapt local government to the newly recognized
rights and the recently conferred privileges of the negro.
The history of this adaptation comprises the critical chap-
ter in the evolution of government in the southern states
since the civil war. That evolution comprehends the
organic laws which have been made since that war in the
commonwealths to regulate the suffrage and the basis of
representation.
1 Constitution, 1792.
THE UNITED STATES 281
In the northern states and in those organized and ad-
mitted into the Union since the civil war, the evohition
of government followed a course which, in large measure,
was prescribed by the economic conditions growing out
of that war; but, in a deeper sense, growing out of the
tendency of industrial life in such a country as ours.
The rights of labor are the chief factor in the civil evolu-
tion of the North since i860. In a large and comprehen-
sive sense these rights include all the rights in agitation
since the civil war. But at the North the heavy hand
of the race question was not felt. The race question at
the South, the industrial question at the North, are the
dual expression of doubt, difficulty, and change through
which America has passed since the civil war. The years
during which slavery was abolished and civil and political
rights were given to the negro, form the period of recon-
struction, so called. On the ist of April, 1870, all persons
born or naturalized in the United States and subject to its
jurisdiction were citizens of the United States and of the
state in which they lived, and could not be denied the
right to vote on account of race, color, or previous con-
dition of servitude. Chinamen and Indians not taxed
were not included. Less than five years earlier, slavery
was not abolished, and only white persons and about half
a million free persons of color were citizens. No parallel
can be found in history to the civil and political change
effected in the brief period of five years in America.
A brief summary of the successive acts in this stupendous
change shows its origin and extent :
Congress, by law, August 6, 1861, confiscated rebel
property; the ownership of slaves employed against the
authority of the United States was declared forfeited.^
General John C. Fremont issued a proclamation, August
30, emancipating all slaves, the property, real or personal,
of persons in Missouri who had taken up arms against
the United States, or given its enemies aid or comfort.
This proclamation was modified, by order of the President,
so as to conform to the confiscation act of the 6th of
August.^
^ Statutes at Large, vol. xii, p. 319. 2 War Records, vol. iii, p. 446
282 A CONSTITUTIONAL HISTORY OF
Compensatory emancipation was urged upon Congress
by the President in November; Delaware refused to at-
tempt it, likewise Maryland, Virginia, Kentucky, and
Missouri.^
In April the United States and Great Britain concluded
a treaty at Washington for the suppression of the slave
trade. -
General David Hunter, on May 9, declared forever free
the slaves in Georgia, Florida, and South Carolina. The
President ten days later repudiated the order officially.^
Congress abolished slavery in all the territories of the
United States, June 19, 1862.*
On June 26, Congress abolished slavery in the District
of Columbia, and repealed the law which excluded negro
witnesses in judicial proceedings.^
In July, Congress emancipated all slaves who escaped
from masters engaged in insurrection. The President
was authorized to employ freedmen in the suppression
of the rebellion.^
President Lincoln issued his preliminary emancipation
proclamation, September 22, 1862, that all persons held
as slaves within any state the people of which should be
in rebellion against the United States on the ist of Jan-
uary, 1863, should be " then, thenceforward, and forever
free." The final proclamation followed in January. '^
West Virginia, organized as a state during the period
from May, 1861, to June, 1863, was admitted into the
Union. ^ Though a slave-holding state its constitution
provided for gradual emancipation. The importation of
slaves into the state was forbidden."
Four former slave-holding states adopted constitutions
abolishing slavery : Arkansas, Virginia, Louisiana, and
Maryland, the latter also declaring the paramount auth-
1 Lincoln's Works, vol. ii, p. 91 ; 1862, March 9, Statutes at Large,
vol. xii, p. 132 ; March 14, Id. p. 137 ; Id. p. 617.
2 Treaties and Conventions, p. 454.
^ IJncoln's Works, vol. ii, pp. 1 1;4, 155, 205.
* Statutes at Large, vol. xii, p. 432. ^ Id. p. 539.
s Id. pp. 591, 592.
■^ Lincoln's Works, vol. ii, pp. 213, 214, 225, 237, 238, 287, 288.
8 June 19, 1863.
s Constitution of West Virginia, Art. IX, sec. 7.
THE UNITED STATES 283
ority of the United States. Louisiana empowered the leg-
islature to extend the sufifrage at discretion " to such other
persons [negroes], citizens of the United States, as by
military service, by taxation to support the government, or
by intellectual fitness, may be deemed entitled thereto," —
a provision suggested by President Lincoln to Governor
Hahn/
The republican party in convention at Baltimore renom-
inated Lincoln and issued a platform, one clause of which
demanded an amendment to the Constitution abolishing
slavery, " as the cause and the strength of the rebellion." ^
Nevada was admitted as a free state, its constitution
in its bill of rights declaring the paramount authority
of the United States and its right to coerce a state — the
latter the only declaration of the kind found in an Ameri-
can constitution.^
Missouri and Tennessee abolished slavery in January,
and on the ist of February Congress passed the resolution
known as the thirteenth amendment. It was ratified,
according to a proclamation issued by the Secretary of
State, William H. Seward, December 8, 1865. Among the
ratifying states were Maryland, West Virginia, Virginia,
Missouri, Louisiana, Tennessee, Arkansas, South Carolina,
Alabama, North Carolina, Georgia, and, shortly after the
secretary's proclamation, Florida.*
During the summer and autumn of 1865, " restoration "
conventions assembled, in compliance with the proclama-
tions of President Johnson, in Mississippi, Alabama,
South Carolina, North Carolina, Florida, and Georgia.
The constitutions promulgated abolished slavery, but
excluded the negro from the basis of representation and
from the franchise. President Johnson, in a letter to
the provisional governor of Mississippi, William L. Shar-
^ 1864, Arkansas, January 22, Convention Tonrnal ; Virginia, March
lo. Journal, pp. 17, 18; Louisiana, May 11, Debates, pp. 221, 224; Con-
stitution, title iii, sec. 15; Maryland, Tune 24, Debates, p. 742, Constitu-
tion, Declaration of Rights, Art. V; Lincoln's Works, vol. ii, p. 496.
2 June 7, McKee's Platforms, p. 71.
3 October 30, 1864, Convention Debates, p. 53; Constitution, Art. I,
sec. 2.
* 1865, Missouri, January 11, Journal of Convention, p. 21; ; Tennessee.
January 14, Annual Cyclopedia,"i864, P- 768; Congressional Globe, 1865
PP- 530. ■'^31 •
284 A CONSTITUTIONAL HISTORY OF
key, urged the extension of the suffrage to negroes who
could read and write the Constitution of the United States
in Enghsh, who owned real estate of the value of two
hundred and fifty dollars, and paid taxes. The President's
recommendation was not made known to the convention.
That body was uncompromisingly hostile to negro suf-
frage, as was the convention in each of the six other
states.^
Congress, by the civil rights act of April 9, 1866, con-
ferred citizenship upon the negro. The act was passed
over the President's veto. Texas adopted a new constitu-
tion abolishing slavery. -
Congress, on the 13th of June, passed a joint resolution
known as the fourteenth amendment and submitted it to
the states. It defined who are citizens of the United
States and of the states, provided for the apportionment
of representation among the whole number of persons in
each state, disfranchised classes of persons who had par-
ticipated in the rebellion, guaranteed the validity of the
public debt, and declared illegal and void all debts, obli-
gations, and claims incurred in aid of the rebellion or for
the loss or emancipation of any slave.
Congress gave negroes in the District of Columbia the
right to vote, passing the act over the President's veto.^
A few days later, Congress enacted that in territories of
the United States thereafter organized, the right to vote
should not be denied on account of race, color, or previous
condition of servitude*
The act was extended to Nebraska as a condition of its
admission. The people of that state had submitted a con-
stitution to Congress by which the suffrage was restricted
to white males. The legislature of the territory, on the
20th of February, formally complied with the condition,
and the state was admitted by proclamation of the Presi-
dent March i, 1867. Its motto was significant of the
great issue of the times : " Equality before the law." ^
^ For a detailed account of the "restoration" conventions and their
work, see the author's "Constitutional History of the United States,
1765-1805," vol iii, p. 157-232.
2 Statutes nt T-nrsje, vol. xiv, p. 27.
' January 8, 1S67, Id. p. 375.
♦ Tanuarv 25, Td. 379.
^ id. p. 391 ; Richardson vol. vi, p. 516.
THE UNITED STATES 285
On the day following the admission, the negro suffrage
act of January 25th was extended to apply to the territory
of Montana.^
Congress abolished and forever prohibited peonage in
the United States, and on the same day passed the first
of the notable reconstruction acts by which the southern
states were directed to establish governments republican
in form. Every male person twenty-one years of age or
more, a citizen of the United States, was made an elector
in the state in which he resided. The governments insti-
tuted in the states under the " restoration " constitutions
were declared illegal. Defects in the reconstruction act
were later corrected by Congress, by supplementary acts
chiefly directed to the manner of calling the constitutional
conventions, and to the ratification of the new constitu-
tions, which should be by a majority of the votes cast.
The important features of congressional reconstruction
were the extension of the suffrage to the negroes within
the states affected by the act, and also the extension to
negroes of the right to hold office. It was by authority of
these acts that negroes lately slaves, in the South, for the
first time voted and held office. By the first constitution of
North Carolina, 1776, and by that of Tennessee, 1796, free
persons of color were entitled to vote. The privilege was
abrogated in the latter state in 1834, and, in the former,
a year later. There is no evidence that the technical in-
clusion of free negroes as voters in these states was other
than by accident and inadvertence. The reconstruction
acts wrought an innovation in the suffrage and in the
apportionment of representation.^
On July 28, 1868, the Secretary of State proclaimed that
the fourteenth amendment had been ratified. It was re-
jected by Delaware, Maryland, Kentucky, Mississippi,
and Texas. During the years 1867 and 1868 the late
Confederate states framed new constitutions which granted
the suffrage to citizens of the United States, and appor-
tioned representation without discrimination on account
of race, color, or previous condition of servitude. Mich-
1 Statutes at Large, vol. xiv, p. 426.
2 "March 2, Id. pp. 428-430, 546 ; July 19, Id. vol. xv, p. 14 ; March 23,
Id. p. 2; 1868, March 11, Id. p. 41.
b
286 A CONSTITUTIONAL HISTORY OF
igan, at the April election of 1868, rejected a new con-
stitution which conferred the suffrage on the negro; the
question of suffrage extension being a special issue. By
the adoption of the fourteenth amendment, the suffrage
clauses in state constitutions were not changed. Thus
the anomaly was presented of negro suffrage in the South,
and exclusive white suffrage, except in three states, at the
North. The negro at the South was a voter by force of
the reconstruction acts.
Would he remain a voter if they should be repealed ? ^
Congress passed the resolution known as the fifteenth
amendment,- which declares that the right of citizens of
the United States to vote shall not be denied or abridged
by the United States or by any state on account of race,
color, or previous condition of servitude. On the 30th of
March, 1870, the Secretary of State proclaimed that it had
been ratified by the requisite number of states. It was
rejected by Delaware, Maryland, Kentucky, Tennessee,
Oregon, and California. By virtue of this amendment
the discriminating word " white " as a description of a
voter in state constitutions was nullified.
The fourteenth amendment defined who are citizens
of the United States, and its main purpose was to establish
the citizenship of the negro. It did not transfer to the
national government the entire domain of civil right bc-
1 For a detailed account of reconstruction, see the author's "Consti-
tutional History of the United States, 1765-1895," vol. iii, l^ook vi.
The state of public opinion regarding negro suffrage at this time
may be known from the platforms of political parties as formulated
at the state conventions. The Rei)ublicans favored, the Dernocrats
opposed, the fourteenth amendment. .See Republican conventions at
Concord, N. H., January 3, 1866; at Montpelier, Vt., June 20, 1S66; at
Syracuse, N. Y., September 5, 1S67 ; at Springfield, 111., August 8, 1867;
at Topeka, Kan., September 5, 1867 ; at Madison, Wis., September 4,
1867; at Williamsport, Pa., June 26, 1867; at Worcester, Mass., Sep-
tember 12, 1867 — all approve the policy of Congress. See Democratic
conventions, at Concord, N. H., February 7, 1866; Nashville, Tenn.,
February 22, 1866; Montpelier, Vt., June 29, 1866; Albany, N. Y., Sep-
tember II, 1867 ; Columbus. O., May 24, 1867 ; Springfield. Mass., August
29, 1867; Topeka, Kan., January 10, 1867; Madison, Wis., September
II, 1867 ; Ilarrisburg, Pa., June ii, 1867; Worcester, Mass., October 14,
1867 — all disapproving that policy, and especially the extension of the
suffrage to the negro.
The platforms are given in the Tribune Almanac, 1866-1867.
2 1869, February 27 ; Globe, 1564.
THE UNITED STATES 287
longing previously to the states.^ The fifteenth amend-
ment did not confer the suffrage on any person ; it forbids
discrimination against a citizen on account of race, color,
or previous condition of servitude. Excepting qualifica-
tions within these three, a state may impose any in regu-
lating the suffrage. -
The civil reorganization outlined by this brief summary
of the organic changes in the plan of government in
America from 1865 to 1870 constitutes the most critical
experiment ever made by a free people. If we inquire
for the reasons for this innovation, we must turn to the
principle of " equality before the law," which from the
beginning was recognized as fundamental in the American
system. A later generation has spoken with disapproba-
tion of the congressional policy of reconstruction. It has
been said that the Congress which executed that policy
were actuated by selfish party motives; that they failed
to comprehend the incapacity of the negro for citizenship,
and, consequently, by making him a citizen and endowing
him with the suffrage they imperilled republican institu-
tions. This they did by forcing interracial hostility at
the South.
Of the nature of public opinion in America at the close
of the civil war respecting the negro, there is ample evi-
dence. The republican party was dominant, and its creed
was sacred to its members. Its faith in the capacity
of the negro to do the duties of a citizen was active
and immeasurable. Its humanitarianism was unbounded.
The rights of man so exalted in republics, this party be-
lieved, included the negro. Participation in government,
education, protection, industry, would raise the negro in
the scale, even out of the awful degradation of slavery.
But there was another reason, — a reason enforced upon
Congress by the overwhelming testimony of innumerable
witnesses, — the testimony of the reign of crime against
the negro in the South at the close of the war and for
ten years thereafter. A portion of this testimony is pre-
served in some forty stout octavo volumes, published by
Congress among the records of the government. It is
1 Slaughter House Cases, i6 Wallace, 36. 2 See pp. 309-310.
288 A CONSTITUTIONAL HISTORY OF
with difficulty that one now perusing these terrible records
can believe their truthfulness. The crimes perpetrated,
the cruelties practised, the exquisite miseries wrought
upon negroes suggest the horrors of the French revo-
lution. Face to face with the condition of the negro,
Congress, conscious of its responsibility, adopted a policy
which it believed would restore order, by enabling the
negro to protect himself. To do this he must be armed
with the rights of citizenship. In a representative democ-
racy like ours there was no other policy to follow. In a
monarchy, or in an aristocracy, the protection of the negro
might have been entrusted to a class, — as the ruling
house, or the nobility. In a representative democracy
each man must be a citizen and be able to protect himself.
It has been said in criticism of Congress, that in extend-
ing the suffrage to the negro the privilege might have been
safeguarded by educational or property qualifications, or
by both. But to impose either qualification was practically
impossible. Property qualifications had been tried during
the earlier years of the states, and by common consent had
after some thirty years' trial been abolished.^ The oppo-
nents of negro suffrage in 1866 did not advocate educa-
tional or property qualifications for the negro. This oppo-
sition was grounded on the theory that the negro is
incapable of performing a citizen's duties. Neither prop-
erty nor education would fit him for citizenship. He was
a negro.
Of the reconstruction constitutions one, and one only,
— that of Mississippi of 1868, — forbade an educational
qualification for the negro. The South Carolina conven-
tion of that year discussed the question of imposing such
a qualification, but unanimously agreed that the negro,
after exclusion from civil and political rights for untold
ages, now having a chance to possess the suffrage, should
have it with one qualification only, — manhood.
Had Congress rejected the southern constitutions of
1867-1868 because they did not impose educational or
property qualifications on the negro, and had it returned
^ For a detailed account of these qualifications and of their abolition,
see the author's "Constitutional History of the American People, 1776-
1850," vol. i.
THE UNITED STATES 289
them for amendment, it must in equity have prescribed
that whatever quaUfication was required of the negro
should be required of the white man. This would have
evoked a race war, for the poor whites at the South would
have resented the discrimination, and the intelligent and
wealthy whites would have sided with their own race.
History has already exemplified this truth.
Of the selfish motives of the republican party in ex-
tending the suffrage to the negro there can be no reason-
able doubt. The party considered the negro race as the
ward of the nation, and believed that the nation was
safest in republican hands. The astute Thaddeus Stevens
plainly told Congress that it must make its work of recon-
struction secure by passing the fourteenth amendment
ere it was too late; and a like warning was spoken by
other leaders of the party when the fifteenth amendment,
its passage doubtful, was before the House. That the
party in power at the close of the war sought to perpetuate
its power is analogous to the conduct of every party in
power at any time in the history of constitutional govern-
ment.
Had the democratic party been in power, it would have
refused to extend the suffrage to the negro, among other
reasons, for the purpose of perpetuating its control of the
government. For this selfish reason slavery was de-
fended and strengthened by every party in power down to
the election of Abraham Lincoln.
It has been said that Congress, at the close of the civil
war, should have applied a policy of gradually admitting
the negro to citzenship. Could a policy like that have
been applied to the negro? One of gradual emancipa-
tion, instead of immediate and unconditional freedom ?
Critics living in these later days claim to understand the
question better than did Congress in 1865.
One fatal element of the policy of graduated citizenship
is the residuum or remainder of the negro race not ad-
mitted to citizenship. In what civil or political state would
they be left? In a representative democracy there can
be freemen and slaves, but can there be freemen amenable
to the power in the state who are not citizens? What
v^ould be the tendency of the remainder toward free-
19
290 A CONSTITUTIONx\L HISTORY OF
dom and citizenship or toward slavery? Racial hostility,
if supported to any degree by law or public sentiment,
forces the remainder inevitably into peonism, or toward
slavery. This fact was exemplified at the South, and Con-
gress abolished and prohibited peonism.
Slavery was an evil, and never realized as so terrible
an evil until, having been abolished, the difficulties of
citizenship were brought home to the former slave. An
act of Congress could not transform the negro into a
new creature at once. It could confer upon him a mighty
privilege which even white men have been known to abuse.
And it is not strange that the negro should be held to
stricter accountability for his citizenship than is the white
man. This is human nature, — or, at least, the white
man's nature. To attempt a policy of gradual citizenship
meant practically a return to slavery. There was no safe
course for Congress other than to treat the negro as a man
and make the best of the consequences.
Congressional reconstruction has in later years been the
object of hostile criticism by academic writers, by poli-
ticians, by southern statesmen. The objections emanating
from southern sources are entitled to respect, because the
problem is locally a southern one. As a question of rep-
resentation, it is national. Viewed as a local problem,
or as a national problem, there is no conclusive evidence
that Congress, and successive congresses from 1861 to
1868, violated the principles of republican government
when they adopted and executed that policy which distin-
guishes the era of reconstruction. The stupendous prob-
lem which befell the congresses of the reconstruction
era classes the statesmen of that era with the Fathers.
That problem was nothing less than an adjustment of pop-
ular government to the moral order. That era stands
out as distinct as the era of the revolution. In the evo-
lution of government it will forever stand as an era of
organic changes comparable in the material world to those
adaptations by which new species come into being, new
areas are occupied by living forms, and new vital con-
ditions, which only the fittest survive, modify the whole
after history of living things.
THE UNITED STATES 291
CHAPTER Xni
THE COMMONWEALTHS
The war between the Confederacy and the nation was
an industrial no less than a civil revolution, and was fol-
lowed during the remaining years of the century by notable
changes in the organic laws of the states. Eleven new
states were admitted into the Union, forty-seven constitu-
tions were adopted, and above one hundred amendments
were made,^
In 1865 the former Confederate states responsive to
the proclamations of President Johnson, adopted new
constitutions for the purpose of resuming their places in
the Union. These instruments excluded the negro race
from the basis of representation and also from the suf-
frage, and on that account were rejected by Congress.
In 1867-1870 these states adopted constitutions con-
forming to the reconstruction acts of Congress, by which
discrimination on account of race, color, or previous
condition of servitude was prohibited, and the paramount
authority of the United States was acknowledged. The
right of secession from the Union was disclaimed. These
changes in the organic laws of southern states preceded
the adoption of the fifteenth amendment to the national
Constitution, and made its ratification possible. That
amendment annulled the effect of the discriminating word
" white " found in thirty-one of the thirty-seven state con-
stitutions in force at the time.- This was the first and
only instance in American history of a change in state
1 From 1S60 to 1870 inclusive, twenty-one constitutions ; from 1S70 to
1880 inclusive, thirteen constitutions; from 18S0 to 3890 inclusive, eight
constitutions; from 1890 to 1900 inclusive, five constitutions. For the
list and that of new states, see pp. 301-302, note.
2 1868-1870. Five of the six constitutions which did not contain the
word "white " were in New England; the sixth was Kansas.
292 A CONSTITUTIONAL HISTORY OF
organic laws caused by a change in the Constitution of the
United States, affecting the elector.
Reconstruction is the name given to the change in
America consequent upon the admission of the negro to
representation and the suffrage. Reconstruction began,
in the states, with the organization of West Virginia and
its adoption of a constitution in 1863 providing for grad-
ual emancipation. Less than two years later, by amend-
ment, it abolished slavery. Missouri decreed abolition in
1865, and was followed by Arkansas, Virginia, Louisiana,
Maryland, Nevada, and Tennessee. This action made
possible the adoption of the thirteenth amendment to
the national Constitution, as this accession to the list of
free states made the majority required to ratify an amend-
ment ^ to the national Constitution abolishing slavery.
The bills of rights in southern reconstruction constitu-
tions contained clauses designed to perpetuate the imme-
diate results of the war, — as for example in Mississippi,
1868, whose bill of rights forbade educational qualifica-
tions for the elector, the evident purpose being to secure
the full negro vote. An educational test would have re-
stored the state to the exclusive control of the whites, and
given the Democrats the ascendency. The extension of
the suffrage to the negro was not carried without a con-
test, even in the free states. The former Confederate
states were powerless to prevent the innovation, and re-
construction was forced upon them by federal authority.
At the North the procedure was wholly different. Con-
gress had no power to change the suffrage laws of northern
states, and the reconstruction acts of 1867 did not apply to
them. Though intolerant of slavery, the people in the
northern states were not wholly favorable to negro suf-
frage. New York, in 1821, had extended the suffrage to
the negro, but discriminated against him by means of a
property qualification. In 1868, at the time of reconstruc-
tion, the people of this state refused, by a heavy majority,
to abolish this discriminating qualification. In the pre-
ceding year, the people of Michigan rejected a new consti-
tution which purported to confer the suffrage on the
' For a detailed account of reconstruction, see the author's third
volume of " The Constitutional History of the United States, 1765- 1895."
THE UNITED STATES 293
negro. Later, when the fifteenth amendment — the suf-
frage amendment — to the national Constitution was be-
fore the states for ratification, it was rejected by Oregon,
CaHfornia, New Jersey, and Ohio, and New York with-
drew its ratification. Ohio and New Jersey later withdrew
their objections. The border states, — Delaware, Mary-
land, Kentucky, and Tennessee, — which were unaffected
by the reconstruction acts of Congress, promptly rejected
the amendment. Here were nine states, of the thirty-seven
comprising the Union at the time of reconstruction, hostile
to negro suffrage and able to record their hostility by their
treatment of the fifteenth amendment. The ten states
which had belonged to the Confederacy were bitterly hos-
tile to negro suffrage. Thus nineteen of the thirty-seven
members of the Union, in 1870, were opposed to negro
suffrage; the changed attitude in three — New York, New
Jersey, and Ohio — being brought about by a slender
majority. It might well be questioned whether, after
federal troops were withdrawn from the South, and the
states were each again free and independent, those hostile
to negro suft'rage might not adopt new constitutions which
would eliminate the negro from the list of voters. In
northern states the negro population was too small to
compel such a constitutional change. If in any state of
New England, or of the northwest, three fifths of the
population had been negroes, would not the provocation
to abolish negro suft'rage have been the same as in South
Carolina, Mississippi, or Louisiana?
Evidently the principal civil and political change
wrought by the war — the reconstruction of the state
governments by extending the elective franchise to the
negro — rested, in some of the states, upon an unstable
foundation. The absence of negroes at the North relieved
that part of America of the burden of the race problem.
After 1875 the reconstruction constitutions at the
South began to give place to constitutions by which
white supremacy supplanted negro domination. In
1890 Mississippi promulgated a new constitution,
the ostensible purpose of which was to disfranchise
the negro and to give the control of public affairs
forever to the whites. The method adopted was,
294 A CONSTITUTIONAL HISTORY OF
in substance, the exclusion of the negro by an educational
test and by registration, by which the control of elections
was placed in the hands of white men. Two years later,
the constitutionality of the suffrage clause was sustained
by the supreme court of the state.
South Carolina followed, in 1895, with a new constitu-
tion, similar to that of Mississippi. Louisiana, in 1898,
adopted a new constitution which contained a more rigor-
ous article, excluding negroes from voting, the most
elaborate provision on the suffrage thus far adopted by an
American state. In addition to registration, the voter
must possess an educational qualification, or in defect
thereof, a property qualification. The descendants of
persons who were electors on or before January, 1867, were
exempted from the requirements of property or educa-
tion. This is the celebrated " grandfather clause." In
1896 the North Carolina legislature submitted a similar
clause to the people of that state, and in 1902 the Virginia
convention promulgated a new constitution, on which it
nad been engaged over a year, containing a suflfrage pro-
vision made after the Louisiana model. Alabama, in 1901,
in a new constitution, provided for the limitation of the
suffrage, in a manner analogous to that pursued in Mis-
sissippi. Thus within a single decade, six states, in which
the problem of negro suffrage was a vital issue, repudiated
it as far as was thought possible without violating the
fifteenth amendment to the national Constitution.
The extension of the right to vote to the negro, in 1868-
1870, was made with enthusiasm by the republican party,
then dominant in the Union. It was a sign of the times
that in 1 890-1 895 no political party made an issue of the
repudiation of negro suffrage and the elimination of the
negro from the government by southern states. Theories
respecting the negro, which filled the public mind at the
time of tlie civil war, have been quite abandoned, and the
public mind is now resting in the belief that the solution
of the negro problem is in the hands of the negro himself,
and of the whites in those states in which the African race
is a civil, political, and industrial factor. The extension of
the suffrage to the negro was the most remarkable event
in the civil history of America, and ilic administration of
THE UNITED STATES 295
negro suffrage remains one of the most difficult problems
in state government. If the discussions in the conven-
tions of the states which have in recent years attempted
limited negro suffrage are indicative of public opinion at
the South, the negro man who is industrious, moral, and
intelligent will have no difficulty in being registered as
a voter and in voting. Granting that injustice has been
done to the African race, it is believed, at least in the
South, that the negro himself must bear his share of the
burden, which his race, in the aggregate, impose upon
society.
The people of Mississippi, in their constitution of 1890,
included in its bill of rights a declaration of paramount
allegiance to the United States, and a disclaimer of the
right of secession. No more indubitable proof of the
general acceptance of national sovereignty has been af-
forded by any other state, unless it be by Nevada in 1864 ;
but the constitution of this state, which while declaring
the sovereignty of the nation proclaims also the right of
the United States to coerce a state, was made amidst the
agitation of the civil war, and its language has not been
adopted by any other commonwealth. The insertion of
the doctrines of national sovereignty and paramount alle-
giance into the bills of rights of Nevada and Mississippi
suggests the permanency and importance of these doc-
trines ; for a bill of rights becomes the receptacle for the
preservation of elemental political truths.
No less significant was a clause in the Wyoming bill of
rights, of 1890, which declares that civil and political
rights should be conferred without respect of race or sex.
It was in New York, in 1845, that the agitation to extend
the suffrage to women began. Within five years it over-
spread adjoining states, but was checked by the conser-
vative spirit of the times. The agitation then overspread
the West, but for nearly fifty years won no remarkable
success. The advocates of woman suffrage during this
time won the right to elect women to school offices, in
eighteen states ; the right of women to vote on the liquor
question, in several states, and to vote and hold any office
in one state, — Wyoming. Though the agitation ex-
tended into the South, only two states — Louisiana and
296 A CONSTITUTIONAL HISTORY OF
Tennessee — granted women the right to hold school
offices. The attitude of the South was distinctly hostile
to the movement. Agitation reached its climax in 1889,
when six new states in the Northwest were framing con-
stitutions.^ There has been less opposition to the ad-
mission of women to candidacy for office than to her
admission to the suffrage.
Some new features of bills of rights, adopted in the
later years of the nineteenth century, indicated the course
and the character of public thoughts. Notably in the con-
stitutions of the Northwest these signs of the times pointed
the way men and things were going. Thus the declaration
of the rights of labor, of the obligation of the state to
protect labor and the industrial interests of the people,
the declaration against monopolies and combinations of
capital injurious to the public, were statements, in brief, of
economic relations which, if the earlier constitutions be
in evidence, were not suspected during the first century
of the republic. A perusal of the bills of rights in con-
stitutions adopted after 1865 cannot fail to establish the
conviction that, as compared to the years before the civil
war, the later years have been important as registers of
great industrial changes.
We are prone to measure the progress of America solely
by the political standards of the time. A more accurate
measurement is the condition of labor from time to time.
That an industrial revolution has been in progress, these
organic laws attest. The insertion of industrial and eco-
nomic clauses in the bills of rights indicates the impor-
tance attached to them.^
The limitation of legislative power was carried further
than in the earlier constitutions of the century, and chiefly
by the lengthening of the list of subjects on which the
legislature should enact no special laws. In the consti-
tutions framed after 1880, the list included upwards of
one hundred mala prohibita, as exemplified by the con-
stitutions of the states of the Northwest at the time of
1 The ablest defence of woman suffrage was made by George William
Curtis in the New York Constitutional Convention of 1S67. See its
Debates. Compare the discussion with that in Kentucky, 1891.
* See the constitutions adopted in the Northwest, 1SS9-1890.
THE UNITED STATES 297
their admission into the Union. ^ Evidently the people had
suffered at the hands of legislatures and were struggling
to prevent farther confusion in the state, such as is bred
by a multiplicity of special and private acts. The prin-
ciple insisted upon was that laws should have general
application, and that each law should have a single pur-
pose, plainly stated in the title. Until the adoption of this
principle, the title of an act was seldom indicative of its
contents ; the phrase " and for other purposes " covering
heterogeneous provisions.
To prevent the abuse of state credit, the constitutions
framed after 1870 uniformly specified the limit of indebt-
edness for the state, and, in some instruments, the limit for
counties and municipalities. A gross amount was named,
or a ratio of taxable property. More perfect provision
was made for sinking funds. In some states, public in-
debtedness could not be increased without the consent of
the electors, and in Rhode Island - and Utah '' the consent
must be that of a majority of the electors who paid taxes
on real property. This small step toward the revival of
a property qualification recalls the constitutions of the
eighteenth century.
Over-legislation had multiplied statute books and had
confused public affairs. To check, if not to remedy the
evil, the terms of legislatures, in many states, were made
biennial, and the sessions were shortened — in some cases
to sixty, and even to forty days. Extra sessions were dis-
couraged by the provision that the members should serve
without pay or for a smaller remuneration than for the
regular session. During the closing days of a session no
new bills could be introduced. The ancient distinction
between the Houses — the exclusive power of the lower
to originate money bills — was abolished, notably in the
new states; and so slight was the demarcation of func-
tions between the two Houses that the adoption of the uni-
cameral system was discussed at length in several states.^
1 See North Dakota, South Dakota, Montana, Idaho, Washington,
Wyoming; also Pennsylvania, 1893; ^^w York, 1894, etc.
2 Amended constitution of 1842.
8 Constitution of 1S96. See also Colorado and Texas, 1S76.
* E. g., North Dakota, 1S89; see Indiana Convention Debates, 1851.
298 A CONSTITUTIONAL HISTORY OF
The rare use of the power of impeachment and the similar
character of legislative work done in the respective Houses
quite obliterated from the popular mind memory of the
traditional differences between House and Senate. A state
may have the unicameral system in fact and the bicameral
in name.
The distinctively new feature of these organic laws was
their emphasis of the rights of the people to local govern-
ment ; that is, the government of counties, townships, and
cities. These civil units had long suffered from special
legislation, and were now made the object of constitutional
care. Long articles now provided for their welfare, and
administrative oversight was carried into detail. New
official bodies were established to care for them, and their
quasi-independence was guarded. Perhaps no new feature
in state government is more significant than the de-
velopment of local administration. As cities derive their
charters from legislatures, — and a city charter is only
a general law of the commonwealth, — the state constitu-
tions throw little light on municipal affairs. Their history
is one of administration.
With the more perfect understanding of local govern-
ment there came the creation of numerous administrative
boards and commissions, whose members were elected by
the people. Local offices steadily multiplied, and the local
budget swelled proportionally, as the increase of taxes duly
proved. The cost of the state governments has increased
more rapidly than population. Though legislative power
was limited, the limitation was not so much the denial of
authority as the prescriptive law that authority should
be exercised. Legislatures are no less powerful to-day
than they were in the eighteenth century ; they are now
required to make laws more in conformity to economic
principles. It is the name, not the King, that has changed.
The later constitutions apply, in many details, the prin-
ciple adopted before the civil war of admitting the execu-
tive to responsible participation in the public business,
but with notable variation from the earlier method. It
was discovered that the pardoning power, vested without
restriction in the governor, was abused, and to remedy
the evil, this power was confided to a board of pardons,
THE UNITED STATES 299
the governor being constituted a member. Surely this
would diminish the chances that an offender would escape
through the exercise of executive clemency, — thinly veil-
ing political favoritism. Boards of pardon, by dividing
responsibility, have given no better satisfaction than gov-
ernors. The inroads of the democratic spirit into the do-
main of justice have devastated and debauched the public
mind. American criminal procedure has become, too often,
a travesty of justice. The criminal who at last is con-
demned, in open court, counts confidently on the reversal
of the decision by a higher court, or by executive respite,
or by a board of pardons, whose members are peculiarly
exposed to political influences. The confusion of judicial,
executive, and administrative functions, in criminal cases,
is the principal defect in many of the later constitutions,
or in the practice which has sprung up under them.
In the executive department the later differ from earlier
organic acts, in the degree rather than the kind of changes
made. A longer term, a higher salary, a larger power of
participating in state affairs are given later governors.
To be chosen governor of a great state like New York
or Ohio, amidst profound political excitement, and by a
heavy vote, as was Grover Cleveland, or Rutherford B.
Hayes, at once raises the new executive to the rank of a
presidential candidate. The power and prestige of the
governor are a copy, in miniature, of that of the Presi-
dent. The later constitutions took from the legislature
many appointments and vested them in the governor ; and
the numerous boards and commissions, whose duties are
not local, were made appointive by the governor, or elec-
tive by the people, in about equal proportion. With the
enormous growth of wealth, the American people became
fond of luxury and display ; habits much in evidence in
the glare and lavishness of political expenditure. A close
inspection of state expenditures reveals ample appro-
priations to maintain executive state. The governor's
mansion, the bill for supplies and perquisites, and appro-
priations for extraordinary expenses, are signs that the
chief executive of an American state, in the twentieth
century, is a more portentous personage than was his
predecessor in the eighteenth century.
300 A CONSTITUTIONAL HISTORY OF
In the judicial department democracy continued the
changes introduced before the war. No new state estab-
Hshed an appointive judiciary. The later constitutions are
remarkable for the multiplicity of courts they establish,
for the short term of the judges, and for the meagreness
of their salaries. In many states a check on appeals was
introduced by prescribing the monetary limit of jurisdic-
tion, in civil cases, for the several inferior courts.
Pennsylvania ^ and New York,^ when forming new con-
stitutions, sought to combine the advantages of the ap-
pointive and elective system by instituting a long term
for supreme court judges, — a term practically equivalent
to one for life, but subject to popular election ; but the
precedent was not followed by other states. The multi-
plication of courts, the nomination of judges by party
conventions, and the too frequent miscarriage of justice
by the misuse of the jury-system and the technicalities of
law, have seriously injured the reputation of American
courts among the people and have demoralized society.
Whether the demoralization is in the character of the
people, or is due to the mere mechanics of government,
may well be considered. The social fact is of the in-
creased and increasing contempt of law and of courts.
The favorite theory of the founders of the republic, in
the eighteenth century, — that of the mechanics of the state,
that is, its system of " checks and balances," — has quite
broken down in practice. The economic and organic
state — of which earlier statesmen say nothing (and it is
the state which we know) — demands something more
potent than a mechanical system of checks and balances
to secure either private or public welfare.
The judicial department, or function, in the American
commonwealth, seems at present the one most in need of
reorganization for the purpose of securing justice. The
independence of the judiciary, as was pointed out long ago
in " The Federalist," constitutes its essential character ;
and every innovation which diminishes that independence
has wrought evil in public morals.
In the constitutions adopted during the thirty years
1 1873. , 2 i8q4.
THE UNITED STATES 301
before the civil war, a notable article was that on state
banking and finance. On these subjects the later instru-
ments have nothing. Since the enactment by Congress
in 1863, and later, of the national banking laws, the
whole subject has been removed from state jurisdiction.
The repeal of the national bank acts would be followed,
doubtless, by the revival of banking clauses in the state
constitutions.
With the attempt to adjust primary law to social and
industrial facts, the state constitutions have grown to
great length and have descended to petty details. A con-
stitution now resembles a code.^ Amendment is easy and
frequent. The rigid written constitution is thus made
almost as flexible as an unwritten constitution.
It is chiefly in their administrative character that the
later instruments differ from the earlier. A multiplicity
of interests is the care of the supreme law ; and in the
effort to be explicit, the constitution is converted into an
administrative code. The later instruments greatly exceed
in length any of those adopted in 1776.
Federal relations are more easily deducible from the
later than from the earlier constitutions, but the deduc-
tion would need the corrective of the political history of
the country. No insignificant requirement of the voter
now is that he be a citizen of the United States ; and no
insignificant element in state practice now is the require-
ment of all officials to swear allegiance both to the state
and to the federal Constitution. In the daily administra-
tion of public affairs occur innumerable instances and
constant proof of the sovereignty of the nation. This
common understanding of federal relations in no way
militates against the pacific and prosperous administration
of strictly state affairs. At the same time the public mind
apprehends to some degree the freedom and independence
of each commonwealth in the Union. ^
1 E. g., those formed after 1880.
■^ The states, named in the order in which they ratified the national
Constitution, or were admitted into the Union, have framed constitutions
as follows : —
Delaware, 1776, 1792, 1831, 1897 ; Pennsylvania, 1776, 1790, 1838, 1S73 •,
New Jersey, 1776, 1S44; Georgia, 1777, 1789, 1798, 1S39, 186S, 1877;
Connecticut, charter, 1662; constitution, 1818 ; Massachusetts, 1780;
302 A CONSTITUTIONAL HISTORY OF
But of late years, notably since 1865, the tendency of
government in America has been strong toward centraliza-
tion. The peril is that of sacrificing the advantage, pos-
sessed originally and primarily, by every commonwealth
in the Union, of adjusting local administration to local
need. With popular conviction of the fact of such sacri-
fice is it likely that the cities may become more and more
impatient of state control and demand self-government?
Is the conviction, once held by the American people,
that the autonomy of local government constitutes the
basis of government in America fading into a tradition, or
yielding to the dominance of the idea of centralization ?
Maryland, 1776, 1851, 1864, 1867; South Carolina, 1776, 177S, 1790, 1868,
1895; New Hampshire, 1776, 1784, 1792, 1876; Virginia, 1776, 1830, 1850,
1902; New York, 1777, 1821, 1846, 1894; North Carolina, 1776, 1868,
1876 ; Rhode Island, charter, 1663, constitution, 1842 ; Vermont, admitted,
March 4, 1791, free, 1776, 1786, 1793; Kentucky, June i, 1792, slave,
1792, 1799, 1850, 1891 ; Tennessee, June i, 1796, slave, 1796, 1834, 1865,
1870; Ohio, November 20, 1802, free, 1802, 1851 ; Louisiana, April 30,
1812, slave, 1812, 1S45, 1852, 186S, 1879, 1898; Indiana, December 11,
1S16, free, 1S16, 1851 ; Mississippi, December 10, 18(7, slave, 1817, 1832,
1868, 1890; Illinois, December 3, 1818, free, 1818, 1848, 1870; Alabama,
December 14, 1819, slave, 1819, 1867, 1875, '9°' » Maine, March 15, 1820,
free, 1820; Missouri, August 10, 1821, slave, 1820, 1865, 1875; Arkansas,
June 15, 1836, slave, 1836, 1868, 1874; Michigan, January 26, 1837, free,
1835, 1850; Florida, March 3, 1845, slave, 1838, 1S65, 1868, 18S6; Texas,
December 29, 1845, slave, 1S45. 1866, 1868, 1876; Iowa, December 28,
1846, free, 1846, 1857; Wisconsin, May 29, 1848, free, 1848; California,
September 9, 1850, free, 1849. 1879; Minnesota, May u, 1858, free, 1858;
Oregon, February 11, 1859, free, 1859; Kansas, January 29, 1861, free,
1859; West Virginia, Ju\\e 19, 1863, free, 1863, 1872 ; Nevada, October 31,
1864, free, 1864; Nebraska, March i, 1867, 1875; Colorado, August I,
1876; North Dakota, November 2, 1889; South Dakota, November 2,
1S89; Montana, November 8, 1889; Washington, November 11, 18S9;
Idaho, July 3, 1890; Wyoming, July 10, 1890; Utah, January 4, 1896.
THE UNITED STATES 303
CHAPTER XIV
INTERPRETATION OF PRINCIPLES
Until the civil war the g'eneral government was usually
spoken of as the Federal Government, or the Confederacy.^
Southern statesmen always used the term " confederacy,"
and the term was not uncommon with men of every
party at the North. Mr. Lincoln used it in his debates
with Douglas in 1858 and in a few of his earlier state
papers ; but as soon as the Confederacy of the southern
states was formed, the term came to be applied exclu-
sively to that organization, and was supplanted at the
North by the word " nation." This word as a synonym
for the government of the whole people is older than
the Constitution, but it was used even as late as the out-
break of the war more or less vaguely by speakers and
writers. The word " national " was struck out twenty-
six times from the first draft of the Constitution, and in
its place the words " government of the United States "
were inserted. This indicates how feeble was the national
idea in 1787.
While it is difficult to fix the exact time or occasion
when the word " nation " was first employed as the syno-
nym for the government of the American people, there is
reason to believe that one of the earliest uses of the word
in this sense was made by President Lincoln in 1863, in
his Gettysburg address, in which he spoke of the govern-
ment of the American people as that of " a new nation con-
ceived in liberty and dedicated to the proposition that all
men are created equal." Certain it is that after the Getty s-
^ A good example of this occurs in "A Proclamation by the Governor
of the State of Missouri," respecting the Missouri-Iowa boundary : "The
power of arrest ... by the terms of admission of the state of Missouri
into the' confederacy of the United States, etc." August 23, 1839, Shain-
baugh's " Jilessages and Proclamations of the Governors of Iowa,"
vol. i, p. 125.
304 A CONSTITUTIONAL HISTORY OF
burg oration ^ the word " nation " was for the first time
freely used by the pubHc, and was appHed in the sense in
which it is now understood. Congress in its debates, com-
mittees in their reports, the supreme court in its decisions,
the press in editorials, and the people in their familiar
talk, made use of the word in its new sense soon after
the Gettysburg speech. Not infrequently both the word
" nation " and " national," as applied to the general gov-
ernment, were written with a capital. During the cam-
paign of 1876 there arose a common saying, that we had
become " a Nation with a big N." Meanwhile, the terms
"confederacy" and "confederation" dropped entirely out
of common speech, except when reference was made to
the government of the insurrectionary states in 1861, or to
the League of states of 1781. Our political literature re-
sponded to the change in public thought, and was enriched
by a work of great influence in its day which represented
the nation as the foundation of civil order and political
life in the United States.- Thus, the old word with its
new meaning was given the most important place in our
political vocabulary. It signified that the American people
understood the character, the scope, and the functions of
their government in a broader and more philosophical
sense than ever before. This change was one of the most
important results of the civil war.
The Constitution was thenceforth interpreted in con-
formity to the national character of the government.
Tested by this character, the Confederate states, organized
as a southern Confederacy, were an unlawful assembly
without power to take, to hold, or to convey a valid title to
any kind of property.^ The courts which the Confederate
government organized were a nullity and exercised no
rightful jurisdiction ; ■* and the debts or obligations which
it incurred are illegal and void.^
The preservation of order, the maintenance of police
regulations, the protection of property, the enforcement of
1 November ig, 1863.
2 "The Nation," by Elisha Mulford, LL.D.. 1S81.
3 Sprott V. U. S., S Ct. CI. 499; 20 Wall. 469.
* Hickman 7.'. Jones. 9 Wall. 197.
6 Con.stitution, Article XIV.
THE UNITED STATES 305
contracts, the celebration of marriages, the settlement of
estates, the transfer and descent of property, and similar
and kindred subjects, were, during the war, under the con-
trol of the local governments constituting the so-called
Confederate states. That which occurred, or was done, in
respect of such matters under the authority of these local
dc facto governments was not invalid merely because these
governments were organized in hostility to the Union es-
tablished by the national Constitution : because the exist-
ence of war between the United States and the Confederate
states did not relieve those who were within the insur-
rectionary lines from the necessity of civil obedience, nor
did it destroy the bonds of society, nor do away with
civil government or the regular administration of the laws.
Transactions in the ordinary course of civil society, as
organized within the enemy's territory, although they may
have remotely or indirectly promoted the ends of the
dc facto, or unlawful government, organized to efifect a
dissolution of the Union, were without blame " except
when proved to have been entered into with actual intent
to further invasion or insurrection." In like manner, judi-
cial and legislative acts in the several Confederate states
should be respected by the courts, if they were not " hos-
tile in their purpose or mode of enforcement to the author-
ity of the national government, or did not impair the rights
of citizens under the Constitution." ^
The war forever settled the question of the right of
secession. No more solemn proof of this decision can be
found, unless it be the unwritten law of the land, than
that afforded by the Mississippi constitution of 1890,
which explicitly denies the right of secession. The war
demonstrated the truth uttered by Chief-Justice Marshall
forty years before the firing on Fort Sumpter, that " the
United States form a single nation." -
Soon after the inauguration of the national govern-
ment, in 1789, a struggle began, involving its relations to
the states. All through the years preceding the civil war
these relations were the subject of endless and acrimonious
controversy. State sovereignty and national sovereignty
1 Baldy v. Hunter, 171 U. S. Reports, 388 {1898).
2 Cohens v. Virginia, 6 Wheaton, 264 (1821).
20
3o6 A CONSTITUTIONAL HISTORY OF
seemed to be the poles of our political existence. The
practical answer to the questions involved was civil war,
which made these relations clearer than ever before. The
people of the United States, after 1861, were better able
to understand the meaning of such terms as " state,"
"commonwealth," and "union." In 1868 the term "state,"
as it is used in the Constitution, was authoritatively de-
fined as a political community of free persons, occupying
a territory of defined boundaries and organized under a
government sanctioned and limited by a written constitu-
tion and established by the consent of the governed.^
Until 1865, the union of the states had been generally
considered as more or less an artificial and arbitrary rela-
tion established among them. This idea was now aban-
doned and the Union was understood to mean an organic
relation growing out of the common origin, the mutual
sympathies, the kindred principles, and the similar inter-
ests of the American people. From the nature of this
origin, the Union was now considered to be indissoluble.^
The preservation of the states and the maintenance of
their governments were now recognized to be as much
within the design and care of the federal Constitution as
is the preservation of the Union and the maintenance of
the national government. " The Constitution in all its
provisions," said Chief -Justice Chase in 1868, " looks to
an indestructible Union composed of indestructible states."
The old thorn of state sovereignty was withdrawn and
the functions of the national government and of the
governments of the states were more clearly perceived.
The broad significance of Chief-Justice Marshall's opin-
ion uttered in the early years of our national history
was gradually dawning on the mind of the American
people; namely, that the national and state governments
are each sovereign with respect to the objects committed
to it, but that neither is sovereign with respect to the
objects committed to the other.^ The darkness which
had so long enshrouded the idea of state sovereignty
1 Texas v. White, 7 Wallace, 700 (1S68).
2 Id.; Chancely v. Barley, 37 CJeo. 532.
8 McCullough V. Maryland, 4 Wheaton, 316 (1819); United States w
Cruikshank, 92 United States, 542.
THE UNITED STATES 307
vanished, and it was discovered that the sovereignty of
a state resides not in the persons who fill the different
departments of its government, but in the people from
whom the state government emanates, and who may
change it at their discretion. No lesson of the civil war
was more valuable than its demonstration that sovereignty
abides with the constituency and not with the agent ; that
it exists in the people of a state and not in a state as a
political corporation.^
This organic and humane idea of sovereignty gave a new
meaning to the term "state." It made clear that a state, in
becoming a member of the Union, enters into an indis-
soluble relation and becomes an organic part of the nation.
Because of this relation, no state can secede from the
Union, ^ and ordinances of secession are absolutely null.^
Because of this relation, secession and rebellion cannot
alter the constitutional duties and obligations of a state,
nor in any way change the allegiance which its people
owe to the national government; nor can a state release
its citizens from that allegiance, " since the state itself
is but a fractional part of a magnificent whole, and in its
collective capacity is only the aggregation of its individual
citizens, all of whom are alike incapable of effecting their
own release whether taken individually or collectively." *
Because of the intimate and organic relation between the
national government and the state governments, and be-
cause of the supremacy of the nation. Congress has plenary
and paramount jurisdiction over all matters with which
it is entrusted by the Constitution, and in the enforcement
of its acts it may utilize state laws and state officials.^
As a general rule it is expedient that the operations of
the state and national governments should as far as prac-
ticable be conducted separately, in order to avoid jeal-
ousies and conflicts of jurisdiction. The ruling principle
1 Spooner v. McConnell, -? McLean, 337.
2 White V. Hart, 13 Wallace, 646; Sequestration Cases, 30 Texas,
688
3 Hawkins v. Filkins, 24 Arkansas, 286; Harlan v. State, 41 Missis-
sippi, 556.
* Hood V. Maxwell, i West Virginia, 219.
6 Ex parte Siebold, 100 U. S. 371 (1879).
3o8 A CONSTITUTIONAL HISTORY OF
of the Constitution is that of its paramount authority and
of the obedience of every citizen of every state, whether
in his individual or official capacity. Of the question of
power there can be no doubt, but there may be a question
of expediency, and this must be settled from time to time
as Congress in its wisdom may determine. In other words,
the civil war made clearer than before the nature and
extent of the concurrent jurisdiction of the two govern-
ments. Without concurrent sovereignty " the national
government would be nothing but an advisory govern-
ment, and its executive power absolutely nullified." ^
Thus the true doctrine was worked out that though the
states are sovereign as to all matters which have not been
granted to the jurisdiction of the nation, the constitutions
and laws made under and according to the Constitution
are the supreme law of the land, — a truth which, it has
been well said, is " the fundamental principle on which
the authority of the Constitution is based." ^
The abolition of slavery and the adoption of the thir-
teenth, fourteenth, and fifteenth amendments greatly
changed the organization of American government as
respecting the rights of the people ; that is, the basis of
representation and the exercise of the elective franchise.
The utmost effect of the thirteenth amendment was to
declare the colored race as free as the white, but it gave
that race nothing more than its freedom.^ It forever de-
prived the state and the national governments of the
power to reduce any person to the condition of slavery
or involuntary servitude, except as a punishment for
crime,* and it made all former slaves citizens of the United
States.^ South Carolina and Florida expressed the fear,
when they ratified this amendment, that Congress would
use its power to enforce the article to extend the elective
franchise to the negro and to interfere in the police regu-
lations of a state. But the power of enforcing the article
was not given, nor could it be exercised for this purpose,
1 Ex parte Siebold, lOO U. S. 371 {1879).
2 Id.; also Tarble's case, 12 Wall. 397 (1871).
' Bowlin V. Commonwealth, 2 Rush. 5.
* People V. Washington, 28 California, 658.
6 U. S. V. Rhodes, i Abbot, U. S. 28.
THE UNITED STATES 309
for it gave no authority to Congress to usurp the authority
of the state governments.^
The fourteenth amendment defined for the first time
who are citizens of the United States and of a state. But
persons may be citizens of the one government without
being citizens of the other.^ The amendment did not
include Indians, but an Indian who is taxed and has
severed his tribal relations is a citizen.^ The main pur-
pose of the amendment was to establish the citizenship of
the negro/ and to protect the privileges and immunities
of citizens of the United States from hostile legislation
by the states,^ therefore it is a restraint on the states,
limiting the exercise of their powers which can affect the
individual or his property.*' It did not confer the right
of citizenship on Chinamen, except such as are born in
the United States,'^ and it has not been decided that a
Chinaman born in America can become a citizen.
Though prohibiting the abridgment of the privileges
of citizens of the United States, it does not forbid the
abridgment of these privileges as those of citizens of
states, for it was not intended to invade the right of a
state to regulate the privileges and immunities of its own
citizens.* For this reason that portion of the civil rights
law which attempted to protect the privileges of citizens
as to equal accommodations at places of amusement at
inns, similar public places, and in public conveyances, was
unconstitutional and not within the powers of Congress.^
It is by this amendment that the states are prohibited from
denying to any person within their jurisdiction " the equal
protection of the law " ; by which phrase is meant an
equal right to resort to the courts for the redress of
1 U. S. V. Cruikshank, 92 U. S. 543 ; i Woods, 308; U. S. v. Harris,
106 U. S. 629 ; State v. Rash, i Houston, Delaware Criminal Reports, 271.
2 Slaughter House Cases, 16 Wall. 74; U. S. v. Cruikshank, 92 U. S.
543, I Woods, 308.
8 U- S. V. Elm, 23 Int. Rev. Rec. 419.
* Slaughter House Cases, 16 Wall. 36.
6 U. S. V. Harris, 106 U. S. 629.
s San Mateo Co. v. Southern Pacific R. R. Co., 8 Sawyer, 238.
^ State V. Ah Chew, 16 Nevada, 51.
* Ex parte Kinney, 3 Hughes, i ; Green v. The State, 58 Arkansas, 190.
^ Civil Rights Cases, 3 Supreme Court Report, 18, 33; per contra,
U. S. V. Newcomer, 11 Philadelphia, 519.
310 A CONSTITUTIONAL HISTORY OF
wrongs, the enforcement of rights, and the exemption from
unequal burdens or exactions of any kind. This equal
protection is denied when taxation is not uniform and
equal and when the law does not require both uniformity
in the rate and in the mode of assessment.^
The fourteenth amendment in securing citizenship for
the colored race did not confer on that race privileges or
immunities not enjoyed by the white race. It gave the
negro citizenship, but citizenship does not imply the pos-
session of all political rights,^ for the elective franchise is
not a natural right or an immunity.^ It declared that
all persons born in the United States are citizens ; but the
amendment was not self-executing, and did not make the
persons for whom it was primarily designed, voters.* It
made clear that Congress can legislate in protection of the
rights only of citizens of the United States as such citizens
and not as citizens of a state.^
The amendment was not intended to transfer the pro-
tection of all civil rights to the national government nor
to bring within the jurisdiction of Congress the entire
domain of civil rights which had before belonged exclu-
sively to the states. ** The protection of life and personal
liberty in America rests in the states alone, ^ but the provi-
sion in the fourteenth amendment, which empowers
Congress to enforce it, brings within the jurisdiction of
the national government atrocity, private outrage, or
intimidation in any form growing out of the relation
between the black and white races. ^ And in case a state
does not conform in its laws to the requirements of the
amendment. Congress may authorize its enforcement by
suitable legislation." The legislation authorized, how-
1 Railroad Tax Cases, 13 Federal Reporter, 722; 18 Federal Reporter,
385-
2 People V. De La Guerra, 40 Cal. 311.
8 Minor v. Happersett, 21 Wall. 162; U. S. v. Cruikshank, 92 U. S.
542 ; Van Valkenburg v. Hrown, 43 Cal. 43.
* Spencer u. Board, i McArthur, 169.
6 U. S. V. Cruikshank, 92 U. S. 560; Culley v. Baltimore and Ohio
Railroad, t Hughes, 536.
^ Slaughter House Cases, 16 Wall. 36.
■^ U. S. V. Cruikshank, 92 U. S. 54*2 ; i Woods, 308.
8 Id.
» U. S. V. Harris, 106 U. S. 629.
THE UNITED STATES 311
ever, is corrective in character, and must be such as may
be necessary for restraining or correcting the effects of
state laws in conflict with the amendment.^ Thus the
large meaning of the amendment, in so far as affecting
United States citizenship, consisted in placing that citizen-
ship under the protection of the national government.
The fifteenth amendment did not confer the right of
suffrage on any person,^ but invested every citizen of the
United States with a new right, which it is within the
power of Congress to protect.^ The amendment is in
some respects peculiar in that it is expressed in the neg-
ative form. It took away from the states the authority
to discriminate against citizens of the United States on
account of either race, color, or previous condition of
servitude, and as by the fourteenth amendment colored
persons are citizens of the United States equally with
whites, so by the fifteenth discrimination against them
was equally forbidden. But with the exception of dis-
crimination on account of race, color, or previous con-
dition of servitude, a state may prescribe such restrictions
or qualifications for the exercise of the suffrage as it may
think best.*
In nearly every state constitution in force at the time
of the adoption of the fifteenth amendment, the words
" white male " were a legal description of the elector.
The amendment annulled the discriminating word
" white " and thus affected the constitutions of northern
as well as of southern states. By the obliteration of this
discriminating word, the negro was left to enjoy the same
rights as white persons. If a state should adopt a consti-
tutional provision, giving the right to vote exclusively to
white persons, the fifteenth amendment would operate
practically to confer the right to vote on the negro, and
Congress has power to protect and enforce this right. ^
It is a somewhat curious fact that the discriminating
1 Civil Rights Cases, 3 Supreme Court Reporter, 18.
2 Minor v. Happersett, 21 Wall. 178 (1874) ; U. S. v. Cruikshank, 92
U. S. 555; I Woods, 308; U. S. V. Reese, 92 U. S. 214; Anthony v.
Haldeman, 7 Kansas, 50 ; Hedgman v. State, 26 Michigan, 51.
^ In re Reese and Cruikshank, as above.
* Van Valkenburg v. Brown, 43 Cal. 43.
fi U. S. V. Reese, 92 U. S. 214.
312 A CONSTITUTIONAL HISTORY OF
word " white " was still found in the constitutions of eight
northern and of two border states ^ at the close of the
nineteenth century, but it was meaningless as a discrim-
inating word, and should these states adopt new consti-
tutions it would be omitted. Another change of no small
importance was effected by the fifteenth amendment in
American government, — that Congress has power to
protect citizens in those rights which are created by it
or which are dependent upon it.^
But a corporation is not a citizen within the meaning
of the fourteenth amendment, and does not possess the
privileges and immunities secured to citizens against
state legislation.^ The privileges and immunities of citi-
zens of the United States do not necessarily include all
the rights protected by the first eight amendments to the
Constitution against the power of the federal government.*
The right to vote for members of Congress is not derived
merely from the constitutions and laws of the state in
which they are chosen, but has its foundations in the Con-
stitution and laws of the United States.^
The character of later constitutional interpretation has
been well exemplified by the platforms of political parties.
In 1868 the democratic party pronounced all the recon-
struction acts of Congress " unconstitutional, revolution-
ary and void," and at the same time the Republicans
congratulated the country on the assured success of this
reconstruction policy as shown by the adoption of consti-
tutions in most of the late insurrectionary states, " secur-
ing equal civil and political rights to all." It was in
this platform of 1868, on which Grant and Colfax were
nominated, that the words " nation " and " national "
were for the first time spelled with a capital letter. The
republican platform of 1872, on which Grant was renom-
inated, repeated this use of the word " nation," but the
democratic platform of the same year, adopted at Louis-
^ Ohio, 1851; Indiana, 1851 ; Michigan, 1850; Iowa, 1857; Wiscon-
sin, 184S; Minnesota, 1858 ;"Oregon, 1859; Nevada, 1864; Maryland,
1867; Kentucky, 1850-1890.
2 U. S. V. Reese, 92 U. S. 214.
8 Orient Insurance Co. v. Daggo, 172 U. S. Reports, 537 (1898).
* Maxwell v. Dow, 176 U. S. Reports, 595 (1899).
6 Wiley V. Sinkler, 179 U. S. Reports, 62 (1900).
THE UNITED STATES 313
ville, Kentucky, used the old term, "Federal Union." The
democratic and republican platforms of 1876 again pre-
sented the same contrast. In 1872 the Republicans pro-
nounced strongly for the enforcement of the thirteenth,
fourteenth, and fifteenth amendments, but no reference
was made to these amendments in the platform of their
opponents. But in 1876 the platform on which Tilden
and Hendricks were nominated affirmed the devotion of
the democratic party to the Constitution, " with its amend-
ments universally accepted as a final settlement of the
controversies that engendered civil war."
It was in 1876, the centennial of American independence,
that a political party for the first time proclaimed that
" the United States is a nation, not a league " ; and in the
same clause the Republicans referred to our dual civil sys-
tem as "the combined workings of national and state gov-
ernments." This was a new idea, though now clear enough
to us, in the evolution of the government from the begin-
ning, but not realized until after the civil war. The
changes through which the country has passed are no-
where more expressively indicated than in the saying that
the United States of America is a nation, not a league.
It may be contrasted to the declaration of the platform
on which Buchanan and Breckenridge were elected in
1856, that the democratic party would abide by the
principle laid down in the Kentucky and Virginia resolu-
tions of 1798, and that it adopted them as the main
foundations of its political creed. Throughout the evo-
lution of American government the two ideas which stand
in sharpest contrast, and between which there is a bridge-
less gulf, are the doctrines of 1798 and the principles of
national sovereignty.
It may be said that the later interpretation of the Con-
stitution has tended to enlarge the jurisdiction of the
United States far beyond the limits assigned it by our
earlier statesmen. Many decisions might be cited in
proof of this ; a few will suffice. The extraordinary stim-
ulus which the war gave to every kind of industry easily
accustomed the American people to look with tolerance
upon this extended jurisdiction. An illustration of this is
aflforded by the legal-tender cases.
314 A CONSTITUTIONAL HISTORY OF
In February, 1862, and by subsequents acts, Congress
empowered the Secretary of the Treasury to issue United
States notes, making them a legal tender. They fluctu-
ated greatly in value, but circulated among the people as
money. By many they were classed, though erroneously,
with gold and silver coin. The court of appeals of the
city of New York decided that they were money, and
taxable as cash, but in the December term, 1868, this
decision was reversed by the supreme court of the United
States,^ which held that the notes, or, as they were com-
monly called, " greenbacks," were securities, but not
money. Meanwhile another case involving the legal-
tender quality of the notes reached the supreme court
from Kentucky. The opinion was delivered by Chief-
Justice Chase in 1869.-
The court consisted of eight members, five of whom
held that in as much as the act of 1862, by construction,
declared these notes to be legal tender in payment of pre-
existing debts, the act was inconsistent with the principles
of the Constitution, and was not a law necessary and
proper for carr^dng into execution the powers vested in
the national government. The chief-justice had been
Secretary of the Treasury at the time of the passage of
the law, and was, indeed, its author. His judicial opinion
was considered a reversal of his opinion as secretary in
1862. He now held that the four hundred million dollars
in paper, which had been issued under the various acts,
were not made a legal tender, and that the cause of their
free circulation among the people was their quality of
receivability for public dues and not their quality as legal-
tender notes ; therefore, the acts creating them were
unconstitutional. From this opinion of the chief-justice
and four of his associates, Mr. Justice Miller and two of
his colleagues dissented, holding that the acts were neces-
sary and proper to execute the powers vested by the Con-
stitution in the national government, and that Congress
had the choice of means, and was empowered to use any
which in its judgment might bring about the end desired.
In April, 1869, the court was enlarged so as to consist
^ Bank v. Supervisor, 7 Wall. 26.
* Hepburn v. Griswold, 8 Wall. 603.
THE UNITED STATES
0^0
of a chief- justice and eight associate judges. Mr. Justice
Grier resigned, and President Grant filled the two vacan-
cies in the court by the appointment of Mr. William
Strong, of Pennsylvania, and Mr. Joseph P. Bradley, of
New Jersey. In the December term, 1870, another case
involving the legal-tender quality of the notes reached the
court, and was decided on the ist of May, following.^
The decision rendered the year before was now reversed,
and the legal-tender acts were held to be constitutional,
both as affecting contracts made before their enactment
and those made afterward. The opinion of the minority
in the former decision was now elaborated by Mr. Justice
Strong as the opinion of the court. He enlarged the
scope of the inquiry, and declared that the fundamental
question was whether Congress could give the quality of
money to United States notes. In answer, the court now
asserted that Congress has power to enact, — that the
promise of the government to pay money should be for
the time being equivalent in value to gold and silver coin,
and that a contract calling for dollars could be legally ful-
filled by a tender of the promise of the government to pay
dollars. From this opinion the chief-justice and Justices
Nelson, Field, and Clifford dissented, holding that the
decision would sustain an emission of paper currency;
that the Constitution forbids any state to make anything
but gold and silver a legal tender; and that the national
government can constitutionally do no more than coin
gold and silver, and regulate its value and that of foreign
coin. The government could emit treasury notes as a
means of borrowing money, but it could not make them
either money or legal tender for money.
Twelve years later a third case reached the court, and
the inquiry into the principle involved was carried further
than before.' In the earlier decision ^ the legal-tender
acts had been supported on the ground that they came
under the power of Congress to declare war; it was the
war-power which imparted a legal-tender quality to
United States notes ; but in the third case before the
1 The Legal-Tender Cases, 12 Wall. 457 (1871).
2 Juilliard v. Greenman, no U. S. 421 (1883).
' Hepburn v. Griswold, 8 Wall. 603.
3i6 A CONSTITUTIONAL HISTORY OF
court, the court considered whether such notes, issued in
time of war under acts of Congress declaring them to
be a legal tender in payment of private debts, and after-
ward, in time of peace, redeemed and paid in gold coin,
at the treasury, and then reissued under the act of 1878,^
could, under the Constitution of the United States, be a
legal tender in payment of such debts.
In answering this inquiry, the court followed the rea-
soning of Chief-Justice Marshall as to the scope and
extent of the implied powers of Congress." The people
of the United States, by the Constitution, had established
a national government with sovereign powers, — legis-
lative, executive, and judicial, — and Marshall's definition
was now applied to its full extent. The great chief-justice
had delivered a judgment, adverse to the powers of the
states to issue legal-tender notes. He had sustained the
power of Congress to charter a bank, whose issue circu-
lated as money. The application of the principle which
he had elucidated, as recorded in the practice of the gov-
ernment, now satisfied the court that the constitutional
authority of Congress to provide a currency for the whole
country was now firmly established.^ This being granted,
it followed that Congress might constitutionally secure
the benefit of such a currency to the people by proper
legislation. The prohibition in the Constitution of the
emission of bills of credit by the states, and of making
anything but gold and silver coin a tender in payment of
debts, did not prove that a like limitation of Congress was
to be inferred.
Indeed, the very limitation of state emissions was evi-
dence that no like limitation was intended to restrain Con-
gress. The logical and necessary consequence then was
that Congress " has power to issue the obligations of the
United States in such form and to impress upon them
such qualities as currency for the purchase of merchan-
dise and the payment of debts, as accord with the usage
of sovereign governments." Under the power to borrow
money on the credit of the United States, Congress has
1 Act of May 31, 1S78.
2 McCulloucjh V. Maryland, 4 Wheaton, 316 {1819).
8 Veazie Bank v. Fenno, 8 Wall. 533.
THE UNITED STATES 37
as broad an authority as it has over a metallic currency
under tlie power to coin money. Congress, under the two
powers of coining and borrowing money, was authorized
to estabHsh a national currency either in coin or paper,
and to make cither of them lawful money for all purposes.
And this power of Congress to issue legal-tender notes is
not a power to be exercised only in time of war, but is
equally within the discretion of Congress in time of peace.
The wisdom of Congress will determine when the exi-
gency has arisen. This is a political not a judicial
question. For these reasons the court sustained the
constitutionality of the act of 1878, and held that treasury
notes are a legal tender in payment of private debts, and
can be reissued and kept in circulation.^
From this opinion Mr. Justice Field dissented. He
reviewed the history of bills of credit in the country, and
of the clause relating to the subject in the Constitution,
and particularly the history of the legal-tender acts and
of the act of 1878. " Why," inquired he, " should there
be any restraint upon unlimited appropriations by the
government for all imaginary schemes, if the printing
press can furnish the money that is needed for them?"
U Congress has the power to make treasury notes a legal
tender, and pass as money or its equivalent, why should
it not issue a sufficient amount to pay the debt of the
United States? His reasoning led him to the conclusion
that the decision of the court was inconsistent with the
letter and spirit of the Constitution.-
The decision of the court on the legal-tender question
was soon utilized in the platform of the national green-
back party, which, in 1884, declared that the court fully
vindicated the theory of the party on the right and author-
ity of Congress to issue legal-tender notes, and demanded
1 Ttiilliard v. Greenman, no U. S. 421 (October, 1883).
" The act of 1878 which the court pronounced constitutional expressly
forbade the retirement of the treasury notes ; thev must be "reissued
and paid out again and kept in circulation." Nearly twenty years later
President Cleveland characterized this act as one which put the govern-
ment in the anomalous situation of being "forced to redeem without
redemption and to pay without acquittance." (Message, December 2,
1895, Richardson, vol. i.x, p. 642.) This act was the " endless chain "
which ran legal- tender notes into the Treasury and gold out of it.
3i8 A CONSTITUTIONAL HISTORY OF
the issue of such money in sufhcient quantities to supply
the actual need of trade and commerce, and also de-
manded that treasury notes should be substituted for
national bank notes, and that the public debt be promptly
paid with them.
A great governmental power was examined by the
supreme court in its decision on the constitutionality of
a portion of the act of Congress of 1894, providing for
internal revenue, known as the income tax.^ The cases
involving the law were twice argued ; first, when one
justice was absent; secondly, before a full bench. After
the first hearing, the court decided that a tax on the rents
or income of real estate is a direct tax within the meaning
of that term as used in the Constitution, and that a tax
derived from the interest of bonds issued by a municipal
corporation is a tax upon the power of the state, and its
instrumentalities to borrow money, and therefore is repug-
nant to the Constitution. Whether the act was unconsti-
tutional in so far as it levied an income tax on personal
property - and thus made a direct tax, was not decided,
the justices being equally divided. This was the un-
certain situation in April, 1895. ^^ May the cases were
re-argued, and the decision of the court on the last
point was rendered, the opinion of the court being given
by Chief-Justice Fuller.^ A direct tax, in order to be
constitutional, must be apportioned according to repre-
sentation. The court held that the tax on personal
property, or on the income of personal property, was a
direct tax, and that the tax imposed by the act of 1894
was such a tax. As it was not apportioned to represen-
tation, it was unconstitutional and void.'* The decision,
in so far as it interpreted the Constitution, sustained the
earlier decisions, Chief-Justice Fuller citing several of
Marshall's as the ground of exposition.^ Citing also the
1 Sections 27-30, act of August 27, 1894. Statutes at Large, vol. xviii,
p. 553 ; r57 U. S. 429; 158 U. S. 601. The cases were heard in April, 189s ;
re-argued, May, 1895.
2 Two per cent on yearly gains above $4000.
8 Mellville W. Fuller, appointed Chief-Justice, 1SS8.
* From this decision four of the nine justices dissented.
^ McCullough V. Maryland, 4 Wheaton, 316, 407 ; Gibbons v. Ogden,
9 Wheaton, i, 188; Hylton v. U. S., 3 Dallas, 171.
THE UNITED STATES 319
opinions of Hamilton and Madison, in " The Federalist," ^
he declared that their construction of the Constitution
" should not and cannot be disregarded." The unconsti-
tutionality of the income tax clauses of the act of 1894
consisted in the method of imposing the tax. A direct
tax must be apportioned according to representation.
In the presidential campaign of 1896, the democratic
and the people's parties made an issue of the decision,
each calling for the imposition, by Congress, of a gradu-
ated income tax, on the ground that by the existing sys-
tem the burden of the support of the government fell on
land, — the farming class and small land owners ; cor-
porations and the owners of capital invested in franchises
escaping their share.
The Republicans, in their platform, made no allusion to
the decision. The issue was, however, not a new one,
having been raised by several parties, — the first time
in 1880.-
An illustration of the trend of political thought was
afiforded in 1889, in the decision in the greatest of all the
Utah cases, that affecting the Mormon church.^ Accord-
ing to this decision, the power of Congress over the ter-
ritories of the United States is general and plenary. It
arises from the right to acquire the territory, and the
power to make all needful rules and regulations respect-
ing the territory or other property belonging to the United
States. What Chief-Justice Marshall had long before
decided ■* the court now reaffirmed, — that the power of
the United States to acquire territory is derived from the
treaty-making power and the power to declare and carry
on war. This power to acquire territory is an incident of
national sovereignty. Having obtained such territory,
the United States can impose law^s upon it. Congress
may legislate directly for its local government, and has
full and complete legislative authority over its people.
1 " The Federalist," Nos. XXX-XXXVI.
'■^ Greenback party, platform, Chicago, June 9-1 1. 1880; United Labor,
Cincinnati. Mav 16, 1888; Democratic, Chicago, June 21, 1892; National
People's, Omaha, July 2, 1S92 ; Democratic, Chicago, July 8, 1S96;
People's, St. I.ouis, July 24, 1S96.
» Mormon Church z\ U. S., 136 U. S. i, 42, 44.
* American Insurance Co. v. Canter, i Peters, 511 (1828).
320 A CONSTITUTIONAL HISTORY OF
By virtue of this sovereign authority, Congress annulled
the charter of the Morman church, confiscated its prop-
erty, and devoted it to public uses. The regulation of a
territory by Congress depends, therefore, solely on its
discretion.
In another Utah case the court examined still more in
detail the power of Congress to regulate the domestic
affairs of a territory. ** The people of the United States
are sovereign owners of the national territories," said Mr.
Justice Matthews, " and have supreme power over them
and their inhabitants.^ In the exercise of this sovereign
dominion they are represented by the government of the
United States, to whom all the powers of government
over that subject have been delegated, subject only to such
restrictions as are expressed in the Constitution, or are
necessarily implied in its terms or in the purposes and
object of the power itself; for it may well be admitted
in respect to this as in every power of society over its
members that it is not absolute and unlimited. But in
ordaining government for the territories and the people
inhabiting them, all the discretion which belongs to the
legislative power is vested in Congress, and that extends
beyond all controversy, to determine by law, from time
to time, the form of local government in a particular ter-
ritory, and the qualification of those who shall admin-
ister it. It rests with Congress to say whether in a given
case any of the people resident in the territory shall par-
ticipate in the election of its officers, or the making of its
laws ; and it may, therefore, take from them any right of
suffrage it may previously have conferred, or at any time
modify or abridge it as it may deem expedient. The right
of local self-government, as known to our system as a
constitutional franchise, belongs, under the Constitution,
to the states and to the people thereof by whom that Con-
stitution was ordained, and to whom, by its terms, all
power not conferred by it upon the government of the
United States was expressly reserved. The personal
and civil rights of the inhabitants of the territories are
secured to them, as to other citizens, by the principle of
1 In Murphy ?'. Ramsey, 114 U. S. 44.
THE UNITED STATES 321
constitutional liberty, which restrains the agencies of
government, state and national. Their political rights
are franchises which they hold as privileges under the
legislative discretion of the Congress of the United
States."
This decision became of extraordinary interest in con-
nection with the extension of the jurisdiction of the
United States over Porto Rico, Hawaii, and the Philip-
pines, in 1898. If the construction of the Constitution
which this decision made is to regulate the government
of these new acquisitions, then the American people, act-
ing through Congress, can forbid the people of any of
these new acquisitions to assemble for the purpose of
political discussion to petition our government for re-
dress of grievances, and to bear arms. Congress can
provide for searches and seizures of the persons dwelling
in these acquisitions, — their houses, papers, and effects,
— in modes that are recognized as illegal when employed
in any American commonwealth.^
The acquisition of the Philippine Islands raised new
constitutional questions. Are the provisions of the four-
teenth and fifteenth amendments to be extended to their
inhabitants? Are the people of these islands citizens of
the United States, and therefore entitled to all the im-
munities and privileges of such persons? Is manhood
suffrage to be exercised by them ? Does the Constitution
permit the organization of a state in the sense in which
the word is used in America, out of islands remote from
the United States and having no ties or connection with
this country?
Can Congress organize a territorial, or colonial, gov-
ernment of a military type for these possessions, and can
it govern them in a way altogether different from that
which has at any time prevailed in any other territory
of the United States?
In brief, under the Constitution and laws of the United
States can any place be found for a colonial system,
analogous, say, to that of the British empire? Has the
acquisition of the outlying possessions of the United
1 "The People of the United States," by Simeon E. Baldwin, LL.D.
Yale Law Journal, January, 1899.
322 A CONSTITUTIONAL HISTORY OF
States — Porto Rico, Hawaii, and the Philippines — made
it necessary for the American people to depart from the
policy hitherto established in the organization or terri-
torial governments and inaugurate a civil system for
dependencies ?
These questions, and many others akin to them, are not
yet answered. The acquisition of Porto Rico, Hawaii,
and the Philippines marks the close of an era in American
history. Americans recognize this fact ; European critics
of America make it the theme of new prophecies and new
deductions concerning the world-politics of the future.
A French economist has recently said : " Az'cc I'annee
i8p8 commence en rcalitc iinc pcriode nouvclle ; les vic-
tories sur I'Espagne, le triomphe de la politique d'expan-
sion, le triomphe de la monnaie d'or temoignent du ce
changement." ^
The government of the United States is slowly feeling
its way toward a fixed policy of government for our out-
lying possessions. This is perhaps as much as can be said
with safety at the present time. This policy, it must be
understood, is a matter of administration ; that is, of
practical application of the principles on which the
American government is founded. There can be no
change in these principles ; there may be a change in the
application of the principles. For the interpretation of
these principles we look to the supreme court of the
United States, which, as cases involving these principles
have come before it, has defined them. Cases growing
out of the tariff laws of the United States and in the
decision of which the powers of Congress over the Philip-
pines and Porto Rico were set forth, reached the court
in 1901.
1 Professor Hauser, of the University of Dijon, in Bulletin de la
Societe des Amis de I'Universite de Dijon, tome 6, No. V, Fev. 1902.
See also Constitutional Questions Incident to the Acquisition and Gov-
ernment by the United States, of Island Territory, by Simeon K. Bald-
win, Ll^.I)., Harvard Law Review, vol. xii, p. 6 ; Report on the Legal
.Status of the Territory and Inhabitants of the Islands acquired l)y the
United States during the War with .Spain, considered with Reference to
the Territorial I5oundaries, the Constitution and Laws of the United
States. Charles E. Magoon, Law Officer, Division of Insular Affairs,
War Department, Washington, 1900.
THE UNITED STATES 323
The court laid down principles at this time, which,
strictly in harmony with earlier decisions, are the basis
on which civil affairs in our outlying possessions must
be administered.
Congress in governing the territories is subject to the
Constitution ; therefore all the limitations of the Consti-
tution which are applicable to Congress in exercising
this authority necessarily limit its power on this subject/
The civil government of the United States cannot extend
immediately or of its own force over territory acquired
by war. Such territory must necessarily, in the first
instance, be governed by the military power under the
control of the President as commander-in-chief. Civil
government cannot take effect at once, as soon as posses-
sion is acquired under military authority, or even as soon
as that possession is confirmed by treaty. It can only be
put in operation by the appropriate political department
of the government at such time and in such degree as
that department may determine. The practical interpre-
tation put by Congress upon the Constitution has long
been continued and uniform to the effect that the Consti-
tution is applicable to territories acquired by purchase or
conquest only when, — and so far as, — Congress shall
direct. The power to acquire territory by treaty implies
not only the power to govern such territory but also to
prescribe upon what terms the United States will receive
its inhabitants, and what their status shall be in what
Chief-Justice Marshall termed the " American empire."
There seems to be no middle ground between this posi-
tion and the doctrine that if their inhabitants do not be-
come immediately, upon annexation, citizens of the United
States, their children thereafter born, whether savages or
civilized, are citizens and entitled to all the rights, privi-
leges, and immunities of citizens.
In the case of Porto Rico and the Philippines the civil
rights and political status of the native inhabitants is
determined by Congress. In every case of the acquisition
of territory by the United States, — as that of Mexico,
Alaska, Porto Rico, and the Philippines, — there is an
1 Downes v. Bidwell, 1S2 U. S. Reports, 244 (1901).
324 A CONSTITUTIONAL HISTORY OF
implied denial of the right of the inhabitants to American
citizenship until Congress by further action signifies its
assent. Grave apprehensions of danger were felt by-
many eminent men, at the time of the acquisition of Porto
Rico and the Philippines, lest an unrestrained possession
of power by Congress might lead to unjust and oppressive
legislation in which the natural rights of the territories,
or their inhabitants, may be engulfed in a centralized
despotism. These fears, however, find no justification in
the action of Congress, in the past century, nor in the
conduct of the British Parliament towards its outlying
possessions since the American revolution. The wisdom
and discretion of Congress will determine the question.^
Porto Rico is a territory appurtenant and belonging to
the United States, but is not a part of the United States
within the revenue clauses of the Constitution. On
May I, 1900, Congress passed a tariff law, — known as
the Foraker act, — imposing duties upon imports from
Porto Rico. Congress could lawfully impose a duty upon
imports from Porto Rico, notwithstanding the provision
of the Constitution that all duties, imports, and excises
shall be uniform throughout the United States. This
conclusion was reached by the supreme court, — four of
the nine justices dissenting from the opinion.
" In determining the character of a tax," said the court
in its opinion, " it is important to consider whether the
duty be laid for the purpose of adding to the revenues
of the country from which the export takes place, or for
the benefit of the territory into which they are imported.
The Foraker act provided that whenever the legislative
assembly of Porto Rico should have enacted and put into
operation a system of local taxation to meet the necessi-
ties of the government of Porto Rico, as established by
Congress, and should notify the President, he should
make proclamation thereof, and thereupon all tariff duties
on merchandise and articles going into Porto Rico from
the United States or coming into the United States from
Porto Rico should cease." ^
1 Downes v. Bidwell, 182 U. S. Reports, 280-2S1.
* Id. post. ; Dooley v. U. S. 183 U. S. Reports, p. 151.
THE UNITED STATES 325
The fund accruing from the Porto Rico tariff con-
stituted a separate fund, exclusively at the disposal of
the President for the benefit of Porto Rico. The Porto
Rico tariff is a temporary tariff. There is a wide differ-
ence between the full and paramount power of Congress
in legislating for a territory in the condition of Porto
Rico, and the power of Congress with respect to the
states, which is merely incident to its right to regulate
commerce.^ But to this opinion of the court four
justices dissented, holding, substantially, as Mr. Justice
Harlan held, that " Porto Rico became, after the ratifica-
tion of the treaty with Spain (in 1899), a part of, and
subject to, the jurisdiction of the United States, in respect
to all its territory and people; and Congress could not
thereafter impose any duty impost or excise with respect
to that island and its inhabitants which departed from
the rule of uniformity established by the Constitution." ^
The court held, in another case, that Porto Rico and
the Philippines were not the subject of distinction after
the ratification of the treaty of April 11, 1899.-
The status of the outlying possessions of the United
States, is therefore, according to the principles of the
Constitution, as laid down by the supreme court, wholly
determinable by Congress. While in theory Congress has
power to establish in these territories a government dif-
ferent from that which it has established in other terri-
tories from time to time organized, — and doubtless, from
the nature of the case Congress will establish a different
government because of the condition of the people in
these outlying possessions, — it does not follow that Con-
gress will establish a government there which in any true
sense can be described as a " centralized despotism."
The outlook is that both in Porto Rico and in the Philip-
pines, and especially in the latter, the government estab-
lished will be of a military type for a long time to come.
This type seems the only type that can be set up among
a people such as inhabit the Philippine islands. From
1 Mr. Justice Harlan, dissenting opinion, in Downes v. Bidwell, 182
U. S. Reports.
2 Fourteen Diamond Rings, Emil J. Pepke Claimant v. U. S., 183
U. S. Reports, 176 (1901).
326 A CONSTITUTIONAL HISTORY OF
a constitutional point of view these islands present no
special difficulty in government. Congress is no more
supreme respecting them and their inhabitants than it has
been respecting the territory and inhabitants acquired as
Mexico or Alaska. Though each acquisition of territory
by the United States, — Florida, Mexico, Alaska, Porto
Rico, and the Philippines, — and other acquisitions of less
magnitude have been made by treaty,^ it is well estab-
lished constitutional law that " a treaty does not incor-
porate territory without the consent of Congress." ^
Congress represents but does not embody the sover-
eignty of the United States. The President represents
that sovereignty; the supreme court represents that sov-
ereignty; but neither President nor court embodies that
sovereignty. That sovereignty is embodied in the people
of the United States.
In the new era upon which the United States has
entered the principles of the Constitution will, we may
confidently assert, remain the same as in the past. The
American system of government as outlined in the Con-
stitution is intended, as was said of it many years
ago by Chief-Justice Marshall, " to endure for ages to
come." But the law of permanence is the law of adapta-
tion ; and the principles of American constitutional gov-
ernment, it is believed, are adaptable to the exigencies
of the future.
1 Except the Oregon country and a few islands, chiefly in the Pacific
Ocean, acquired by discovery.
2 Fourteen Diamond Rings, Emil J. Pepke, Claimant v. U. S., 183
U. S. Reports, 176 (1901).
THE UNITED STATES 327
CHAPTER XV
summary: the forces in the civil evolution
The eighteenth and nineteenth centuries were, in America,
an age of constitutional reform. Attention long directed
to the origin and growth of the federal Constitution has
in later years been directed to the origin and growth of
the organic law of the several commonwealths, and the
conclusion has been the same, that the supreme laws of
America, finding expression in constitutions of govern-
ment, have, during these centuries, slowly responded to
the will of the people. That will has not always been
wisest or best. The elements of imperfection which cling
to all human work are plainly discernible in the body of
laws which, under the name of constitutions, distinguish
the civil activity of the American people. The very
rigidity of a written instrument has compelled amend-
ment in order that there might exist that correspondence
of expression to fact which above all else is demanded
in legislation and in the formulation of a working plan
of government. From that hour in the early years of
the last decade of the eighteenth century, when political
parties clearly aligned themselves in America, — and the
year 1792 may be taken as the time, — until this present,
popular government as expressed in successive administra-
tions, dominated by party theories, has done no more than
to hasten or to delay that civil adjustment, which must
ever go on in order that the state may be organized under
working principles, or, which signifies the same, under
political theories which for the time being men interpret
as conducive to the general welfare. There is more of
opportunism than philosophy in the conduct of the public
business.
It is to the state constitutions that we look for evidence
of attempts to make special adjustments to the exigencies
328 A CONSTITUTIONAL HISTORY OF
of public affairs. It is in these instruments that we find
recorded the important details of that civil evolution ever
going on in America. No other people ever formulated
political tlieories in constitutional form as did the Ameri-
cans in the eighteenth century. The state constitutions
preceded the national Constitution and practically deter-
mined its form, its arrangement, and its style. The work-
ing scheme of a parliament is plainly visible in the details
of the national Constitution which regulate the procedure
of Congress, the rights and privileges of senators and
representatives, and the relation of the legislature to the
executive and judiciary departments of the government.
These parliamentary details were nicely observed in every
state before the national Constitution was made. Out of
the mass of local rules and regulations the federal con-
vention composed the provisions in the supreme law
which are strictly parliamentary in their nature. This
working body of rules comprises the manual of pro-
cedure, written or unwritten, which every parliamentary
body must obey in order to conduct public business with
efificiency.
Turning to the provisions in the national instrument
regulative of the executive, a like parentage is discernible :
the practice of the state executives at the time the federal
convention assembled. That practice, somewhat loosely
outlined in the early state constitutions, was itself the
resultant of many struggles and adjustments in colonial
times. Between the legislative and the executive there
has ever been and there doubtless ever will be, a struggle
such as Jefferson depicted in 1798: "It is now under-
stood that two political sects have arisen within the United
States : the one believing that the executive is the branch
of our government which needs more support, the other,
that like the analogous branch in the English government,
it is already too strong for the republican parts of the
Constitution ; and therefore, in equivocal cases, they in-
cline to the legislative power; the former of these are
called Federalists, sometimes Aristocrats or Monocrats,
and sometimes Tories, after the corresponding sect in the
English government of the same definition ; the latter are
styled Republicans, Whigs, Jacobins, Anarchists, Disor-
THE UNITED STATES 329
ganizers, etc. ; these terms are in familiar use with most
persons. I beUeve Whig and Tory characterize the distin-
guishing principles of the two sects." There is a contest
between legislative and executive functions because some
men incline to confide the conduct of public business to one
person rather than to a group of persons; to King or
President rather than to Parliament or Congress. The
working harmony of a written or of an unwritten consti-
tution by which the executive and the legislative perform
their respective functions is a harmony agreed upon, —
a convention worked out by hard necessity, — not neces-
sarily a final definition of civil forces, or even a precise
formulation of natural relations. Government is a fiction
agreed upon and as conventional as the arbitrary sub-
division of nature into animal or vegetable or mineral ;
or as the classification of plants in botany. Yet the con-
viction grows that government is natural because, as the
civil adjustment proceeds, from age to age, men believe
that life realizes unto itself its desires in proportion as
government is adapted to the nature of man. It is on
this abstract proposition that all constitutions and laws
rest ; and the labor to realize the value of the proposition
works out the perpetual adjustment of theory and form
to fact.
If we turn to the provisions in the national Constitution
regulating the judiciary, a like purpose and a like parent-
age are discernible as with the legislative and the execu-
tive. The judicial function was as clearly outlined in the
early state constitutions as in the practice of the English
people at home, and more clearly than in the practice
of any continental nation. The founders of the first state
governments simply transformed into a written constitu-
tion the judicial practices which had evolved in colonial
times. Most elaborate of all statements of the time was
the judiciary article in the first Maryland constitution ;
but the analogous article in other states exemplified the
ruling canon of the hour, — to differentiate the functions
of government ; to make each group of functions, —
legislative, executive, judicial, — clear, and as far as prac-
ticable, to give to each group its specific powers and
duties, safeguarded by well-defined limits. At points
330 A CONSTITUTIONAL HISTORY OF
where theory must perforce yield to fact, and the arti-
ficiality of government could not be hidden, it was left
to practice, and the compulsions of harmony and general
interest, to organize the so-called three departments or
functions as a working civil unit. And it must be ac-
knowledged, after the tests and trials of more than a
century, that the defects in the American civil system,
whether state or national, have not proved incident to
the presence or the absence of mere words or phrases,
defining or omitting to define the precise relations of
either department of government to the others. All
the discords and commotions which have wrought havoc
in America have originated outside of our constitutions
of government. Without exception in so far as these
commotions have affected our organic laws, the effect
has been due to the persistent efforts of groups of men
to read into the organic law an interpretation favor-
able to their selfish interests. The most notable adjust-
ment thus far made in America, — the abolition of slavery
and the admission of the former slave to the rights of
the citizen, — exemplifies the whole procedure of civil evo-
lution. That adjustment, that abolition, that enfranchise-
ment would never have occurred had it not been forced
by grinding necessity, just as the national organization
itself, — under the form of a plan of general government
expressed in a written constitution, — was the result of
grinding necessity in the eighteenth century. In its large
meaning, the civil war adjusted the theory of free govern-
ment to the facts. It was as great a triumph for the
white race as for the black. It was the victory of an
idea which for ages had been working out its own ex-
pression in the civil life of men. Looking back over the
long struggle which we call civilization, men please them-
selves with belief in the altruism of democracy ; but a
sterner adherence to the course of human conduct would
confess that the phenomenal altruism apparently won by
the American people through civil war was no more than
a phase of racial adjustment in America. With the African
suffered to remain in Africa, all the civil wars of Christen-
dom could not have affected his present status other than
as it is in the United States. It might seem excusable
THE UNITED STATES 33 1
to draw the inference that violent interference with the
races of men in their natural habitat compels later civil
adjustments of a serious nature. From which proposition
one might possibly draw the civil corollary that the Fili-
pinos, in all probability, will never be thrust into citizen-
ship on so wholesale a scale as were the negroes in the
United States. But the operation of democratic ideas
will doubtless effect adjustments in the Philippines advan-
tageous to the native races.
These stupendous amendments of the civil organiza-
tion startle men by their consequences even more than
do the necessities, which seem to compel them, dismay
men by their difficulty. After all, the adjustment is only
an experiment ; the only permanent feature being that
men rarely if ever retvirn to the dominating ideas from
which they sought relief by altering or amending the
supreme law. But the amendment itself is amendable ;
the adjustment itself subject to readjustment; for society
is ever in a state of flux, and the equities of the civil
state are the privileges of opportunism. Governmicnt is
a perpetual process of corrections.
In our own history the elements of this process are
continually in evidence. Not a year passes without its
body of amendments to the organic laws of the land.
Down to 1900 the states adopted one hundred and twenty-
one constitutions, and to each of these, save the last, — for
the proposed amendment of which time has much in store,
— no fewer than three thousand amendments have, in the
aggregate been offered, and to the national instrument
about fifteen hundred. Few of these can be said to sig-
nify other than a transient restlessness, or an obscure or
hasty attempt to remedy a supposed public evil. The ele-
vation of the written organic law as a fetish has now for
upwards of a century encouraged men to believe that in
order to cure public ills it is necessary only to change the
wording of the Constitution. Yet the inspection of this
mass of proposed amendment, so far as inspection is now
possible, leads to the conviction that only a small portion
of the proposed changes were intended to effect more than
what may be characterized as parliamentary details ; that
is, terms of office, times and methods of election, salaries,
332 A CONSTITUTIONAL HISTORY OF
business procedure and the like; relatively few of the
proposed amendments going to the essentials of govern-
ment, or doing else than merely to perpetuate present or
prevailing conditions under other names. The excep-
tions, in proposed changes in state constitutions, — ex-
ceptions which note the existence of great civil problems
unsolved, — have been exclusively administrative in char-
acter. This hint at a fourth estate in government — the
administrative — is frequent in the reforms demanded
after i860. The applicability of the demand for a more
effective administration of public affairs must be ac-
knowledged when we read the administrative articles
inserted in the later constitutions, especially those of
western states. Our organic laws, while not losing their
traditional constitutional character, are rapidly assuming
administrative features which are transforming them into
new instruments. The American people have learned
that the chief matter of interest to them practically is not
the theory of the state, but the administration of affairs.
Thus it follows that our organic laws contain rarely a
definition, as, for example, do the French constitutions,
but ours abound increasingly with administrative features,
in which respect they approach the type of European con-
stitutions. Doubtless government in America is defective
as a matter of administration ; the individualism which
was enthroned in America at the time of the revolution,
and which dictated the form and substance of the earlier
constitutions, would not tolerate the nice administration
of the public business familiar to Frenchmen, Germans,
and Italians. The explanation is easy. The Americans
in the eighteenth century were a homogeneous people, for
civil purposes, and had abundance of room wherein to
live, move, and have their being. The pressure of popu-
lation, as gradually felt in America, has compelled the
resort to administrative reforms. The officials in any
state remain but a brief time in authority. Life tenure of
office has been abolished, or, to state the fact as appli-
cable to most of the commonwealths, has never been
adopted in America. The life tenure of the judiciary in
Massachusetts is a survival, and the twenty-one and four-
teen-year terms for judges, in Pennsylvania and New
THE UNITED STATES 333
York, are an anomaly. The limit for executives, whether
mayor, governor, or President, is four years ; the limit
for legislators is two or four years in the states, or two
or six in the United States, according to the membership,
whether of the House or the Senate. The usual tenure
for judges is from five to seven years. For minor offi-
cials, that vast body to whom the local government of
the country is entrusted, the term is seldom more than
three years. It was thought at the time when our state
governments were established that a brief official term
would insure responsibility by a sort of popular educa-
tion ; frequent elections being believed to be educative,
both for the electors and the elected. But for some
reason these carefully wrought devices have failed to
effect the desired end ; officialism has taken unto itself
a habitation and a name, and what is worse, a method,
and the public business has languished. It took about
eighty years of hard experience to teach the American
people the futility of the device which they had trusted ;
whereupon they proceeded to adjust their organic laws
to the facts, and inserted administrative details as the
corrective of official incompetency or neglect. In other
words, the American people discovered that they had con-
structed an effective machine for raising revenue, when
they organized their legislative department, but they had
neglected to construct an equally effective machine for
administering the funds thus raised. It was the service
of education which compelled this amendment. With
the appropriation of the public lands, or portions of them,
as school funds, the first realization of the need of an ade-
quate system of administration began slowly to affect the
public mind. As an immediate result, the state constitu-
tions were revised, and a new article was inserted under
the title " Education." The states then became paternal,
and began the many public institutions, hospitals, asylums,
reformatories, training schools, colleges, and universities,
with their special departments of agriculture, applied
science, and the like. Whether or not democracy is altru-
istic, it is undoubtedly true that it is in America. But the
altruistic ventures of the states demanded vast sums of
money and an effective administration of the funds. Out
334 A CONSTITUTIONAL HISTORY OF
of this condition of affairs grew the numberless adminis-
trative changes in the earher constitutions ; changes so
marked that the later instruments differ from the earlier
chiefly by the inclusion of administrative provisions.
But no amendments have as yet been made, strictly of
an administrative nature, to the national Constitution, save
by the adoption of three lines, in a clause thrice repeated
in the Constitution (the only instance of repetition in the
instrument), found at the close of the thirteenth, four-
teenth, and fifteenth amendments, — a clause which might
seem meaningless to many, namely, " The Congress shall
have power to enforce, by appropriate legislation, the
provisions of this article." Language of this kind seems
at first superfluous in an organic law because presump-
tion w^ould run in favor of the construction that the inclu-
sion of a duty is the inclusion of power to perform it.
There was, however, in the three amendments with which
the Constitution concludes, an administrative feature of
the highest significance, and, throughout all its dealings
with the questions germane to the three amendments,
Congress has not failed to attempt, at least, a rational
administration, or to provide for the same, in its legisla-
tion. The states, having immediately the burden of local
government and administration, have been compelled to
make explicit administrative provisions in their organic
laws ; the neglect to do so being inexcusable, as there
was no lower body or political organization upon whom
the burden could be laid. Thus it is that all so-called
municipal or county institutions are subject to state in-
spection, under the compulsion of administrative needs.
It follows also that of the nearly four thousand volumes
of state laws a respectable portion bear directly on strictly
administrative matters ; yet this portion bears later dates
than one might expect to find, for the greater bodv of
strictly administrative legislation has been enacted since
the civil war.
It would seem then that in the evolution of popular
government in America the order was rational, if not
natural, — the formulation, first of the theory of the state
in a working organic law. and later, the formulation of
administrative directions in order to adapt the theory to
THE UNITED STATES 335
the fact. Thus all constitutional provisions regulating
private corporations, such as banks, public carriers, insur-
ance companies, and other private corporations, — and
such provisions date from the New York constitution of
1846, — are, strictly speaking, administrative in their
nature, as is the legislation based on them. The first con-
stitutions made no mention of banks, public carriers, or
private corporations in general, although such bodies
w^ere in existence at the time the eighteenth century
constitutions were made. At first the regulation of such
corporations was entrusted to the legislatures, but the
confidence of the people being misused, they sought relief
by placing in the constitution of the state regulations of
a permanent character with which the legislature must
comply. It was believed a century ago that a constitu-
tion was a last word on government, but experience has
not confirmed the belief. The American people make a
new state constitution every year, though the immediate
product is the work of a single commonwealth. No state
escapes, nor can escape, the influence of other, and es-
pecially, of contiguous states, and there is not an instance
in our constitutional history of such isolation as has
enabled or encouraged the people of a state to formulate
a constitution distinctly different from the constitution
of some other state. This conscious, or unconscious,
copying has been the natural result of the migration of
population ; the East sending forth its children into the
West; the older states of the South thus populating the
Southwest ; the older states of the North, the Northwest.
Mr. Tilden, in a public address, once remarked, evidently
with much amusement to himself, on the ease with which
a constitutional provision finds its way over the land.
He relates that while a member of the New York conven-
tion of 1846, he listened, indifferently, to a proposition
advocated by a member, for the regulation of banks and
banking. By some inadvertence which Mr. Tilden con-
fesses that he cannot explain, the provision, though not
understood by the convention, was favorably reported
and doubtless by inadvertence finally inserted in the
finished constitution ; " and for the same reason," remarks
Mr. Tilden, " it was adopted into the constitutions of
336 A CONSTITUTIONAL HISTORY OF
some seven western states." Now the article thus irra-
tionally elevated to the rank of the ori^anic law expressed
the demand of the American people for the regulation of
banks and banking. The panic of 1837, engendered in a
long period of irresponsible banking, had brought sharply
to public attention the necessity for some regulative
article. Mr. Tilden might have added that the very
clause, the unreasonable course of which provoked his
remarks, became, in 1863, the foundation of the national
banking act, in so far as that act secures depositors in
national banks.
The educational provisions inserted in the first consti-
tution of Indiana, in 1816, may be said to be the parent of
the elaborate articles on the subject in all the later west-
ern constitutions; yet Pennsylvania, in 1776, and Massa-
chusetts, in 1780, established the precedent which Indiana
followed. The local government of Kentucky was the
same as that of the parent state, Virginia; and that of
Tennessee, of the parent state. North Carolina. Missis-
sippi and Alabama adhered to Carolina and Georgia
models, as did Michigan and Iowa to those set by New
York and Pennsylvania. California, in 1849, utilized both
northern and southern precedents, and came into the
Union with the first composite constitution adopted in
America. Thus when we seek out the factors in our civil
evolution we begin the long search for precedents, which
sooner or later brings us to the work of the original states.
The civil evolution here has therefore much in common
with the civil evolution in the old world; the migration
of races and peoples accounting for the early establish-
ment of customs, the enactment of laws, the persistency
of traditions. If America had no written constitutions,
the people of the several states would nevertheless possess
customs and traditions, having the force of laws, derived
from older communities and introduced with the coming
of settlers from the eastern portion of the country. To
this law Nevada is in part an exception, as also Wyoming
and Idaho, which commonwealths derived much of their
civil organization from California and Oregon models.
In 1889, when four new states were admitted into the
Union, — the Dakotas, Montana, and Washington, and in
THE UNITED STATES 337
1890, when Idaho and Wyoming were admitted, — the
novel condition was disclosed of an eastward flow of
population, these new commonwealths having received
large masses of population from the Pacific slope. Every
year shows a less distinctively westward movement of
population, the lines now crossing and intersecting, as
people freely remove eastward, westward, northward, and
southward; the result of which will be recorded as such
causes have recorded results in the past, in composite con-
stitutions ; the organic laws of the states thus slowly ap-
proaching homogeneity. This slow change exemplifies
the operation of that grand law of evolution, — that the
tendency in nature is from the heterogeneous to the homo-
geneous, a law which works for harmony. It follows
that with this slow change, or perhaps under special con-
ditions accelerated by economic pressure and interest,
the bonds of the Union became stronger and the perpetuity
of the republic assured. Perhaps the law might be 'stated,
somewhat rudely, in this fashion : that with the most
perfect interchange and intercourse, — economic, social,
political, — the diversities which otherwise might cause
friction disappear, and the civil organization attains
perfection.
In this process of gradual conformity to a common
ideal, political parties serve as agencies, not as principals.
They compromise the people as working political units,
but they do not take the place of ideas. There seems, at
present, no other means for popular government to use
than parties, but they should not be confounded with the
governing forces in the republic. He reads history to
little profit who confuses the career of political parties
with the forces which determine the course of civil affairs.
Parties, like all agents, abide the will of their principals.
The history of parties is indirectly the history of ideas.
In the early part of this book may be found the enuncia-
tion of the first principles of government in America.
Men of different parties accept " The Federalist " as the
earliest formulation of these principles. Yet nowhere
do the authors of " The Federalist " exalt parties as orig-
inal forces in government. Indeed, it would be difficult to
discover a passage in " The Federalist " which makes any
338 A CONSTITUTIONAL HISTORY OF
reference to parties at all. When the Constitution was in
process of formation, its framers, so far as the records
of their discussion show, made no account of political
parties. Dr. Franklin hinted strongly in his well-known
speech that the fate of the new government was identi-
fied with the administration of the powers granted to it;
but he did not attribute to political parties that supreme
place which, at first thought, many now assign them. A
party is the means of political expression and of civil ad-
ministration, but it is not to be confounded with the
essentials, the principles, on which government is founded.
Therefore, it follows that in tracing the evolution of pop-
ular government in America, little that is essential to the
subject could be gained by an elaborate account of the
career of parties. The leaders formulate the opinion of
the minority or of the majority, and there is never a time
when the minority may not hope to become the majority;
strictly speaking, that is the only excuse which the minor-
ity has for its existence. Civil adjustments, such as are
recorded, whether wisely or foolishly, in constitutional
amendments, are the work of the majority, and in a gov-
ernment organized and conceived as is ours, there is no
pacific power for securing such adjustments equal in
flexibility, responsiveness, and efficiency, to the political
party. Thus it follows that amendments usually go
under a party name, as do the thirteenth, fourteenth, and
fifteenth amendments of tlie national Constitution, and as
usually is the case, do amendments to the state constitu-
tions. Even the organic law itself, when subject to a
general revision in a state, reflects the opinions of the
dominant party, as is exemplified in the later constitutions
of southern states which have dealt with the suffrage. But
in every case the party is the mere organ of the majority,
— of that portion of the people who exercise the greatest
influence. We come therefore to the people and their
ideas ; and it is these which exemplify the current phase
of government. That the people are deluded, partly or
wholly ; that unwisdom for a time prevails ; that much
that is done has to be undone does not invalidate the
proposition that political parties are agents, not principals,
in the evolution of government. Practical politics resolves
THE UNITED STATES 339
the party into a primal force, and necessarily; but the
silent forces which work out social conditions operate
without respect for parties. It is the first business of a
political party to identify itself with the course of afifairs ;
then it may easily persuade the unknowing that its hand
is on the helm of the ship of state.
There is that about government which appalls by its
mystery. No man has yet explained the order of affairs,
nor the causes of conditions, nor the consequences of
them. So long as human nature itself is unfathomable,
the mystery will continue ; only clearing away, here and
there, as by common experience, after many years, a
rational people come to recognize some of the conditions
of peace, order, and the general welfare. Could we pierce
the darkness, we might be able to anticipate adjustments
which, delayed too long, or ignorantly denied, come at last,
suddenly, with the affliction of war. But, happily, we are
not denied the hope that the law of civil evolution but
rarely operates in so terrible a manner. Whatsoever con-
tributes to the common understanding of human rights,
seems, in the last analysis, the best protection against
adjustments which fail to adjust, and amendments which
fail to amend.
The century and a quarter which elapsed from the first
enunciation of those civil principles, on which government
in America is believed to rest, to the acquisition of pos-
sessions beyond our original continental domain witnessed
a continuous effort among the American people to elimi-
nate errors from their formula of civil procedure.
The elimination of error from the formula of civil pro-
cedure in America constitutes the large task in which its
composite population has been engaged since the middle
of the eighteenth century. To what extent that task has
been a conscious undertaking toward conventional ends
is the theme of every political narrative which has been
written about this country. If it were possible so to inter-
pret the civil data as to draw forth the meaning of our
organic and our administrative evolution, doubtless we
might have before us a clear account of our development,
analogous to the accounts which Darwin and Wallace
have written of the origin and development of plants and
animals.
340 A CONSTITUTIONAL HISTORY OF
History is not and cannot be scientific. " Method and
argument," observes Sir George Otto Trevelyan, " are
the essential quahties necessary for the collection, colla-
tion, and valuation of historical evidence. So far history
is a science. But this method ends when the task of
weighing the evidence for the facts is complete. History
is not a science in the sense that it can establish causal
laws of general application. All attempts have failed to
discover causal laws which are certain to repeat them-
selves in the institutions and affairs of men. The law of
gravitation may be scientifically proved. But the histori-
cal law, that starvation brings on revolution, is not proved ;
indeed, the opposite statement, that starvation brings on
abject slavery, is equally true in the light of past
events." ^
In other words, we cannot treat history as a science
because we cannot get all the facts. Tendencies may be
discerned while yet we possess only a part of the facts ;
but our interpretation of this tendency or that is liable to
error in proportion to our ignorance of all the facts.
Now, after the lapse of nearly a century and a half of
experience under written constitutions, — and a consti-
tution is only a plan, or scheme of government, — we
detect tendencies, as we interpret facts, that popular gov-
ernment in America has passed or is passing into its
administrative stage ; or, to express the interpretation in
dift'erent words, we recognize in the attempt to admin-
ister civil principles, that we are dealing with problems
which did not arise, or discover themselves, while the
public mind was consciously engaged in formulating the
proper organization of government imder its early con-
cept of the meaning of these principles.
An illustration will make this statement clearer. Jeffer-
son and Hamilton stand forth more conspicuously than do
any other men in our history as exponents, the one of
organization, the other, of administration of popular gov-
ernment. Jefferson's writings abound in generalizations
about human rights ; Hamilton's, in administrative propo-
sitions, applying particular methods. Jefferson's mind
dwelt on the vague mass of relations which, as the ages
^ The Independent Review, December, 1903.
THE UNITED STATES 341
pass, men, under grinding necessity, work out and estab-
lish as human rights. Hamilton's mind moved swiftly to
practical affairs ; to the application of particular theo-
rems of administration ; and, necessarily, to the limitation
of men to fixed courses of conduct. Jefferson has much
to say of the evil of government ; Hamilton is ever
warning against the perils from anarchy. Jefferson
trusted to natural laws and the general compulsion of the
co-ordinated mass of human relations ; Hamilton dis-
trusted the capacity of men to interpret their own sub-
stantial interests, in government, and therefore devoted
his energies to formulate the proper procedure of that
care-taker, — Government.
For more than a hundred years the systems exemplified
by these two men have been in conflict in America, and
it may be said that the two systems have been in conflict
among men since the birth of civilization. These two
systems have been recognized under various names ; but
in America, during the lifetime of Jefferson and Hamil-
ton, they received the names which, with slight variation,
they have borne ever since, — democracy and federalism.
Unquestionably that great body of citizens who adhere to
the teachings of Jefferson, emphasize, as did he, the pri-
mal importance of civil organization, and oppose, gener-
ally speaking, attempts at interference with the natural
course of affairs. On the other hand, that great body of
citizens who adhere to the teachings of Hamilton, em-
phasize the supreme importance of administration, and
advocate, generally speaking, the direction of the course
of affairs. This great division of the American people
is plainly apparent throughout their history as an inde-
pendent nation.
It must be granted, after the facts are duly weighed,
that as time passes, government, in America, changes
slightly, if at all, organically, but notably, in adminis-
tration. Indeed, the supreme law of the land differs,
to-day, almost toto coelo, from the supreme law as formu-
lated in 1787, not in language but in administrative inter-
pretation. The thirteen verbal amendrnents to that law
are administrative rather than organic. " Economic neces
sity has interpreted the supreme law, and the interpre
:A
342 A CONSTITUTIONAL HISTORY OF
tation has amounted, all along, to political opportunism.
In other words, the written constitution has been given
the flexibility of an unwritten constitution. Whenever
the letter of the Constitution has stood in the way, the
letter has been changed. And the same experience has
befallen the people in dealing with the local or state con-
stitutions ; but with these the difficulty has been less than
with the federal instrument ; so much less, indeed, that no
fewer than one hundred and twenty-five state constitu-
tions have been adopted since 1776, and these have, in the
aggregate, been amended no fewer than five hundred
^\ times. This facility in amendment goes far to support
iJefiferson's estimate of a constitution that it is of but
jlittle more importance than a statute and can be modified
■almost at will.
) In other words, Jefferson's theory of government was
'that of a very flexible organization; Hamilton's concept
was that of a firmly established system of checks and bal-
ances, administered according to a closely reasoned body
of administrative regulations. In practice, the American
people have been engaged, since the revolution, in adapt-
ing theories of administration to theories of organization.
We are still engaged in this activity. The result is that in
America very few principles either of organization or of
administration are considered as final, fixed, and un-
changeable. A contingency may force a new resolution
"Either of organic or of administrative elements. In war-
time the process seems to be hastened, but it never ceases
in time of peace. This means that the evolution of the
state is a perpetual process. Whether the contingency
arise out of international or domestic relations, the con-
temporary solution of the pressing problem is an adjust-
ment. So the thirteenth amendment to the federal
Constitution was an adjustment; so too was the fifteenth
amendment ; but as time passes, the completeness of the
adjustment, in the case of the fifteenth amendment, is more
and more in doubt. The federal courts, to whom is
assigned the function of final interpretation of the law
of the land, interpret the fifteenth amendment, as the
years pass, more and more strictly and in conformity to
the precedents established prior to the adoption of the
THE UNITED STATES 343
amendment. That is, the decisions of the federal courts
on the question of negro suffrage aHgn themselves with
the trend of all the early decisions, affecting the suffrage,
that its control rests with the several states. Thus one
is forced to doubt that the fifteenth amendment of the
federal Constitution will be sustained by the generations
yet to come ; and the historian of two thousand years
hence may write that the government of the people of
the United States is a white man's government, thus re-
verting to the practice of dominant races in the western
world, down to the close of the civil war. This tendency
to reversion to an earlier type is constant among plants
and animals, and may yet be further exemplified in pop-
ular government.
The attitude of the former slave-holding states to negro
suffrage illustrates the potency of a general law in na-
ture, usually cited as that of the survival of the fittest.
Certainly, since 1890, the application of this general law
appears more and more complete in America ; but the
ebb and flow of civil affairs are as yet too imperfectly
understood to warrant any anticipation of the final de-
cision in the matter of the exercise of the suffrage by
the negro in America. Practically, all things now point
to the elimination of the negro from American politics ;
and if this elimination is to become practically complete,
it means a new adjustment in administration. The ad-
ministration of government as to the negroes and the
administration of municipal affairs are the two most
pressing problems in American civil life at the opening
of the twentieth century. Yet, it may be said, neither of
these was the great problem in 1776. Or, at least, neither
was recognized by the American people as being the great
problem of the day. That they were latent problems of
course goes without saying. The elaborate attempt in the
federal Constitution, as it left the hands of its framers, to
establish a more perfect Union, on a representative basis
composed partly of slaves and partly of freemen, hints
very strongly at a recognition of the difficulties of the
immediate problem ; but neither the federal Constitution
nor the early state constitutions give any hint of the grav-
ity of any municipal problem, and for the reason that
344 A CONSTITUTIONAL HISTORY OF
America in the eighteenth century was rural, not urban-,
in character. It is in the gradual introduction of admin-
istrative provisions, into the state constitutions, that we
are able to trace the recognition of the municipal prob-
lem. Indeed, this problem may be said to remain latent
until after 1850. In that year New York City contained
half a million people ; Chicago, thirty thousand. The
phenomenal growth of these and other American cities
since the civil war, until, at the close of the nineteenth
century, one-fourth of the population of the country lived
in cities, indicates how swiftly and imperiously the prob-
lem of municipal government has compelled solution ; yet,
if we turn to the constitutions in force in 1900, in the
several states, we will find only the rudimentary clauses
on city government which, prior to experience, we might
expect to find in the first constitutions of the preceding
century. Here at least there is exemplified what appears
to be a general law. in civil development, that American
experience in municipal government has not accumulated
sufficiently to give character to the organic laws of the
country. Yet if we turn to the body of municipal ordi-
nances, and to the lesser body of acts of legislatures, per-
taining to cities, we shall discover that the problem of
municipal administration has for a long time been a
pressing one in America, — at least for a hundred years,
— for the early city ordinances date from the opening
years of the nineteenth century. Again, if we turn to
the last constitutions adopted in states which contain
many and large cities, we shall discover, as in the New
York constitution of 1894, an article on municipal gov-
ernment, and here and there, in other articles, clauses
afifecting municipal representation, taxation, and powers.^
In this constitution municipal interests are regulated or
affected, in the last resort by no fewer than twenty-two
provisions. The first constitution of the state, that of
1777, contained but one municipal regulation, — that de-
fining an elector in the city of New York.^
1 New York constitution, 1894, Article XII; Article IT, section 4;
sections 5, 6; Article III, sections 3, 4, 5, 18, 20, 26, 28; Article VI, sec-
tions 2, 5, 14, 15; Article VII, section i ; Article VIII, sections 10, li,
14; Article X, section 2.
2 Article VII, New York constitution, 1777.
THE UNITED STATES 345
It may be said that municipal regulations distinguish
the last from tb.e first state constitutions, and indicate the
administrative agitation which has gone along with the
development of the country socially and industrially.
In so far as the government of cities has entered into the
problem of civil evolution in America, the changes finally
effected have been administrative rather than organic in
character. Municipal government in America has fallen
short on the administrative rather than on the organic
side, exemplifying, without doubt, the most serious de-
fect of the aggregate American system. There is no
evidence that any of the framers of the federal Constitu-
tion believed that it would endure a hundred years. Sev-
eral of them frankly declared while yet the Constitution
was a fragmentary draft in their hands, that they did not
believe it would last so long. Their opinion, as time has
proved, was well founded. The plan of government
which they formulated, and which they read into the
written constitution of 1787, did not continue a year
unchanged. Ten amendments were made by the 15th
of June, 1790, the ratification by Rhode Island giving
them the vote of the requisite nine states. The eleventh
amendment went into effect January 8, 1798; the twelfth,
September 25, 1804; the thirteenth, December 18, 1865;
the fourteenth, July 28, 1868, and the fifteenth, March
30, 1870. But these verbal changes were as nothing to
the change in the interpretation of the meaning of the
Constitution. Long before the death of James Madison,
in 1836, that change had come ; and not a change, merely,
nor here and there a timid interpretation of a passage, but
a new attitude of the American people toward the whole
question of federal government. With the expansion of
American wealth and influence, with the attrition of
political parties, with the necessary and continuous
efforts of the people to adjust themselves to civil and in-
dustrial conditions, there came changes in the interpreta-
tion of the supreme law ; and this change is ever going
on. A hundred years hence the federal Constitution will
mean whatever the American people choose to read into
it. But their choice of interpretation is not wholly volun-
tary; it is shaped and determined by the occult forces of
346 A CONSTITUTIONAL HISTORY
human society, — forces which as yet are not measurable
by us.
Is it not best then to conceive of popular government
in America as subject to those laws which affect human
institutions at all times and among all peoples? We are
not an exceptional people ; ours is not a unique destiny.
In spite of us, the evolution goes on and involves us in its
processes. " Society," said Cavour, long ago, " is march-
ing with long strides toward democracy. ... Is it a
good ? Is it an evil ? I know little enough ; but it is,
in my opinion, the inevitable future of humanity."
APPENDIX
THE CONSTITUTION OF THE UNITED
STATES OF AMERICA.*
We the People of the United States, in Order to form a
more perfect Union, establish Justice, insure domestic
TranquilUty, provide for the common defence, promote
the general Welfare, and secure the Blessings of Lib-
erty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of
America.
Chisholm v. Georgia, 2 Dall , .119 • McCulloch v. State of Maryland
et al., 4 Wh., 316; Bro-^n et als. z/. Maryland, 12 Wh., 419; Barron v.
The Mayor and City CouncU of Baltimore, 7 Pet., 243; Lane County
V. Oregon, 7 Wall., 71 ; Texas v. White et al., 7 Wall., 700.
ARTICLE I.
Section l. AH legislative Powers herein granted
shall be ves^ted in a Congress of the United States, which
■fchall consist of a Senate and House of Representatives.
Hayburn's Case (notes), 2 Dall., 409.
Section 2. ^ The House of Representatives shall be-
composed of Members chosen every second Year by the
People of the several States and the Electors in each State
* The original draft of the Constitution, engrossed on five sheets of
f)archment and signed by the framers, is preserved in the Department
of State, Washington, in a fireproof safe. It is in the custody of the
Librarian and Keeper of the Rolls. A facsimile, somewhat reduced, is
given in Carson's, lootk Anniversary of the Constitution of the United
States, vol. i.
348 APPENDIX
shall have the Qualifications requisite for Electors of the
most numerous Branch of the State Legislature.
In re Green, 134 U. S., 377.
^No Person shall be a Representative who shall not
have attained to the Age of twenty-five Years, and been
seven Years a Citizen of the United States, and who
shall not, when elected, be an Inhabitant of that State in
which he shall be chosen.
^ * [Representatives and direct Taxes shall be appor-
tioned among the several States which may be included
within this Union, according to their respective Numbers,
which shall be determined by adding to the whole Num-
ber of free Persons, including those bound to Service for
a Term of Years, and excluding Indians not taxed, three
fifths of all other Persons.] The actual Enumeration shall
be made within three Years after the first Meeting of the
Congress of the United States, and within every subse-
quent Term of ten Years, in such Manner as they shall
by Law direct. The Number of Representatives shall not
exceed one for every thirty Thousand, but each State shall
have at Least one Representative ; and until such enumer-
ation shall be made, the State of New Hampshire shall be
entitled to chuse three, Massachusetts eight, Rhode-Island
and Providence Plantations one, Connecticut five, New-
York six. New Jersey four, Pennsylvania eight, Delaware
one, Maryland six, Virginia ten. North Carolina five,
South Carolina five, and Georgia three.
Veazie Bank v. Fenno, 8 Wall., 533; Scholey v. Rew, 23 Wall., 331 ;
Pollock V. Farmers' Loan & Trust Co., 157 U. S., 429.
*When vacancies happen in the Representation from
any State, the Executive Authority thereof shall issue
Writs of Election to fill such Vacancies.
''The House of Representatives shall chuse their
Speaker and other Oflficers ; and shall have the sole
Power of Impeachment.
Section 3. ^ The Senate of the United States shall
be composed of two Senators from each State, chosen by
* The clause included in brackets is amended by the fourteenth
amendment, second section.
THE CONSTITUTION 349
the Legislature thereof, for six Years ; and each Senator
shall have one Vote.
2 Immediately after they shall be assembled in Conse-
quence of the first Election, they shall be divided as
equally as may be into three Classes. The Seats of the
Senators of the first Class shall be vacated at the Expira-
tion of the second Year, of the second Class at the Ex[>i-
ration of the fourth Year, and of the third Class at the
Expiration of the sixth Year, so that one-third may be
chosen every second Year; and if Vacancies happen by
Resignation, or otherwise, during the Recess of the Leg-
islature of any State, the Executive thereof may make
temporary Appointments until the next Meeting of the
Legislature, which shall then fill such Vacancies.
^No Person shall be a Senator who shall not have at-
tained to the Age of thirty Years, and been nine Years
a Citizen of the" United States, and who shall not, when
elected, be an Inhabitant of that State for which he shall
be chosen.
*The Vice President of the United States shall be Pres-
ident of the Senate, but shall have no Vote, unless they
be equally divided.
^The Senate shall chuse their other Officers, and also
a President pro tempore, in the absence of the Vice Presi-
dent, or when he shall exercise the Office of President of
the United States.
^The Senate shall have the sole Power to try all Im-
peachments. When sitting for that Purpose, they shall
be on Oath or Affirmation. When the President of the
United States is tried, the Chief Justice shall preside:
And no Person shall be convicted without the Concurrence
of two thirds of the Members present.
''Judgment in Cases of Impeachment shall not extend
further than to removal from Office, and disqualification
to hold and enjoy any Office of honor, Trust or Profit
under the United States: but the Party convicted shall
nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.
Section 4. ^ The Times, Places and Manner of hold-
ing Elections for Senators and Representatives, shall be
prescribed in each State by the Legislature thereof; but
350 APPENDIX
the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.
Ex parte Siebold, loo U. S., 371 ; Ex parte Yarborough, no U. S., 651.
^The Congress shall assemble at least once in every
Year, and such Meeting shall be on the first Monday in
December, unless they shall by Law appoint a different
Day.
Section 5. ^ Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Mem-
bers, and a Majority of each shall constitute a Quorum
to do Business ; but a smaller Number may adjourn from
day to day, and may be authorized to compel the Attend-
ance of absent Members, in such Manner, and under such
Penalties as each House may provide.
In re Loney, 134 U. S., 372.
^Each House may determine the Rules of its Proceed-
ings, punish its Members for disorderly Behavior, and,
with the Concurrence of two thirds, expel a Member.
Anderson v. Dunn, 6 Wh., 204; Kilbourn v. Thompson, 103 U. S.,
168; U. S. V. Bollin, 144 U. S., i.
^Each House shall keep a Journal of its Proceedings,
and from time to time publish the same, excepting such
Parts as may in their Judgment require Secrecy ; and
the Yeas and Nays of the Members of either House on
any question shall, at the Desire of one fifth of those
Present, be entered on the Journal.
^Neither House, during the Session of Congress, shall,
without the Consent of the other, adjourn for more than
three days, nor to any other Place than that in which the
two Houses shall be sitting.
Section 6. ^ The Senators and Representatives shall
receive a Compensation for their Services, to be ascer-
tained by Law, and paid out of the Treasury of the United
States. They shall in all Cases, except Treason, Felony
and Breach of the Peace, be privileged from Arrest during
their Attendance at the Session of their respective Houses,
and in going to and returning from the same ; and for
any Speech or Debate in either House, they shall not be
questioned in any other Place.
Coxe I'. M'Clenachan, 3 Dall., 478.
THE CONSTITUTION 351
^No Senator or Representative shall, during the Time
for which he was elected, be appointed to any civil Ofifice
under the Authority of the United States, which shall
have been created, or the Emoluments whereof shall have
been encreased during such time ; and no Person holding
any Office under the United States, shall be a Member
of either House during his Continuance in Office.
Section 7. ^ All Bills for raising Revenue shall origi-
nate in the House of Representatives ; but the Senate may
propose or concur with Amendments as on other Bills.
^ Every Bill which shall have passed the House of Rep-
resentatives and the Senate, shall, before it become a
Law, be presented to the President of the United States;
If he approve he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have
originated, who shall enter the Objections at large on
their Journal, and proceed to reconsider it. If after such
Reconsideration two thirds of that House shall agree to
pass the Bill, it shall be sent, together with the Objections,
to the other House, by which it shall likewise be recon-
sidered, and if approved by two thirds of that House, it
shall become a Law. But in all such Cases the Votes of
both Houses shall be determined by yeas and Nays, and
the Names of the Persons voting for and against the Bill
shall be entered on the Journal of each House respectively.
If any Bill shall not be returned by the President within
ten Days (Sundays excepted) after it shall have been
presented to him, the Same shall be a Law, in like Manner
as if he had signed it, unless the Congress by their Ad-
journment prevent its Return, in which Case it shall not
be a Law.
^ Every Order, Resolution, or Vote to which the Con-
currence of the Senate and House of Representatives
may be necessary (except on a question of Adjournment)
shall be presented to the President of the United States ;
and before the Same shall take Effect, shall be approved
by him, or being disapproved by him, shall be repassed by
two thirds of the Senate and House of Representatives,
according to the Rules and Limitations prescribed in the
Case of a Bill.
Section 8. The Congress shall have Power ^To lay
352 APPENDIX
and collect Taxes, Duties, Imposts and Excises, to pay
the Debts and provide for the common Defence and gen-
eral Welfare of the United States ; but all Duties, Im-
posts and Excises shall be uniform throughout the United
States ;
Hylton V. United States, 3 Dall., 171 ; McCulloch v. State of Mary-
land, 4 Wh., 316 ; Loughborough v. lilake, 5 Wh., 317; Osborn v. Bank
of United States, 9 Wh., 73S ; Weston et al. v. City Council of Charles-
ton, 2 Pet., 449; Dobbins z^. The Commissioners of Erie County, 16 Pet.,
435; License C'ases, 5 How., 504; Cooley v. lioard of Wardens of Port
of Philadelphia et al., 12 How., 299; McGuire v. The Commonwealth, 3
Wall., 387; Van Allen v. The Assessors, 3 Wall., 573; Bradley v. The
People, 4 Wall, 459.
License Tax Cases, 5 Wall., 462; Pervear v. The Commonwealth, 5
Wall., 475; Woodruff v. Parham, 8 Wall., 123; llinson v. Lott, 8 Wall.,
148; Veazie Bank v. Fenno, 8 Wall., 533; The Collector v. Day, 11
Wall., 113; United States v. Singer, 15 Wall., iii; State Tax on Yox-
eign-held Bonds, 15 Wall., 300; United States z/. Railroad Company, 17
Wall., 322; Railroad Company v. Peniston, 18 Wall., 5; Scholey v.
Rew, 23 Wall., 331; Springer v. United States, 102 U. S., 586; Legal
Tender Case, no U. S., 421 ; California v. Central Pacific Railroad Co.,
127 U. S., i; Ratterman v. Western Union Telegraph Co., 127 U. S.,
411; Leloup V. Port of Mobile, 127 U. S., 640; P'ield v. Clark, 143
U. S., 649; Pollock V. Farmers' Loan & Trust Co., 157 U. S., 429.
2 To borrow Money on the credit of the United States;
McCullough V. The State of Maryland, 4 Wh., 316; Weston et al. v.
The City Council of Charleston, 2 Pet., 449; Bank of Commerce v. New
York City, 2 Black, 620; Bank Tax Cases, 2 Wall., 200; The Banks v.
The Mayor, 7 Wall., 16; Bank v. Supervisors, 7 Wall., 26; Hepburn
V. Griswold, 8 Wall., 603; National Bank v. Commonwealth, 9 Wall.,
353; Parker v. Davis, 12 Wall., 457 ; Legal Tender Case, no U. S., 421.
^To regulate Commerce with foreign Nations, and
among the several States, and with the Indian Tribes ;
Gibbons v. Ogden, 9 Wh., i ; Brown et als. v. State of Maryland, 12
Wh., 419; Wilson et al. ta Black Bird Creek Marsh Company, 2 Pet.,
245 ; Worcester v. The State of Georgia, 6 Pet., 515 ; City of New York
V. Miln, II Pet., 102; United States v. Coombs, 12 Pet., 72 ; Holmes v.
Jennison et al., 14 Pet., 540; License Cases, 5 How., 504; Passenger
Cases, 7 How., 2S3 ; Nathan v. Louisiana, 8 How., -jt^; Mager ?'. Grima
et al., 8 How., 490 ; United States -j. Marigold, 9 How., 560 ; Cowley v.
Board of Wardens of Port of Philadelphia, 12 How., 299; The Propeller
Genesee Chief et al. v. Fitzhugh et al., 12 How., 443; State of Pennsyl-
vania V. The Wheeling Bridge Co., 13 How., 518; Veazie et al. v.
Moore, 14 How., 568; Smith -'. State of Maryland, 18 How., 71 ; State
of Pennsylvania v. The Wheeling and Belmont Bridge Co. et al., i8
How., 421 ; Sinnitt v. Davenport, 22 How., 227 ; Foster et al. ■:;'. Daven-
port et al., 22 How., 244; Conway et al. v. Taylor's Ex., i Black, 603;
United States v. Holliday, 3 Wall., 407 ; Gilman v. Philadelphia, 3
THE CONSTITUTION 353
Wall., 713; The Passaic Bridges, 3 Wall., 782 ; Steamship Company w.
Port Wardens, 6 Wall., 31 ; Crandall v. State of Nevada, 6 Wall., 35 ;
"White's Bank v. Smith, 7 Wall., 646; Waring v. The Mayor, 8 Wall.,
no; Paul V. Virginia, 8 Wall., 16S ; Thomson v. Pacific Railroad, 9
Wall., 579; Downham et al. c. Alexandria Council, 10 Wall., 173; The
Clinton Bridge, 10 Wall., 454; The Daniel Ball, 10 Wall., 557; Liver-
pool Insurance Company z-. Massachusetts, 10 Wall., 566; The Mon-
tello, II Wall., 411; Ex parte McNiel, 13 Wall, 236; State Freight Tax,
15 Wall., 232; State Tax on Railway Gross Receipts, 15 Wall., 284;
Osborn v. Mobile, 16 Wall., 479; Railroad Company v. Fuller, 17
Wall., 560; Bartemever 57. Iowa, 18 Wall., 129; The Delaware Railroad
Tax, 18 Wall., 206; Peete v. Morgan, 19 Wall., 581 ; Railroad Company
V. Richmond, 19 Wall., 584; B. and O. Railroad Company v. Maryland,
21 Wall., 456; The Lottawanna, 21 Wall., 558; Henderson et al. v. The
Mayor of the City of New York, 92 U. S., 259; Chy Lung v. Freeman
et al., 92 U. S., 275 ; South Carolina v. Georgia et al, 93 U. S., 4 ; Sher-
lock et al. V. Ailing, adm., 93 U. S., 99; United States v. Forty-three
Gallons of Whisky, etc., 93 U. S., 188; Fosterer. Master and Wardens
of the Port of New Orleans, 94 U. S., 246; Railroad Co. z\ Husen, 95
U. S., 465; Pensacola Tel Co. v. W. U. Tel. Co., 96 U. S., i ; Beer Co.
V. Massachusetts, 97 U. S., 25; Cook v. Pennsylvania, 97 U. S., 566;
Packet Co. v. St. Louis, 100 U. S., 433; Wilson v. McNamee, 102
U. S., 572; Moran v. New Orleans, 112 U. S., 69; Head Money Cases,
112 U. S., 580; Cooper Mfg. Co. v. Ferguson, X13 U. S., 727; Glouces-
ter Ferry Co. v. Pennsylvania, 114 U. S., 196; Brown v. Houston, 114
U. S. 622; Walling v. Michigan, 116 U. S., 446; Pickard v. Pullman,
Southern Car Co., 117 U. S., 34; Tennessee v. Pullman Southern Car
Co., 117 U. S., 51; Spraigue v. Thompson, 118 U. S., 90; Morgan v.
Louisiana, 118 U. S., 455; Wabash, St. Louis and Pacific Ry. v. Illi-
nois, 118 U. S., 557; Huse V. Glover, 119 U. S., 543; Robbins v. Shelby
Co. Taxing Dist., 120 U. S., 489; Corson v. Maryland, 120 U. S., 502;
Barron v. Burnside, I2X U. S., 186; Fargo v. Michigan, 121 U. S.,
230; Ouachita Packet Co. v. Aiken, 121 U. S. 444; Phila. and
Southern S. S. Co. v. Penna., 122 U. S., 326; W. U. Tel. Co. v. Pendle-
ton, 122 U. S., 347; Sands v. Manistee River Imp. Co., 123 U. S.,
288; Smith V. Alabama, 124 U, S. 465; Willamette Iron Bridge Co.,
V. Hatch, 125 U. S., I ; Pembina Mine Co. v. Penna., 125 U. S., iSi ;
Bowman v. Chicago Northwestern Rwy. Co., 125 U. S., 465; Western
Union Tel. Co. v. Mass., 125 U. S., 530; California v. Central Pacific
R. R. Co., 127 U. S., I ; Leloup v. Port of Mobile, 127 U. S., 640; Kidd
V. Pearson, 128 U. S., i ; Asher v. Texas, 128 U. S., 129; Stoutenberg v.
Hennick, 129 U.S., 141 ; Western Union Tel. Co. v. Alabama, 132 U. S.,
472 ; Fritts v. Palmer, 132 U. S., 282 ; Louisville, N. O., &c.. Railway v.
Mississippi, 13-, U. S., 587; Leisy v. Hardin, 135 U. S., 100; Lyng v.
Michigan, 13s U. S., 161 ; Cherokee Nation v. Kansas Railway Co., 135
U. S., 641 ; McCall v. California, 136 U. S., 104; Norfolk & Western
R. Rd. V. Pennsylvania, 136 U. S., 114; Minnesota v. Barber, 13S U. S ,
313; Texas & Pacific Ry. Co. v. Southern Pacific Co., 137 U. S., 48;
Brimmer v. Rebman, 138 U. S., 78; Manchester v. Mass., 139 U. S., 240;
In re Rahrer, 140 U. S., 545; Pullman Palace Car Co. v. Penna., 141
U. S., 18; Pullman Palace Car Co. v. Hayward, 14! U. S., 36; Ma.ss. v.
West'n Union Tel. Co., 141 U. S., 40; Crutcher v. Kentucky, 141 U. S.,
47; Henderson Bridge Co. v. Henderson, 141 U. S., 679; In re Garnett,
141 U. S., I ; Maine v. Grand Trunk Ry. Co., 142 U. S., 217 ; Mishimura
23
354 APPENDIX
Ekin V. U. S., 142 U. S., 651 ; Pacific Ex. Co. v. Seibert, 142 U. S., 339;
Horn Silver Mining Co. v. New York, 143 U. S., 305 ; Chic. & Grand
Trunk Ry. Co. v. Wellman, 143 U. S., 339; Budd v. N. Y., 143 U. S.,
517 ; Ficklen v. Shelby Co. Taxing Dist., 145 U. S., i ; Lehigh Valley
R. Rd. V. Pennsylvania, 145 U. S., 192 ; Interstate Commerce Comm'n v.
B. & O. R. Rd., 145 U. S., 264; Brennan v. Titusville, 153 U. S., 289;
Brass v. Stoeser, 153 U. S.,391 ; Ashley v. Ryan, 153 U. S., 436 ; Liixton
V. N. River Bridge Co., 153 U. S., 529; Erie R. Rd. z/. Penna., 153 U. S.,
62S ; Postal Tel. Cable Co. v. Charleston, 153 U. S., 692; Covington &
Cinc'ti Bridge Co.?/. Ky., 154 U. S., 204; Plumley v. Mass., 155 U. S.,
461 ; Texas & Pacific Rwy. Co. v. Interstate Transfer Co., 155 U. S.,
585; Hooper z/. Calif., 155 U. S., 648; Postal Tel. Cable Co. v. Adams,
155 U. S., 688; U. S. v. E. C. Knight & Co., 156 U. S., i ; Ernest v.
Missouri, 156 U. S., 296; N. Y., L. E. & West'n v. Penna.. 158 U. S.,
431 ; Pittsburgh & So. Coal Co. v. I]ates, 156 U. S., 577 ; Pittsburgh &
So. Coal Co. V. La., 156 U. S., 590; Gulf, Colo. & S. F. Rwy. Co. v.
Hefley, 158 U. S., 98; In re Debs, 158 U. S., 564.
^To establish an uniform Rule of Naturalization,^ and
uniform Laws on the subject of Bankruptcies throughout
the United States ; ^
^Sturges V. Crowninshield, 4 Wh., 122 ; 2 McMillan v. McNeil, 4 Wh.,
209; 2 Farmers and Mechanics' Bank, Pennsylvania, 7'. Smith, 6 Wh.,
131 ; ^Ogden v. Saunders, 12 Wh., 213; "-Boyle v. Zacharie and Turner,
6 Pet., 348; iGassies v. Ballon, 6 Pet., 761 ; ^ Beers et al. v. Haughton,
9 Pet., 329; ^Suydam et al. v. Broadnax, 14 Pet., 67 ; -Cook v. Moffat
et al, 5 How., 295; ^Dred Scott v. Sanford, 19 How., 393.
^To coin Money, regulate the Value thereof, and of
foreign Coin, and fix the Standard of Weights and
Measures ;
Briscoe v. The Bank of the Commonwealth of Kentucky, it Pet., 257 ;
Fox V. The State of Ohio, 5 How., 410; United States v. Marigold, 9
How., 560.
^To provide for the Punishment of counterfeiting the
Securities and current Coin of the United States ;
Fox z'. The State of Ohio, 5 How., 410; United States v. Marigold,
9 How., 560.
'To establish Post Offices and post Roads;
State of Pennsylvania v. The Wheeling and Belmont Bridge Com-
pany, 18 How., 421 ; Homer v. U. S , 143 U. S., 207 ; In re Rapier, 143
U. S., no; In re Debs, 158 U. S., 564.
^To promote the Progress of Science and useful Arts,
by securing for limited Times to Authors and Inventors
THE CONSTITUTION 355
the exclusive Right to their respective Writings and
Discoveries ;
Grant et al. z/. Raymond, 6 Pet., 218; Wheaton et als. z/. Peters, et
als., 8 Pet., 591.
»To constitute Tribunals inferior to the supreme Court;
^°To define and punish Piracies and Felonies committed
on the high Seas, and Offenses against the Law of
Nations ;
United States v. Palmer, 3 Wh., 610 ; United States v. Wiltberger, 5
Wh., 76; United States v. Smith, 5 Wh., 153; United States v. Pirates,
5 Wh., 184; United States z'. Arizona, 120 U. S., 479.
"To declare War, grant Letters of Marque and Re-
prisal, and make Rules concerning Captures on Land and
Water ;
Brown z/. United States, 8 Cr., no; American Insurance Company et
al. V. Canter (356 bales cotton), i Pet., 511 ; Mrs. Alexander's Cotton, 2
Wall., 404; Miller v. United States, 11 Wall, 268; Tyler v. Defrees,
II Wall., 331; Stewart v. Kahn, 11 Wall., 493; Hamilton v. Dillin, 21
Wall., 73; Lamar, ex., v. Browne et al., 92 U. S., 187.
^2 To raise and support Armies, but no Appropriation
of Money to that Use shall be for a longer Term than two
Years ;
Crandall v. State of Nevada, 6 Wall, 32.
^^To provide and maintain a Navy;
United States v. Bevans, 3 Wh., 336; Dynes v. Hoover, 20 How., 65.
"To make Rules for the Government and Regulation
of the land and naval Forces ;
^^To provide for calling forth the Militia to execute the
Laws of the Union, suppress Insurrections and repel
Invasions ;
Houston V. Moore, 5 Wh., i ; Martin v. Mott, 12 Wh., 19; Luther z/.
Borden, 7 How., i ; Crandall v. State of Nevada, 6 Wall., 35; Texas
V. White, 7 Wall., 700.
"To provide for organizing, arming, and disciphning
the Militia, and for governing such Part of them as may
be employed in the Service of the United States, reserving
to the States respectively, the Appointment of the Officers^
356 APPENDIX
and the Authority of training the Militia according to the
discipline prescribed by Congress ;
Houston V. Moore, 5 Wh., i ; Martin v. Mott, 12 \Vh., 19; Luther v.
Borden, 7 How., i.
^^To exercise exclusive Legislation in all Cases what-
soever, over such District (not exceeding ten Miles square)
as may, by Cession of particular States, and the Accept-
ance of Congress, become the Seat of the Government of
the United States, and to exercise like Authority over all
Places purchased by the Consent of the Legislature of
the State in which the Same shall be, for the Erection of
Forts, Magazines, Arsenals, dock- Yards, and other need-
ful Buildings; — And
Hepburn et al. v. Ellzey, 2 Cr., 444; Loughborough v. Blake, 5 Wh.,
317 ; Cohens v. Virginia, 6 Wh., 264 ; American Insurance Company v.
Canter (356 bales cotton), i Pet, 511; Kendall, Postmaster-General v.
The United States, 12 Pet., 524; United States v. Dewitt, 9 Wall., 41 ;
Dunphy v. Kleinsmith et al., 11 Wall., 610; Willard v. Presbury, 14
Wall., 676; Phillips v. Payne, 92 U. S., 130; United States v. Fox, 94
U. S., 315; National Bank v. Yankton County, loi U. S., 129; Ft.
Leavenworth R. Rd. Co. v. Howe, 114 U. S., 525; Benson v. U. S., 146
U. S., 325; Shoemaker v. U. S., 147 U. S., 2S2.
"To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing Powers,
and all other Powers vested by this Constitution in the
Government of the United States, or in any Department
or Officer thereof.
McCulloch V. The State of Maryland, 4 Wh., 316; Wayman v.
Southard, 10 Wh., i ; Bank of United States v. Halstead, 10 Wh., 51 ;
Hepburn v. Griswold, 8 Wall., 603 ; National Bank v. Commonwealth, 9
Wall., 353 ; Thomson v. Pacific Railroad, 9 Wall , 579 ; Parker z. Davis,
12 Wall., 457; Railroad Company t'. Johnson, 15 Wall., 195; Railroad
Company z/! Peniston, 18 Wall., 5; Legal Tender Case, no U. S., 421;
In re Coy, 127 U. S., 731 ; Stoutenburgh v. Hennick, 129 U. S., 141 ;
Chinese Ex. Case, 130 U. S., 581 ; In re Neagle, 135 U. S., i ; St. Paul,
Minneapolis & Manitoba Ry. Co. v. Phelps, 137 U. S., 528; Homer v.
U. S., 143 U. S., 570; Logan v. U. S., 144 U. S., 263; Fong-Yue Ting
V. U. S., 149 U. S., 698; Lees v. U. S.. 150 U. S., 476; Lu.xton v. North
River Bridge Co., 153 U. S., 529; Erie R. Rd. v. Penna., 153 U. S.. 628;
Postal Tel. Cable Co. v. Charleston, 153 U. S., 692; Clune v. U. S., 159
U. S., 590.
Sfxtion 9. ^The Migration or Importation of such
Persons as any of the States now existing shall think
proper to admit, shall not be prohibited by the Congress
THE CONSTITUTION 357
prior to the Year one thousand eig-ht hundred and eight,
but a Tax or duty may be imposed on such Importation,
not exceeding ten dollars for each Person.
Dred Scott v. Sanford, 19 How., 393.
-The Privilege of the Writ of Habeas Corpus shall not
be suspended, unless when in Cases of Rebellion or Inva-
sion the public Safety may require it.
United States v. Hamilton, 3 Dall., 17 ; Hepburn et al. v. Ellzey, 2
Cr., 445; Ex parte Bollman and Swartwout, 4 Cr., 75; Ex parte Kearney
7 \Vh., 38; Ex parte Tobias Watkins, 3 Pet., 192; Ex parte Milburn, 9
Pet., 704; Holmes v. Jennison et al., 14 Pet., 540; Ex parte Dorr, 3
How., 103; Luther v. Borden, 7 How., i ; Ableman v. Booth and United
States V. Booth, 21 How., 506; Ex parte yallinclj i;j>am, i Wall., 243;
Ex parte Mulligan, 4 Wall., 2; iix parte McC:arcrier7~Wall., 506; Ex
parte Yerger,8 Wall., 85 ; Tarble's Case, 13 Wall., 397 ; Ex parte Lange,
18 Wall., 16; Ex parte Parks, 93 U. S., 18; Ex parte Karstendick, 93
U. S., 396; Ex parte Virginia, 100 U. S., 339; In re Neagle, 135 U. S.,
1 ; In re Duncan, 139 U. S., 449.
^No Bill of Attainder or ex post facto Law shall be
passed.
Fletcher v. Peck, 6 Cr., 87; Ogden v. Saunders, 12 Wh.,213; W^atson
et al. V. Mercer, 8 Pet., 88; Carpenter et al. v. Commonwealth of Penn-
sylvania, 17 How., 456; Locke v. New Orleans, 4 Wall., 172 ; Cummings
V. The State of Missouri, 4 W^all, 277 ; Ex parte Garland, 4 Wall., 333;
Drehman v. Stifle, 8 Wall., 595; KHnger v. State of Missouri, 13 Wall.,
257; Pierce w. Carskadon, 16 Wall., 234; Holden v. Minnesota, 137
U. S., 483; Cook V. U. S., 138 U. S., 157.
*No Capitation, or other direct, Tax shall be laid, unless
in Proportion to the Census or Enumeration herein before
directed to be taken.
License Tax Cases, 5 Wall., 462 ; Springer v. United States, 102
U. S., 5S6; Pollock V. Farmers' Loan & Trust Co., 157 U. S., 429.
^No Tax or Duty shall be laid on Articles exported
from any State.
Cooiey V. Board of Wardens of Port of Philadelphia, 12 How., 299;
Page V. Burgess, collector, 92 U. S., 372; Turpin v. Burgess, 117 U. S.,
504; Pittsburgh & Southern Coal Co. v. Bates, 156 U. S., 577.
°No Preference shall be given by any Regulation of
Commerce or Revenue to the Ports of one State over those
of another: nor shall Vessels bound to, or from, one
State, be obliged to enter, clear, or pay Duties in another.
Cooiey V. Board of Wardens of Port of Philadelphia et al., 12 How.,
299; State of Pennsylvania z/. Wheeling and Belmont Bridge Company
358 APPENDIX
et al., iS How., 421 ; Munn v. Illinois, 94 U. S., 113; Packet Co. v. St.
l.ouis, 100 U. S., 413; Packet Co. v. Catlettsburg, 105 U. S., 559;
Morgan S. S. Co. v. La. Board of Health, 118 U. S., 455.
'^No Money shall be drawn from the Treasury, but in
Consequence of Appropriations made by Law ; and a
regular Statement and Account of the Receipts and Ex-
penditures of all public Money shall be published from
time to time.
*No Title of Nobility shall be granted by the United
States : And no Person holding any Office of Profit or
Trust under them, shall, without the Consent of the Con-
gress, accept of any present, Emolument, Office, or Title,
of any kind whatever, from any King, Prince, or foreign
State.
Section io. ^No State shall enter into any Treaty,
Alliance, or Confederation ; grant Letters of Marque and
Reprisal ; coin Money ; emit Bills of Credit ; ^ make any
Thing but gold and silver Coin a Tender in Payment of
Debts ; pass any Bill of Attainder, ex post facto Law,^
or Law impairing the Obligation of Contracts,^ or grant
any Title of Nobility.
2Calder and Wife v. Bull and Wife, 3 Ball., 386; 3 Fletcher v. Peck,
6 Cr., 87; 2 State of New Jersey v. Wilson, 7 Cr., 164; i^Sturgis v.
Crowninsliield, 4 Wh,, 122; ^ McMillan v. McNeil, 4 Wh., 209; ^Dart-
mouth College v. Woodward, 4 Wh., 518; ^Ovvings v. Speed, 5 Wh.,
420; * P'armers and Mechanics' Bank v. Smith, 6 Wh., 131; 3 Green
et al. V. Middle, 8 Wh., i ; ^Ogden v. Saunders, 12 Wh., 213; s Mason
V. Haile, 12 Wh., 370; ^ Satterlee v. Matthewson, 2 Pet., 380; ^ Hart v.
Lamphire, 3 Pet., 280; ^Craig et al. v. State of Missouri, 4 Pet., 410;
'^ Providence Bank t-. IJillings and Pitman, 4 Pet., 514; ^ Byrne v. State
of Missouri, 8 Pet., 40; ^ Watson v. Mercer, 8 Pet., 88; ^ Mumma z/.
Potomac Company, 8 Pet., 281; ^Beers v. Haughton, 9 Pet., 329;
1 Briscoe et al. r'. The Bank of the Commonwealth of Kentucky, 11
Pet., 257 ; 3 The Proprietors of Charles River Bridge v. The Proprietors
of Warren Bridge, 11 Pet., 420; ^ Armstrong v. The Treasurer of
Athens Company, 16 Pet., 281 ; ^ Bronson v. Kinzie et al., i How., 311 ;
2 McCracken z/. Hay ward, 2 How., 608 ; ^ Gordon 57. Appeal Tax Court,
3 How., 133; 8 State of Maryland v. Baltimore and (3hio R. R. Co., 3
How., 534; 3 Neil, Moore & Co., v. State of Ohio, 3 How., 720; ^Cook
V. Moffatt, 5 How., 295; 2 Planters' Bank v. Sharp et al., 6 How., 301 ;
3 West River Bridge Company v- Dix et al., 6 IIovv., 507; "^Crawford
et al. V. Branch Bank of Mobile, 7 How., 279; ^ Woodruff v. Trapnall,
10 How., 190; 3 I'aup et al. v. Drew, 10 How., 21S; '^, ''Baltimore and
Susquehanna R. R. Co. v. Nesbitt et al., 10 How., 395 ; ^ Butler et al. v.
Pennsylvania, 10 How., 402 ; l Harrington et al. v. The Pjank of Alahami,
13 How., 12; 2 Richmond, etc., R. R. Co., v. The Louise R. R. Co, 13
THE CONSTITUTION 359
How., 71; 8 Trustees for Vincennes University v. State of Indiana,
14 How., 26S ; i^Curran v. State of Arkansas et al., 15 How., 304;
3 State Bank of Ohio v. Knoop, 16 How., 369; ^ Carpenter et al. v.
Commonwealth of Pennsylvania, 17 How., 456; ^ Dodge v. Woolsey,
18 How., 331; '^ Beers v. State of Arkansas, 20 How., 527; 3 Aspin-
wall et al. v. Commissioners of County of Daviess, 22 How., 364;
3 Rector of Christ Church, Philadelphia, v. County of Philadelphia, 24
How., 300; 3 Howard v. Bugbee, 24 How., 461 ; 5*Jefiferson Branch liank
V. Skelley, i Black, 436 ; » Franklin Branch Bank v. State of Ohio, i
Black, 474 ; ^ Trustees of the Wabash and Erie Canal Company v. Beers,
2 Black, 448; ^(Jilman v. City of Sheboygan, 2 Black, 510; ^ Bridge Pro-
prietors V. Hoboken Company, i Wall., 116; ^ Hawthorne v. Calef, 2
Wall., 10; 3The Binghamton Bridge, 3 Wall., 51; ^The Turnpike
Company v. The State, 3 Wall., 210; ^Locke v. City of New Orleans,
4 Wall., 172 ; 3 Railroad Company v. Rock, 4 Wall., 177 ; ^Cummings v.
State of Missouri, 4 Wall., 277 ; ^ Ex parte Garland, 4 Wall., t^h ; 3 Von
Hoffman v. City of Quincy, 4 Wall., 535; ^ Mulligan v. Corbin, 7 Wall.,
487; sp^urman v. Nichol, 8 Wall., 44; ^ Home of the Friendless v.
Rouse, 8 Wall, 430; ^The Washington University v. Rouse, 8 Wall.,
439; ^Butz V. City of Muscatine, 8 Wall., 575; 3 Drehman v. Stifle, 8
Wall., 595 ; 3 Hepburn v. Griswold, 8 Wall., 603 ; -^ Gut v. The State,
9 Wall., 35; 3 Railroad Company v. McClure, 10 Wall., 511;
3 Parker v. Davis, 12 Wall., 457; 3 Curtis v. Whiting, 13 Wall., 68;
3 Pennsylvania College Cases, 13 Wall., 190; 3 Wilmington R. R,
V. Reid, sheriff, 13 Wall., 264 ; Salt Company v. East Saginaw,
13 Wall., 373; 3 White v. Hart, 13 Wall., 646;'3 0sborn v. Nichol-
son et al., 13 Wall., 654; 3 Railroad Company v. Johnson, 15 Wall.,
195; 3Case of the State Tax on Foreign-held Bonds, 15 Wall., 300;
^Tomlinson v. Jessup, 15 Wall., 454; 3 Tomlinson v. Branch 15
Wall., 460; 3 Miller t. The State, 15 Wall., 478; 3 Holyoke Company
V. Lyman, 15 Wall., 500; 3Gunn v. Barry, 15 Wall., 610; 3 Humphrey v.
Pegues, 16 Wall., 244; 3 Walker v. Whitehead, 16 Wall., 314; 3 Sohn
V. Waterson, 17 Wall., 596; 3 Barings v. Dabney, 19 Wall., i ; 3 Head v.
The University, 19 Wall., 526; 3 Pacific R. R. Co. v. Maguire, 20 Wall.,
36; 3 Garrison v. The City of New York, 21 Wall., 196; 3 Ochiltree v.
The Railroad Company, 21 Wall., 249; 3 Wilmington, &c.. Railroad v.
King, ex., 91 U. S., 3; 3 County of Moultrie v. Rockingham Ten Cent
Savings Bank, 92 U. S., 631 ; 3 Home Insurance Company v. City Coun-
cil of Augusta, 93 U. S., 116; 3 West Wisconsin R. R. Co. v. Super-
visors, 93 U. S., 595; Murray v. Charleston, 96 U. S., 432 ; Edwards v.
Kearzey, 96 U. S., 595; Keith v. Clark, 97 U. S., 454; Railroad Co.
V. Georgia, 98 U. S., 357 ; Railroad Co. v. Tennessee, loi U. S., -^y] ;
Weight V. Nagle, loi U. S., 791 ; Stone v. Mississippi, loi U. S., 814;
Railroad Co. v. Alabama, loi tj. S., 832; Louisiana v. New Orleans, loi
U. S., 203; Hall V. Wisconsin, 103 U. S., 5; Pennyman's Case, 103
U. S., 7t4; Guaranty Co. v. Board of Liquidation, 105 U. S., 622;
Greenwood v. Freight Co., 105 U. S., 13; Kring v. Missouri, 107 U. S.,
221 ; Louisiana v. New Orleans, 109 U. S., 285; Gilfillan v. Union Canal
Co., 109 U. S., 401 ; Nelson v. St. Martin's Parish, in U. S., 716; Chic.
Life Ins. Co. v. Needles, 113 U. S., 574; Virginia Coupon Cases, 114
U. S., 270; Amy v. Shelby Co., 114 U. S., 3S7 ; Effinger v. Kennev, 115
U. S., 566; N. Orleans Gas Co. v. La. Light Co., m; U. S., 650; N.
Orleans Water Works v. Rivers, 115 U. S!, 674; Louisville Gas Co. z/.
Citizens' Gas Co., 115 U. S., 683; Fisk v. Jefferson Police Jury, 116
36o APPENDIX
U. S., 131 ; Stone v. Farmers' Loan and Trust Co., 116 U. S., 307;
Stone V. 111. Central R. R. Co., 116 U. S., 347; Royall v. Virginia,
116 U. S., 572; St. Tammany Water Works v. N. Orleans Water
Works, 120 U. S., 64; Church v. Kelsey, 121 U. S., 282; Lehigh
Water Co. z. Easton, 121 U. S., 38S; Seibert v. Lewis, 122 U. S., 284;
N. Orleans Water Works v. La. Sugar Ref. Co., 125 U. S., 18; May-
nard v. Hill, 125 U. S., 140; Jaehne v. N. Y., 12S U. S., 189; Denny v.
Bennett, 128 U. S., 489; Chinese Ex. Case, 130 U. S., 588; Williamson
V. N. J., 130 U. S., 189; Hunt V. Hunt, 131 U. S., clxv ; Freeland v.
Williams, 131 U. S., 405 ; Campbell v. Wade, 134 U. S., 34 ; Penna. R.
Rd. Co. V. Miller, 134 U. S., 75 ; Hans v. Louisiana, 134 U. S., i ; North
Carolina v. Temple, 134 U. S., 22; Crenshaw v. U. S., 134 U- S., 99;
Louisiana ex rel. The N. Y. Guaranty and Indemnity Co. v. Steele, 134
U. S., 280; Minneapolis Eastern Rwy. Co. v. Minnesota, 134 U. S., 467 ;
Hill V. Merchants' Ins. Co., 134 U. S., 515; Medley, petitioner, 134
U. S,, 160; Cherokee Nation v. Kansas Ry. Co., 641 ; Virginia Coupon
Cases, 135 U. S., 662; Mormon Church v. U. S., 136 U. S., i ; W^heeler
V. Jackson, 137 U. S., 245; Holden v. Minnesota, 137 U. S., 483; Sioux
City Street Railway Co. v. Sioux City, 138 U. S., 98; Cook v. U. S.,
138 U. S., 157; Belmont Bridge Co. v. Wheeling Bridge Co., 138 U. S.,
287 ; Cook County v. Calumet and Chicago Canal Co., 138 U. S., 635;
Pennoyer v. McConnaughty, 139 U. S., i ; Scotland County Court v.
Hill, 139 U. S., 41 ; Scott v. Neely, 139 U. S., 106; Essex Public Road
Board v. Shinkle, 140 U. S., 334 ; Stein v. Bienville Water Supply Co.,
141 U. S.,67 ; Henderson Bridge Co. v. Henderson, 141 U. S., 679; New
Orleans v. N. O. Water W'ks, 142 U. S., 79; Pacific Ex. Co. v. Seibert,
142 U. S.,339; N. O. City & Lake R. Rd. Co. v. New Orleans; Winona
& St. Peter R. Rd. Co. v. Plainview, 143 U. S., 371 ; Louisville Water
Co. 57. Clark, 143 U. S., i ; N. Y. v. Squire, 145 U. S., 175; Brown v.
Smart, 145 U. S., 454; Baker's Exrs. v. Kilgore, 145 U. S., 487 ; Morley
V. Lake Shore & Mich. Southern Ry. Co., 146 U. S., 162 ; Hamilton, Ga.,
Ltd., Coke Co.t/. Hamilton, 146 U. S., 258 ; Wilmington & Weldon R. Rd.
Co. V. Alsbrook, 146 U. S., 279; Butley v. Gorley, 146 U. S., 303; Ills.
Cent. R. Rd. v. Ills., 146 U. S., 387; Morley t/. Lake Shore & Mich. So.
Rwv. Co., 146 U. S., 162; Hamilton Gas L't Qo. v. Hamilton Citv, 146
U. S., 238 ; Wil. & Wei. R. R. Co. v. Alsbrook, 146 U. S., 279; Ill.'Cent.
R. Rd. Co. V. Illinois, 146 U. S., 387; Bier v. McGehee, 148 U. S., 137 ;
Schurz z'. Cook, 148 U. S., 397; Eustis z'. Bolles, 150 U. S., 361 ; Duncan
V. Missouri, 152 U. S., 377; Israel i'. Arthur, 152 U. S., 355; New
Orleans v. Benjamin, 153 U. S., 411 ; Eagle Ins. Co. v. Ohio, 153 U- S.,
446; Erie R. Rd. r. Penna., 153 U. S., 628 ; Mobile & Ohio R. Rd. v.
Tenn., 153 U. S., 486; Pittsburgh & So. Coal Co. v. La., 156 U. S., 590;
U. S. ex rel. Siegel v. Thoman, 156 U. S., 353; City and Lake R. Kd. v.
N. O., ii;7 U. S., 219; Central Land Co. v. Laidley, 159 U. S. 103;
Winona & St. Peter Land Co. v. Minn., 159 U. S., 528.
^No State shall, without the Consent of the Congress,
lay any Imposts or Duties on Imports or Exports, except
what may be absolutely necessary for executing it's in-
spection 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
THE CONSTITUTION 361
all such Laws shall be subject to the Revision and Con-
troul of the Congress.
McCuUoch V. State of Maryland, 4 Wh., 316; Gibbons v. Ogden, 9
Wh., I ; Brown v. The State of Maryland, 12 Wh., 419; Mager v. Grima
et al.,8 How., 490; Cooley v. Board of Wardens of Port of Philadelphia
et al., 12 How., 299; Almy v. State of California, 24 How., 169; License
Tax Cases, 5 Wall., 462 ; Crandall v. State of Nevada, 6 Wall., 35 ;
Waring v. The Mayor, 8 Wall., no; Woodruff v. Perham, 8 Wall., 123;
Hinson v. Lott, 8 Wall., 148 ; State Tonnage Tax Cases, 12 Wall., 204 ;
State Tax on Railway Gross Receipts, 15 Wall., 284; Inman Steamsliip
Company v. Tinker, 94 U. S., 238 ; Cook v. Pennsylvania, 97 U. S., 560;
Packet Co. v. Keokuk, 95 U. S. 80 ; People v. Compagnie Generale Trans-
atlantique, 107 U. S., 59; Brown v. Houston, 114 U. S., 622; Pittsburgh
& So. Coal Co. V. Bates, 156 U. S., 577; Pittsburgh & So. Coal Co. v.
La., 156 U. S., 590.
^No State shall, without the Consent of Congress, lay
any duty of Tonnage, keep Troops, or Ships of War in
time of Peace, enter into any Agreement or Compact with
another State, or with a foreign Power, or engage in War,
unless actually invaded, or in such imminent Danger as
will not admit of delay.
Green v. Biddle, 8 Wh., i ; Poole et al. v. The Lessee of Fleeger
et al., II Pet., 185 ; Cooley v. Board of Wardens of Port of Philadelphia
et al., 12 How., 299; Peete v. Morgan, 19 Wall., 5S1 ; Cannon v. New
Orleans, 20 Wall., 577 ; Inman Steamship Company v. Tinker, 94 U. S.,
238; Packet Co. v. St. Louis, 100 U. S., 423; Packet Co. v. Keokuk, 95
U. S., 80 ; Vicksburg v. Tobin, 100 U. S., 430; Packet Co. v. Catletts-
burg, 105 U. S., 559; Morgan Steamship Company v. Louisiana Board
of Health, 118 U. S., 455; Ouachita Packet Co. v. Aiken, 121 U. S.,
444; Huse V. Glover, 119 U. S., 543; Harmon v. Chicago, 147 U. S.,
396; Va. V. Tenn., 148 U. S., 503; Wharton v. Wise, 153 U. S., 155.
ARTICLE II.
Section i. ^The executive Power shall be vested in
a President of the United States of America. He shall
hold his Office during the Term of four Years, and, to-
gether with the Vice-President, chosen for the same Term,
be elected, as follows
-Each State shall appoint, in such Manner as the Leg-
islature thereof may direct, a Number of Electors, equal
to the whole Number of Senators and Representatives to
which the State may be entitled in the Congress : but no
Senator or Representative, or Person holding an Office
362 APPENDIX
of Trust or Profit under the United States, shall be ap-
pointed an Elector.
Chisholm, ex., v. Georgia, 2 Dall., 419; Leitensdorfer et al. v. Webb,
20 How., 176; Ex parte Siebold, 100 U. S., 271 ; McPherson v. Blacker,
146 U. S., I.
* [The Electors shall meet in their respective States,
and vote by Ballot for two persons, of whom one at least
shall not be an Inhabitant of the same State with them-
selves. And they shall make a List of all the Persons
voted for, and of the Number of Votes for each ; which
List they shall sign and certify, and transmit sealed to
the Seat of the Government of the United States, directed
to the President of the Senate. The President of the
Senate shall, in the Presence of the Senate and House of
Representatives, open all the Certificates, and the Votes
shall then be counted. The Person having the greatest
Number of Votes shall be the President, if such Number
be a Majority of the whole Number of Electors ap-
pointed ; and if there be more than one who have such
Majority, and have an equal Number of Votes, then the
House of Representatives shall immediately chuse by
Ballot one of them for President ; and if no Person have
a Majority, then from the five highest on the List the said
House shall in like Manner chuse the President. But
in chusing the President, the Votes shall be taken by
States, the Representation from each State having one
Vote ; A quorum for this Purpose shall consist of a Mem-
ber or Members from two-thirds of the States, and a
Majority of all the States shall be necessary to a Choice.
In every Case, after the Choice of the President, the
Person having the greatest Number of Votes of the Elec-
tors shall be the Vice President. But if there should
remain two or more who have equal Votes, the Senate
shall chuse from them by Ballot the Vice-President.]
^The Congress may determine the Time of chusing the
Electors, and the Day on which they shall give their
Votes ; which Day shall be the same throughout the
United States.
*No person except a natural born Citizen, or a Citizen
of the United States, at the time of the Adoption of this
* This clause has been superseded by the twelfth amendment.
THE CONSTITUTION 363
Constitution, shall be eligible to the Office of President;
neither shall any Person be eligible to that Office who
shall not have attained to the Age of thirty-five Years,
and been fourteen Years a Resident within the United
States.
English V. The Trustees of the Sailors' Snug Harbor, 3 Pet., 99.
^In Case of the Removal of the President from Office,
or of his Death, Resignation, or Inability to discharge
the Powers and Duties of the said Office, the same shall
devolve on the Vice President, and the Congress may by
Law provide for the Case of Removal, Death, Resignation
or Inability, both of the President and Vice President,
declaring what Officer shall then act as President, and
such Officer shall act accordingly, until the Disability be
removed, or a President shall be e^lected.
"The President shall, at stated Times, receive for his
Services, a Compensation, which shall neither be en-
creased nor diminished during the Period for which he
shall have been elected, and he shall not receive within
that Period any other Emolument from the United States,
or any of them.
Pollock V. Farmers' Loan & Trust Co., 157 U. S., 429.
■^ Before he enter on the Execution of his Office, he shall
take the following Oath or Affirmation : — "I do sol-
emnly swear (or affirm) that I will faithfully execute the
Office of President of the United States, and will to the
best of my Ability, preserve, protect and defend the Con-
stitution of the United States."
Section 2. ^The President shall be Commander in
Chief of the Army and Navy of the United States, and of
the Militia of the several States, when called into the
actual Service of the United States ; he may require the
Opinion, in writing, of the principal Officer in each of
the executive Departments, upon any subject relating
to the Duties of their respective Offices, and he shall
have Power to grant Reprieves and Pardons for Of-
fenses against the United States, except in Cases of
Impeachment.
United States v. Wilson, 7 Pet., 150; Ex parte William Wells, 18
How., 307; Ex parte Garland, 4 Wall., 333; Armstrong's Foundry, 6
364 APPENDIX
Wall., 766; The Grape Shot, 9 Wall., 129; United States v. Padelford,
9 Wall., 542; United States v. Klein, 13 Wall., 128; Armstrong z/. The
United States, 13 Wall., 152; Pargoud v. The United States, 13 Wall.,
156; Hamilton 57. Dillin, 21 Wall, 73 ; Mechanics and Traders' Bank z/.
Union Bank, 22 Wall., 276; Lamar, ex., v. Browne et al., 92 U. S., 187;
Wallach et al. v. Van Riswick, 92 U. S., 202.
^He shall have Power, by and with the Advice and
Consent of the Senate, to make Treaties, provided two-
thirds of the Senators present concur ; and he shall nom-
inate, and by and with the Advice and Consent of the
Senate, shall appoint. Ambassadors, other public Minis-
ters and Consuls, Judges of the supreme Court, and all
other Officers of the United States, whose Appointments
are not herein otherwise provided for, and which shall
be established by Law : but the Congress may by Law
vest the Appointment of such inferior Officers, as they
think proper, in the President alone, in the Courts of Law,
or in the Heads of Departments.
Ware v. Hylton et al., 3 Dall., 199; Marbury v. Madison, i Cr., 137 ;
United States z/. Kirkpatrick, 9 Wh., 720; American Insurance Company
V. Canter (356 bales cotton), i Pet., 511 ; Foster and Elam v. Neilson, 2
Pet., 253 ; Cherokee Nation v. State of Georgia, 5 Pet., i ; Patterson v.
Gwinn et al., 5 Pet., 233; Worcester v. State of Georgia, 6 Pet., 515;
City of New Orleans v. De Armas et al., 9 Pet., 224; Holden v. Joy, 17
Wall, 2ri ; Geofroy v. Riggs, 133 U. S., 258; Homer v. U. S., 143 U. S.,
570; Shoemaker v. U. S., 147 U. S., 282.
^The President shall have Power to fill up all Vacancies
that may happen during the Recess of the Senate, by
granting Commissions which shall expire at the End of
their next Session.
The United States v. Kirkpatrick et al., 9 Wh., 720.
Section 3. He shall from time to time give to the
Congress Information of the State of the Union, and
recommend to their Consideration such Measures as he
shall judge necessary and expedient ; he may, on extraor-
dinary Occasions, convene both Houses, or either of them,
and in Case of Disagreement between them, with Respect
to the Time of y\djournment, he may adjourn them to such
Time as he shall think proper ; he shall receive Ambassa-
dors and other public Ministers ; he shall take Care that
the Laws be faithfully executed, and shall Commission
all the Officers of the United States.
Marbury v. Madison, i Cr., 137; Kendall, Postmaster-General, v. The
United States, 12 Pet., 524; I.uther z/. Borden, 7 How., i; The State of
THE CONSTITUTION 365
Mississippi v. Johnson, President, 4 Wall., 475; Stewart v. Kahn, u
Wall., 493 ; In re Neagle, 135 U. S., i.
Section 4. The President, Vice President and all civil
Officers of the United States, shall be removed from
Office on Impeachment for, and Conviction of, Treason,
Bribery, or other high Crimes and Misdemeanors.
ARTICLE III.
Section i. The judicial Power of the United States,
shall be vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time ordain and
establish. The Judges, both of the supreme and inferior
Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services a Com-
pensation which shall not be diminished during their
Continuance in Office.
Chisholm, ex., z^. Georgia, 2 Dall., 419; Stuart v. Laird, i Cr., 299;
United States v. Peters, 5 Cr., 115; Cohens v. Virginia, 6 Cr., 264;
Martin v. Hunter's Lessee, i Wh., 304; Osborn v. United States Bank,
9 Wh., 738; Benner et al. v. Porter, 9 How., 235; The United States v.
Ritchie, 17 How., 525; Murray's Lessee et al. v. Hoboken Land and
Improvement Company, 18 How., 272 ; Ex parte Vallandigham, i Wall.,
243; Ames V. Kansas, iil U. S., 449; In re Ross, 140 U. S., 453;
McAllister z'. U. S., 141 U. S., 174; Pollock v. P'armers* Loan & Trust
Co., 157 U. S., 429.
Section 2. ^ The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or
which shall be made, under their Authority ; — to all
Cases Affecting Ambassadors, other public Ministers and
Consuls ; — to all Cases of admiralty and maritime Juris-
diction ; — to Controversies to which the United States
shall be a Party ; — to Controversies between two or more
States ; — between a State and Citizens of another State ;
— between Citizens of different States, — between Citi-
zens of the same State claiming Lands under Grants of
different States, and between a State, or the Citizens
thereof, and foreign States, Citizens or Subjects.
Hayburn's Case (note), 2 Dall., 410; Chisholm, ex., v. Georgia, 2
Dall., 419; Glass et al. v. Sloop Betsey, 3 Dall., 6; United States v. La
366
APPENDIX
Vengeance, 3 Dall., 297 ; Hollingsworth et al. v. Virginia, 3 DalL, 378;
Mossman, ex., v. Higginson, 4 Dall., 12 ; Marbury v. Madison, i Cr.,
137 ; Hepburn et al. v. Ellzey, 2 Cr., 444 ; United States v. Moore, 3
Cr., 159; Strawbridge et al. v. Curtiss et al., 3 Cr., 267 ; Ex parte Boll-
man and Swartwout, 4 Cr., 75; Rose v. Himely, 4 Cr., 241 ; Chappe-
delaine et al. v. Dechenaux, 4 Cr., 305 ; Hope Insurance Company v.
Boardman et al., 5 Cr., 57; Bank of United States v. Devaux et al., 5
Cr., 61 ; Hodgson et al. v. Bowerbank et als., 5 Cr., 303 ; Owings v. Nor-
wood's Eessee, 5 Cr., 344; Durousseau v. The United States, 6 Cr.,
307 ; United States v. Hudson and Goodwin, 7 Cr., 32 ; Martin v. Hun-
ter, I Wh., 304; Colson et sX.v. Lewis, 2 \Vh., 377; United States v.
Bevans, 3 Wh., 336; Cohens v. Virginia, 6 Wh., 264; Ex parte Kearney,
7 Wh., 38; Matthews v. Zane, 7 Wh., 164; Osborn v. United States
Bank, 9 Wh., 738; United States v. Ortega, 11 Wh., 467 ; American
Insurance Company v. Canter (356 bales cotton), i Pet., 511 ; Jackson v.
Twentyman, 2 Pet., 136; Cherokee Nation v. State of Georgia, 5 Pet.,
I ; State of New Jersey v. State of New York, 5 Pet., 283; Davis v.
Packard et al., 6 Pet., 41 ; United States z-. Arredondo et al., 6 Pet.,
691; Davis V. Packard et al., 7 Pet., 276 ; BreedJove et al. v. Nickolet
et al., 7 Pet., 413; Brown v. Keene, 8 Pet., 112; Davis v. Packard
et al., 8 Pet., 312; City of New Orleans v. De Armas et al., 9 Pet.,
224 ; The State of Rhode Island v. The Commonwealth of Massa-
chusetts, 12 Pet., 657 ; The Bank of Augusta v. Earle, 13 Pet., 519; The
Commercial and Railroad Bank of Vicksburg v. Slocomb et al., 14 Pet.,
60; Suydam et al. v. Broadnax, 14 Pet., 67; Prigg ?'. The Common-
wealth of Pennsylvania, 16 Pet., 530; Louisville, Cincinnati and Charles-
ton Railway Company v. Letson, 2 How., 497 ; Cary et als. v. Curtis, 3
How., 236; Warring v. Clark, 5 How., 441 ; Luther v. Borden, 7 How.,
I ; Sheldon et al. v. Sill, 8 How., 441 ; The Propeller Genesee Chief v.
Fitzhugh et al., 12 How., 443; Fretz et al. v. Ball et al., 12 How., 466;
Neves et al. v. Scott et al., 13 How., 268; State of Pennsylvania v. The
Wheeling, etc., Bridge Company et al., 13 How., 518; Marshall v. The
Baltimore and Ohio R. R. Co., 16 How., 314; The United States v.
Guthrie, 17 How., 284 ; Smith v. State of Maryland, iS How., 71 ; Jones
et al. V. League, 18 How., 76; Murray's Lessee et al. v. Hoboken Land
and Improvement Company, 18 How., 272; Hyde et al. v. Stone, 20
How., 170; Irvine v. Marshall et al., 20 How., 558; P"enn z'. Holmes, 21
How., 481 ; Moorewood et al. v. Erequist, 23 How., 491 ; Commonwealth
of Kentucky z'. Dennison, governor, 24 How., 66; Ohio and Mississippi
Railroad Company v. Wheeler, i Black, 286; The Steamer Saint Law-
rence, I lUack, 522 ; The Propeller Commerce, i Black, 574 ; Ex parte
Vallandigham, i Wall., 243; Ex parte Milligan, 4 Wall., i ; The Moses
Taylor, 4 Wall., 411 ; State of Mississippi v. Johnson, President, 4 W^all.,
475; The Hine v. Trevor, 4 Wall., 555; City of Philadelphia v. The
Collector, 5 Wall., 720; State of Cieorgia v. Stanton, 6 Wall., 50; Payne
V. Hook, 7 Wall., 425; The Alicia, 7 Wall., 571; Ex parte Ycrger, 8
Wall., 85; Insurance Company v. Dunham, 11 Wall., i; Virginia v.
West Virginia, 11 Wall., 39; Coal Company v. Blatchford, 11 Wall.,
172; Railway Company v. Whitton's Adm., 13 Wall., 270; Tarble's
Case, 13 Wall., 397; IMyew et al. v. The United States, 13 Wall., 581;
Davis V. Gray, 16 SVall., 203; Case of the Sewing Machine Companies,
18 Wall., 353; Insurance Company v. Morse, 20 Wall., 445; Vannevar
V. Bryant, 21 Wall., 41; The Lottawanna, 21 W'all., 558; Gaines v.
P'uentes et al., 92 U. S., 10; Miller v. Dews, 94 U. S., 444; Doyle
THE CONSTITUTION z^7
V. Continental Insurance Company, 94 U. S., 535; Tennessee v. Davis,
100 U. S., 257; Baldwin v. Pranks, 120 U. S., 678; Barron v. Burnside,
121 U. S., 186; St. Louis, Iron Mountain and Southern Railway v.
Vickers, 122 U. S., 360; Chinese Ex. Case, 130 U. S., 581; Brooks v.
Missouri, 124 U. S.,394; New Orleans Water Works v. Louisiana Sugar
Refining Co., 125 U. S., 18; Spencer v. Merchant, 125 U. S., 345; Dale
Tile Mfg. Co. V. Hyatt, 125 U. S., 46; Felix v. Scharnweber, 125^ U. S.,
54; Hannibal and St. Joseph R. R. v. Missouri River Packet Co., 125
U. S., 260; Kreiger v. Shelby R. R. Co., 125 U. S., 39; Craig v. Leitens-
dorfer, 127 U. S. 764; Jones v. Craig, 127 U. S., 213; Wisconsin v.
Pelican Ins. Co., 127 U. S., 265 ; U. ^.v. Beebe, 127 U. S., 338 ; Chinese
E.x. Case, 130 U. S., 581 ; Lincoln County v. Luning, 133 U. S., 529;
Christian v. Atlantic & N. C. R. Rd. Co., 135 U. S., 233 ; Haus v. Louis-
iana, 134 U. S., I ; Louisiana ex rel. The N. Y. Guaranty & Indemnity
Co. V. Steele, 134 U. S., 280; Jones v. U. S., 137 U. S., 202; Manchester
V. Mass., 139 U. S., 240 ; In re Ross, 150 U. S., 453 ; In re Garnett, 141
U. S., I ; U. S. V. Texas, 143 U. S., 621 ; Cooke v. Avery, 147 U. S.,
375 ; S. Pac. Co. v. Denton, 146 U. S., 202 ; Lawton v. Steele, 152 U. S.,
133; Interstate Com. Comsn. v. Brinson, 154 U. S., 447.
2 In all Cases affecting Ambassadors, other public Min-
isters and Consuls, and those in which a State shall be
Party, the supreme Court shall have original Jurisdiction.
In all the other Cases before mentioned, the supreme
Court shall have appellate Jurisdiction, both as to Law
and Fact, with such Exceptions, and under such Regula-
tions as the Congress shall make.
Chisholm, ex., v. Georgia, 2 Dall. 419; Wiscart et al. v. Dauchy,
3 Dall., 321; Marbury v. Madison, i Cr., 137; Durousseau et al. v.
United States, 6 Cr., 307; Martin v. Hunter's Lessee, i Wh., 304;
Cohens v. Virginia, 6 Wh., 234; Ex parte Kearney, 7 Wh., 38;
Wayman v. Southard, 10 Wh., i ; Bank of the United States v. Hal-
stead, 10 Wh., 51; United States v. Ortega, 11 Wh. 467; The Chero-
kee Nation v. the State of Georgia, 5 Pet., i ; Ex parte Crane et als.,
5 Pet., 189 ; The State of New Jersey v. The State of New York, 5 Pet.,
283; Ex parte Sibbald v. United States, 12 Pet., 488; The State of
Rhode Island v. The State of Massachusetts, 12 Pet., 657; State of
Pennsylvania z/. the Wheeling, &c. Bridge Company, 13 How. 518;
In Re Kaine, 14 How., 103; Ableman v. Booth and United .States v.
Booth, 22 How., 506; Freeborn v. Smith, 2 Wall., 160; Ex parte
McCardle, 6 Wall., 318; Ex parte McCardle, 7 Wall., 506; Ex parte
Yerger, 8 Wall., 85 ; The Lucy, 8 Wall., 307 ; The Justices v. Murray,
9 Wall., 274; Pennsylvania v. Quicksilver Company, 10 Wall., 553;
Murdock v. City of Memphis, 20 Wall., 590 ; Bors v. Preston, in U. vS.,
252 ; Ames V. Kansas, in U. S., 449 ; Clough v. Curtis, 134 U. S., 361 ;
In re Neagle, 135 U. S., i ; Mobile & Ohio R. Rd. v. Tean., 153 U. S.,
486.
^The Trial of all Crimes, except in Cases of Impeach-
ment, shall be by Jury ; and such Trial shall be held in the
State where the said Crimes shall have been committed;
368 APPENDIX
but when not committed within any State, the Trial shall
be at such Place or Places as the Congress may by Law
have directed.
Ex parte Milligan, 4 Wall., 2; Ellenbecker v. Plymouth County, 134
U. S., 31 ; Cook V. U. S., 138 U. S. 157 ; In re Ross, 140 U. S. 453.
Section 3. ^ Treason against the United States, shall
consist only in levying War against them, or in adhering
to their Enemies, giving them Aid and Comfort. No Per-
son shall be convicted of Treason unless on the Testimony
of two Witnesses to the same overt Act, or on Confession
in open Court.
United States v. The Insurgents, 2 Dall., 335 ; United States v.
Mitchell, 2 Dall., 348; Ex parte Bollman and Swartwout, 4 Cr. 75;
United States v. Aaron Burr, 4 Cr. 469.
^The Congress shall have power to declare the Punish-
ment of Treason, but no Attainder of Treason shall work
Corruption of Blood, or Forfeiture except during the Life
of the Person attainted.
Bigelow V. Forest, 9 Wall., 339; Day v. Micou, 18 Wall., 156; Ex
parte Lange, 18 Wall, 163 ; Wallach et al. v. Van Riswick, 92 U. S.,
202.
ARTICLE IV.
Section i. Full Faith and Credit shall be given in
each State to the public Acts, Records, and judicial Pro-
ceedings of every other State. And the Congress may by
general Laws prescribe the Manner in which such Acts,
Records and Proceedings shall be proved, and the Effect
thereof.
Mills V. Duryee, 7 Cr., 481; Hampton v. McConnel, 3 Wh., 234;
Mayhew v. Thatcher, 6 Wh., 129; Darby's Lessee v. Mayer, 10 Wh.,
465; The United States v. Amedy, 11 Wh. 392 ; Caldwell et al. v. Car-
rington's Heirs, 9 Pet., 86; M'Klmoyle v. Cohen, 13 Pet., 312; The
Bank of Augusta v. Earle, 13 Pet., 519; Bank of the State of Alabama
V. Dalton, 9 IIow., 522; D'Arcy v. Ketchum, 11 How., 165; Christmas
V. Russell, 5 Wall., 290; Green v. Van lUiskirk, 7 Wall., 139; Paul v.
Virginia, 8 Wall., 168; Board of Public Works v. Columbia College,
17 Wall., 521; Thompson v. Whitman, 18 Wall., 4^7; Bonaparte v.
Tax Court, 104 U. S., 592; Hanley z/. Donoghue, 116 U. S., i ; Renaud
V. Abbott, 116 U. S. 277 ; Chic, and Alton R. R. v. Wiggins Ferry Co.,
119 U. S., 615; Cole V. Cunningham, 133 U. S.. 107 ; Blount v. Walker,
134 U. S., 607; Texas & Pacific Ry. to. v. Southern Pacific Co., 137
THE CONSTITUTION 369
U. S., 48; Simmons v. Saul, 138 U. S., 439; Reynolds v. Stockton,
140 U. S., 254; Carpenter v. Strange, 141 U. S. 87; Glenn v. Garth,
147 U. S., 360; Huntington v. Allriil, 146 U. S., 657.
Section 2. ^The Citizens of each State shall be en-
titled to all Privileges and Immunities of Citizens in the
several States.
Bank of United States v. Devereux, 5 Cr., 61; Gassies j/. Ballou,
6 Pet., 761 ; The State of Rhode Island v. The Commonwealth of Mas-
sachusetts, 12 Pet., 657; The Bank of Augusta v. Karle, 13 Pet., 519;
Moore v. The People of the State of Illinois, 14 How., 13; Conner
et al. V. Elliot et a)., 18 How., 591 ; Dred Scott v. Sanford, 19 How., 393 ;
Crandall v. State of Nevada, 6 Wall., 35 ; Woodruff v. Parham, 8 Wall.,
123; Paul V. Virginia, 8 Wall., 168; Uownham ?'. Alexandria Council,
10 Wall., 173; Liverpool Insurance Company v. Massachusetts, 10
Wall., 566; Ward v. Maryland, 12 Wall., 418; Slaughterhouse Cases,
16 Wall., 36; Bradwell v. The State, 16 Wall., 130; Chemung Bank z*.
Lowery, 93 U. S., 72; McCready v. Virginia, 94 U. S., 391 ; Brown v.
Houston, 1 14 U. S., 622 ; Pembina Mining Co. v. Penna., 125 U. S., 181 ;
Kimmish v. Ball, 129 U. S., 217; Cole v. Cunningham, 133 U. S., 107;
Leisy v. Hardin, 135 U. S., 100; Minnesota v. Barber, 136 U. S., 313,
McKane v. Durston, 153 U. S., 684; Pittsburgh & So. Coal Co. v.
Bates, 156 U. S., 577.
^A Person 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.
Holmes v, Jennison et al., 14 Pet. 540 ; Commonwealth of Kentucky
V. Dennison, governor, 24 How., 66; Taylor v. Tainter, 16 Wall., 366;
Lascelles v. Georgia, 148 U. S., 537 ; Pearce v. Texas, 155 U. S., 311.
^No Person held to Service or Labor in one State,
under the Laws thereof, escaping into another, shall, in
Consequence of any Law or Regulation therein, be dis-
charged from such Service or Labor, but shall be deliv-
ered up on Claim of the Party to whom such Service or
labor may be due.
Prigg V. The Commonwealth of Pennsylvania, 16 Pet., 539; Jones v.
Van Zandt, 5 How., 215; Strader et al. v. Graham, 10 How., 82;
Moore v. The People of the .State of Illinois, 14 How., 13 ; Dred Scott
V. Sanford, 19 How., 393; Ableman v. Booth and United States v.
Booth. 21 How., 506; Callan v. Wilson, 127 U. S., 540; Nashville,
Chattanooga, etc., Rwy. v. Alabama, 128 U. S. 96.
Section 3. ^New States may be admitted by the Con-
gress into this Union ; but no new State shall be formed
24
370 APPENDIX
or erected within the Jurisdiction of any other State ; nor
any State be formed by the Junction of two or more
States, or parts of States, without the Consent of the
Legislatures of the States concerned as well as of the
Congress.
American Insurance Company et al. v. Canter (356 bales cotton),
I Pet. 511 ; Pollard's Lessee v. Hagan, 3 How. 212; Cross et al. v.
Harrison, 16 How., 164.
^The Congress shall have Power to dispose of and make
all needful Rules and Regulations respecting the Terri-
tory or other Property belonging to the United States;
and nothing in this Constitution shall be so construed as
to Prejudice any Claims of the United States, or of any
particular State.
McCullough V. State of Maryland, 4 Wh., 316; American Insurance
Company v. Canter, i Pet., 511 ; United States v. Gratiot et al., 14 Pet.,
526; United States v. Rogers, 4 How., 567; Cross et al. v. Harrison, 16
How., 164; Muckey et al. v. Coxe, 18 How., 100; Gibson v. Chouteau,
13 Wall., 92; Clinton v. Englebert, 13 Wall., 434; Beall v. New
Mexico, 16 Wall., 535; Davis z'. Beason, 133 U. S., 333; Wisconsin
Central R. Rd. Co. v. Price County, 133 U. S., 496; Cope v. Cope, 137
U. S., 682 ; Mormon Church v. U. S., 136 U. S., i.
Section 4. The United States shall guarantee to every
State in this Union a Republican Form of Government,
and shall protect each of them against Invasion ; and on
Application of the Legislature, or of the Executive (when
the Legislature cannot be convened) against domestic
Violence.
Luther v. Borden, 7 How., i ; Texas v. White, 7 Wall., 700.
ARTICLE V.
The Congress, whenever two-thirds of both Houses
shall deem it necessary, shall propose Amendments to this
Constitution, or, on the Application of the Legislatures of
two-thirds of the several States, shall call a Convention
for proposing Amendments, which, in either Case, shall
be valid to all Intents and Purposes, as part of this Con-
stitution, when ratified by the Legislatures of three-fourths
of the several States, or by Conventions in three-fourths
THE CONSTITUTION 371
thereof, as the one or the other Mode of Ratification
may be proposed by the Congress; Provided that no
Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner
affect the first and fourth Clauses in the Ninth Section
of the first Article; and that no State, without its Con-
sent, shall be deprived of its equal Suffrage in the Senate.
Hollingsworth et al. v. Virginia, 3 Dallas, 378.
ARTICLE VI.
^ All Debts contracted and Engagements entered into,
before the Adoption of this Constitution, shall be as valid
against the United States under this Constitution, as
under the Confederation.
2 This Constitution, 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, any Thing in the Constitution or Laws
of any State to the Contrary notwithstanding.
Hayburn's Case, 2 Dall., 409; Ware j'. Hylton, 3 Dall., 199; Calder
and Wife v. Bull and Wife, 3 Dall., 386 ; Marbury v. Madison, i Cr., 137;
Chirac v. Chirac, 2 Wh., 259; McCulloch v. The State of Maryland, 4
Wh., 316 ; Society v. New Haven, 8 Wh., 464 ; Gibbons v. Ogden, 9 Wh.,
I ; Foster and Elam v. Neilson, 2 Pet , 253; Buckner v. Fiiiley, 2 Pet.,
586; Worcester v. State of Georgia, 6 Pet., 515; Kennett et al. v. Cham-
bers, 14 How., 38; Lodge v. Woolsey, 18 How., 331; State of New
York V Dibble, 21 How., 366; Ableman v. Booth and United States
V. Booth, 21 How., 506; Sinnot v. Davenport, 22 How., 227 ; Foster v.
Davenport, 22 How., 244; Havea v. Yaker, 9 Wall., 32; Whitney v.
Robertson, 124 U. S., 190; In re Neagle, 135 U. S., i ; Cherokee Nation
V. Kansas Ry. Co., 135 U. S., 641 ; Cook Co. v Calumet & Chicago
Canal Co., 138 U. S. 635; Gulf, Colorado & Santa Fe Rwy. Co. v. Hefley,
15S U. S., 98; In re Quarles j/. Butler, 158 U. S. 532.
^ The Senators and Representatives before mentioned,
and the Members of the several State Legislatures, and
all executive and judicial Officers, both of the United
States and of the several States, shall be bound by Oath
or Affirmation, to support this Constitution ; but no
372 APPENDIX
religious Test shall ever be required as a Qualification
to any Office or public Trust under the United States.
Ex parte Garland, 4 Wall., 333 ; Davis v. Beason, 133 U. S., 333.
ARTICLE VII.
The ratification of the Conventions of nine States shall
be sufficient for the Establishment of this Constitution
between the States so ratifying the Same.
Done in Convention by the Unanimous Consent of the
States present the Seventeenth Day of September in
the Year of our Lord one thousand seven hundred and
Eighty seven and of the Independence of the United
States of America the Twelfth. In Witness whereof
We have hereunto subscribed our Names,
G° WASHINGTON—
Presidt and deputy from Virginia
New Hampshire.
John Langdon Nicholas Oilman
t.
Massachusetts.
Nathaniel Gorham Rufus King
Connecticut.
Wm Saml Johnson Roger Sherman
New York.
Alexander Hamilton
New Jersey.
Wil: Livingston Wm Patterson
David Brearley. Jona: Dayton
THE CONSTITUTION
Pennsylvania.
373
B. Franklin
RoBT. Morris
Thos. Fitzsimons
James Wilson
Geo: Read
John Dickinson
Jaco: Broom
James McHenry
Danl Carroll
John Blair —
Wm Blount
Hu Williamson
Thomas Mifflin
Geo. Clymer
Jared Ingersoll
Gouv Morris
Delaware,
Gunning Bedford jun
Richard Bassett
Maryland.
Dan : of St Thos Jenifer
Virginia.
James Madison Jr.
North Carolina.
RiCHD DOBBS SpAIGHT,
South Carolina.
J. Rutledge Charles Cotesworth Pincknei
Charles Pinckney Pierce Butler.
Georgia.
William Few Abr Baldwin
Attest: WILLIAM JACKSON, Secretary.
374 APPENDIX
Articles in Addition To, and Amendment Of, the Con-
stitution OF THE United States of America, Proposed
BY Congress, and Ratified by the Legislatures of the
Several States, Pursuant to the Fifth Article of
THE Original Constitution.
[EUenbecker v. Plymouth County, 134 U. S., 3.]
ARTICLE I.*
Congress shall make no law respecting an establish-
ment of religion, or prohibiting the free exercise thereof;
or abridging the freedom of speech, or of the press ; or
the right of the people peaceably to assemble, and to
petition the Government for a redress of grievances.
Terret et al. v. Taylor et al., 9 Cr., 43 ; Vidal et al., v. Girard et al., 2
How., 127; Ex parte Garland, 4 Wall., 333; United States v. Cruik-
shank et al., 92 U. S., 542; Reynolds v. United States, 98 U. S., 145;
Davis V. Beason, 133 U. S., 333; In re Rapier, 143 U. S., no; Homer z/.
U. S., 143 U. S., 192.
[ARTICLE II.]
A well regulated Militia, being necessary to the security
of a free State, the right of the people to keep and bear
Arms, shall not be infringed.
Presser v. Illinois, 116 U. S., 252.
[ARTICLE III.]
No Soldier shall, in time of peace be quartered in any
house, without the consent of the Owner, nor in time of
war, but in a manner to be prescribed by law.
*The first ten amendments to the Constitution of the United States
were proposed to the legislatures of the several States bv the first
Congress, on the 2Sth of September, 1789. They were ratified by the fol-
lowing States, and the notifications of ratification bv the governors
thereof were successively communicated by the President to Congress :
New Jersey, November 20, 1789; Maryland, December 19, 17S9 ; North
Carolina, December 22,1789; South Carolina, January 19, 1790: New
Hampshire, January 25, 1790; Delaware, January 28. 1790; Pennsyl-
vania, March ID, 1790; New York, March 27, 1790; Rhode Island, June
15, 1790 ; Vermont, November 3, I79l,and Virginia. Decemher 15, 1791.
There is no evidence on the journals of Congress that the legislatures of
Connecticut, Georgia, and Massachusetts ratified them.
THE CONSTITUTION 375
[ARTICLE IV.]
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 no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Smith V. State of Maryland, i8 How., 71 ; Murray's Lessee et al. v.
Hoboken Land and Improvement Company, 18 How., 272; Ex parte
Milligan, 4 Wall, 2 ; Boyd v. United States, 116 U. S., 616; Fong Yuen
Ting V. U. S., 149 U. S., 698.
[ARTICLE v.]
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in
the land or naval forces, or in the Militia, when in actual
service in time of War or public danger ; nor shall any
person be subject for the same offence to be twice put in
jeopardy of life or limb ; nor shall 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 ; nor shall private property be taken for public
use, without just compensation.
United States v. Perez, 9 Wh., 579; Barron v. The City of Baltimore,
7 Pet., 243; Fox V. Ohio, t; How., 410; West River Bridge Company i-.
Dix et a)., 6 How., 507; Mitchell v. Harmony, 13 How., 115; Moore, ex.,
V. The People of the State of Illinois, 14 How., 13; Murray's Lessee et
al. V. Hoboken Land and Improvement Company, 18 How., 272; Dynes
V. Hoover, 20 How., 65; Withers v. Buckley et al., 20 How., 84; Gil-
man V. The City of Sheboygan, 2 Black, 510 ; Ex parte Milligan, 4 Wall.,
2; Twitchell v. The Commonwealth, 7 Wall., 321 ; Hepburn v. Griswold,
8 Wall., 603; Miller v. United States, 11 Wall., 268; Legal Tender
Cases, 12 Wall., 457; Pumpelly f. Green Bay Company, 13 Wall, 166;
Osborn v. Nicholson, 13 Wall.. 654; Ex parte Lange, 18 Wall., 163;
Kohl et al. v. United States, 91 U. S., 367 ; Cole v. La Grange, 1 13 U. S.,
i; Ex parte Wilson, 114 U. S., 417; Brown v. Grant, 116 U. S., 207;
Boyd V. United States, 116 U. S., 616; Makin v. United States, 117
U. S., 348 ; Ex parte Bain, 121 U. S., I; Parkinson v. United States,
121 U. S., 281 ; Spies v. Illinois, 123 U. S., 131 ; Sands v. Manistee
River Improvement Company, 123 U. S., 288; Mugler v. Kansas, 123
376 APPENDIX
U. S.,623 ; Great Falls Manufacturing Company z/. The Attorney-General,
124 U. S., 581 ; United States v. De Walt, 128 U. S., 393; Huling v.
Kaw Valley Railway and Improvement Company, 130 U. S., 559; Free-
land V. Williams, 131 U. S., 405; Cross v. North Carolina, 132 U. S.,
131; Manning v. French, 133 U. S., 186; Searle v. School Dist. No. 2,
133 U. S., 553; Palmer v. McMahon, 133 U. S., 660; Ellenbecker v.
Plymouth County, 134 U. S , 31 ; Chic, Mil. & St. Paul Rwy. Co. v.
Minnesota, 134 U. S., 418; Wheeler z'. Jackson, 137 U. S., 245; Holden
V. Minnesota, 137 U. S., 245; Caldwell v. Texas, 137 IJ. S., 692;
Cherokee Nation v. Kansas Ry. Co., 135 U. S., 641 ; Kaukauna Water
Power Co. f. Miss. Canal Co., 142 U. S., 254; New Orleans v. N. O.
Water W'ks, 142 U. S., 79; Counselman v. Hitchcock, 142 U. S., 547;
Simmonds v. U. S., 142 U. S., 14S; Horn Silver Mining Co. v. N. Y.,
143 U. S., 305; Hallinger v. Davis, 146 U. S., 314; Shoemaker v. U. S.,
147 U. S., 282 ; Thorington v. Montgomery, 147 U. S., 490 ; Yesler v.
Wash'n Harbor Line Coms'rs, 146 U. S., 646; Monongahela Nav. Co.
V. U. S., 148 U. S., 312; Fong Yuen Ting v. U. S., 149 U. S., 69S; In
re Lennon, 150 U. S., 393; Pitts., C. C. & St. L. v. Backus, 154 U. S.,
421 ; Interstate Com. Comsn. v. Brimson, 154 U. S., 447 ; Pearce v.
Texas, 155 U. S., 311; Linford v. Ellison, 155 U. S., 503; Andrews &•.
Swartz, 156U. S., 272; Pittsburgh & Southern Coal Co. z/. La., 156 U.S.,
590; St. L. & S. F. Rwy. Co. v. Gill, 156 U. S., 649; Johnson v. Sayre,
158 U. S., 109; Sweet v. Rechel, 159 U. S., 380.
[ARTICLE VL]
In all criminal prosecutions, 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
previously ascertained by law, and to be informed of the
nature and cause of the accusation; to be confronted
with the witnesses against him ; to have compulsory
process for obtaining witnesses in his favor, and to have
the Assistance of Counsel for his defence.
United States v. Cooledge, i \Vh., 415; Ex parte Kearney, 7 \Vh.,
38; United States ly. Mills, 7 Pet., 142; Barron v. City of lialtimore,
7 Pet., 243; Fox z'. Ohio, 5 How., 410; Withers v. Buckley et al., 20
How, 84; Ex parte Milligan, 4 Wall, 2; Twitchell v. The Common-
wealth, 7 Wall., 321; Miller v. The United States, 11 Wall., 26S ;
United States v. Cook, 17 Wall., 168 ; United States v. Cruikshank et al.,
92 U. S., 542; Spies z*. Illinois. 123 U. S., 131 ; Ellenbecker z^. Plymouth
Co.. 134 U. S., 31 ; Jones v. U. S., 137 U. S., 202; Cook v. U. S., 138
U. S., 157; In re Ross, 140 U. S., 453; Hallinger v. Davis, 146 U. S.,
314; Mattoxz/. U. S., 156U. S., 237 ; Bergemannz/. Becker, 157 U. S., 655.
THE CONSTITUTION 377
[ARTICLE VII.]
In suits at common law, where the value in controversy
shall exceed twenty dollars, the right of trial by jury
shall be preserved, and no fact tried by a jury, shall be
otherwise re-examined in any Court of the United States,
than according to the rules of the common law.
United States z'. La Vengeance, 3 Dall., 297; Bank of Columbia t'.
Oakley, 4 Wh., 235; Parsons v. Bedford et al., 3 Pet., 433 ; Lessee of
Livingston v. Moore et al., 7 Pet., 469; Webster w. Reid, ii How., 437 ;
State of Pennsylvania v. The Wheeling, &c., Bridge Company et al., 13
How., 518; Tlie Justices v. Murray, 9 Wall. 274; Edwards v. Elliott et
al., 21 Wall., 532; Pearson z/. Yewdall, 95 U. S., 294; McElrath v.
United States, 102 U. S., 426 ; Callan t/. Wilson, 127 U. S., 540; Ark.
Valley Land and Cattle Co. v. Mann, 130 U. S., 69; Whitehead v. Shat-
tuck, 138 U. S., 146; Scott V. Neely, 140 U. S., 106; Cates v. Allen, 149
U. S., 451.
[ARTICLE VIII.]
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Pervear v. Commonwealth, 5 Wall., 475; Manning v. French, 133
U. S., 186; Ellenbecker v. Plymouth County, 134 U. S., 31 ; In re Kemm-
ler, 136 U. S., 436; McElvaine v. Brush, 142 U. S., 155; O'Neill v.
Vermont, 144 U. S., 323.
[ARTICLE IX.]
The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others re-
tained by the people.
Lessee of Livingston v. Moore et al., 7 Pet., 469.
[ARTICLE X.]
The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are re-
served to the States respectively, or to the people.
Chisholm, ex., v. State of Georgia, 2 Dall., 419; Hollingsworth et al.,
V. The State of Virginia, 3 Dall., 378 ; Martin v. Hunter's Lessee, i Wh.,
378 APPENDIX
304; McCuUoch V. State of Maryland, 4 Wh., 316; Anderson v. Dunn, 6
Wh., 204; Cohen v. Virginia, 6 Wh., 264; Osborn v. United States
Bank, 9 Wh., 73S ; Buchler v. Finley, 2 Pet., 586; Ableman v. Booth, 21
How., 506; The Collector v. Day, 11 Wall., 113; Claflin v. Houseman,
assignee, 93 U. S., 130 ; Inman Steamship Company v. Tinker, 94 U. S.,
238; Church V. Kelsey, 121 U. S., 282; Ouachita Packet Co. v. Aiken,
121 U. S., 444 ; W. U. Tel. Co. v, Pendleton, 122 U. S., 347 ; Bowman v.
Chicago and Northwestern Rwy. Co, 125 U. S.,465; Mahon v. Justice,
127 U. S., 700; Leisy v. Hardin, 135 U. S., 100; Manchester v. Mass.,
139 U. S., 240; Pollock V. Farmers' Loan & Trust Co., 157 U. S., 429.
ARTICLE XL*
The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, com-
menced or prosecuted against one of the United States
by Citizens of another State, or by Citizens or Subjects
of any Foreign State.
State of Georgia v. Brailsford et al., 2 DalL, 402; Chisholm, ex., v.
State of Georgia, 2 DalL, 419; Hollingsworth et al. 7). Virginia, 3 DalL,
378; Cohen t/. Virginia, 6 Wh., 264; Osborn f. United States Bank, 9
Wh., 738; United States z'. The Planters' Bank, 9 Wh., 904; The Gover-
nor of Georgia J/. Juan Madrazo, i Pet., no; Cherokee Nation v. State
of Georgia, 5 Pet., i ; Briscoe v. The Bank of the Commonwealth of
Kentucky, 11 Pet., 257 ; Curran z/. State of Arkansas et al., 15 How., 304;
New Hampshire z/. Louisiana, 108 U. S., 76; Virginia Coupon Cases,
114 U. S., 270; Hagood V. Southern, 117 U. S., 52; In re Ayres, 123
U. S., 443; Lincoln County z'. Luning, 133 U. S., 529; Coupon Cases,
135 U. S., 662 ; Pennoyer v. McConnaughy, 140 U. S., I ; In re Taylor,
149 U. S., 164; Reagan 71. Farmers' Loan and Trust Co., 154 U. S., 362;
Reagan v. Mercantile Trust Co., 154 U. S., 413.
ARTICLE Xll.t
The Electors shall meet in their respective states and
vote by ballot for President and Vice-President, one of
* The eleventh amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Third
Congress, on the 5th of March, 1794; and was declared in a message
from the President to Congress, dated the 8th of January, 1798, to have
been ratified liy the legislatures of three-fourths of the States.
t Tlie twelfth amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Eighth
Congress, on the 12th of December, 1803, in lieu of the original third
paragraph of the first section of the second article ; and was declared
in a proclamation of the Secretary of State, dated the 25th of Septem-
ber, 1804, to have been ratified by the legislatures of three-fourths of
the States.
THE CONSTITUTION 379
whom, at least, shall not be an inhabitant of the same
state with themselves ; they shall name in their ballots
the person voted for as President, and in distinct ballots
the person voted for as Vice-President, and they shall
make distinct lists of all persons voted for as President,
and of all persons voted for as Vice-President, and of
the number of votes for each, which lists they shall sign
and certify, and transmit sealed to the seat of the gov-
ernment of the United States, directed to the President
of the Senate; — The President of the Senate shall, in
presence of the Senate and House of Representatives,
open all the certificates and the votes shall then be
counted ; — The person having the greatest number of
votes for President, shall be the President, if such number
be a majority of the whole number of Electors appointed;
and if no person have such majority, then from the
person having the highest numbers not exceeding three
on the list of those voted for as President, the House
of Representatives shall choose immediately, by ballot,
the President. But in choosing the President, the votes
shall be taken by states, the representation from each
state having one vote; a quorum for this purpose shall
consist of a member or members from two-thirds of the
states, and a majority of all the states shall be necessary
to a choice. And if the House of Representatives shall
not choose a President whenever the right of choice
shall devolve upon them, before the fourth day of March
next following, then the Vice-President shall act as Presi-
dent, as in the case of the death or other constitutional
disability of the President. — 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 appointed, and if no person have a
majority, then from the two highest numbers on the list,
the Senate shall choose the Vice-President ; a quorum
for the 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. But no person constitu-
tionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.
38o APPENDIX
ARTICLE XIII.*
Section i. Neither slavery nor involuntary servitude,
except as a punishment for crime whereof the party shall
have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.
Section 2. Congress shall have power to enforce
this article by appropriate legislation.
Dred Scott v. Sanford, 19 How., 393; White v. Hart, 13 Wall., 646;
Osborn v. Nicholson, 13 Wall., 654 ; Slaughterhouse Cases, 16 Wall., 36;
Ex parte Virginia, 100 U. S., 339; Civil Rights Case, 109 U. S., 3.
ARTICLE XlV.t
Section i. All persons born or naturalized in the
United States, and subject to the jurisdiction thereof, are
* The thirteenth amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Thirty-eighth
Congress, on the ist of February, 1S65, and was declared, in a proclama-
tion of the Secretary of State, dated the i8th of December, 1865, to have
been ratified l)y the legislatures of twenty-seven of the thirty-six States,
viz: Illinois, Rhode Island, Michigan, Maryland, New York, West Vir-
ginia, Maine, Kansas, Massachusetts, Pennsylvania, Virginia, Ohio,
Missouri, Nevada, Indiana, Louisiana, Minnesota, Wisconsin, Vermont,
Tennessee, Arkansas, Connecticut, New Hampshire, South Carolina,
Alabama, North Carolina, and Georgia.
t The fourteenth amendment to tlie Constitution of the United States
was proposed to the legislatures of the several States by the Thirty-ninth
Congress, on the i6th of June, 1S66. On the 21st of July, 1868, Congress
adopted and transmitted to the Department of State a concurrent reso-
lution declaring that " the legislatures of the States of Connecticut, Ten-
nessee, New Jersey, Oregon, Vermont, New York, Ohio. Illinois, West
Virginia, Kansas, Maine, Nevada, Missouri, Indi.-ina, Minnesota, New
Hampshire, Massachusetts, Nebraska, Iowa, Arkansas, Florida, North
Carolina, Alabama, South Carolina, and Louisiana, being ihrce-fourths
and mure of the several States of the Union, have ratified the fourteenth
article of amendment to the Constitution of the United States, duly pro-
posed by two-thirds of each House of the Thirty-ninth Congress: There-
fore Resolved, That said fourteenth article is hercliy dedarecl to be a p:\rt
of the Constitution of the United States, and it shall be dulv promulgated
as such by the Secretary of State." The Secretary of State accordingly
issued a proclamation, dated the 28th of July, 1S68, declaring that the
proposed fourteenth amendment had been ratified, in the manner hereafter
mentioned, by the legislatures of thirty of the thirty-six States, viz: Con-
necticut, June 30. 1S66; New Hampshire, July 7, 1866; Tennessee, July
19, 1866; New Jersey, September 11, 1866 (and the legislature of the
THE CONSTITUTION 381
citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which
shall abridge the privileges or- immunities of citizens of
the United States ; nor shall ajiy State deprive any person
of life, liberty, or property, without due process of law ;
nOr 'deny to any person within its jurisdiction the equal
protection of the laws.
Strauder v. West Virginia, loo U. S., 303; Virginia v. Rivers, 100
U. S., 313 ; Ex parte Virginia, 100 U. S., 339 ; Missouri v. Lewis, loi U. S.,
22 ; Civil Rights Cases, 109 U. S., 3 ; Louisiana v. New Orleans, 109 U S.,
285; Hurtado 7'. California, no U. S., 516; Hagar i'. Reclamation Uist.,
Ill U. S., 701 ; Elk z/. Wilkins, 112 U. S-, 94 ; Head z/. Amoskeag Mfg.
Co., 113 U. S., 9; Barbier v. Connolly, 113 U. S., 27 ; Provident Listitu-
tion V. Jersey City, 113 U. S., 506; Soon Hing v. Crowley, 113 U. S., 703 ;
Wurts V. Hoagland, 114 U. S., 606; Ky. R. Rd. Tax Cases, 1 15 U. S., 321 ;
Campbell v. Holt, 115 U- S., 620 ; Presser v. Illinois, 116 U. S., 252 ;
Stone V. Farmers' Loan and Trust Co., 116 U. S., 307; Arrowsmith v.
Harmoning, 118 U. S., 194; Yick Wo v. Hopkins, 118 U. S., 356; Santa
Clara Co. v. S. Pacific R. Rd., 1 18 U. S., 394 ; Phila. Fire Assn. v. N. Y.,
119 U. S., no; Schmidt v. Cobb, 119 U. S., 286; Baldwin v. Prank, ng
U.S., 678; Hayes z'. Missouri, 120 U. S., 68 ; Church z'. Kelsey, 121 U.S.,
282; Pembina Mining Co. z'. Penna., 125 U. S., 181 ; Spencer z/. Merchant,
125 U. S., 345; Dow V. Beidelman, 125 U. S., 680 ; Bank of Redemption
». Boston, 125 U. S., 60; Ro Bards z'. Lamb, 127 U. S., 58 ; Mo. Pac. Rwy.
Co. V. Mackey, 127 U. S., 205 ; Minneapolis and St. Louis Rwy. v. Her-
rick, 127 U. S., 210; Powell v. Penna., 127 U. S., 678; Kidd v. Pearson,
128 U. S., I ; Nashville, Chattanooga, &c., Rwy. v. Alabama, 12S U. S.,
96; Walston V. Navin, 128 U. S., 578; Minneapolis and St. Louis Rwy.
V. IBeckwith, 129 U. S., 26; Dent v. West Va. 129 U. S., 114; Huling v.
same State passed a resolution in April, 186S, to withdraw its consent to
it) ; Oregon, September 19, 1866; Vermont, November 9, 1866; Georgia
rejected it November 13, 1S66, and ratified it July 21, 1868 ; North Caro-
lina rejected it December 4, 1866, and ratified it July 4, 1868; South
Carolina rejected it December 20, 1866, and ratified it July 9, 1S6S; New
York ratified it January 10, 1867 ; Ohio ratified it January 11, 1S67 (and
the legislature of the same State passed a resolution in January, 1S6S, to
withdraw its consent to it); Illinois ratified it January 15, 1S67 ; West
Virginia, January 16, 1867; Kansas, January 18, 1867; Maine, January
19, 1S67 ; Nevada, January 22, 1867 ; Missouri, January 26, 1867 ; Indiana,
January 20, 1S67 ; Klinnesota, February i, 1867 ; Rhode Island, February
7, 1867 ; Wisconsin, February 13, 1867 ; Pennsylvania, February 13, 1867 ;
Michigan, February 15, 1S67 ; Massachusetts, March 20, 1867 ; Nebraska,
June 15, 1867; Iowa, April 3, 1868; Arkansas, April 6, 186S ; Florida,
June 9, 1S68 ; Louisiana, July 9, 1868, and Alabama, July 13, 1868. Georgia
again ratified the amendment P'ebruary 2, 1870. Texas rejected it Novem-
ber I, 1866, and ratified it February iS, 1870. Virginia rejected it January
19, 1867, aid ratified it October 8, 1869. The amendment was rejected
by Kentucky January 10, 1867 ; by Delaware February 8, 1S67 ; by Mary-
land March 23, 1S67, and was not afterwards ratified by either State.
382 APPENDIX
Kaw Valley Rwy. and Improvement Co., 130 U. S., 559; Freeland v.
Williams, 131 U. S., 405 ; Cross v. North Carolina, 132 U. S., 131 ; Pen-
nie V. Reis, 132 U. S., 464; Sugg v. Thornton, 132 U. S., 524; Davis v.
Beason, 133 U. S., 333 ; Ellenbecker v. Plymouth Co., 134 U. S., 31 ; Bell
Gap R. Rd. Co. v. Penna., 134 U. S., 232; Chicago, Milwaukee & bt.
Paul Rwy. v. Minnesota, 134 U. S., 418; Home Ins. Co. v. N. Y., 134
U. S., 594; Louisville & Nashville R. Rd. Co. z/. Woodson, 134 U. S.,
614 ; Home Ins. Co. v. N. Y., 134 U. S., 594 ; Leisy v. Hardin, 135 U. S.,
100; In re Kemmler, 136 U.S.,436; York z^. Te.xas, 137 U. S., 15 ; Crow-
ley V. Christensen, 137 U. S., 89; Wheeler v Jackson, 137 U. S., 245;
Holden v. Minnesota, 137 U. S., 483; In re Converse, 137 U. S., 624;
Caldwell z/. Te.xas, 137 U.S., 692 ; Kauffman v. Wootters, 138 U. S., 285;
Lesper v. Texas, 139 U. S., 462 ; In re Manning, 139 U. S., 504; Mabal v.
Louisiana, 139 U. S., 621 ; In re Duncan, 139 U. S., 449; In re Shibuya
Jugiro, 139 U. S., 291 ; Lent v. Tillson, 140 U. S., 316; New Orleans v.
N. O. Water W'ks, 142 U. S., 79 ; McElvaine v. Brush, 142 U. S., 155;
Kaukauna Water Power Co. v. Miss. Canal Co., 142 U. S., 254; Char-
lotte, Augusta & Col. R. Rd. Co. v. Gibbes, 142 U. S., 386; Pacific Ex.
Co. V. Siebert, 142 U. S., 339; Horn Sdver Mining Co. v. N. Y., 143 U. S.,
305; Budd V. N. Y., 143 U. S., 517 ; Schwab v. Berggren, 143 U. S., 442;
Fielden v. Illinois, 143 U. S., 452 ; N. N.v. Squire, 144 U. S., 175; Brown
V. Smart, 144 U. S., 454; McPherson v. Blacker, 146 U. S., i ; Morley v.
Lake Shore & Mich. Southern Ry. Co., 146 U. S., 162; Ilallinger z/.
Davis, 146 U. S., 314; Yesler v. Washington Harbor Line Comsrs., 146
U. S., 646; Butler v. Goreley, 146 U. S., 303; Southern Pacific Co. v.
Denton, 146 U. S., 202; Thorington v. Montgomery, 147 U. S.,490; Giozza
V. Tiernan, 148 U. S., 657; Paulsen v. Portland, 149 U. S., 30; Minn. &
St. L. Rwy. Co. V. Emmons, 149 U. S., 364; Columbus So. Rwy. Co. v.
Wright. 151 U.S., 470; In re Frederick, 149 U. S., 70 ; McNulty z/. Calif.,
149 U. S., 645; Leesz/. U. S., 150 U. S., 476; Lawton z'. Steele, 152 U. S.,
133; Montana Co. v. St. Louis Mining Co., 152 U. S., 160; Duncan v.
Missouri, 152 U. S., 377 ; McKane v. Durston, 153 U. S., 684 ; Marchant
V. Penna. R. R. Co., 153 U. S., 380; Brass z/. Stoeser, 153 U. S.,391 ; Scott
V. McNeal, 154 U. S., 34; Reagan v. Far. Loan & Trust Co., 154 U. S.,
362; P., C, C. & St. L. R. R. Co., V. Backus, 154 U. S., 421 ; Interstate
Com. Comsn. v. Brimson, 154 U. S., 447 ; Reagan v. Mercantile Trust
Co., 154 U. S., 447; Pearce v. Texas, 155 U. S., 311; Pittsburgh & So.
Coal Co. V. La., 156 U. S., 590; Andrews v. Swartz, 156 U. S., 272 ; St.
L. & S. F. Rwy. Co. v. Gill, 156 U. S., 649; Stevens admr. v. Nichols,
157 U. S., 370; Bergemann v. Becker, 157 U. S., 655; Quarles v. Butler,
158 U. S., 532; Gray v. Connecticut, 159 U. S., 74 ; Central Land Co. v.
Laidley, 159^ U. S., 103; Moore v. Missouri, 159 U. S., 673; Winona &
St. Peter Land Co. v. Minn. 159 U. S., 528.
Section 2. Representatives shall be apportioned among
the several States according -to their respective numbers,
counting the whole number of persons in each State,
excluding Indians not taxed. But when the right to
vote at any election for the choice of electors for President
and Vice-President of the United States, Representatives
in Congress, the Executive and Judicial officers of a
THE CONSTITUTION 383
State, or the members of the Legislature thereof, is
denied to any of the male inhabitants of such State,
being twenty-one years of age, and citizens 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 such male citizens shall bear to the whole number
of male citizens twenty-one years of age in such State.
Section 3. No person shall be a Senator or Repre-
sentative in Congress, 'of elector of President and Vice-
President, or hold any office, civil or military, under the
United States, or under any State, who, having previously
taken an oath, or as a member of Congress, or as an
officer of the United States, or as a member of any
State legislature, or as an executive or judicial officer
of any State, to support the Constitution of the United
States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of
each House, remove such disability.
Section 4. The validity of the public debt of the
United States, authorized by law, including debts in-
curred for payment of pensions and bounties for services
in suppressing insurrection or rebellion, shall not be
questioned. But neither the United States nor any State
shall assume or pay any debt or obligation incurred in
aid of insurrection or rebellion against the United States,
or any claim for the loss or emancipation of any slave;
but all such debts, obligations and claims shall be held
illegal and void.
Section 5. The Congress shall have power to enforce,
by appropriate legislation, the provisions of this article.
Crandall v. the State of Nevada, 6 Wall., 35 ; Paul v. Virginia, 8
Wall., 168; Ward v. Maryland, 12 Wall., 418; Slaughterhouse Cases, 16
Wall., 36; Bradwell v. The State, 16 Wall., 130; Rartemeyer v. Iowa,
18 Wall., 129; Minor?'. Happersett, 21 Wall., 162; Walker t'. Sauvinet,
92 U. S., 90 ; Kennard v. Louisiana, ex rel. Morgan, 92 U. S., 480 ; United
States V. Cruikshank, 92 U. S., 542 ; Munn v. Illinois, 94 U. S., 113.
384 APPENDIX
ARTICLE XV.*
Section i. The right of citizens of the United States
to vote shall not be denied or abridged by the United
States or by any State on account of race, color, or
previous condition of servitude —
Section 2. The Congress shall have power to en-
force this article by appropriate legislation.
United States v. Reese et al., 92 U. S., 214; United States v. Cruik-
shank et al., 92 U. S., 542; Ex parte Yarborough, 110 U. S., 651 ; McPher-
son V. Blacker, 146 U. S., i.
* The fifteenth amendment to the Constitution of the United States
was proposed to the legislatures of the several States by the Fortieth
Congress on the 27th of February, i86g, and was declared, in a procla-
mation of the Secretary of State, dated March 30, 1870, to have been
ratified by the legislatures of twenty-nine of the thirty-seven States. The
dates of these ratifications (arranged in the order of their reception at
the Department of State) were : From North Carolina, March 5, 1869
West Virginia, March 3, 1869; Massachusetts, March 9-12, 1S69; Wis
consin, March 9, 1869; Maine, March 12, 1S69; Louisiana, March 5, 1869
Michigan, March 8, 1869; South Carolina, March 16, 1S69; Pennsylvania
March 26, 1869; Arkansas, March 30, 1869; Connecticut, May 19, 1869
Florida, June 15, 1869; Illinois, March 5, 1869; Indiana, May 13-14,
1869; New York, March 17-April 14, 1869 (and the legislature of the
same State passed a resolution January 5, 1S70, to withdraw its consent
toil); New Hampshire, July 7, 1869; Nevada, March 1,1869; Vermont,
October 21, 1869; Virginia, October 8, 1869; Missouri, January 10, 1870;
Mississippi, January 15-17, 1870; Ohio, January 27, 1870; Iowa, Feb-
ruary 3, 1870; Kansas, January 18-19, 1870; Minnesota, February 19,
1870; Rhode Island, January 18, 1S70; Nebraska, February 17, 1870;
Texas, I-'ebruary 18, 1870. The State of Georgia also ratified the amend-
ment February 2, 1870.
APPENDIX 384'
ARTICLE XVI.*
Section i. The Congress shall have power to lay and
collect taxes on incomes, from whatever source derived,
without apportionment among the several States, and
without regard to any census or enumeration.
ARTICLE XVII.t
Section i. The Senate of the United States shall be
composed of two Senators from each State, elected by
the people thereof, for six years ; and each Senator shall
have one vote. The electors in each State shall have the
qualifications requisite for electors of the most numerous
branch of the State legislatures.
Section 2. When vacancies happen in the represen-
tation of any $tate in the Senate, the executive authority
of such State shall issue writs of election to fill such
vacancies : Provided, That the legislature of any State
may empower the executive thereof to make temporary
appointments until the people fill the vacancies by elec-
tion as the legislature may direct.
* Article XVI passed the Senate, July 5, 1909; passed the House,
July 12, 1909; proclaimed by Philander C. Knox, as having become
valid as part of the Constitution, February 25, 1913; was ratified by the
States as follows: Alabama, August 17, 1909; in 1910, by Kentucky,
February 8 (or 9); South Carolina, February 19; Illinois, March i;
Mississippi, March 7; Oklahoma, March 14; Maryland, April 8;
Georgia, August 3; Texas, August 17; in 1911, by Ohio, January 19;
Idaho, January 20 ; Oregon, January 23 ; Washington, January 26 ; Mon-
tana, California, January 31 ; Indiana, February 6; Nevada, February 8;
Nebraska, North Carolina, February 1 1 ; Colorado, February 20 ; North
Dakota, February 21; Michigan, February 23; Iowa, February 27;
Missouri, March 16; Maine, March 31 ; Tennessee, April 7; Arkansas,
April 22 ; Wisconsin, May 26; New York, July 12; in 1912, by South
Dakota, February 3; Arizona, April 9; Minnesota, June 11 ; in 1913, by
Delaware, Wyoming, February 3 ; New Jersey, New Mexico, February 5.
Rejected by Rhode Island, April 29, 1910; New Hampshire, March 2,
1911 (Senate) ; Utah, March 9, 191 1 (House).
t Article XVII passed the House, April 13, 191 1 ; passed the Senate,
June 12, 191 1 ; proclaimed by William J. Bryan, Secretary of State, as hav-
ing become valid as part of the Constitution, May 31, 1913, having
been ratified by the following States : in 191 2, by Massachusetts, May 22;
384** APPENDIX
Section 3. This amendment shall not be so construed
as to affect the election or term of any Senator chosen
before it becomes valid as part of the Constitution.
Arizona, June 3; Minnesota, June 10; in 191 3, by New York, January 15 ;
Kansas, January 17; Oregon, January 23; North Carolina, January 25;
Michigan, California, January 28 ; Idaho, January 31 ; West Virginia, Feb-
uary 4 ; Nebraska, February 5 ; Iowa, Februai7 6 ; Washington, Montana,
Texas, February 7 ; Wyoming, February 11 ; Illinois, Colorado, February
13; North Dakota, February 18; Nevada, Vermont, February 19;
Maine, February 20; New Hampshire, February 21; Oklahoma, Feb-
ruary 24; Ohio, February 25; South Dakota, February 27; Indiana,
March 6; Missouri, March 7; New Jersey, March 18 ; Tennessee, April
i; Arkansas, April 14; Pennsylvania, Connecticut, April 15; Wisconsin,
May 9.
THE CONSTITUTION 385
RATIFICATIONS OF THE CONSTITUTION.
The Constitution was adopted by a convention of the
States September 17, 1787, and was subsequently ratified
by the several States, in the following order, viz :
Delaware, December 7, 1787.
Pennsylvania, December 12, 1787.
New Jersey, December 18, 1787.
Georgia, January 2, 1788.
Connecticut, January 9, 1788.
Massachusetts, February 6, 1788.
Maryland, April 28, 1788.
South Carolina, May 2.2^, 1788.
New Hampshire, June 21, 1788.
Virginia, June 26, 1788.
New York, July 26, 1788.
North Carolina, November 21, 1789.
Rhode Island, May 29, 1790.
The State of Vermont, by convention, ratified the Con-
stitvUion on the loth of January, 1791, and was, by an
act of Congress of the i8th of February, 1791, " received
and admitted into this Union as a new and entire member
of the United States of America."
■RATIFICATIONS OF THE AMENDMENTS TO
THE CONSTITUTION.
The first ten of the preceding articles of amendment
(with two others which were not ratified by the requisite
number of States) were submitted to the several State
legislatures by a resolution of Congress which passed on
the 25th of September, 1789, at the first session of the
25
386 APPENDIX
First Congress, and were ratified by the legislatures of
the following States :
New Jersey, November 20, 1789.
Maryland, December 19, 1789.
North Carolina, December 22, 1789.
South Carolina, January 19, 1790.
New Hampshire, January 25, 1790.
Delaware, January 28, 1790.
Pennsylvania, March 10, 1790.
New York, March 2^, 1790.
Rhode Island, June 15, 1790.
Vermont, November 3, 1791.
Virginia, December 15, 1791.
The acts of the legislatures of the States ratifying
these amendments were transmitted by the governors to
the President, and by him communicated to Congress.
The legislatures of Massachusetts, Connecticut, and
Georgia do not appear by the record to have ratified
them.
The eleventh article was submitted to the legislatures
of the several States by a resolution of Congress passed
on the 5th of March, 1794, at the first session of the
Third Congress; and on the 8th of January, 1798, at
the second session of the Fifth Congress, it was declared
by the President, in a message to the two Houses of
Congress, to have been adopted by the legislatures of
three-fourths of the States, there being at that time six-
teen States in the Union.
The twelfth article was submitted to the legislatures
of the several States, there being then seventeen States,
by a resolution of Congress passed on the 12th of Decem-
ber, 1803, at the first session of the Eighth Congress, and
was ratified by the legislatures of three-fourths of the
States in 1804, according to a proclamation of the Secre-
tary of State dated the 25th of September, 1804.
The thirteenth article was submitted to the legislatures
of the several States, there being then thirty-six States,
by a resolution of Congress passed on the ist of February,
1865, at the second session of the Thirty-eighth Congress,
THE CONSTITUTION 387
and was ratified, according to a proclamation of the
Secretary of State dated December 18, 1865, by the legis-
latures of the following States:
Illinois, February i, 1865.
Rhode Island, February 2, 1865.
Michigan, February 2, 1865.
Maryland, February 3, 1865.
New York, February 3, 1865.
West Virginia, February 3, 1865.
Maine, February 7, 1865.
Kansas, February 7, 1865.
Massachusetts, February 8, 1865.
Pennsylvania, February 8, 1865.
Virginia, February 9, 1865.
Ohio, February 10, 1865.
Missouri, February 10, 1865.
Indiana, February 16, 1865.
Nevada, February 16, 1865.
Louisiana, February 17, 1865.
Minnesota, February 23, 1865.
Wisconsin, March i. 1865.
Vermont, March 9, 1865.
Tennessee, April 7, 1865.
Arkansas, April 20, 1865.
Connecticut, May 5, 1865.
New Hampshire, July i, 1865.
South CaroHna, November 13, 1865.
Alabama, December 2, 1865.
North Carolina, December 4, 1865.
Georgia, December 9, 1865.
The following States not enumerated in the proclama-
tion of the Secretary of State also ratified this amendment :
Oregon, December 11, 1865.
California, December 20, 1865.
Florida, December 28, 1865.
New Jersey, January 23, 1866.
Iowa, January 24, 1866.
Texas, February 18, 1870.
388 APPENDIX
Mississippi rejected the amendment, December 4, 1865 ;
Kentucky, February 2.2, 1865; Delaware, February 7,
1867; Maryland, March 23, 1867.
The fourteenth article was submitted to the legislatures
of the several States, there being then thirty-seven States,
by a resolution of Congress passed on the i6th of June,
1866, at the first session of the Thirty-ninth Congress,
and was ratified, according to a proclamation of the Sec-
retary of State dated July 28, 1868, by the legislatures of
the following States :
Connecticut, June 30, 1866.
New Hampshire, July 7, 1866.
Tennessee, July 19, 1866.
* New Jersey, September 11, 1866.
t Oregon, September 19, 1866.
Vermont, November 9, 1866.
New York, January 10, 1867.
X Ohio, January 11, 1867.
Illinois, January 15, 1867.
West Virginia, January 16, 1867.
Kansas, January 18, 1867.
]\Iaine, January 19, 1867.
Nevada, January 22, 1867.
Missouri, January 26, 1867.
Indiana, January 29, 1867.
Minnesota, February i, 1867.
Rhode Island, February 7, 1867.
Wisconsin, February 13, 1867.
Pennsylvania. February 13, 1867.
Michigan, February 15, 1867.
Massachusetts, March 20, 1867,
Nebraska, June 15, 1867.
Iowa, April 3, 1868.
Arkansas, April 6, 1868.
Florida, June 9, 1868.
* New Jersey withdrew her consent to the ratification March 27,
1868.
t Oregon withdrew her consent to the ratification October 15. 1S68.
\ Ohio withdrew her consent to the ratification January 15, 1868.
THE CONSTITUTION 389
* North Carolina, July 4, 1868.
Louisiana, July 9, 1868.
* South Carolina, July 9, 1868.
Alabama, July 13, 1868.
* Georgia, July 21, 1868.
* The State of Virginia ratified this amendment on the
8th of October, 1869; Mississippi, January 17, 1870;
Texas, February 18, 1870, — subsequent to the date of the
proclamation of the Secretary of State.
The States of Delaware, Maryland and Kentucky, re-
jected the amendment.
The fifteenth article was submitted to the legislatures of
the several States, there being then thirty-seven States,
by a resolution of Congress passed on the 27th of Feb-
ruary, 1869, at the first session of the Forty-first Congress ;
and was ratified, according to a proclamation of the
Secretary of State dated March 30, 1870, by the legis-
latures of the following States :
Nevada, March i, 1869.
West Virginia, March 3, 1869.
North Carolina, March 5, 1869.
Louisiana. March 5, 1869.
Illinois, March 5, 1869.
Michigan, March 8, 1869.
Wisconsin, March 9, 1869.
Massachusetts, March 12, 1869.
Maine, March 12, 1869.
South Carolina, March 16, 1869.
Pennsylvania, March 26, 1869.
Arkansas, March 30, 1869.
t New York, April 14, 1869.
Indiana, May 14, 1869.
Connecticut, May 19, 1869.
Florida, June 15, 1869.
New Hampshire, July 7, 1869.
Virginia, October 8, 1869.
* North Carolina, South Carolina, Georgia, and Virginia had pre-
viously rejected the amendment.
t New York withdrew her consent to the ratification January 5, 1870.
390 APPENDIX '
Vermont, October 21, 1869.
Alabama, November 24, 1869.
Missouri, January 10, 1870.
Mississippi, January 17, 1870.
Rhode Island, January 18, 1870.
Kansas, January 19, 1870.
* Ohio, January 27, 1870.
Georgia, February 2, 1870.
Iowa, February 3, 1870.
Nebraska, February 17, 1870.
Texas, February 18, 1870.
Minnesota, February 19, 1870.
t The State of New Jersey ratified this amendment on
the 2 1st of February, 1871, subsequent to the date of the
proclamation of the Secretary of State.
The States of California, Delaware, Kentucky, Mary-
land, Oregon, and Tennessee rejected this amendment.
* Ohio had previously rejected the amendment May 4, 1869.
t New Jersey had previously rejected the amendment.
I
INDEX TO THE CONSTITUTION OF THE
UNITED STATES AND AMENDMENTS
THERETO
A.
Art. Sec. CI. Page
Abridged. The privileges or immunities of citizens of
the United States shall not be. [Amendments] 14 i — 380
Absent members, in such manner and under such penal-
ties as it may provide. Each House is author-
ized to compel the attendance of I 5 i 350
Accounts of receipts and expenditures of public money
shall be published from time to time. A state-
ment of the I 9 7 35S
Accusation. In all criminal prosecutions the accused
shall be informed of the cause and nature of the.
[Amendments] 6 — — 376
Accused shall have a speedy public trial. In all crimi-
nal prosecutions the. [Amendments] .... 6 — — 376
He shall be tried by an impartial jury of the State
and district where the crime was committed.
[Amendments] 6 — — 376
He shall be informed of the nature of the accusa-
tion. [Amendments] 6 — — 376
He shall be confronted with the witnesses against
him. [Amendments] 6 — — 376
He shall have compulsory process for obtaining
witnesses in his favor. [Amendments] ... 6 — — 376
He shall have the assistance of counsel for his
defense. [Amendments] 6 — — 376
Actions at common law involving over twenty dollars
shall be tried by jury. [Amendments] ... 7 — — 377
Acts, records, and judicial proceedings of another
State. Full faith and credit shall be given in
each State to the 4 i — 368
Acts. Congress shall prescribe the manner of prov-
ing such acts, records, and proceedings ... 4 i — 368
Adjourn from day to day. A smaller number than a
quorum of each House may i 5 i 350
Adjourn for more than three days, nor to any other
place than that in which they shall be sitting.
Neither House shall, during the session of Con-
gress, without the consent of the other . . . i 5 4 350
392 IxNDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Adjournment, the President may adjourn them to such
time as he shall think proper. In case of dis-
agreement between the two Houses as to . . 2 3 — 362
Admiralty and maritime jurisdiction. The judicial
power shall extend to all cases of 3 2 i 365
Admitted by the Congress into this Union, but no new
.State shall be formed or erected within the juris-
diction of any other State. New States may be 4 3 i 369
Nor shall any State be formed by the junction of
two or more States, or parts of States, without
the consent of the legislatures and of Congress. 431 369
Adoption o{ \.\\^ Constitution shall be valid. All debts
and engagements contracted by the Confedera-
tion and before the 6 — I 371
Advice and consent of the Senate. The President
shall have power to make treaties by and with
the 2 2 2 364
To appoint ambassadors or other public ministers
and consuls by and with the 2 2 2 364
To appoint all other ofificers of the United States
not herein otherwise provided for by and with the 222 364
Affirmation. Senators sitting to try impeachments
shall be on oath or I 3 6 349
To be taken by the President of the United States.
Form of the oath or 2 i 7 363
No warrants shall be issued but upon probable
cause and on oath or. (Amendments] ... 4 — — 375
To support the Constitution. Senators and Rep-
resentatives, members of State legislatures,
executive and judicial ofificers, both State and
Federal, shall be bound by oath or 6 — 3 37^
Age. No person shall be a Representative who shall
not have attained twenty-five years of ... . i 2 2 348
No person shall be a Senator who shall not have
attained thirty years of I 3 3 349
Agreement or compact with another State without the
consent of Congress. No State shall enter into
any I 10 3 361
Aid and comfort. Treason against the United States
shall consist in levying war against them, ad-
hering to their enemies, and giving them •••331 368
Alliance or confederation. No State shall enter into
any treaty of i 10 i 358
Ambassadors, or other public ministers and consuls.
The President may appoint 2 2 2 364
The judicial i^ower of the United States shall
extend to all cases affecting 2 2 i 363
Amendments to the Constitution. Whenever two-thirds
of both Houses shall deem it necessary. Con-
gress shall propose 5 — — 375
On application of the legislatures of two-thirds of
the States, Congress shall call a convention to
propose 5 — — 375
OF THE UNITED STATES 393
Art. Sec. CI. Page
Amendments to the Constitution. Shall be valid when
ratified by the legislatures of, or by conventions
in, three-fourths of the States 5 — — 375
Answer for a capital or infamous crime unless on pre-
sentment of a grand jury. No person shall be
held to. [Amendments] 5 — — 375
Except in cases in the land or naval forces, or in
the militia when in actual service. [Amend-
ments] • 5 375
Appellate jurisdiction both as to law and fact, with
such exceptions and under such regulations as
Congress shall make. In what cases the Su-
preme Court shall have 3 2 2 367
Application of the legislature or the executive of a
State. The United States shall protect each
State against invasion and domestic violence
on the 4 4 — 37°
Application of the legislatures of two-thirds of the
States, Congress shall call a convention for pro-
posing amendments to the Constitution. On
the .- 5 — — 375
Appointment of officers and authority to train the militia
reserved to the States respectively i 8 16 355
Of such inferior officers as they may think proper
in the President alone. Congress may by law
vest the 2 2 2 364
Appointme7its in the courts of law or in the heads
of Departments. Congress may by law vest
the .••••.• 2 2 2 364
Apportionnietit of representation and direct taxation
among the several States. Provisions relating
to the. [Repealed by section 2 of fourteenth
amendment] i 2 3 348
Of Representatives among the several States.
Provisions relating to the. [Amendments] . . 14 2 — 382
Appropriate legislation. Congress shall have power to
make all laws necessary and proper for carrying
into execution the foregoing powers, and all
other powers vested by the Constitution in the
Government of the United States, or in any
department or officer thereof i 818 356
Congress shall have power to enforce the thir-
teenth article, prohibiting slavery, by. [Amend-
ments] 13 2 — 380
Congress shall have power to enforce the pro-
visions of the fourteenth article by. [Amend-
ments] 14 5 — 3S3
Congress shall have power to enforce the pro-
visions of the fifteenth article by. [Amend-
ments] •. • '5 2 — 3S4
Appropriation of money for raising and supporting
armies shall be for a longer term than two
years. But no i 812 355
394 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Appropriations made by law. No money shall be
drawn from the Treasury but in consequence
of I 9 7 358
Approve and sign a bill before it shall become a law.
The President shall / • . • ^ ^ 2 351
He shall return it to the House in which it orig-
inated, with his objections, if he do not ... i 7 2 351
Armies, but no appropriation for that use shall be for
a longer term than two years. Congress shall
have power to raise and support i 812 355
Armies. Congress shall make rules for the govern-
ment and regulation of the land and naval
forces . I 8 14 355
Ar7ns shall not be infringed. A well-regulated militia
being necessary to the security of a free State,
the right of the people to keep and bear.
[Amendments] 2 — — 374
Arrest A\ix\w^ their attendance at the session of their
respective Houses, and in going to and returning
from the same. Members shall in all cases,
except treason, felony, and breach of the peace,
be privileged from i 6 i 350
Arsenals. Congress shall exercise exclusive authority
over all places purchased for the erection of . i 817 356
Articles exported from any State. No tax or duty shall
be laid on. ..'... i 9 5 357
Arts by securing to authors and inventors their patent
rights. Congress may promote the progress of
science and the useful i 8 8 354
Assistance of counsel for his defense. In all crim-
inal prosecutions the accused shall have the.
[Amendments] 6 — — 376
Assumption of the debt or obligations incurred in aid
of rebellion or insurrection against the United
States. Provisions against the. [Amend-
ments] • '4 4 — 3S3
Attainder or ex post facto law shall be passed. No bill
of I 9 3 357
Attainder, ex post facto \2.vi, or law impairing the obli-
gation of contracts. No State shall pass any
bill of I 10 I 358
Attainder of treason shall not work corruption of blood
or forfeiture, except during the life of the per-
son attainted 3 3 2 368
Attthors and inventors the exclusive right to their ,n
writings and inventions. Congress shall have
power to secure to i 8 8 354
B.
Bail. Excessive bail shall not be required, nor excess-
ive fines nor cruel and unusual punishments
imposed. [Amendments] 8 — — 377
OF THE UNITED STATES 395
Art. Sec. CI. Page
Ballot for President and Vice-President. The electors
shall vote by. [Amendments] 12 — — 378
Ballot. If no person have a majority of the electoral
votes for President and Vice-President, the
House of Representatives shall immediately
choose the President by. [Amendments] . . 12 — — 378
Bankruptcies. Congress shall have power to pass uni-
form laws on the subject of i 8 4 354
Basis of representation among the several States.
Provisions relating to the. [Amendments] .14 2 — 382
Bear arms shall not be infringed. A well-regulated
militia being necessary to the security of a free
State, the right of the people to keep and.
[Amendments] 2 — — 374
Behavior. The judges of the Supreme and inferior
courts shall hold their offices during good ..31 — 3615
^/// (T/'fl/'/fl/W^r or ^j:/'t'j//?c^c law shall be passed. No i 9 3 357
Bill of attainder, ex post facto law, or law impairing the
obligation of contracts. No State shall pass any i 10 i 358
Bills of credit. No State shall emit i 10 i 358
Bills for raising revenue shall originate in the House
of Representatives. All i 7 I 351
Bills which have passed the Senate and House of
Representatives shall, before they become laws,
be presented to the President I 7 2 351
If he approve, he shall sign them ; if he disap-
prove, he shall return them, with his objections,
to that House in which they originated ... I 7 2 351
Bills. Upon the reconsideration of a bill returned by
the President, with his objections, if two-thirds
of each House agree to pass the same, it shall
become a law i 72 351
Upon the reconsideration of a bill returned by the
President, the question shall be taken by yeas
and nays : i 7 2 351
Not returned by the President within ten days
(Sundays excepted), shall, unless Congress
adjourn, become laws I 7 2 351
Borrow money on the credit of the United States.
Congress shall have power to i 8 2 352
Bounties and pensions, shall not be questioned. The
validity of the public debt incurred in sup-
pressing insurrection and rebellion against the
United States, including the debt for. [ Amend-
me ts] _. 14 4 — 3S3
Breach of the peace, shall be privileged from arrest
while attending the session, and in going to and
returning from the same. Senators and Repre-
sentatives, except for treason, felony, and ..161 350
Bribery, or other high crimes and misdemeanors.
The President, Vice-President, and all civil offi-
ers shall be removed on impeachment for and
conviction of treason 2 4 — 365
396 INDEX TO THE CONSTITUTION
c.
Art. Sec. CI. Page
Capital or otherwise infamous crime, unless on indict-
ment of a grand jury, except in certain specified
cases. No person shall be held to answer for
a. [Amendments] • 5 — 375
Capitation or other direct tax shall be laid unless in
proportion to the census or enumeration. No I 9 4 357
Captures on land and water. Congress shall make
rules concerning i 811 355
Casting vote. The Vice-President shall have no vote
unless the Senate be equally divided .... i 3 4 349
Census or enumeration of the inhabitants shall be
made within three years after the first meeting
of Congress, and within every subsequent term
of ten years thereafter • • i 2 3 348
Census or enumeration. No capitation or other direct
tax shall be laid except in proportion to the .194 357
Chief Justice shall preside when the President of the
United States is tried upon impeachment. The i 3 6 349
Choosing the electors and the day on which they shall
give their votes, which shall be the same through-
out the United States. Congress may deter-
mine the time of 2 i 3 362
Citizen of the United States at the adoption of the
Constitution shall be eligible to the office of
President. No person not a natural born ..214 362
Citizen of the United States. No person shall be a
Senator who shall not have attained the age of
thirty years and been nine years a i 3 3 349
No person shall be a Representative who shall
not have attained the age of twenty-five years
and been seven years a I 2 2 348
Citizenship. Citizens of each State shall be entitled to
all the privileges and immunities of citizens of
the several States 4 2 i 369
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the State
in which they reside. [Amendments] ... 14 I — 380
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States. [Amendments] 14 i — 3S0
Nor shall any State deprive any person of life,
liberty, or property without due process of law.
[Amendments] 14 ' — 3^°
Nor deny to any person within its jurisdiction the
equal protection of the laws. [Amendments] 14 i — 380
Citizens or subjects of a foreign state. The judicial
power of the United States shall not extend to
suits in law or equity brought against one of
the States by the citizens of another State, or
by. [Amendments] ^ . . . w — — 3
OF THE UNITED STATES
397
Civil officers of the United States shall, on impeach-
ment for and conviction of treason, bribery, and
other high crimes and misdemeanors, be re-
moved. All
Claims of the United States or any particular State in
the Territory or public property. Nothing in
this Constitution shall be construed to preju-
dice
Classification of Senators. Immediately after they
shall be assembled after the first election, they
shall be divided as equally as may be into three
classes
The seats of the Senators of the first class shall
be vacated at the expiration of the second
Art. Sec. CI. Page
Z^S
3 2 370
3 2 349
year
3 2 349
The seats of the Senators of the second class at
the expiration of the fourth year i 3 2 349
The Seats of the Senators of the third class at
the expiration of the sixth year i 3 2 349
Coin a tender in payment of debts. No State shall
make anything but gold and silver i 10 i 358
Coin money and regulate the value thereof and
of foreign coin. Congress shall have power
to I 8 5 354
Coin of the United States. Congress shall provide
for punishing the counterfeiting the securities
and current . i 8 6 354
Color, or previous condition of servitude. The right
of citizens of the United States to vote shall
not be denied or abridged by the United States
or by any State on account of race. [Amend-
ments] IS 1 — 384
Comfort. Treason against the United States shall
consist in levying war against them, and giving
their enemies aid and 3 3 i 36S
Comtnaitder in Chief oi the Army and Navy, and of the
militia when in actual service. The President
shall be 2 2 i 3^3
Commerce with foreign nations, among the States, and
with Indian tribes. Congress shall have power
to regulate i 8 3 352
Commerce or revenue. No preference shall be given
to the ports of one State over those of another
by any regulation of i 9 6 357
Vessels clearing from the ports of one State shall
not pay duties in those of another i 9 6 357
Commissions to expire at the end of the next session.
The President may fill vacancies that happen
in the recess of the Senate by granting ... 2 2 3 364
Common defense, promote the general welfare, etc.
To insure the. [Preamble] — — — 347
Common defense and general welfare. Congress shall
have power to provide for the i 8 i 351
398
INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Common law, where the amount involved exceeds
twenty dollars, shall be tried by jury. Suits
at. [Amendments] 7 — — 377
No fact tried by a jury shall be otherwise re-exam-
ined in any court of the United States than ac-
cording to the rules of the. [Amendments] . 7 — — 377
Compact with another State. No State shall, without
the consent of Congress, enter into any agree-
ment or I 10 3 361
Compact with a foreign power. No State shall, with-
out the consent of Congress, enter into any
agreement or i 10 3 361
Compensation of Senators and Representatives to be
ascertained by law i 6 i 350
Compensatiofi of the President shall not be increased
nor diminished during the period for which he
shall be elected 2 i 6 363
Compensation of the judges of the Supreme and infer-
ior courts shall not be diminished during their
continuance in office 3 i — 365
Compensation. Private property shall not be taken for
public use without just. [Amendments] . . 5 — — 375
Compulsory process for obtaining witnesses in his
favor. In criminal proscecutions the accused
shall have. [Amendments] 6 — — 376
Confederation. No State shall enter into any treaty,
alliance, or I 10 i 358
Confederation. All debts contracted and engagements
entered into before the adoption of this Con-
stitution shall be as valid against the United
States under it as under the 6 — i 371
Confession in open court. Conviction of treason shall
be on the testimony of two persons to the overt
act, or upon 3 3 i 36S
Congress of the United States. All legislative powers
shall be vested in a i i — 347
Shall consist of a Senate and House of Repre-
sentatives I I — 347
Congress shall assemble at least once in every year,
which shall be on the first Monday of Decem-
ber, unless they by law appoint a different day 142 350
May at any time alter regulations for elections of
Senators and Representatives, except as to the
places of choosing Senators i 4 i 349
Each House shall be the judge of the elections,
returns, and qualifications of its own members 151 350
A majority of each House shall constitute a
quorum to do business i 5 i 350
A smaller number may adjourn from day to day
and may be authorized to compel the attend-
ance of absent members i 5 i 350
Each House may determine the rules of its pro-
ceedings, punish its members for disorderly
ec.
Cl.
Page
5
2
350
5
3
350
5
4
350
6
I
350
OF THE UNITED STATES 399
Art.
behavior, and, with the concurrence of two-
thirds, expel a member • I
Coni^ri'ss. Each House shall keep a journal of its
proceedings i
Neither House, during the session of Congress,
shall, without the consent of the other, adjourn
for more than three days i
Senators and Representatives shall receive a
compensation to be ascertained by law ... i
They shall in all cases, except treason, felony,
and breach of the peace, be privileged from
arrest during attendance at their respective
Houses, and in going to and returning from the
same .• • .• ^ ^ i 35°
No Senator or Representative shall, during his
term, be appointed to any civil office which
shall have been created, or of which the emolu-
ments shall have been increased, during such
term i 6 2 351
No person holding any office under the United
States shall, while in oflice, be a member of
either House of Congress I
All bills for raising revenue shall originate in the
House of Representatives i
Proceedings in cases of bills returned by the
President with his objections i
Shall have power to lay and collect duties, im-
posts, and excises, pay the debts, and pro-
vide for the common defense and general
welfare • I
Shall have power to borrow money on the credit
of the United States i
To regulate foreign and domestic commerce, and
with the Indian tribes I
To establish an uniform rule of naturalization
and uniform laws on the subject of bank-
ruptcies 1 s 4 354
To coin money, regulate its value, and the value
of foreign coin, and to fix the standard of
weights and measures i 8 5 354
To punish the counterfeiting the securities and
current coin of the United States i 8 6 354
To establish post-offices and post-roads .... i 8 7 354
To promote the progress of science and the useful
arts I 8 8 354
To constitute tribunals inferior to the Supreme
Court .• • • ■ ^ ^ 9 355
To define and punish piracies and felonies on the
high seas and to punish offenses against the
law of nations i 8 10 355
To declare war, grant letters of marque and
reprisal, and make rules concerning captures
on land and water i 8 11 355
6
351
7
I
351
7
I
351
8
I
351
8
2
352
8
3
352
400 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Congress shall have power to raise and support
armies, but no appropriation of money to that
use shall be for a longer term than two years . i 812 355
To provide and maintain a Navy i 813 355
To make rules for the government of the Army
and Navy i 8 14 355
To call out the militia to execute the laws, sup-
press insurrections, and repel invasions ... i 815 355
To provide for organizing, arming, and equipping
the militia . i 8 16 355
To exercise exclusive legislation over the District
fixed for the seat of government, and over forts,
magazines, arsenals, and dockyards .... i 817 356
To make all laws necessary and proper to
carry into execution all powers vested by
the Constitution in the government of the
United States . i 8 18 356
No person holding any office under the United
States shall accept of any present, emolument,
office, or title of any kind from any foreign
State, without the consent of i 9 8 358
May determine the time of choosing the elec-
tors for President and Vice-President and the
day on which they shall give their votes ... 2
The President may, on extraordinary occasions,
convene either House of 2
The manner in which the acts, records, and
judicial proceedings of the States shall be
proved, shall be prescribed by 4
New States may be admitted by Congress into
this Union 4
Shall have power to make all needful rules and
regulations respecting the territory or other
property belonging to the United States ... 4
Amendinents to the Constitution shall be pro-
posed whenever it shall be deemed necessary
by two-thirds of both Houses of 5
Persons engaged in insurrection or rebellion
against the United States disqualified for Sen-
ators or Representatives in. [Amendments] . 14
But such disqualifications may be removed by a
vote of two-thirds of both Houses of. [Amend-
ments] 14
Shall have power to enforce, by appropriate legis-
lation, the thirteenth amendment. [Amend-
ments] • *3
Shall have power to enforce, by appropriate legis-
lation, the fourteenth amendment. [Amend-
ments] 14
Shall have power to enforce, by appropriate legis-
lation, the fifteenth amendment. [Amendments] 15
Consent. No State shall be deprived of its equal
suffrage in the Senate without its 5
I
3
3b2
3
-
364
I
—
368
3
2
370
3
I
369
-
—
370
3
—
383
3
—
383
2
—
380
5
—
383
2
—
384
-
—
371
OF THE UNITED STATES 401
Art. Sec. CI. Page
Consent of Congress. No person holding any office of
piont or trust under the United States shall
accept of any present, emolument, office, or title
of any kind whatever, from any king, prince,
or oreign potentate, without the I 9 8 358
No State shall lay any imposts or duties on im-
ports, except what may be absolutely neces-
sary for executing its inspection laws, without
the I 10 2 360
No State shall lay any duty of tonnage, keep
troops or ships of war in time of peace, without
the I 10 3 361
No State shall enter into any agreement or com-
pact with another State, or with a foreign
power without the i 10 3 361
No State shall engage in war unless actually in-
vaded, or in such imminent danger as will not
admit of delay, without the I 10 3 361
No new State shail be formed or erected within
the jurisdiction of any other State, or any State
be formed by the junction of two or more
States, or parts of States, without the consent
of the legislatures thereof, as well as the ..431 369
Cortitxt of the legislature of the State in which the
same may be. Congress shall exercise exclusive
authority over all places purchased for the erec-
tion of forts, magazines, arsenals, dockyards,
and other needful buildings with the .... i 817 356
Consent of the legislatures of the States and of Con-
gress. No State shall be formed by the junction
of two or more States or parts of States without
the 4 3 I 369
Consent of the other. Neither House, during the session
of Congress, shall adjourn for more than three
days, nor to any other place than that in which
they shall be sitting, without the i 5 4 350
Consent 0/ the owner. No soldier shall be quartered
in time of peace in any house without the.
[Amendments] 3 — — 374
Consent of the Senate. The President shall have power
to make treaties, by and with the advice and .222 364
The President shall appoint ambassadors, other
public ministers and consuls, judges of the
Supreme Court, and all other officers created by
law and not otherwise herein provided for, by
and with the advice and 2 2 2 364
Constittition, in the Government of the United States, or
in any department or officer thereof. Congress
shall have power to pass all laws necessary to
the execution of the powers vested by ... . i 818 356
Constitution, shall be elegible to the office of President.
No person, except a natural-born citizen, or a
citizen a^the time o£ the adoption of the ..214 363
26
402 INDEX TO THE CONSTITUTION
Art. Sec CI. Page
Constitution. The President, before he enters upon
the execution of his office, shall take an oath to
preserve, protect, and defend the 2 i 7 363
Constitution, laws, and treaties of the United States.
The judicial power shall extend to all cases
arising under the 3 2 i 365
Constitution shall be so construed as to prejudice any
claims of the United States, or of any State (in
respect to territory or other property of the
United States). Nothing in the 432 370
Constitution. The manner in which amendments to,
may be proposed and ratified 5 — — 370
Constitution shall be as valid under it as under the
Confederation. All debts and engagements
contracted before the adoption of the .... 6 — i 371
Constitution, and the laws made in pursuance thereof,
and all treaties made, or which shall be made,
by the United States, shall be the supreme law
of the land. The 6 — 2 371
The judges in every State, anything in the consti-
tution or laws of a State to the contrary not-
withstanding, shall be bound thereby .... 6 — 2 371
Constitution. All officers, legislative, executive, and
judicial, of the United States, and of the several
States, shall be bound by an oath to support the 6 — 3 371
But no religious test shall ever be required as a
qualification for any office or public trust . . 6 — 3 371
Constitution, between the States so ratifying the same.
The ratification of the conventions of nine
States shall be sufficient for the establishment
of the 7 — — 372
Constitution of certain rights shall not be construed to
deny or disparage others retained by the people.
The enumeration in the. | Amendments] . . 9 — — 377
Constitution, nor prohibited by it to the States, are re-
served to the State respectively or to the people.
Powers not delegated to the United States by
the. [Amendments] lo — — 377
Constitution, and then engaged in rebellion against the
United States, disqualification for office im-
posed upon certain classes of persons who took
an oath to support the. [Amendments] ... 14 3 — 383
Constitution. Done in convention by the unanimous
consent of the States present, September 17,
17S7 — — — Z^l
Contracts. No State shall pass ^.Vi^ ex post facto law,
or law impairing the obligation of I 10 I 358
Controversies to which the United States shall be a
party ; between two or more States ; between a
State and citizens of another State; between
citizens of different States; between citizens of
the same State claiming lands under grants of
different States; between a State or its citizens
Sec.
CI.
Page
2
I
365
3
—
364
—
—
370
372
372
3
6
349
8
8
354
3
2
368
OF THE UNITED STATES 403
Art.
and foreign States, citizens, or subjects. The
judicial power shall extend to 3
Convene Congress or either House, on extraordinary
occasions. The President may 2
Convention for proposing amendments to the Con-
stitution. Congress, on the application of two-
thirds of the legislatures of the States, may call
a i)
Convention, by the unanimous consent of the States
present on the 17th of September, 1787. Adopt-
ion of the Constitution in 7
Conventions of nine States shall be sufficient for the
establishment of the Constitution. The ratifi-
cation of the 7
Conviction in cases of impeachment shall not be had
without the concurrence of two-thirds of the
members present I
Copyrights to authors for limited times. Congress
shall have power to provide for i
Corruption of blood. Attainder of treason shall not
work 3
Counsel for his defense. In all criminal prosecutions
the accused shall have the assistance of.
[Amendments] 6 — — 376
Counterfeiting the securities and current coin of the
United States. Congress shall provide for the
punishment of i 8 6 354
Courts. Congress shall have power to constitute tri-
bunals inferior to the Supreme Court .... i 8 9 355
Courts of law. Congress may by law vest the appoint-
ment of such inferior otiticers as they think
proper in the President alone, in the heads of
Departments, or in the 2 2 2 364
Courts as Congress may establish. The judicial power
of the United States shall be vested in one Su-
preme Court and such inferior 3 i — 365
Courts. The judges of the Supreme and inferior
courts shall hold their offices during good
behavior 3 i — 365
Their compensation shall not be diminished dur-
ing their continuance in office 3 i — 365
Credit. No State shall emit bills of i 10 i 358
Credit of the United States. Congress shall have
power to borrow money on the i 8 2 352
Credit s\\2.\\ be given in every other State to the public
acts, records, and judicial proceedings of each
State. Full faith and 4 i — 368
Crime, unless on a presentment of a grand jury. No
person shall be held to answer for a capital or
otherwise infamous. [Amendments] .... 5 — — 375
Except in cases in the military and naval forces, or
in the militia, when in actual service. [Amend-
ments] 5 _ _ 375
404 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Crimes afid misdemeanors. The President, Vice-Pres-
ident, and all civil officers shall be removed on
impeachment for and conviction of treason,
bribery, or other 2 4 — 365
Crimes, except in cases of impeachment, shall be tried
by jury. All 3 2 3 367
They shall be tried in the State within which
they may be committed 3 2 3 367
When not committed in a State, they shall be
tried at the places which Congress may by law
have provided 3 2 3 367
Criminal prosecutions, the accused shall have a speedy
and public trial by jury in the State and district
where the crime was committed. In all. [Amend-
ments] 6 — — 376
He shall be informed of the nature and cause of
the accusation. [Amendments] 6 — — 376
He shall be confronted with the witnesses against
him. [Amendments] 6 — — 376
He shall have compulsory process for obtaining
witnesses in his favor. [Amendments] ... 6 — — 376
He shall have the assistance of counsel in his de-
fense. [Amendments] 6 — — 376
Criminate himself. No person as a witness shall be
compelled to. [Amendments] 5 — — 375
Cruel and unusual punis/iments inflicted. Excessive
bail shall not be required, nor excessive fines
imposed, nor. [Amendments] 8 — — 377
Danger as will not admit of delay. No State shall,
without the consent of Congress, engage in war,
unless actually invaded or in such imminent . i 10 3 361
Day on which they shall vote for President and Vice-
President, which shall be the same throughout
the United States. Congress may determine
the time of choosing the electors and the ..213 362
Day to day, and may be authorized to compel the
attendance of absent members. A smaller
number than a quorum of each House may
adjourn from i 5 i 350
Death, resignation, or inability of the President, the
powers and duties of his office shall devolve on
the Vice-President. In case of the .... 2 i 5 363
Death, resignation, or inability of the President. Con-
gress may provide by law for the case of the
removal 2 i 5 363
Debt of the United States, including debts for pensions
and bounties incurred in suppressing insurrec-
tion or rebellion, shall not be questioned. The
validity of the public. [Amendments] ... 14 4 — 383
OF THE UNITED STATES 405
Art. Sec. CI. Page
Debts. No State shall make anything but gold and
silver coin a tender in payment of i lo i 358
Debts and provide for the common defense and general
welfare of the United States. Congress shall
have power to pay the i 8 I 351
Debts and engagements contracted before the adoption
of this Constitution shall be as valid against the
United States under it as under the Confed-
eration 6 — I 371
Debts or obligations incurred in aid of insurrection or
rebellion against the United States, or claims
for the loss or emancipation of any slave.
Neither the United States nor any State shall
assume or pay any. [Amendments] .... 14 4 — 383
Declare War, grant letters of marque and reprisal,
and make rules concerning captures on land and
water. Congress shall have power to ... i 8 11 355
Defense, promote the general welfare, etc. To insure
the common. [Preamble] — — — 347
Defense and general welfare throughout the United
States. Congress shall have power to pay the
debts and provide for the common i 8 i 351
Defense. In all criminal prosecutions the accused
shall have the assistance of counsel for his.
[Amendments] 6 — — 376
Delaware entitled to one Representative in the First
Congress i 2 3 348
Delay. No State shall, without the consent of Con-
gress, engage in war unless actually invaded,
or in such imminent danger as will not admit of i 10 3 361
Delegated Xo the United States, nor prohibited to the
States, are reserved to the States or to the
people. The powers not. [Amendments] . . 10 — — 377
Deny or disparage others retained by the people. The
enumeration in the Constitution of certain rights
shall not be construed to. [Amendments] . . 9 — — 377
Departments upon any subject relating to their duties.
The President mav require the written opinion
of the principal officers in each of the Executive 2
Departments. Congress may by law vest the appoint-
ment of inferior officers in the heads of . . . 2
Direct tax shall be laid unless in proportion to the
census or enumeration. No capitation or other i
Direct taxes and Representatives, how apportioned
among the several States. [Repealed by the
second section of the fourteenth amendment,
on page 382] i
Disability of the President and Vice-President. Pro-
visions in case of the 2
Disability. No person shall be a Senator or Repre-
sentative in Congress, or Presidential elector,
or hold any office, civil or military, under the
United States, or any State, who having previ-
I
363
2
364
4
357
3
348
5
363
4o6 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
ously taken an oath as a legislative, executive,
or judicial officer of the United States, or of any
State, to support the Constitution, afterwards
engaged in insurrection or rebellion against the
United States. [Amendments] ...... 14 3 — 3^3
Disability. But Congress may, by a vote of two-thirds
of each House, remove such. [Amendments] 14 3 — 3S3
Disagreement between the two Houses as to the time
of adjournment, the President may adjourn them
to such time as he may thinlv proper. In case of 2 3 — 362
Disorderly behavior. Each House may punish its
members for " 5 - 35°
And with the concurrence of two-thirds expel a
member for ^ 5 ^ 350
Disparage others retained by the people. The enumera-
tion in the Constitution of certain rights shall
not be construed to deny or. [Amendments] 9 — — 377
Disqualification. No Senator or Representative shall
during the time for which he was elected, be
appointed to any office under the United States
which shall have been created or its emolu-
ments increased during such term ....162 351
No person holding any office under the United
States shall be a member of either House dur-
ing his continuance in office i 6 2 351
No person shall be a member of either House,
Presidential elector, or hold any office under the
United States, or any State, who, having pre-
viously sworn to support the Constitution, after-
wards engaged in insurrection or rebellion.
[Amendments] '4 3 3°3
But Congress may, by a vote of two-thirds of each
House, remove such disability. [Amendments] 14 3 — 3^3
District of Columbia. Congress shall exercise exclu-
sive legislation in all cases over the .... I 8 17 356
Dockyards. Congress shall have exclusive authority
over all places purchased for the erection of . i 817 356
Domestic tranquillity, provide for the common defense,
etc. To insure. [Preamble] — — — 347
Domestic violence. The United States shall protect
each State against invasion and • 4 4 37°
Due process of law. No person shall be compelled, in
any criminal case, to be a witness against him-
self, nor be deprived of life, liberty, or property
without. [Amendments] ........ 5 375
No State shall deprive any person of life, liberty,
or property without. [Amendments] .... 14 I — 380
Duties and powers of the office of President, in case of
his (death, removal, or inability to act, shall de-
volve on the Vice-President • • 2 i 5 363
In case of the disability of the President and Vice-
President, Congress shall declare what officer
shall act 2 i 5 3^3
OF THE UNITED STATES 407
Art. Sec. CI. Page
Duties, imposts, and excises. Congress shall have
power to lay and collect taxes I 8 i 351
Shall be uniform throughout the United States . i 8 i 351
Duties shall be laid on articles exported from any
State. No tax or I 9 5 357
Duties in another State. Vessels clearing in the ports
of one State shall not be obliged to pay ...196 357
On imports and exports, without the consent of
Congress, except where necessary for executing
its inspection laws. No State shall lay any . . i 10 2 360
Duties on imports or exports. The net produce of all
such duties shall be for the use of the Treasury
of the United States i 10 2 360
All laws laying such duties shall be subject to the
revision and control of Congress i 10 2 360
Duty of toiutage without the consent of Congress. No
State shall lay any i 10 3 361
E.
Election of President and Vice-President. Congress
may determine the day for the 2
Shall be the same throughout the United States.
The day of the 2
Elections for Senators and Representatives. The legis-
latures of the States shall prescribe the times,
places, and manner of holding X
But Congress may, at any time, alter such regula-
tions, except as to the places of choosing Senators i
Elections for Senators and Representatives. Returns
and qualifications of its own members. Each
House shall be judge of the i
Electors for members of the House of Representatives.
Qualifications of i
Electors for President and Vice-President. Each State
shall appoint, in such manner as the legislature
thereof may direct, a number of electors equal
to the whole number of Senators and Represen-
tatives to which the State may be entitled in the
Congress 2 i 2 361
But no Senator or Representative, or person hold-
ing an office of trust or profit under the United
States, shall be appointed an elector .... 2 i 2 361
Electors. Congress may determine the time of choos-
ing the electors and the day on which they shall
give their votes 2 I 3 362
Which day shall be the same throughout the
United States 2 i 3 362
The electors shall meet in their respective States
and vote by ballot for President and Vice-Presi-
dent, one of whom, at least, shall not be an in-
habitant of the same State with themselves.
[Amendments] 12 — — 378
I
3
362
I
3
362
4
I
349
4
I
349
5
I
35°
2
I
350
3
—
383
3
—
383
4
o
I
383
358
408 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Electors shall name, in their ballots, the person voted
for as President; and in distinct ballots the per-
son voted for as Vice-President. [Amendments] 12 — — 378
They shall m.ake distinct lists of the persons voted
for as President and of persons voted for as
Vice-President, which they shall sign and cer-
tify, and transmit sealed to the seat of govern-
ment, directed to the President of the Senate.
[Amendments] 12 — — 378
No person having taken an oath as a legislative,
executive, or judicial officer of the United States,
or of any State, and afterwards engaged in in-
surrection or rebellion against the United States,
shall be an elector 14
But Congress may, by a vote of two-thirds of each
House, remove such disability. [Amendments] 14
Emancipation of any slave shall be held to be illegal
and void. Claims for the loss or. [Amendments] 14
Emit bills of credit. No State shall i
Emolument of any kind from any king, prince, or for-
eign State, without the consent of Congress.
No person holding any office under the United
States shall accept any I 9 8 358
Enemies. Treason shall consist in levying war against
the United States, in adhering to, or giving aid
and comfort to their 3 3 i 368
Engagements contracted before the adoption of this
Constitution shall be valid. All debts and . . 6 — i 371
Enumeration of the inhabitants shall be made within
three years after (he first meeting of Congress,
and within every subsequent term of ten years
thereafter I 2 3 348
Ratio of representation not to exceed one for
every 30,000 until the first enumeration shall be
made i 2 3 348
Enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others
retained by the people. The. [Amendments] 9 — — 371
Egiial protection of the laws. No State shall deny
to any person within its jurisdiction the.
[Amendments] 14 i — 380
Equal suffrage in the Senate. No State shall be de-
prived without its consent of its 5 — — 370
Establishment of this Constitution l)etween the States
ratifying the same. The ratification of nine
States shall be sufficient for the 7 — — 372
Excessive hail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments
inflicted. [Amendments] 8 — — 377
Excises. Congress shall have power to lay and col-
lect taxes, duties, imposts, and I 8 i 351
Shall be uniform throughout the United States.
All duties, imposts, and i 8 i 351
OF THE UNITED STATES
409
Exclusive legislation, in all cases, over such district as
may become the seat of government. Congress
shall exercise i
Exclusive legislation over all places purchased for the
erection of forts, magazines, arsenals, dock-
yards, and other needful buildings. Congress
shall exercise I
Executive of a State. The United States shall protect
each State against invasion and domestic vio-
lence on the application of the legislature or the 4
Executive and judicial officers of the United States and
of the several States shall be bound by an oath
to support the Constitution 6
Executive Departments. On subjects relating to their
duties the President may require the written
opinions of the principal officers in each of the 2
Congress may by law vest the appointment of
inferior officers in the heads of 2
Executive power shall be vested in a President of the
United States of America. The 2
Expel a member. Each House, with the concurrence
of two-thirds, may
Expenditures of public money shall be published from
time to time. A regular statement of the re-
ceipts and
Exportations from any State. No tax or duty shall be
laid on
Exports or imports, except upon certain conditions. No
State shall, without the consent of Congress,
lay any duties on
Laid by any State shall be for the use of the Treas-
ury. The net produce of all duties on . . .
Shall be subject to the revision and control of
Congress. All laws of the States laying duties
on
Ex post facto law shall be passed. No bill of attainder
or
Ex post facto law, or law impairing the obligation of
contracts. No State shall pass any bill of
attainder
Extraordinary occasions. The President may convene
both Houses or either of them .*....
F.
Faith and credit in each State shall be given to the
acts, records, and judicial proceedings of an-
other State. Full
Felony, and breach of the peace. Members of Con-
gress shall not be privileged from arrest for
treason
Felonies committed on the high seas. Congress shall
have power to define and punish piracies and .
Art. Sec. CI. Page
I 8 17 356
17 356
— 370
3 371
2 364
1 361
2 350
7 358
5 357
2 360
2 360
2 360
3 357
I 358
— 362
- 368
I 350
10 355
410 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Fines. Excessive fines shall not be imposed. [Amend-
ments] 8 — — 377
Foreign coin. Congress shall have power to coin money,
fix the standard of weights aud measures, and
to regulate the value of • i 8 5 354
Foreign nations among the States and with the Indian
tribes. Congress shall have power to regulate
commerce with i 8 3 352
Foreign power. No State shall, without the consent of
Congress, enter into any compact or agreement
with any • • i 10 3 3^1
Forfeiture except during the life of the person attainted.
Attainder of treason shall not work .... 3 3 2 368
Formation of new States. Provisions relating to the . 4 3 i 369
Fortn of government. The United States shall guaran-
tee to every State in this Union a republican .44 — 370
And shall protect each of them against invasion ;
and on application of the legislature or of the
executive (when the legislature can not be con-
vened) against domestic violence 4 4 — 37°
Forts, magazines, arsenals, dockyards, and other need-
ful buildings. Congress shall exercise exclusive
authority over all places purchased for the erec-
tion of 1 8 17 356
Freedom of speech or the press. Congress shall make
no law abridging the. [Amendments] ... I — — 374
Free State, the right of the people to keep and bear
arms shall not be infringed. A well-regulated
militia being necessary to the security of a.
[Amendments] 2 — — 374
Fugitives from crime found in another State shall, on
demand, be delivered up to the authorities of
the State from which they may flee 4 2 2 369
Fugitives from service or labor in one State, escaping
into another State, shall be delivered up to the
party to whom such service or labor may be due 423 369
G.
General welfare and secure the blessings of liberty, e
To promote the. [Preamble] — — — 347
(}eneral welfare. Congress shall have power to provide
for the common defense and i 8 i 351
Georgia shall be entitled to three Representatives in
the First Congress i 2 3 348
Gold and silver coin a tender in payment of debts. No
State shall make anything but I 10 I 358
Good behavior. The judges of the Supreme and infe-
rior courts shall hold their offices during ..31 — 365
Government. The United States shall guarantee to
every State in this Union a republican form
of 4 4 — 370
OF THE UNITED STATES 4H
Art. Sec. CI. Page
Government. And shall protect each of them against
invasion; and on application of the legislature
or of the executive (when the legislature can
not be convened) against domestic violence .44 — 370
Grand jury. No person shall be held to answer for a
capital or otherwise infamous crime, unless on
the presentment of a. [Amendments] ... 5 — — 375
Except in cases arising in the land and naval
forces, and in the militia when in actual service.
[Amendments] 5 — — 375
Guarantee to every State in this Union a republican
form of government. The United States shall 4 4 — 37°
Guarantee. And shall protect each of them against
invasion, and on application of the legislature or
of the executive (when the legislature can not be
convened) against domestic violence .... 4 4 — 370
H.
Habeas corpus shall not be suspended unless in cases of
rebellion or invasion. The writ of i 9 2 357
Heads of Departments. Congress may by law vest the
appointment of inferior officers in the .... 22 2 364
On any subject relating to their duties, the Presi-
dent may require the written opinion of the
principal officers in each of the Executive De-
partments . • 2 2 I 363
High crimes and jnisdemeanors. The President, Vice-
President, and all civil officers shall be removed
on impeachment for and conviction of treason,
bribery, or other 2 4 — 365
House of Representatives. Congress shall consist of a
Senate and i i — 347
Shall be composed of members chosen every second
year i 2 i 347
Qualifications of electors for members of the ..121 347
No person shall be a member who shall not have
attained the age of twenty-five years, and been
seven years a citizen of the United States ..122 348
The executives of the several States shall issue
writs of election to fill vacancies in the ...124 34S
Shall choose their Speaker and other officers ..125 348
Shall have the sole power of impeachment ...125 348
Shall be the judge of the elections, returns, and
qualifications of its own members I 5 ' 35°
A majority shall constitute a quorum to do business 151 350
Less than a majority may adjourn from day to day,
and compel the attendance of absent members .151 350
May determine its own rules of proceedings ..152 350
May punish its members for disorderly behavior,
and, with the concurrence of two-thirds, expel a
member i S 2 350
412 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
House of Representatives shall keep a journal of its
proceedings _ ■ ^ 5 3 35*^
Shall not adjourn for more than three days during
the session of Congress without the consent of
the Senate i 5 4 35°
For any speech or debate in either House, mem-
bers shall not be questioned in any other place i 6 i 350
No person holding any office under the United
States shall, while holding such office, be a
member of the i ^ 2 351
No member shall, during the time for which he
was elected, be appointed to an office which
shall have been created or the emoluments in-
creased during his membership i 6 2 351
All bills for raising revenue shall originate in the i 7 i 351
The votes for President and Vice-President shall
be counted in the presence of the Senate and.
[Amendments] 12 — — 378
If no person have a majority of electoral votes,
then from the three highest on the list the House
of Representatives shall immediately, by ballot,
choose a President. [Amendments] .... 12 — — 378
They shall vote by States, each State counting one
vote. [Amendments] 12 — — 378
A quorum shall consist of a member or members
from two-thirds of the States and a majority of
all the States shall be necessary to the choice of
a President. [Amendments] 12 — — 378
No person having as a legislative, executive, or
judicial officer of the United States, or of any
State, taken an oath to support the Constitution,
and afterwards engaged in insurrection or rebel-
lion against the United States shall be a mem-
ber of the. [Amendments] 14 3 — 383
But Congress may, by a vote of two-thirds of each
House, remove such disability. [Amendments] 14 3 — 383
Imminent danger as will not admit of delay. No State
shall, without the consent of Congress, engage
in war, unless actually invaded or in such . . I 10 3 361
Immunities. Members of Congress shall, in all cases
except treason, felony, and breach of the peace,
be privileged from arrest during their attend-
ance at the session of their respective Houses,
and in going to and returning from the same .161 350
No soldier shall be quartered in any house with-
out the consent of the owner in time of peace.
[Amendments] 3 — — 374
No person shall be twice put in jeopardy of
life or limb for the same offense. [Amend-
ments] 5 _ _ 374
OF THE UNITED STATES 413
Art. Sec. CI. Page
Immunities. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State in which they reside. [Amend-
ments] 14 I — 3S0
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States. [Amendments] . 14 I — 380
Nor shall any State deprive any person of hfe,
liberty, or property without due process of law
[Amendments] .-.•.•''* 1 — 380
Nor deny to any person within its jurisdiction
the equal protection of the laws. [Amendments] 14 i — 3S0
Impeachment. The President may grant reprieves and
pardons except in cases of 2 2 i 363
The House of Representatives shall have the sole
power of I * S 348
The trial of all crimes shall be by jury, except in
cases of • • 3 2 3 367
Impeachment for and conviction of treason, bribery,
and other high crimes and misdemeanors. The
President, Vice-President, and all civil officers
shall be removed upon 2 4
Impeachments. The Senate shall have sole power to
try all I 3
The Senate shall be on oath or affirmation, when
sitting for the trial of i 3
When the President of the United States is tried
the Chief Justice shall preside i 3
No person shall be convicted without the concur-
rence of two-thirds of the members present ..13
Judgment shall not extend beyond removal from
office and disqualification to hold office • •_ • ^ 3
But the party convicted shall be liable to indict-
ment and punishment according to law ...13
Importation of slaves prior to 1808 shall not be pro-
hibited by the Congress I 9
But a tax or duty of ten dollars for each person
may be imposed on such i 9
Imports or exports except what may be absolutely
necessary for executing its inspection laws. No
State shall, without the consent of Congress, lay
any imposts or duties on I 10 2 360
Imports or exports laid by any State shall be for the
use of the Treasury. The net produce of all
duties on i 10 2 360
Imports or exports shall be subject to the revision and
control of Congress. All laws of States laying
duties on \ \o 2 360
Imposts and excises. Congress shall have power to lay
and collect taxes, duties I 8 i 351
Shall be uniform throughout the United States.
All taxes, duties i 8 i 3^1
6
349
6
349
6
349
6
349
7
349
7
349
I
356
I
356
414 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Inability of the President, the powers and duties of his
office shall devolve on the Vice-President. In
case of the death, resignation, or 2 i 5 363
Inability of the President or Vice-President. Congress
may provide by law for the case of the removal,
death, resignation, or 2 I 5 363
Indian Tribes. Congress shall have power to regulate
commerce with the i 8 3 352
Indictmetit or presentment of a grand jury. No per-
son shall be held to answer for a capital or
infamous crime unless on. [Amendments] . . 5 — — ''375
Except in cases arising in the land or naval
forces or in the militia when in actual service.
[Amendments] 5 — — 375
Indictment, trial, judgment, and punishment, accord-
ing to law. The party convicted in case of
impeachment shall nevertheless be liable and
subject to I 3 7 349
Infamous critne unless on presentment or indictment
of a grand jury. No person shall be held to
answer for a capital or. [Amendments] ... 5 — — 375
Inferior Courts. Congress shall have power to con-
stitute tribunals inferior to the Supreme Court i 8 9 355
Inferior courts as Congress may establish. The ju-
dicial power of the United States shall be
vested in one Supreme Court and such • •. • 3 ^ — 3"5
The judges of both the Supreme and inferior
courts shall hold their offices during good
behavior 3 1 — 365
Their compensation shall not be diminished dur-
ing their continuance in office _ • . 3 ^ — 3"5
Inferior ofUcers in the courts of law, in the President
alone, or in the heads of Departments. Con-
gress, if they think proper, may by law vest the
appointment of 2 2 2 364
Inhabitant of the State for which he shall be chosen.
No person shall be a Senator who shall not
have attained the age of thirty years, been nine
years a citizen of the United States, and who
shall not, when elected, be an i 3 3 349
Insurrection or rebellion against the United States. No
person shall be a Senator or Representative in
Congress, or Presidential elector, or hold any
office, civil or military, under the United States,
or any State, who, having taken an oath as a
legislative, executive, or judicial officer of the
United States, or of a State, afterwards engaged
in. [Amendments] 14 3 — iPi
But Congress may, by a vote of two-thirds of each
House, remove such disabilities. [Amendments] 14 3 — '^Z
Debts declared illegal and void which were con-
tracted in aid of. [Amendments] 14 4 — '^Z
Insiirrectioiis and repel invasions. Congress shall pro-
vide for calling forth the militia to suppress . i 815 355
OF THE UNITED STATES 415
Art. Sec. CI. Page
Invasion. No State shall, without the consent of
Congress, engage in war unless actually invaded,
or in such imminent danger as will not admit of
delay I lo 3 361
The writ of habeas corpus shall not be suspended
unless in case of rebellion or i 9 i 356
Invasion and domestic violence. The United States
shall protect each State against 4 4 — 370
Invasions. Congress shall provide for calling forth the
militia to suppress insurrections and repel . . i 815 355
Inventors and authors in their inventions and writings.
Congress may pass laws to secure for limited
times exclusive rights to i 8 8 354
Involuntary servitude, except as a punishment for
crime, abolished in the United States. Slavery
and. [Amendments] 13 i — 380
J.
Jeopardy of life or limb for the same offense. No per-
son shall be twice put in. [Amendments] . . 5 — — 375
Jour7ial of its proceedings. Each House shall keep a i 5 3 350
fudges in every State shall be bound by the Constitu-
tion, the laws made in pursuance thereof, and
treaties of the United States, which shall be the
supreme law of the land 6 — 2 371
Judges of the Supreme and inferior courts shall hold
their offices during good behavior 3 i — 365
Their compensation shall not be diminished dur-
ing their continuance in office 3 i — 365
Judgment in cases of impeachment shall not extend
further than to removal from office and dis-
qualification to hold any office of honor, trust,
or profit under the United States i 3 7 349
But the party convicted shall nevertheless be
liable and subject to indictment, trial, judgment,
and punishment according to law i 3 7 349
Judicial power of the United States. Congress shall
have power to constitute tribunals inferior to
the Supreme Court I 8 9 355
The judicial power of the United States shall
be vested in one Supreme Court, and in such
inferior courts as Congress may from time to
time ordain and establish 3 i — 365
The judges of the Supreme and inferior courts
shall hold their offices during good behavior .31 — 365
Their compensation shall not be diminished dur-
ing their continuance in office 3 i — 365
It shall extend to all cases in law and equity aris-
ing under the Constitution, laws, and treaties of
the United States 3 2 i 365
To all cases affecting ambassadors, other public
ministers and consuls 3 2 i 365
4i6 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Judicial power of the United States shall extend to
all cases of admiralty and maritime jurisdiction . 321 365
To controversies to which the United States shall
be a party 3 ^ i 365
To controversies between two or more States ..321 365
To controversies between a State and citizens
of another State 3 2 i 365
To controversies between citizens of different
States 3 2 i 365
To citizens of the same State claiming lands
under grants of different States ...... 3 2 I 365
To controversies between a State or its citizens
and foreign states, citizens, or subjects ...321 365
In all cases affecting ambassadors, other public
ministers and consuls, and those in which a
State shall be a party, the Supreme Court
shall have original jurisdiction 3 2 2 367
In all other cases before mentioned it shall have
appellate jurisdiction, both as to law and fact,
with such exceptions and under such regulations
as Congress shall make 3 2 2 367
The trial of all crimes, except in cases of impeach-
ment, shall be by jury 3 2 3 367
The trial shall be held in the State where the
crimes shall have been committed 3 2 3 367
But when not committed in a State, the trial shall
be at such place or places as Congress may by
law have directed 3 2 3 367
The judicial power of the United States shall not
be held 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.
[Amendments] .•" — — 37^
Judicial proceediiigs of every other State. Full faith
and credit shall be given in each State to the
acts, records, and 4 i — 3^^
Congress shall prescribe the manner of proving
such acts, records, and proceedings .... 4 i — 368
Judicial 2ir\d executive oiificers of the United States and
of the several States shall be bound by an oath
to support the Constitution 6 — 3 371
Judiciary. The Supreme Court shall have original
jurisdiction in all cases affecting ambassadors,
other public ministers and consuls, and those in
which a State may be a party 3 2 2 367
The Supreme Court shall have appellate juris-
diction both as to law and fact, with such
exceptions and regulations as Congress may
make . 3 2 2 367
/unction of two or more States or parts of States with-
out the consent of the legislatures and of Con-
gress. No State shall be formed by the ...431 369
OF THE UNITED STATES 417
Art, Sec. CI. Page
Jurisdiction of another State. No new State shall,
without the consent of Congress, be formed or
erected within the 4 3 i 369
Jurisdiction, both as to law and fact, with such excep-
tions and under such regulations as Congress
may make. The Supreme Court shall have
appellate 3 2 2 369
Jurisdiction. In all cases affecting ambassadors, and
other public ministers, and consuls, and in cases
where a State is a party, the Supreme Court
shall have original 3 2 2 369
Jury. The trial of all crimes, except in cases of im-
peachment, shall be by 3 2 3 369
In all criminal prosecutions the accused shall have
a speedy and public trial by. [Amendments] 6 — — 376
All suits at common law, where the value exceeds
twenty dollars, shall be tried by. [Amendments] 7 — — 377
Where a fact has been tried by a jury it shall not
be re-examined except by the rules of the com-
mon law. [Amendments] 7 — — 377
Just compensation. Private property shall not be taken
for public use without. [Amendments] ... 5 — — 375
Justice, insure domestic tranquillity, etc. To establish.
[Preamble] — — — 347
Labor, in one State, escaping into another State, shall
be delivered up to the party to whom such ser-
vice or labor may be due. Fugitives from ser-
vice or 4 2 3 369
Land and naval forces. Congress shall make rules for
the government and regulation of the .... i 8 14 355
Law and fact, with exceptions and under regulations
to be made by Congress. The Supreme Court
shall have appellate jurisdiction as to ... . 3 2 2 367
Law of the land. The Constitution, the laws made in
pursuance thereof, and treaties of the United
States shall be the supreme 6 — 2 371
The judges in every State shall be bound thereby 6 — 2 371
Law of nations. Congress shall provide for punishing
offenses against the i 8 10 355
Laws. Congress shall have power to provide for cal-
ling forth the militia to suppress insurrection,
repel invasions, and to execute the i 815 355
Laws and treaties of the United States. The judicial
power shall extend to all cases in law and equity
arising under the Constitution or the .... 3 2 i 365
Laws necessary to carry into execution the powers
vested in the Government, or in any department
or officer of the United States. Congress shall
have power to make all i 8 18 356
27
4i8 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Legal tetider in payment of debts. No State shall
make anything but gold and silver coin a . . i lo i 358
Legislation in all cases over such district as may be-
come the seat of government. Congress shall
have power to exercise exclusive i 817 356
Over all places purchased by consent of the legis-
latures in the different States for the erection of
forts, magazines, arsenals, dockyards, and other
needful buildings. Congress sliall have power
to exercise exclusive i 8 17 356
Legislation. Congress shall have power to make all
laws necessary and proper for carrying into exe-
cution all the powers vested by the Constitution
in the Government of the United States, or in
any department or officer thereof i 8 18 356,
Congress shall have power to enforce the thir-
teenth amendment by appropriate. [Amend-
ments] 13 2 — 380
Congress shall have power to enforce the four-
teenth amendment by appropriate. [Amend-
ments] 14 5 — 383
Congress shall have power to enforce ths fifteenth
amendment by appropriate. [Amendments] • ^S ^ — 3^4
Legislative powers herein granted shall be vested in a
Congress. All i i — 347
Legislature or the executive (when the legislature can
not be convened). The United States shall
protect each State against invasion ; and
against domestic violence on the application of
the ... 4 4 — 370
Legislatures of two-thirds of the States, Congress shall
call a convention for proposing amendments
to the Constitution. On the application of
the 5 _ _ 370
Letters oi marque and reprisal. Congress shall have
power to grant I 811 355
No State shall grant i 10 i 358
Liberty to ourselves and our posterity, etc. To secure
the blessings of. [Preamble] — — — 347
Life, liberty, and property without due process of law.
No person shall be compelled in any criminal
case to be a witness against himself, nor be de-
prived of. [Amendments] 5 — — 375
No .State shall abridge the privileges or immuni-
ties of citizens of the United States, nor deprive
any person of. [Amendments] 14 i — 380
Life or limb for the same offense. No person shall be
twice put in jeopardy of. [Amendments] . . 5 — — 375
Loss or emancipation of any slave shall be held illegal
and void. Claims for the. [Amendments] .14 4 — 383
OF THE UNITED STATES 419
M.
Art. Sec. CI. Page
Magazines, arsenals, dockyards, and other needful build-
ings. Congress shall have exclusive authority
over all places purchased for the erection of . I 817 356
Majority of each House shall constitute a quorum to
do business. A i 5 I 350
But a smaller number may adjourn from day to
day and may be authorized to compel the attend-
ance of absent members i 5 i 350
i^/(Z/oW/y of all the States shall be necessary to a choice. 151 350
When the choice of a President shall devolve on
the House of Representatives, a quorum shall
consist of a member or members from two-thirds
of the States ; but a. [Amendments] ... 12 — — 378
When the choice of a Vice-President shall devolve
on the Senate, a quorum shall consist of two-
thirds of the whole number of Senators, and a
majority of the whole number shall be necessary
to a choice. [Amendments] 12 — — 378
Maritime jicrisdiction. The judicial power shall extend
to all cases of admiralty and 3 2 i 365
Marque and reprisal. Congress shall have power to
grant letters of i 8 11 355
No State shall grant any letters of I 10 i 358
Maryland entitled to six Representatives in the First
Congress i 2 3 348
Massachusetts entitled to eight Representatives in the
First Congress i 2 3 348
Measures. Congress shall fix the standard of weights
and I 8 5 354
Meeting of Congress: The Congress shall assemble at
least once in every year, and such meeting shall
be on the first Monday in December, unless they
shall by law appoint a different day .... I 4 2 350
Members oi Congress and of State legislatures shall be
bound by oath or affirmation to support the
Constitution 6 — 3 37^
Militia to execute the laws, suppress insurrections, and
repel invasions. Congress shall provide for
calling forth the i 815 355
Congress shall provide for organizing, arming, and
disciplining the i 8 16 355
Congress shall provide for governing such part
of them as may be employed by the United
States I 8 16 355
Reserving to the States the appointment of the
officers and the right to train the militia accord-
ing to the discipline prescribed by Congress .1816 35S
A well-regulated militia being necessary to the
security of a free State, the right of the people
to keep and bear arms shall not be infringed.
[Amendments] 2 — — 374
420 INDEX TO THE CONSTITUTION
Art. Sec. CL Page
Misdetneanors. The President, Vice-President, and
all civil officers shall be removed on impeach-
ment for and conviction of treason, bribery, or
other high crimes and 2 4 — 365
Money o\\ the credit of the United States. Congress
shall have power to borrow i 8 2 352
Regulate the value thereof and of foreign coin.
Congress shall have power to coin i 8 5 354
Shall be drawn from the Treasury but in conse-
quence of appropriations made by law. No .197 358
Shall be published from time to time. A regular
statement and account of receipts and expendi-
tures of public 1 9 7 35S
For raising and supporting armies. No appro-
priation of money shall be for a longer term
than two years i 812 355
N,
Natiots. Congress shall have power to regulate com-
merce with foreign i 8 3 352
Congress shall provide for punishing offenses
against the law of I 8 10 355
Natural-horn citizen, or a citizen at the adoption of the
Constitution, shall be eligible to the office of
President. No person except a 2 I 4 362
Naturalization. Congress shall have power to estab-
lish a uniform rule of i 8 4 354
Naturalized \\\ the United States, and subject to their
jurisdiction, shall be citizens of the United
States and of the State in which they reside.
All persons born or. [Amendments] .... 14 i — 380
Naval forces. Congress shall make rules and regu-
lations for the government and regulation of
the land and i
Navy. Congress shall have power to provide and
maintain a I
New Ilainpshire entitled to three Representatives in
the First Congress i
New Jersey entitled to four Representatives in the
First Congress i
N^ew States may be admitted by Congress into this
Union 4
But no new State shall be formed within the juris-
diction of another State without the consent of
the legislature and of Congress 4 3 " 3^
Nor shall any State be formed by the junction of
two or more States, or parts of States, without
the consent of the legislatures and of Congress 431 369
New York entitled to six Representatives in the First
Congress i 2 3 348
14
355
13
355
3
348
3
34S
I
369
OF THE UNITED STATES 421
Art. Sec. CI. Page
Nobility shall be granted by the United States. No
title of I 9 8 358
No State shall grant any title of i lo i 358
Nominations for office by the President. The Pres-
ident shall nominate, and, by and with the
advice and consent of the Senate, shall appoint
ambassadors and other public officers .... 2 2 2 364
He may grant commissions to fill vacancies that
happen in the recess of the Senate, which shall
expire at the end of their next session .... 2 2 3 364
North Carolina entitled to five Representatives in the
First Congress i 2 3 348
Number of electors for President and Vice-President
in each State shall be equal to the number of
Senators and Representatives to which such
State may be entitled in Congress 2 i 2 361
O.
Oath of office of the President of the United States.
Form of the 2 I 7 363
Oath or afirmatiofi. No warrants shall be issued but
upon probable cause, supported by. [Amend-
ments] 4 _ _ 375
Oath or affirviatton to support the Constitution. Sen-
ators and Representatives, members of State
legislatures, executive and judicial officers of
the United States and of the several States,
shall be bound by 6 -
But no religious test shall ever be required as a
qualification for office 6 -
The Senators when sitting to try impeachment
shall be on i
Objections. It he shall not approve it, the President
shall return the bill to the House in which it
originated with his i
Obligation of contracts. No State shall pass any ex
post facto law, or law impairing the 11
Obligations incurred in aid of insurrection or rebellion
against the United States to be held illegal and
void. All debts or. [Amendments] .... 14 4 —
Offense. No person shall be twice put in jeopardy of
life or limb for the same. [Amendments] . . 5 -
Offenses against the law of nations. Congress shall
provide for punishing i
Offenses against the United States, except in cases of
impeachment. The President may grant re-
prieves or pardons for 2 2 i 363
Office under the United States. No person shall be
a member of either House while holding any
civil I 6 2 351
3
Zl\
3
371
6
349
2
351
I
358
-
3S3
-
375
3S5
422 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Office. No Senator or Representative shall be ap-
pointed to any office under the United States
which shall have been created, or its emolu-
ments increased, during the term for which he
is elected i 6 2 351
Or title of any kind from any king, prince, or for-
eign State without the consent of Congress.
No person holding any otiice under the United
States shall accept of any present, emolument .198 358
Office of President, in case of his removal, death, res-
ignation, or inability, shall devolve on the Vice-
President. The powers and duties of the . . 2 i 5 363
Office during the term of four years. The President
and Vice-President shall hold 2 i i 361
Of trust or profit under the United States shall
be an elector for President and Vice-President.
No person holding an 2 I 2 361
Office, civil or military under the United States, or any
State who had taken an oath as a legislative,
executive, or judicial officer of the United
States, or of any State, and afterwards engaged
in insurrection or rebellion. No person shall
be a Senator, Representative or Presidential
elector, or hold any. [Amendments] .... 14 3 — 383
Officers in the President alone, in the courts of law, or
in the heads of Departments. Congress may
vest the appointment of inferior 2 2 2 364
Officers of the United States shall be removed on
impeachment for and conviction of treason,
bribery, or other high crimes and misdemeanors.
The President, Vice-President, and all civil . . 24 — 365
Officers. The House of Representatives shall choose
their Speaker and other i 2 5 348
The Senate, in the absence of the Vice-President,
shall choose a President pro tempore, and also
their other i 3 5 349
Offices becoming vacant • in the recess of the Senate
may be filled by the President, the commissions
to expire at the end of the next session ... 2 2 3 364
Otie-fiftk of the members present, be entered on the
journal of each House. The yeas and nays
shall, at the desire of i 5 3 350
Opinion of the principal officers in each of the Execu-
tive Departments on any subject relating to
their duties. The President may require the
written ; • • ^ ^ i 3^3
Order, resolution, or vote (except on a question of
adjournment), requiring the concurrence of the
two Houses, shall be presented to the Presi-
dent. Every i 7 3 35^
Original jurisdiction in all cases affecting ambassadors,
other public ministers and consuls, and in whicli
a State may be a party. The Supreme Court
shall have 3 2 2 367
OF THE UNITED STATES 423
Art. Sec. CI. Page
Overt act, or on confession in open court. Conviction
of treason shall be on the testimony of two
witnesses to the 3 3 i 368
P.
Pardons, except in cases of impeachment. The Presi-
dent may grant reprieves and 2 2 I 363
Patent rights to inventors. Congress may pass laws
for securing I 8 8 354
Peace. Members of Congress shall not be privileged
from arrest for treason, felony, and breach of
the I 6 I 350
No State shall, without the consent of Congress,
keep troops or ships of war in time of . . . i 10 3 361
No soldier shall be quartered in any house without
the consent of the owner in time of. [Amend-
ments] _ 3 — — 374
Pensions and bounties, shall not be questioned. The
validity of the public debt incurred in suppress-
ing insurrection and rebellion against the United
States, including the debt for. [Amendments] 14 4 — 383
Pennsylvania entitled to eight Representatives in the
J"irst Congress i 2 3 348
People peaceably to assemble and petition for redress
of grievances shall not be abridged by Congress,
The right of the. [Amendments] i — — 374
To keep and bear arms shall not be infringed. A
well-regulated militia being necessary to the se-
curity of a free State, the right of the. [Amend-
ments] 2 — — 374
To be secure in their persons, houses, papers, and
effects against unreasonable searches and seiz-
ures shall not be violated. The right of the.
[Amendments] 4 — — 375
The enumeration of certain rights in the Constitu-
^ tion shall not be held to deny or disparage others
retained by the. [Amendments] 9 — — 377
Powers not delegated to the United States, nor
prohibited to the States, are reserved to ihe
States or to the. [Amendments] 10 — — 377
Perfect Union, etc. To establish a more. [Preamble] — — — 347
Persons, houses, papers, and effects against unreason-
able searches and seizures. The people shall
be secure in their. [Amendments] .... 4 — — 375
Persons as any State may think proper to admit, shall
not be prohibited prior to 1808. The migration
or importation of such i 9 i 356
But a tax or duty of ten dollars shall be imposed
on the imijortation of each of such .... i 9 i 356
Petition for the redress of grievances. Congress shall
make no law abridging the right of the people
peaceably to assemble and to. [Amendments] i — — 374
424 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Piracies and felonies committed on the high seas. Con-
gress shall define and punish I 8 lo 355
Place than that in which the two Houses shall be sit-
ting. Neither House during the session shall,
without the consent of the other, adjourn for
more than three days, nor to any other ... i 54 35°
Places of choosing Senators. Congress may by law make
or alter regulations for the election of Senators
and Representatives, except as to the .... I 4 i 349
Ports of one State over those of another. Preference
shall not be given by any regulation of commerce
or revenue to the i 9 6 357
Ports. Vessels clearing from the ports of one State
shall not pay duties in another i 9 6 357
Post-offices and post-roads. Congress shall establish .187 354
Poiuers herein granted shall be vested in Congress. All
legislative i i — 347
Powers vested by the Constitution in the Government
or in any Department or officer of the United
States. Congress shall make all laws necessary
to carry into execution the I 8 18 356
Powers and duties of the office shall devolve on the
Vice-President on the removal, death, resigna-
tion, or inability of the President. The ... 2 I 5 363
Powers not delegated to the United States nor pro-
hibited to the States are reserved to the States
and to the people. [Amendments] .... 10 — — 377
The enumeration of certain rights in this Consti-
tution shall not be held to deny or disparage
others retained by the people. [Amendments] 9 — — 377
Preference, by any regulation of commerce or revenue,
shall not be given to the ports of one State over
those of another i 9 6 357
Prejudice any claims of the United States or of any
particular State respecting the territory or prop-
erty of the United States. Nothing in this
Constitution shall 4 3 2 370
Present, emolument, office, or title of any kind what-
ever from anv king, prince, or foreign State.
No person holding any office under the United
States, shall without the consent of Congress,
accept any i 9 8 358
Presentfiient or indictment of a grand jury, except in
cases arising in the land or naval forces or in
the militia when in actual service. No person
shall be held to answer for a capital or other-
wise infamous crime unless on a. [Amend-
ments] 5 — — 375
President of the United States. The Senate shall choose
a President pro tempore when the Vice-Presi-
dent shall exercise the office of i 3 5 349
The Chief Justice shall preside upon the trial of
the I 3 6 349
OF THE UNITED STATES
425
Art. Sec. CI. Page
President of the United States shall approve and sign
all bills passed by Congress before they shall
become laws i 7 2 351
Shall return to the House in which it originated,
with his objections, any bill which he shall not
approve i 7 2 351
If not returned within ten days (Sundays excepted)
it shall become a law, unless Congress shall ad-
journ before the expiration of that time ... I 7 2 351
Every order, resolution, or vote which requires the
concurrence of both Houses, except on a ques-
tion of adjournment, shall be presented to the i 7 3 35^
If disapproved by him, shall be returned and pro-
ceeded on as in the case of a bill I 7 3 351
The executive power shall be vested in a . . . 2 i i 361
He shall hold his office during the term of four years 211 361
In case of the removal of the President from office,
or of his death, resignation, or inability to dis-
charge the duties of his office, the Vice-Presi-
dent shall perform the duties of 2 I 5 363
Congress may declare, by law, in the case of the
removal, death, resignation, or inability of the
President, what officer shall act as 2 i 5 363
The President shall receive a compensation which
shall not be increased nor diminished during his
term, nor shall he receive any other emolument
from the United States 2 i 6 363
Before he enters upon the execution of his office
he shall take an oath of office 2 i 7 363
Shall be Commander in Chief of the Army and
Navy, and of the militia of the States when
called into actual service 2 2 i 363
He may require the opinion, in writing, of the
principal officer in each of the Executive De-
partments 2 2 I 363
He may grant reprieves or pardons for offenses,
except in cases of impeachment 2 2 i 363
He may make treaties, by and with the advice and
consent of the Senate, two-thirds of the Sena-
tors present concurring 2 2 2 364
He may appoint, by and with the advice and con-
sent of the Senate, ambassadors, other public
ministers and consuls, judges of the Supreme
Court, and all other officers whose appointments
may be authorized by law and not herein pro-
vided for 2 2 2 364
Congress may vest the appointment of inferior
officers in the 2 2 2 364
He may fill up all vacancies that may happen in
the recess of the Senate by commissions which
shall expire at the end of their next session ..223 364
He shall give information to Congress of the state
of the Union, and recommend measures ... 2 3 — 364
lee.
CI. Page
3
— 364
3
- 364
3
— 364
3
- 364
3
— 364
4
- 365
I
4 362
426 INDEX TO THE CONSTITUTION
Art.
President of the United States. On extraordinary occa-
sions he may convene both Houses or either
House of Congress 2
In case of disagreement between the two Houses
as to the time of adjournment, he may adjourn
them to such time as he may think proper . . 2
He shall receive ambassadors and other public
ministers 2
He shall take care that the laws be faithfully exe-
cuted • 2
He shall commission all the ofificers of the United
States 2
Shall be removed from office on impeachment for,
and conviction of, treason, bribery, or other
high crimes and misdemeanors 2
No person except a natural-born citizen or a citi-
zen of the United States at the adoption of the
Constitution shall be eligible to the office of . 2
No person who shall not have attained the age of
thirty-five years and been fourteen years a citi-
zen of the United States shall be eligible to the
office of 2 1 4 362
President and Vice-President. Manner of choosing.
Each State, by its legislature, shall appoint a
number of electors equal to the whole number
of Senators and Representatives to which the
State may be entitled in the Congress .... 2 i 2 361
No Senator or Representative or person hold-
ing an office of trust or profit under the United
States shall be an elector 2 i 2 361
Congress may determine the time of choosing the
electors and the day on which they shall give
their votes, which day shall be the same through-
out the United States 2 i 3 362
The electors shall meet in their respective States
and vote by ballot for President and Vice-Presi-
dent, one of whom, at least, shall not be an
inhabitant of the same State with themselves.
[Amendments] 12 — — 37S
They shall name in distinct ballots the person
voted for as President and the person voted
for as Vice-President. [Amendments] ... 12 — — 37S
They shall make distinct lists of the persons voted
for as President and as Vice-President, which
they shall sign and certify and transmit sealed
to the President of the Senate at the seat of
government. [Amendments] 12 — — 37S
The President of the Senate shall, in the presence
of the Senate and House of Representatives,
open all the certificates, and the votes shall then
be counted. [Amendments] 12 — — 37S
The person havnig the greatest number of votes
shall be the President, if such number be a
OF THE UNITED STATES 427
Art. Sec. CI. Page
majority of the whole number of electors ap-
pointed. [Amendments] I2 — — 378
Presidetit and Vice-Preside7it. Mantier of choosing.
If no person have such majority, then from the
persons having the liighest numbers, not exceed-
ing three, on the list of those voted for as Presi-
dent, the House of Representatives shall choose
immediately, by ballot, the President. [Amend-
ments] 12 — — 378
In choosing the President, the votes shall be
taken by States, the representation from each
State having one vote. [Amendments] ... 12 — — 378
A quorum for this purpose shall consist of a mem-
ber or members from two-thirds of the States,
and a majority of all the States shall be neces-
sary to a choice. [Amendments] 12 — — 378
But if no choice shall be made before the 4th of
March next following, then the Vice-President
shall act as President, as in the case of the death
or disability of the President. [Amendments] 12 — — 378
President of the Senate, but shall have no vote unless
the Senate be equally divided. The Vice-Presi-
dent shall be I 3 4 349
President pro tempore. In the absence of the Vice-
President the Senate shall choose a . . . . i 3 5 349
When the Vice-President shall exercise the ofBce
of President of the United States, the Senate
shall choose a I 3 5 349
Press. Congress shall pass no law abridging the free-
dom of speech or of the. [Amendments] . . i — — 374
Previous condition of servitude. The right of citizens of
the United States to vote shall not be denied or
abridged by the United States, or by any State,
on account of race, color, or. [Amendments] .15 i — 3S4
Private property shall not be taken for public use with-
out just compensation. [Amendments] ... 5 — — 375
Privilege. Senators and Representatives shall, in all
cases except treason, felony, and breach of the
peace, be privileged from arrest during their
attendance at the session of their respective
Houses, and in going to and returning from the
same i 6 i 350
They shall not be questioned for any speech or
debate in either House in any other place ..161 350
Privileges and immunities of citizens of the United States.
The citizens of each State shall be entitled to
all the privileges and immunities of the citizens
of the several States 4 2 i 369
No soldier shall be quartered in any house with-
out the consent of the owner in time of peace.
[Amendments] 3 — — 374
No person shall be twice put in jeopardy of life
or limb for the same offense. [Amendments] . 5 — — 375
428 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Privileges and immunities of citizens of the United States.
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof,
are citizens of the United States and of the
State in which they reside. [Amendments] .14 I — 380
No State shall make or enforce any law which
shall abridge the. [Amendments] ..... 14 i — 380
No State shall deprive any person of life, liberty,
or property without due process of law. [Amend-
ments] . ' 14 I — 380
Nor deny to any person within its jurisdiction the
equal protection of its laws. [Amendments] .14 i — 3S0
Prizes captured on land or water. Congress sliall
make rules concerning i 811 355
Probable cause. 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 no warrant shall issue for
such but upon. [Amendments] 4 — — 375
Process of law. No person shall be compelled in any
criminal case to be a witness against himself,
nor be deprived of life, liberty, or property with-
out due. [Amendments] 5 — — 375
No State shall deprive any person of life, liberty,
or property without due. [Amendments] . . 14 i — 3S0
Process for obtaining witnesses in his favor. In all
criminal prosecutions the accused shall have.
[Amendments] 6 — — 376
Progress of science and useful arts. Congress shall
have power to promote the i 8 8 354
Property of the United States. Congress may dispose
of and make all needful rules and regulations
respecting the territory or 4 3 2 370
Property without due process of law. No person shall
be compelled in any criminal case to be a wit-
ness against himself; nor shall he be deprived
of his life, liberty, or. [Amendments] ... 5 — — 375
No State shall abridge the privileges or immunities
of citizens of the United States, nor deprive any
person of his life, liberty, or. [Amendments] .14 i — 3S0
Prosecutions. The accused shall have a speedy and
public trial in all criminal. [Amendments] . 6 — — 376
He shall be tried by a jury in the State or dis-
trict where the crime was committed. [Amend-
ments] 6 — — 376
He shall be informed of the nature and cause
of the accusation. [Amendments] 6 — — 376
He shall be confronted with the witnesses against
him. [Amendments] 6 — — 376
He shall have compulsory process for obtaining
witnesses. [Amendments] 6 — — 376
He shall have counsel for his defense. [Amend-
ments] 6 — — 376
OF THE UNITED STATES 429
Art. Sec. CI. Page
Protection of the laws. No State shall deny to any per-
son within its jurisdiction the equal. [Amend-
ments] ■ . • 14 I — 380
Public debt of the United States incurred in suppress-
ing insurrection or rebellion shall not be ques-
tioned. The validity of the. [Amendments] .14 4 — 383
Public safety may require it. The writ of habeas corpus
shall not be suspended, unless when in cases of
rebellion or invasion the I 9 2 357
Public trial hy ]\irY. In all criminal prosecutions the
accused shall have a speedy and. [Amendments] 6 — — 376
Public use. Private property shall not be taken for,
without just compensation. [Amendments] . 5 — — 375
Punishmoit according to law. Judgment in cases of
impeachment shall not extend further than to
removal from, and disqualification for, office;
but the party convicted shall nevertheless be
liable and subject to indictment, trial, judgment,
and - I 3 7 349
Punishments inflicted. Excessive bail shall not be re-
quired nor excessive fines imposed nor cruel and
unusual. [Amendments] 8 — — 377
Qualification for ofiice. No religious test shall ever be
required as a 6 — 3 371
Qualifications of electors of members of the House of
Representatives shall be the same as electors
for the most numerous branch of the State
legislature I 2 i 347
Qualifications of members of the House of Representa-
tives. They shall be twenty five years of age,
seven years a citizen of the United States, and
an inhabitant of the State in which chosen ..122 348
Qualifications of Senators. They shall be thirty years
of age, nine years a citizen of the United States,
and an inhabitant of the State in which chosen ^ Z Z 349
Of its own members. Each House shall be the
judge of the election, returns, and I 5 i 350
Of the President. No person except a natural-
born citizen, or a citizen of the United States
at the time of the adoption of the Constitution,
shall be elegible to the office of President ..214 362
Neither shall any person be eligible to the office
of President who shall not have attained the
age of thirty-five years, and been fourteen years
a resident within the United States .... 2 i 4 362
Of -the Vice-President. No person constitution-
ally ineligible to the office of President shall be
eligible to that of Vice-President. [Amend-
ments] 12 — — 378
430 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Quartered in any house without the consent of the
owner in time of peace. No soldier shall be.
[Amendments] 3 — — 374
Quorum to do business. A majority of each House
shall constitute a i 5 i 350
But a smaller number than a quorum may ad-
journ from day to day, and may be authorized
to compel the attendance of absent members .151 350
Of the House of Representatives for choosing a
President shall consist of a member or members
from two-thirds of the States, and a majority
of all the States shall be necessary to a choice.
[Amendments] 12 — — 378
Quorum to elect a Vice-President by the Senate.
Two-thirds of the whole number of Senators
shall be a. [Amendments] 12 — — 378
A majority of the whole number shall be neces-
sary to a choice. [Amendments] 12 — — 378
R.
Race, color, or previous condition of servitude. The
right of citizens of the United States to vote
shall not be denied or abridged by the United
States or by any State on account of. [Amend-
ments] 15 1 — 384
Ratification of amendments to the Constitution shall
be by the legislatures of three-fourths of the
several States orby conventions in three-fourths
of the States, accordingly as Congress may pro-
pose 5 — — V^
Ratification of the conventions of nine States shall be
sufficient to estabhsh the Constitution between
the States so ratifying the same 7 — — 372
Ratio of representation until the first enumeration
under the Constitution shall be made not to
exceed one for every thirty thousand .... I 2 3 348
Ratio of representation shall be apportioned among the
several States according to their respective
numbers, counting the whole number of per-
sons in each Slate, excluding Indians not taxed.
[Amendments] 14 2 — 382
Ratio. But when the right to vote for Presidential
electors or members of Congress, or the legis-
lative, executive, and judicial officers of the State,
except for engaging in rebellion or other crime,
shall be denied or abridged by a State, the basis
of representation shall be reduced therein in
the proportion of such denial or abridgment of
the right to vote. [Amendments] 142 — 382
Rebellion against the United States. Persons who,
while holding certain Federal and State offices,
OF THE UNITED STATES 431
Art. Sec. CI. Page
took an oath to support the Constitution, after-
wards engaged in insurrection or rebellion, dis-
abled from holding office under the United
States. [AmendmentsJ 14 3 — 3^3
Rebellion against the United States. But Congress
may by a vote of two-thirds of each House re-
move such disability. [.Amendments]. ... 14 3 — 3S3
Debts incurred for pensions and bounties for
services in suppressing the rebellion shall not
be questioned. [Amendments] 14 4 — 3^3
All debts and obligations incurred in aid of
the rebellion, and all claims for the loss or eman-
cipation of slaves, declared and held to be ille-
gal and void. [Amendments] 14 4 — 3^3
Rebellion or invasion. The writ of habeas corpus shall
not be suspended e.\cept when the public safety
may require it in cases of I 9 ^ 357
Receipts and expenditures of all public money shall be
published from time to time. A regular state-
ment of I 9 7 358
Recess of the Senate. The President may grant com-
missions, which shall expire at the end of the
next session, to fill vacancies that may happen
during the _ . • 2 2 3 364
Reconsideration of a bill returned by the President
with his objections. Proceedings to be had
upon the I 7 2 351
Records, and judicial proceedings of every other State.
Full faith and credit shall be given in each State
to the acts • 4 1 — 368
Congress shall prescribe the manner of proving
such acts, records, and proceedings .... 4 i — 368
Redress of s^riezninces. Congress shall make no law
abridging the right of the people peaceably to
assemble and to petition for the. [Amend-
ments], ........ I — — 374
Regulations, except as to the places of choosing Sena-
tors, The time, places, and manner of holding
elections for Senators and Representatives
shall be prescribed by the legislatures of the
States, but Congress may at any time by law
make or alter such I 4 ^ 349
Retaliations of commerce or revenue. Preference to
the ports of one State over those of another
shall not be given by any i 9 6 357
Religion or prohibiting the free exercise thereof. Con-
gress shall make no law respecting the estab-
lishment of. [Amendments] I — — 374
Religious test shall ever be required as a qualification
for any office or public trust under the United
States. No 6 — 3 37^
Removal of the President from office, the same shall
devolve on the Vice-President. In case of the 2 2 I 363
432 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Representation. No State, without its consent, shall
be deprived of its equal suffrage in the Senate. 5 — — 37°
Representation and direct taxation, how apportioned
among the several States. [This provision is
changed by the fourteenth amendment, section
2, page 3S2] I 2 3 348
Representation, until the first enumeration under the
Constitution not to exceed one for every thirty
thousand. The ratio of I 2 3 348
Representation in any State. The executive thereof
shall issue writs of election to fill vacancies in
the I 2 4 348
Representation among the several States shall be ac-
cording to their respective numbers, counting
the whole number of persons in each State,
excluding Indians not taxed. The ratio of.
[Amendments] 14 2 — 382
Representation. But where the right to vote in cer-
tain Federal and State elections is abridged for
any cause other than rebellion or other crime
the basis of representation shall be reduced.
[Amendments] • ' ' \ ' ' ^^ ^ ^^
Representatives. Congress shall consist of a Senate
and House of i i — 347
Qualifications of electors of members of the House
of I 2 I 347
No person shall be a Representative who shall not
have attained the age of twenty-five years, been
seven years a citizen of the United States, and
an inhabitant of the State in which he shall be
chosen I 2 2 348
And direct taxes, how apportioned among the sev-
eral States. [Amended by fourteenth amend-
ment, section 2, page 382] i
Shall choose their Speaker and other officers.
The House of i
Shall have the sole power of impeachment. The
House of I
Executives of the State shall issue writs of elec-
tion to fill vacancies in the House of ... . I
The time'^, places, and manner of choosing Rep-
resentatives shall be prescribed by the legisla-
tures of the States i 4 i 349
But Congress may at any time by law make or
alter such regulations except as to the places
of choosing Senators ' 4 ^ 349
And Senators shall receive a compensation to be
ascertained by law ^ ^ * 35°
Shall in all cases, except treason, felony, and
breach of the peace, be privileged from arrest
during attendance at the session of the House,
and in going to and returning from the same .161 350
Shall not be questioned in any other place for
3
34S
5
348
5
348
4
348
6
2
351
7
I
351
I
2
S6i
OF THE UNITED STATES 433
Art. Sec. CI. Page
any speech or debate. Members of the House
of I 6 I 350
Jiepresentatives. No member shall be appointed dur-
ing his term to any civil otfice which shall have
been created, or the emoluments of which shall
have been increased, during such term ... i 6 - 351
No person holding any office under the I'nited
States shall, while holding such office, be a
member of the House of
All bills for raising revenue shall originate in the
House of
No Senator or Representative shall be an elector
for President or Vice-I'resident
Representatives shall be bound bv an oath or affirmation
to support the Constitution of the United States.
The Senators and . 6 — 3 371
Representatives among the several States. Provisions
relative to the apportionment of. [Amend-
ments] .... 14
Representatives and Senators. Prescribing certain dis-
qualifications for office as. [Amendments] . 14
But Congress may, by a vote of two-thirds of each
House, remove such disqualification. [Amend-
ments] 14
Reprieves and pardons except in cases of impeachment.
The President may grant 2
Reprisal. Congress shall have power to grant letters
of marque and i
No State shall grant any letters of marque and . i
Republican form of government. The United States
shall guarantee to every State in this Union a 4 4 — 37°
And shall protect each of them against invasion;
and on the application of the legislature or of
the executive (when the legislature can not be
convened), against domestic violence .... 4 4 — 370
Reseri'ed rights of the States and the people. The enu-
meration in the Constitution of certain rights
shall not be construed to deny or disparage others
retained by the people. [Amendments! ... 9 — — yi7
The powers not delegated to the United States by
the Constitution, nor prohibited by it to the
States, are reserved to the States respectively
or to the i)eople. [Amendments] 10 — — 377
Resig>!ation, or inability of the President, the duties and
powers of his office shall devolve on the Vice-
President. In case of the death 2 I 5 363
Resignation, or inaliility of the President. Congress
may l)y law provide for the case of the removal,
death 2 i 5 363
Resohition, or vote (except on a question of adjourn-
ment) requiring the concurrence of the two
Houses shall, before it becomes a law, be pre-
sented to the President. Every order ... i 7 3 351
28
2 —
382
3 —
3S3
3 —
3S3
2 I
7><^l
8 II
I
355
35«
434 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Revenue shall originate in the House of Representa-
tives. All bills for raising i 7 i 351
Revenue. Preference shall not be given to the ports
of one State over those of another by any regu-
lations of commerce or i 9 6 357
Rhode Island entitled to one Representative in the
First Congress i 2 3 348
Ri^ht of petitton. Congress shall make no law abridg-
ing the right of the people peaceably to assemble
and to petition for the redress of grievances.
[Amendments] i — — 374
Right to keep and bear arms. A well-regulated militia
being necessary to the security of a free State,
the right of the people to keep and bear arms
shall not be infringed. [Amendments] ... 2 — — 374
Rights in the Constitution shall not be construed to
deny or disparage others retained by the people.
The enumeration of certain. [Amendments] 9 — — 377
Rights not delegated to the United States nor pro-
hibited to the States are reserved to the States
respectively or to the people. [Amendments] 10 — — 377
Rules of its proceedings. Each House may determine
the I 5 2 350
Rules and regulations respecting the territory or other
property of the United States. Congress shall
dispose of and make all needful 7 3 2 370
Rules of the common law. All suits involving over
twenty dollars shall be tried by jury according
to the. [Amendments] 7 — — 377
No fact tried by a jury shall be re-examined except
according to the. [Amendments] 7 — — 377
Science and the useful arts by securing to authors and
inventors the exclusive right to their writings
and discoveries. Congress shall have power to
promote the progress of I 8 8 354
Searches and seizures shall not be violated. The right
of the people to be secure against unreasonable.
[Amendments] 4 — — 375
Searches and seizures. And no warrants shall be
issued but upon probable cause, on oath or
affirmation, describing the place to be searched
and the person or things to be seized. [Amend-
ments] 4 — — 375
Seat of government. Congress shall exercise exclusive
legislation in all cases over such district as may v
become the i 817 356
Securities and current coin of the United States. Con-
gress shall provide for punishing the counter-
feiting of the I 8 6 354
OF TliE UNITED STATES
435
Art. Sec. CI. Page
Security of a free State, the right of the people to keep
and bear arms shall not be infringed. A well-
regulated militiabeing necessaryto the. [Amend-
ments] 2 — — 374
Senate and House of Representatives. The Congress of
the United States shall consist of a I I — 347
Senate of the United States. The Senate shall be com-
posed of two Senators from each State, chosen
by the legislature for six years i 3 I 348
If vacancies happen during the recess of the leg-
islature of a State, the executive thereof may
make temporary appointments until the next
meeting of the legislature i 3 2 349
The Vice-President shall be President of the Sen-
ate, but shall have no vote unless the Senate be
equally divided I 3 4 349
The Senate shall choose their other officers, and
also a President pro tempore in the absence of
the Vice-President or when he shall exercise the
office of President I 3 5 349
The Senate shall have the sole power to try all
impeachments. When sitting for that purpose
they shall be on oath or affirmation .... I 3 6 349
When the President of the United States is tried
the Chief Justice shall preside; and no person
shall be convicted without the concurrence of
two-thirds of the members present i 3 6 349
It shall be the judge of elections, returns, and
qualifications of its own members I 5 I 350
A majority shall constitute a quorum to do busi-
ness, but a smaller number may adjourn from
day to day, and may be authorized to compel
the attendance of absent members i 5 I 350
It may determine the rules of its proceedings,
punish a member for disorderly behavior, and
with the concurrence of two-thirds expel a
member i 5 2 350
It shall keep a journal of its proceedings, and
from time to time publish the same, except such
parts as may in their judgment require secrecy ^53 35°
It shall not adjourn for more than three days
during a session without the consent of the
other House i 5 4 350
It may propose amendments to bills for raising
revenue, but such bills shall originate in the
House of Representatives i 7 i 351
The Senate shall advise and consent to the ratifi-
cation of all treaties, provided two-thirds of the
members present concur 2 2 2 364
It shall advise and consent to the appointment of
ambassadors, other public ministers and consuls,
judges of the Supreme Court and all other offi-
cers not herein otherwise provided for ... 2 2 2 364
436 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Senate of the United States. It may be convened by the
President on extraordinary occasions .... 2 3 — 364
No State, without its consent, shall be deprived of
its equal suffrage in the Senate 5 — — 370
Senators shall, immediately after assembling, under
their first election, be divided into three classes,
so that the seats of one-third shall become
vacant at the expiration of every second year .132 349
No person shall be a Senator who shall not be
thirty years of age, nine years a citizen of the
United States, and an inhabitant when elected
of the State for which he shall be chosen • • i 3 3 349
The times, places, and manner of choosing Sena-
tors may be fixed by the legislature of a State,
but Congress may by law make or altar such
regulations except as to the places of choos-
ing . I 4 I 349
If vacancies happen during the recess of the legis-
lature of a State, the executive thereof may make
temporary appointments until the next meeting
of the legislature i 3 2 349
They shall in all cases, except treason, felony, and
breach of the peace, be privileged from arrest
during their attendance at the session of the
Senate and in going to and returning from the
same i 6 i 350
Senators and Representatives shall receive a compen-
sation to be ascertained by law i 6 I 350
Senators and Representatives shall not be ques-
tioned for any speech or debate in either House
in any other place i 6 i 850
No Senator or Representative shall, during the
time for which he was elected, be appointed to
any civil office under the United States which
shall have been created, or of which the emolu-
ments shall have been increased, during such
term i 6 2 351
No person holding any office under the United
States shall be a member of either House dur-
ing his continuance in office i 6 2 351
No Senator or Representative or person holding
an office of trust or profit under the United
States shall be an elector for President and
Vice-President 2 1 2 361
Senators and Representatives shall be bound by an
oath or affirmation to support the Constitution . 6 — 3 371
No person shall be a Senator or Representative
who having, as a Federal or State officer, taken
an oath to supjiort the Constitution, afterwards
engaged in rebellion against the United States.
[Amendments] 14 3 — 383
But Congress may, by a vote of two-thirds of each
House, remove such disability. [Amendments] 14 3 — 383
OF THE UNITED STATES 437
Art. Sec. CI. Page
Service or labor in one State, escaping into another
State, shall be delivered up to the party to
whom such service or labor may be due. Fugi-
tives from 4 2 3 369
Servitude^ except as a punishment for crime, whereof
the party shall have been duly convicted, shall
exist in the United States or any place subject
to their jurisdiction. Neither slavery nor in-
voluntary. [Amendments] 13 i — 380
Servitude. The right of citizens of the United States
to vote shall not be denied or abridged by the
United States or by any State on account of
race, color, or previous condition of. [Amend-
ments] 15 I — 384
Ships of war in time of peace, without the consent of
Congress. No State shall keep troops or . . i 10 3 361
Silver coin a tender in payment of debts. No State
shall make anything but gold and i 10 i 35S
Slave. Neither the United States nor any State shall
assume or pay any debt or obligation incurred
in aid of insurrection or rebellion, or any claim
for the loss or emanicipation of any. [Amend-
ments] 14 4 — 383
Slavery nor involuntary servitude, except as a punish-
ment for crime, whereof the party shall have
been duly convicted, shall exist in the United
States, or any places subject to their jurisdiction.
Neither. [Amendments] 13 i — 380
Soldiers shall not be quartered, in time of peace, in
any house without the consent of the owner.
[Amendments] 3
South Carolina entitled to five representatives in the
First Congress I
Speaker and other officers. The House of Representa-
tives shall choose their i
Speech or of the Press. Congress shall make no law
abridging the freedom of. [Amendments] . . i
Speedy and public trial by a jury. In all criminal
prosecutions the accused shall have a. [Amend-
ments] 6
Standard of weights and measures. Congress shall fix
the I
State of the Union. The President shall, from time to
time, give Congress information of the ... 2
State legislatures, and all executive and judicial officers
of the United States, shall take an oath to sup-
port the Constitution. All members of the
several 6 — 3 37'
States. When vacancies happen in the representation
from any State, the executive authority shall
issue writs of election to fill such vacancies ..124 348
Congress shall have power to regulate commerce
among the several i 8 3 352
—
374
3
348
5
348
—
374
-
376
5
354
—
364
lO
I 358
lO
I 358
lO
I 358
10
I 358
438 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
States. No State shall enter into any treaty, alliance, or
confederation i
Shall not grant letters of marque and reprisal . i
Shall not coin money i
Shall not emit bills of credit i
Shall not make anything but gold and silver coin
a tender in payment of debts i 10 i 358
Shall not pass any bill of attainder, ex post facto
law, or law impairing the obligation of contracts I 10 I 358
Shall not grant any title of nobility i 10 i 358
Shall not, without the consent of Congress lay
any duties on imports or exports, except what
may be absolutely necessary for executing its
inspection laws i 10 2 360
Shall not, without the consent of Congress, lay
any duty of tonnage, keep troops or ships of
war in time of peace, enter into any agreement
or compact with another State or with a foreign
power, or engage in war unless actually invaded
or in such imminent danger as will not admit of
delay I 10 3 361
Full faith and credit in every other State shall be
given to the public acts, records, and judicial
proceedings of each State • 4 i — 3^8
Congress shall prescribe the manner of proving
such acts, records, and proceedings 4 I — 368
Citizens of each State shall be entitled to all privi-
leges and immunities of citizens in the several
States 4 2 i 369
New States may be admitted by Congress into
this Union _• 4 3 1 3^9
But no new State shall be formed or erected within
the jurisdiction of another State 4 3 I 3^9
Nor any State formed by the junction of two or
more States or i)arts of States without the con-
sent of the legislatures as well as of Congress . 4 3 I 369
No State shall be deprived, without its consent,
of its equal suffrage in the Senate S — — Z7°
Three-fourths of the legislatures of the States or
conventions of three-fourths of the States, as
Congress shall prescribe, may ratify amend-
ments to the Constitution 5 — — 37°
The United States shall guarantee a republican
form of government to every State in the Union 4 4 — 37°
They shall protect each State against invasion .44 — 370
And on application of the legislature, or the
executive [when the legislature can not be con-
vened], against domestic violence 4 4 — ZT^
The ratification by nine States shall be sufficient
to establish the Constitution between the States
so ratifying the same 7 — — 372
When the choice of President shall devolve on
the House of Representatives, the vote shall be
taken by States. [Amendments] I3 — . — 378
OF THE UNITED STATES 439
Art. Sec CI. Page
States But in choosing the President the vote shall
be taken by States, the representation from each
State liaving one vote. [Amendments] ... 12 — — 378
A quorum for choice of President shall consist of
a member or members from two-thirds of the
States, and a majority of all the States shall be
necessary to a choice. [Amendments] . . . 12 — — 378
States or to the people. Powers not delegated to the
United States, nor prohibited to the States, are
reserved to the. [Amendments] 10 — — 377
Suffrage in the Senate. No State shall be deprived
without its consent of its equal 5 — — 370
Suits at common law, where the value in controversy
shall exceed twenty dollars, shall be tried by
jury. [Amendments] 7 — — 377
In law or equity against one of the States by citi-
zens of another State or by citizens of a foreign
State. The judicial power of the United States
shall not extend to. [Amendments] .... 11 — — 378
Supreme Court. Congress shall have power to consti-
tute tribunals inferior to the I 8 9 355
Supreme Court, and such inferior courts as Congress
may establish. The judicial power of the
United States shall be vested in one .... 3 i — 365
The judges of the Supreme and inferior courts
shall hold their offices during good behavior .31 — 365
The compensation of the judges shall not be
diminished during their continuance in office 31 — 365
Supreme Court shall have original jurisdiction in all
cases affecting ambassadors, other public mir.is-
ters and consuls, and in which a State may be
a party. The 3 2 2 367
Shall have appellate jurisdiction, both as to law
and fact, with such exceptions and regulations
as Congress may make. The 3 2 2 367
Supreme law of the land. This Constitution, the laws
made in pursuance thereof, and the treaties of
the United States shall be the 6 — 2 371
The judges in every State shall be bound thereby 6 — 2 371
Suppress insurrections, and repel invasions. Congress
shall provide for calling forth the militia to exe-
cute the laws I 815 355
Suppression of insurrection or rebellion, shall not be
questioned. The public debt, including the
debt for pensions and bounties incurred in the.
[Amendments] 14 4 — 383
Tax shall be laid unless in proportion to the census or
enumeration. No capitation or other direct .194 357
Tax or duty shall be laid on articles exported from
any State. No I 9 S 357
440 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Taxes (direct) and Representatives, how apportioned
among the several States. [See fourteenth
amendment, section 2, page 382] I 2 3 348
Taxes, duties, imposts, and excises. Congress shall
have power to lay i 8 i 351
They shall be uniform throughout the United
States I 8 i 351
Tetnporary appointments until the next meeting of the
legislature. If vacancies happen in the Senate
in the recess of the legislature of a State, the
e.xecutive of the State shall make i 3 2 349
Tender in payment of debts. No State shall make any-
thing but gold and silver coin a i 10 i 358
Term 0/ four years. The President and Vice-President
shall hold their offices for the 2 i i 361
Te)?n for which he is elected. No Senator or Repre-
sentative shall be appointed to any office under
the United States which shall have been created
or its emoluments increased during the ... 162 351
Territory or other property of the United States. Con-
gress shall dispose of and make all needful rules
and regulations respecting the 4 3 2 370
Test as a qualification for any office or public trust
shall ever be required. No religious .... 6 — 3 37^
Testimony of two witnesses to the same overt act, or on
confession in open court. No person shall be
convicted of treason except on the 3 3 I 368
Three-fourths of the legislatures of the States, or con-
ventions in three-fourths of the States, as Con-
gress shall prescribe, may ratify amendments to
the Constitution 5 — — 37°
Tie. The Vice-President shall have no vote unless the
.Senate be equally divided i 3 4 349
Times, places, and ma>iner of holding elections for
Senators and Representatives shall be pre-
scribed in each State by the legislature thereof 141 349
But Congress may at any time by law make or alter
such regulations, except as to the places of
choosing Senators i 4 ^ 349
Title of nobility. The United States shall not grant
any i
No State shall grant any i
Title of any kind, from any king, prince, or foreign
State, without the consent of Congress. No
person holding any office under the United
States shall accept of any i
Tonnage without the consent of Congress. No State
shall lay any duty of i
Tranqnillity, provide for the common defense, etc. To
insure domestic. [Preamble] —
Treason shall consist only in levying war against the
United States, or in adhering to their enemies,
giving them aid and comfort 3 3 i 368
9
10
8
I
358
9
8
358
10
3
361
—
—
347
OF THE UNITED STATES 441
Art. Sec. CI. Page
Treason. No person shall, unless on the testimony of
two witnesses to the same overt act, or on con-
fession in open court, be convicted of ... . 3 3 ' 3'^^
Congress shall have power to declare the punish-
ment of 3 3 2 368
Shall not work corruption of blood. Attainder of 3 3 2 368
Shall not work forfeiture, except during the life
of the person attainted. Attainder of ... . 3 3 2 368
Treason, bribery, or other high crimes and misde-
meanors. The President, Vice-President, and
all civil officers shall be removed from office on
impeachment for and conviction of .... 2 4 — 365
Treason, felony, and breach of the peace. Senators and
Representatives shall be privileged from arrest
while attending or while going to or returning
from the sessions of Congress, except m cases
of I 6 I 350
Treasury, but in consequence of appropriations made
by law. No money shall be drawn from the .197 358
Treaties. The President shall have power, with the
advice and consent of the Senate, provided two-
thirds of the Senators present concur, to make 222 364
The judicial power shall extend to all cases arising
under the Constitution, laws, and 3 2 i 365
They shall be the supreme law of the land,
and the judges in every State shall be bound
thereby 6 — 2 371
Treaty, alliance, or confederation. No State shall
enter into any I 10 I 35S
Trial, judgment, and punishment according to law.
Judgment in cases of impeachment shall not
extend further than to removal from and dis-
qualification for office ; but the party convicted
shall nevertheless be liable and subject to indict-
ment I 3
Trial by jury. All crimes, except in cases of impeach-
ment, shall be tried by jury 3 2
Such trial shall be held in the State within which
the crime shall have been committed .... 3 2
But when not committed within a State, the trial
shall be at such place as Congress may by law
have directed .... 3 ^
In all criminal prosecutions the accused shall have
a speedy and public. [Amendments] .... 6 —
Suits at common law, when the amount exceeds
twenty dollars, shall be by. [Amendments] . 7 —
Tribunals inferior to the Supreme Court. Congress
shall have power to constitute i 8
Troops or ships of war in time of peace without the
consent of Congress. No State shall keep . . I 10
Trust and Profit vlwAqx \\i^ United States shall be an
elector for President and Vice-President. No
Senator, Representative, or person holding any
office of 2 I 2 361
7
349
3
367
3
367
3
367
-
376
-
zn
9
3SS
3
361
442 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
Two-thirds of the members present. No person shall
be convicted on impeachment without the con-
currence of • ^ 3 " 349
Two-thirds, may expel a member. Each House, with
the concurrence of i 5 ^ 35°
Tivo-thirds. A bill returned by the President with his
objections may be repassed by each House by
a vote of I 7 2 351
Two-thirds of the Senators present concur. The
President shall have power, by and with the
advice and consent of the Senate, to make
treaties, provided 2 2 2 364
Two-thirds of the legislatures of the several States.
Congress shall call a convention for proposing
amendments to the Constitution on the applica-
tion of S — — 370
Two-thirds of both Houses shall deem it necessary.
Congress shall propose amendments to the Con-
stitution whenever 5 37°
Two-thirds of the States. When the choice of a Presi-
dent shall devolve on the House of Representa-
tives, a quorum shall consist of a member or
members from. [Amendments] 12 — — 37°
Two-thirds of the whole number of Senators. A quo-
rum of the Senate, when choosing a Vice-Presi-
dent, shall consist of. [Amendments] ... 12 — — 378
T'wo-tkirds, may remove the disabilities imposed by the
third section of the fourteenth amendment.
Congress by a vote of. [Amendments] ... 14 3 — 383
Two years. Appropriations for raising and supporting
armies shall not be for a longer term than . . i 8 12 355
U.
Union. To establish a more perfect. [Preamble] . — — — 347
The President shall, from time to time, give to
Congress information of the state of the • • • ~ 3 — 3^4
New States may be admitted by Congress into this 4 3 I 369
But no new State shall be formed or erected within
the jurisdiction of another State 4 3 i 369
Unreasonable searches and seizures. The people shall
be secured in their persons, houses, papers, and
effects against. [Amendments] 4 — — 375
And no warrants shall be issued but upon prob-
able cause, supported by oath or affirmation,
and particularly describing the place to be
searched and the persons or things to be seized.
[Amendments] 4 — — 375
Unusual punishments inflicted. Excessive bail shall
not be required, nor excessive fines imposed, nor
cruel and. [.Amendments] 8 — — 377
Use without just compensation. Private property
shall not be taken for public. [Amendments] 5 — — 37S
OF THE UNITED STATES
443
Useful arts, by securing for limited times to authors
and inventors the exclusive right to their writ-
ings and inventions. Congress shall have power
to promote the progress of science and the . .
Art. Sec. CI. Page
I 8 8 354
Vacancies happening in the representation of a State,
The executive thereof shall issue writs of elec-
tion to fill I 2 4 348
Vacancies happening in the Senate in the recess of the
legislature of a State. Hove filed i 3 ~ 349
Vacancies that happened during the recess of the Sen-
ate, by granting commissions which shall expire
at the end of the next session. The President
shall have power to fill 2 2 3 364
Validity of the public debt incurred in suppressing
insurrection against the United States, includ-
ing debt for pensions and bounties, shall not
be questioned. [Amendments] 14 4 — 383
Vessels bound to or from the ports of one State shall
not be obliged to enter, clear, or pay duties in
another State
Veto of a bill by the President. Proceedings of the
two Houses upon the
Vice-President of the United States shall be President
of the Senate
He shall have no vote unless the Senate be
equally divided • . . .
The Senate shall elect a President pro tempore
in the absence of the
He shall be chosen for the term of four years .
The number and the manner of appointing elect-
ors for President and 2 I 2 361
In case of the removal, death, resignation, or ina-
bility of the President, the powers and duties
of his office shall devolve on the 2 i 5 363
Congress may provide by law for the case of the
removal, death, resignation, or inability both of
the President and 2 i 5 3^3
On impeachment for and conviction of treason,
bribery, and other high crimes and misdemean-
nors shall be removed from office. The ... 2 4 — 365
Vice-President. The manner of choosing the. The
electors shall meet in their respective States
and vote by ballot for President and Vice-Pres-
ident, one of whom, at least, shall not be an
inhabitant of the same State with themselves.
[Amendments] 12 — — 378
The electors shall name, in distinct ballots, the
person voted for as Vice-President. [Amend-
ment.s] 12 — — 378
They shall make distinct lists of the persons voted
for as Vice-President, which lists they shall sign
I 9
6
357
I 7
2
351
I 3
4
349
I 3
4
349
1 3
2 I
s
I
349
361
444 INDEX TO THE CONSTITUTION
Art. Sec. CI. Page
and certify, and send sealed to the seat of gov-
ernment, directed to the President of the Sen-
ate. [Amendments] 12 — — 378
Vice-Presidetit. The manttcr of choosing the. The
President of the Senate shall, in the presence
of the Senate and House of Representatives,
open all the certificates, and the votes shall then
be counted. [Amendments] 12 — — 378
The person having the greatest number of votes
shall be Vice-President, if such number be a
majority of the whole number of electors.
[Amendments] 12 — — 378
If no person have a majority, then from the two
highest numbers on the list the Senate shall
choose the Vice-President. [Amendments] . 12 — — 378
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 nec-
essary to a choice. [Amendments] .... 12 — — 378
But if the House shall make no choice of a Pres-
ident before the 4th of March next following,
then the Vice-President shall act as President,
as in the case of the death or other constitu-
tional disability of the President. [Amend-
ments] 12 — — 378
No person constitutionally ineligible as President
shall be eligible as. [Amendments] .... 12 — — 378
Violence. The United States shall guarantee to every
State a republican form of government, and
shall protect each State against invasion and
domestic 4 4 — 370
Virginia entitled to ten Representatives in the First
Congress i 2 3 348
Vote. Each Senator shall have one i 3 i 34S
The Vice-President unless the Senate be equally
divided, shall have no i 3 4 3^0
Vote requiring the concurrence of the two houses
(except upon a question of adjournment) shall
be presented to the President. Every order,
resolution, or i 7 3 "551
Vote shall not be denied or abridged by the United
States or by any State on account of race, color,
or previous condition of servitude. The right
of citizens of the United States to. [Amend-
ments] 15 I — 384
Vote of two-thirds. Each House may expel a member
by a I 5 2 350
A bill vetoed by the President may be repassed in
each House by a i 7 2 351
No person shall be convicted on an impeachment
except by a i 3 6 349
Whenever both Houses shall deem it necessary,
Congress may propose amendments to the Con-
stitution by a 5 — — 370
OF THE UNITED STATES 445
Art. Sec. CI. Page
Voteofhuo-thirds. The President may make treaties,
with the advice and consent of the Senate, by a 2 2 2 364
Disabilities incurred by participation in insurrec-
tion or rebellion may be relieved by Congress
by a. [Amendments] 14 3 — 3^3
W.
War^ grant letters of marque and reprisal, and make
rules concerning captures on land and water.
Congress shall have power to declare .... 1 8 ii 355
For governing the land and naval forces. Con-
gress shall have power to make rules and arti-
cles of I 8 14 355
No State shall, without the consent of Congress,
unless actually invaded, or in such imminent
danger, as will not admit of delay, engage in . i 10 3 361
War against the United States, adhering to their
enemies, and giving them aid and comfort.
Treason shall consist only in levying •■•33^ 368
Warrants shall issue but upon probable cause, on
oath or affirmation, describing the place to be
searched, and the persons or things to be
seized. No. [Amendments] 4 — — 375
Weights and measures. Congress shall fix the standard
of • • • • I S 5 354
Welfare, and to secure the blessings of liberty, etc.
To promote the general. [Preamble] .... — — — 347
Welfare. Congress shall have power to provide for
the common defense and general ..... i 8 i 35'
Witness against himself. No person shall, in a crim-
inal case, be compelled to be a. [Amendments] 5 — — 375
Witnesses against him. In all criminal prosecutions
the accused shall be confronted with the.
[Amendments] • • 6 — — 376
Witnesses in his favor. In all criminal prosecutions
the accused shall have compulsory process for
obtaining. [Amendments] ....... 6 — — 376
Witnesses to the same overt act, or on confession in
open court. No person shall be convicted of
treason unless on the testimony of two •••33^ 3^8
Writ of habeas corpus shall not be suspended, unless
in case of rebellion or invasion the public
safety may require it I 9 ^ 357
Writs of election to fill vacancies in the representation
of any State. The executive of the State shall
issue I 2 4 348
Written opinion of the principal officer in each of the
Executive Departments on any subject relating
to the duties of his office. The President may
require the 2 2 I 363
446 INDEX TO THE CONSTITUTION
Y.
Art. Sec. CI. Page
Yeas and nays of the members of either House shall,
at the desire of one-fifth of those present, be
entered on the journals I 5 3 350
The votes of both Houses upon the reconsidera-
tion of a bill returned by the President with his
objections shall be determined by i 7 2 351
INDEX
Adams, John, on association of
1774, 9; on Declaration of In-
dependence, 11; on the Federal
Convention, 17, 70; Vice-Presi-
dent, 90; announces Eleventh
Amendment, 105; President, 108,
109; and the Monroe Doctrine,
154; appoints John Marshall
chief-justice, 236.
Adams, John Quincy, 114, 118;
supports Jefferson in the pur-
chase of Louisiana, 134; and the
Pan-American Congress, 158.
Adams, Samuel, 84, 85.
African slave trade. The, opposed
in the Federal Convention, 27;
treaty between th« United States
and Great Britain, 210, 211.
Alabama, 201, 233, 254, 255, 258,
268, 270, 283, 294.
Alexandria, 219.
Alien and Sedition Acts, 126-12S.
Amendments, of the Constitution,
first twelve, 92-120; proposed by
Jefferson to ratify Louisiana pur-
chase, 133; proposed thirteenth
amendment (1861) 205-208;
recommended by Lincoln for
compensatory emancipation, 213;
of state constitutions (1S00-1860),
225,226; the thirteenth, 250-25S;
the fourteenth, 260-271 ; the fif-
teenth, 271-275; character of the
thirteenth, fourteenth, and fif-
teenth, 276, 277, 280, 2S3, 2S4, 285,
286, 2S7, 291, 308-311, 343. 345-
American Anti-Slavery Society, 172.
Ames, Fisher, 96, 98.
Annapolis convention. The, 16.
Anti-Federalists, their estimate of
"The Federalist," 35; objection
to a standing army, 44, 45 ; objec-
tion to the power of Congress to
tax, 46 ; objection to powers of the
national government, 48 ; to the
powers of the House of Repre-
sentatives, 53; objection to the
status of treaties, 58 , objection
to the Senate as court of im-
peachment, 59 ; approval of pro-
vision for presidential electors,
60 ; objection to tlie powers of
the President, 61 ; objection to
the judiciary, 63-67 : origin of the
name, 83; oppose ratification of
the Constitution, 83-91.
Arizona, 203.
Arkansas, 202 ; military governor
in, 214; abolishes slavery, 218,
225, 270, 283. 292.
Articles of Confederation, 12, 13,
14, 15, 16, 17.
Ashley, James M , 250, 251.
Association of 1774, 9.
Atchison, Senator, 190.
B
Baldwin, Abraham, 96, 117, 118.
Baltimore Convention (i86o), 197;
283.
Bank, a national (1791), 121-123.
Benson, Egbert, 98.
Benton, Thomas H. 144-146.
Bills of Rights, 70-73; proposed by
ratifying conventions (1787, 17S8)
84-92 ; first ten amendments as,
92-100 ; see under " Constitu-
tions, The State."
Bill of rights, the English, 16S9, 8,
Bills of credit, 1775. 1 1.
Bingham, John A. 261, 273.
Blair, Francis P. 271.
Border States, The, during the civil
war, 2IO-222; reject the fifteenth
amendment, 293.
448
INDEX
Boutwell, George S. 273.
Bradley, Joseph P. Justice, 315.
Breckenridge, John, 70, 128.
Breckeiiridge, John C. 197.
Bryce's American Commonwealth,
62 (note).
Buchanan, James, President, on the
Kansas constitutions, 194; atti-
tude of towards secession, 204,
205.
Burt, Armistead, proposes amend-
ment to Oregon Bill, 177.
Burr, Aaron, 109, lio, HI, 115, 134.
Butler, General Benjamin F. 273.
Butler, Pierce, 98, 117, 118.
Calhoun, John C, deferids nullifica-
tion, 165, 166 ; speech on Clay's
resolutions, 184, 185.
California, questions involved in the
acquisition of, 177-179, 183-189;
225, 257, 265, 270, 27s, 286.
Campbell, Brookins, 116.
Canning, George, 152, 153.
Carrol, Charles, 98.
Caswell, Richard, 70.
Census, 27.
Chandler, Zachariah, on the Corwin
Amendment, 207.
Charleston, 269.
Chase, Salmon P., on Kansas-
Nebraska Bill, 191 ; on the con-
stitutionality of slavery restric-
tion, 192.
Chicago Convention (i860), 197;
(1868) 271.
Civil War, causes of, 197-201 ; sup-
pression of, 209-224.
Clay, Henry, 118; and the Missouri
Compromise, 140-149; on the
Monroe Doctrine, 156; and Nulli-
fication, 168; his censure of Jack-
son, 170, 171 ; his eight resolutions,
183-189.
Clinton. Ue Witt, 112.
Clinton, George, 88, 109.
Clopton, David, 112.
Clymer, George, 96.
Cobb, Howell, 204, 205.
Cobb, Thomas W., 146, 205.
Colfax, Schuyler, 218, 252, 271, 274.
Collins, John, 99.
Common Sense, Paine's, 11.
Commonwealths, see States.
Compact," The Social, 70.
Compromise of 1850, 182-189.
Confederacies, several suggested
for America, 37.
Confederate states of America,
201-204; did not include the
fjorder States, 2io ; relation of
Tennessee to, 222 ; legal aspect
of de facto local governments
under, 305.
Confederation, 1776, 12.
Confiscation Bill, The, 209, 210,
211.
Congress, of 1765, 6, 7 ; of 1774,
7-1 1 ; takes up question of inde-
pendence, 12; confederation, 13;
public lands, 14; Tariff Act
(1786), proposed, 15; suggestions
by, ignored. 16, 17 ; organized by
the Federal Convention, 20, 21,
22-24, 25, 26-2S, 29, 30, 32;
powers, organization, and char-
acter of, examined in " The Fed-
eralist," 40, 41, 45, 46-48, 51, 52,
53-56, 57, 59; submits the Con-
stitution to the states, 82, 83;
discusses first ten amendments,
92-9S ; discusses the eleventh
amendment, 105; discusses the
twelfth amendment, 109, 11 2-1 17 ;
creates the United States Bank,
122 ; and the Jay Treaty, 124,
125 ; discusses the Missouri com-
promise, 140-150, and the tariffs
of 1824, 1828, 1833, 157-168;
power of, over slavery, Mexico,
California, Oregon, Texas (com-
promise of 1850), 175-189; passes
Kansas-Nebraska Act, 190-193;
passes the thirteenth amendment
(1861), 205-20S ; passes the Con-
fiscation Act, 209, 210; abolishes
slavery in the territories and the
District of Columbia, 2ro, 282;
refuses recognition of the Pier-
point government but accepts its
ratification of the thirteenth
amendment, 219, emancipates
escaped slaves, 282 ; discusses
and adopts the thirteenth amend-
ment (1865), 250, 252, 283 ; passes
INDEX
449
the Civil Rights Act, 258, 284 ;
restores Tennessee to Federal re-
lations, 259 ; confers the suffrage
on negroes in the District of
Columbia, 259, 284 ; establishes
negro suffrage in the territories,
259, 260, 2S4, 285 ; debates and
adopts the fourteenth amend-
ment, 260-263 ; prohibits peon-
age, 266, 267, 285 ; passes the
reconstruction acts, 267, 285 ; re-
admits Arkansas, Florida, North
Carolina, South Carolina, and
Louisiana to the Union, 270;
passes the fifteenth amendment,
272-275, 2S6 ; criticism of the re-
construction policy of Congress,
287-290 ; power of, over territo-
ries, 323-326.
Constitution, formation of, 18-34;
ratification of, by Congress, 82,
83; by Pennsylvania, 83, 84; by
Delaware, New Jersey, Georgia
and Connecticut, 84; by Mas-
sachusetts, 84, 85 ; by Maryland,
85; by South Carolina, 85, 86;
by New Hampshire, 86 ; bv Vir-
ginia, 87, 88; by New York, 88,
89 ; inauguration of, 90 ; ratified
by North Carolina, 90; the vote
on, 90, 91 ; demand for amend-
ments, 91 ; Madison in Congress
submits amendments to, 91-94;
discussion of the amendments in
Congress, 94-98 ; the amend-
ments ratified by the states, 99,
100; Rhode Island ratifies the,
99, 100; Vermont ratifies the,
100; character of the framers of,
100; article on the judiciary, 100,
loi ; on suits against a state, loi-
105; on sovereignty, 101-103;
amended (179S) article XI, 105,
106; amended (k^04) article XII,
106-119; character of first twelve
amendments, 117, 119; Jefferson
suggests amendment of (1803),
103-133; does not authorize in-
ternal improvements (Monroe's
interpretation) 138, 139; appealed
to, at the time of the Missouri
Compromise, 141-149; relation
of, to Tariff acts (nullification)
156-169; relation of, to the Bank
Act (1832), 169-171 ; relation of,
to acquisition of territory (Louis-
iana, 1803), 130-135; Mexico,
California (1844-50), 174-189;
relation of, to slavery extension
(Texas, Oregon, California), 174-
189; Kansas-Nebraska, 190-194;
(Dred Scott case), 194-197 ; rela-
tion of, to secession (i860), 197-
210; relation of, to civil war, 209-
214; relation of, to reconstruc-
tion, 214-224; interpretation of
(1794-1860), 236-249; thirteenth
amendment ( 1865), 250-252 ; four-
teenth amendment, 260-271 ; fif-
teenth amendment, 271-277; a
composite organic law, 278, 279;
amended practically by adminis-
tration, 279; character of last
three amendments, 280, 281, 285,
286, 287 ; interpretation of prin-
ciples of, by the courts (1860-
igor), 303-326; remarks on the
forces in the evolution in govern-
ment under the, 327-346.
Constitutions, The State, record the
civil evolution, 3, 4; at the basis
of the national Constitution, 31-
34; the first group (1776-1S00),
69-81 ; principal framers of the
first, 69, 70 ; reflect current politi-
cal theories, 70; their presenta-
tion of government, 70; the bill
of rights, early type, 70-72; how
made, 71 ; their interpretation of
federal government, 72-73 ; their
definition of the scope and powers
of government, 73,74; precedence
and prototypes of, 73, 74; basis
of representation in, 74, 75; qual-
ifications for office holding, 75;
supremacy of the legislative, 75,
76; dependence of the executive,
76, 77; the judiciary, 76-79;
adaptation of to popular wants,
79, 80 ; characteristics and types
of. So, 81 ; the second group
(1800-1860), 225-235; bills ot
rights (1800-1860), 226; preva-
lence of the bicameral system,
226; provisions on banking, 226;
on land grants, 226; on special
legislation, 227 ; on internal im-
provements, 227 ; on local gov-
450
INDEX
ernment, 227 ; on districting, 227 ;
the gerrymander, 228 ; on appor-
tionment, 227, 228; on quali-
fications for voting, 228 ; the
Wisconsin (1848), 228; on legis-
lative powers, 227, 229; on lot-
teries, 229; on free persons of
color, 229; on powers of the
executive, 230, 231 ; eminent
framers of, 231 ; on charitable in-
stitutions and reformatories, 231 ;
on the judiciary, 232, 233; on
State sovereignty, 234; exponen-
tial of industrial and social con-
ditions, 225, 226, 234; the third
group (1860-1900): reconstruc-
tion, 291-293; annulment of the
word " white," 291 ; bills of rights
in(i865-i890), 292-296 ; Michigan
(1867), 292; Mississippi (1890),
293, 294, 295; Louisiana (1S98),
294; North Carolina (1896), 294;
Virginia (1902), 294; Wyoming
(1890), 295; legislative power,
296-29S ; the Executive, 298, 299 ;
the judiciary, 300; administra-
tive character of, 298, 301 ; gen-
eral character of, political, social,
and industrial, 3-7-339-343-346;
chronological list of, 301, 302
(note).
Connecticut, 14 ; becomes a state,
69; ratifying convention, 84, 90.
Convention, Annapolis, 16; federal,
the, 17-34.
Conventions, Pennsylvania ratify-
ing, 84 ; Delaware, New Jersey,
Georgia, Connecticut, 84 ; Massa-
chusetts, 84, 85; Maryland, 85;
South Carolina, 85, 86; New
Hampshire, 86, 87 ; North Caro-
lina, 87, 90; Virginia, 87, 88;
New York, 88,89; Khode Island,
99, 100; Vermont, 100.
Corvvin, Thomas, 206, 207, 208.
Crawford, William 11. 118
Crittenden, John J. 205, 206.
Crittenden Resolutions, The, 205,
206, 207, 208.
Cumberland Road Bill, Monroe's
veto of, 138.
Curtis, Benjamin R., opinion in the
Dred Scott case, 196.
D
Dartmouth College case. The, 242.
Davis, Jefferson, Secretary of War,
198 ; President of the Southern
Confederacy, 202.
Davis, John, 183.
Dawson, John, 112, 113.
Dayton, Jonathan, 114, 117.
Declaration of Independence, 11,
12, 118.
Declaration of rights (1765), 8, 9.
Delaware, 13, 76, So, 84, 90, 210,
211, 255, 257, 266, 270, 275; diffi-
culty of changing constitution of,
279 (and note), 282, 285, 286.
Democratic party, The, 264, 271.
Democratic-Republicans, on Jay's
Treaty, 125; on the Alien and
Sedition Acts, 126-129; princi-
ples of, 127, 128.
De Tocqueville's "Democracy in
America," 62 (note).
Development of America, The
civil, 3.
Dickinson, John, 12, 13.
District of Columbia, The, slavery
and the slave trade in, 178, 183,
184.
Douglas, Stephen A., reports Ore-
gon Bill, 177, 178; on Kansas-
Nebraska Bill, 190-192 ; on the
Dred Scott case, 196 ; nominated
for President, 197; on the Con-
stitutional amendment of, 1861,
207, 257.
Drake, Charles F. 217.
Dred Scott case, decision in,
anticipated (1820), 149, 194-197;
overruled by Congress, 211;
overruled by the Emancipation
Proclamation, 214, 237, 238, 246,
East Florida, 154.
Eaton, John H. 147.
Edmunds, George F. 273.
Eleventh Amendment, 100-106 ; a
victory for the democratic party,
127.
Ellsworth, Oliver, 118.
Emancipation Proclamation, The,
INDEX
451
Fremont's, 209; Lincoln's, 212-
214; policy of, 217, 218.
Embargo Act, The, 135-137-
" Endless Chain " Act, 317 (note).
Equality of Men, 70.
Executive, The state, 76, 77.
" Federalist, The," authorship of, 36
(note) ; first appearance and pur-
pose, 36; first exposition of the
Constitution, 36; general argu-
ment of, 37-39, 42 ; on the
mechanics of government, 40, 41 ;
on distinction between confedera-
tion and national government, 43 ;
on the defects of the Confedera-
tion, 43, 44; grand political de-
duction from, 44 ; on a standing
army, 44, 45; on trusting the
people, 45 ; on administration of
government, 44, 45 ; on public
officials, 46; on taxation, 46-4S ;
on usurpation of power, 48 ; on
checks and balances, 49 ; on the
national and the federal qualities
of the new government, 49, 50 ;
on the coercion of a state, 51 ; on
secession, 51-54; on representa-
tion in Congress, 52 ; on usurpa-
tion of powers by the House, 53;
on the powers of the House, 53,
54; on the suffrage, 54; on residu-
ary sovereignty, 55 ; on the Sen-
ate, 55-57; on the objects of
government, 57 ; on the treaty-
making power, 57, 58 ; on the
character of the Senate, 58, 59;
on the powers of Congress, 60,
61 ; its silence on political parties,
61, 62; on the judiciary, 62-66;
on the omission of a bill of rights,
66, 67 ; summary of its teach-
ings, 67, 68 ; principles of, applied
in Madison's Amendments, 94,
95-
Federalist Party, The, favor ratifi-
cation of the Constitution, 82-92 ;
oppose first ten amendments, 95 ;
in Rhode Island, 99 ; in the elec-
tion of 1796, 108, 109; in the
election of 1800, no, ill ; oppose
the purchase of Louisiana, 123;
broad constructionists, 123, 124;
on Jay's Treaty, 124, 125; on
the Alien and Sedition Acts, 126-
12S; principles of, 127; atti-
tude towards the Louisiana Pur-
chase, 131-135; in New England,
(1807-1S14) i35-'37-
Fessenden, William Pitt, 262.
Field, Justice Stephen J., dissent-
ing opinion of, in legal-tender
cases, 117, 315.
Fifteenth Amendment, The, in
Congress, 272-274; ratification
of, 274-276, 2S6 ; judicial inter-
pretation of, 286, 311, 312.
Fitzsimons, Thomas, 118.
Florida, 254, 257, 258, 269, 270,
282, 283.
Floyd, John B. 204, 205.
Foot resolution. The, 159.
Foraker Act, The, 324, 325.
Foster, Abiel, 109.
Fourteenth Amendment, The, his-
tory of, 260-263 ; ratification of,
263-271, 285, 286; judicial inter-
pretation of, 309, 310.
Frankfort (Ky.) convention, 180,
i8r, 182.
Franklin, Benjamin, 5, n, 12, 13,
26, 31, 32, 69, 338.
Franklin, State of, 38.
Free negroes, 145-148.
Fremont, John C., General, issues
Emancipation Proclamation, 209;
281.
Fugitive Slave Act, 178, 183, 184;
constitutionality of, 245.
Fuller, Melville W., Chief-Justice,
318.
Galloway, Joseph, 8.
Gamble,' Hamilton R. 217.
Garfield, James A. 261.
Garrison, William L. 172.
Georgia, 8, 10, 14; ratifying conven-
tion, 84; 90; joins the Southern
Confederacy, 201 ; 233, 254, 256,
257, 258. Constitutional con-
vention (1865), 264; ratifies thir-
teenth amendment, 257 ; abolishes
slavery, 257 ; whites and negroes
452
INDEX
in, 258; electoral vote of (1868),
271; 282,283.
Gerry, Elbridge, distrust of the
people, 42 ; 96, 97 ; 126.
Gerrymander, 228.
Gilman, Nicliolas, 96, 118.
Grant, U. S. President, 271, 276.
Grayson, William, 87.
H
Habeas corpus, suspension of the
writ of, 247.
Halin, Michael, 219.
Hamilton, Alexander, on the Con-
federation, 14, 15, 16; at Annap-
olis convention, 16; in Federal
Convention, 24, 31, 32; joint
author of "The Federalist," 35;
sketch of a government, 36; on
the Union, 38; on military des-
potism, 43; on state encroach-
ment upon national authority,
44 ; on the source of civil author-
ity, 44; on restriction of the
legislature, 45 ; on the identity
of individual and public interests,
46; on the power of taxation, 46,
47 ; on duties on imports, 48 ; on
the organization of the Senate,
55, 58 ; on the appointment of
the President, 59; on the admin-
istration of government 61, 62,
63; on the judiciary, 63, 64, 65;
on national sovereignty, 65 ; on
trial by jury, 66; in New York
convention, 88, 89 ; on the Con-
stitution as a bill of rights, 91 ;
on state sovereignty and the
suability of a state, 101-104;
intrigues of, no; on the bank
(1791), 122-124; on the Louisiana
Purchase, 131 ; and the Monroe
Doctrine, 154.
Hamlin, Hannibal, 197.
Hancock, John, 84, 85.
Harrisburg Conference, The, 90, 92.
Harrison, William H., death of, 173.
Hartford convention, 136, 158.
Hastings, Seth, 1 14.
Hawaii, jurisdiction over, 321, 322,
326.
Hayne, Robert Y., debate on nul-
lification, 159-162.
Henderson, John B. 250, 272, 273.
Hendricks, Thomas A. 273, 313.
Henry, Patrick, 87.
Hillhouse, James, 114.
Holman, William S. 252.
Holmes, John, 148.
Holy Alliance, The, 152.
Howard, Jacob M. 262, 263.
Huger, Benjamin, 113, 114.
Hunter, General David, 282.
I
Illinois, 227, 229.
Immigration, hostility to foreign
(1850), 180.
Income Tax cases, The, 318, 319.
Independence, American, causes
of, 6.
Independent Journal, The, 36.
Indiana, 227, 265.
Industrial conditions, factors in the
civil evolution ; discovery of gold
in California, 179-18 [ ; of the
North and the South compared
(1S50), 181; resulting from slavery
if permitted in Neliraska, 192,
193; defined by the civil war, 222-
224.
Inglis, John A. 256.
Internal improvements (1813-1817),
constitutionality of, 137-139.
Iowa, 225, 226, 233, 270.
Iredell, James, decision in Chisholm
V. Georgia, 104, 105, 245.
J
Jackson Andrew, 118; on public
revenues, 158; and nullification,
167, 168; and the United States
Bank, 169; censured by the Sen-
ate, 170, 171 ; his theory of inter-
preting the Constitution, 169-172.
Jay, John, joint author of " The Fed-
eralist," 35, 36, 37, 70 ; in New
York convention, 88, 89 ; on
suability of a state (eleventh
amendment), 103-105; envoy to
England, 124; on the Missouri
compromise, 149.
Jay's Treaty, 124, 125.
Jeff rson City, 21c;, 216.
JclTcrson, Thomas, 11, 69; antj
INDEX
453
federal influence of, 88 ; on Madi-
son's amendments, 98 ; electoral
votes for (1796), 108, 109; elected
President, no, in ; on the Bank
of 1791, 121-123; his political
principles, 127; inaugurates cam-
paign against the Alien and Sedi-
tion Acts, 127, 128; relation to
the Virginia and Kentucky Reso-
lutions, 128-130; on the Louis-
iana Purchase, 130, 135; on the
Monroe Doctrine, 152, 154.
Johnson, Andrew, Military Gov-
ernor of Tennessee, 222 ; Presi-
dent, 252; his policy of recon-
struction, 252, 253, 254, 256, 258,
259, 264, 267, 269, 283, 284.
Johnson, Herschel V., 256.
Johnson, Reverdy, 262.
Judiciary, The state, 77-79.
K
Kansas, 234.
Kansas-Nebraska Act, 190-194.
Kentucky Resolutions, 128-130 ;
161, 165.
Kentucky, state of, 69; constitution
(1792), 73, 76; presidential
electors (1800), in; resolutions,
128-130, 134, 161, 165; conven-
tion of 1849, 181, 182; Con-
stitution (1849), 193; approves
Crittendon Resolutions, 205 ; and
the Confederacy, 202, 255, 257,
266, 270, 275, 282, 285, 286.
King, Rufus, 118.
Lane, Joseph, 197.
Langdon, John, ii8.
Lansing, John, 28.
Law, administrative, in America, 2.
Lee, Richard Henry, n, 82.
Legal-tender cases, The, 314-318.
Legislature, The state, 75, 76.
Leib, Michael, 1x2.
Lincoln, President, on the associa-
tion of 1774, 9; Cooper Institute
speech, 102; on the Dred Scott
case, 196; elected President, 197,
1 98 ; approves the pro-slavery
Amendment of 1861, 208; his
analysis of secession, 208, 209;
modifies General Fremont's
Emancipation Proclamation, 209;
his scheme of compensatory
emancipation refused, 211 ; eman-
cipates the slaves, 212, 282; rec-
ommends constitutional amend-
ment providing compensation for
slaves, 213; his policy of recon-
struction, 21 1, 218; his recon-
struction policy in Arkansas,
Virginia, and Louisiana, 218-220;
on the rights of labor, 223; his
election the triumph of the
Liberty party, 245; suspends the
writ of habeas corpus, 247, 248;
suggests abolition amendment to
the Baltimore convention, 251 ;
his relation to the thirteenth
amendment, 251, 252; death of,
252; amnesty proclamation of,
253 ; Gettysburg address, 303.
Livingston, Robert R., n, 88.
Logan, General John A. 273.
Lord North, policy of, 10.
Louisiana, Purchase of, 130-135;
treaty, 139; military governor in,
214; reconstruction in, 219, 220;
-~5' 233. 252, 258, 266, 270, 282,
283, 292, 294, 295.
Lowndes, Rollins, 116.
Lyon, Matthew, 114.
M
Macon, Nathaniel, 113, 117.
Madison, James, in Federal Con-
vention, i8, 22, 24, 27 ; joint
authorof "The Federalist,"35, 36;
on a national government, 39 ; on
the Mechanics of government, 40,
42; on government as a compact,
41 ; 87. Democratic-Republican
leader, 91 ; submits amendments
to Congress, 92-99 ; proclaims
twelfth amendment, 117 ; 118; and
the Virginia Resolutions, 128; on
the Missouri compromise, 149;
on the Monroe Doctrine, 153, 154.
Magna Charta, 71, 93, 94, 118.
Maine, 143, 144, 234.
454
INDEX
Maine-Missouri Bill, 143, 144.
Marshall, John, in Virginia con-
vention, 87 ; on suability of a state
(eleventh amendment), 101-104;
126; on the acquisition of terri-
tory, 135; his services in the
supreme court, 171, 236-249, 305,
306, 316, 318, 323, 326.
Martin, Alexander, 118.
Maryland, 13, 14, 16, 76, 80; ratify-
ing convention, 85, 86; eman-
cipation in, 220, 221, 222, 252,
266, 267, 270, 275, 279, 282, 283,
285, 286, 292.
Mason and Dixon's line, 27.
Mason, George, 87, loi.
Massachusetts, in Union of 1643, 5 5
calls a Congress, 1765, 6; 1768,
7 ; ratifying convention, 84, 85,
86 ; 253.
Matthews, Mr. Justice, decision of
in Utah Case, 320.
McClurg, Charles, 70.
McLane, Louis, 142.
McLean, John, opinion in the Dred
Scott case, 196; dissenting opin-
ion of, in Prigg v. The Common-
wealth of Pennsylvania, 245.
Meade, General George 13. 269.
Mexican War, The, questions in-
volved in, 174, 175, 178, 179.
Michigan, 227, 232, 233, 267, 279,
285, 286, 292.
Miller, Mr. Justice, 314.
Minnesota, 225,265, 275.
Mississippi, 233, 253, 254, 255, 258,
275, 288, 293, 295.
Missouri, admission of, 140-151 ;
202; emancipation in, 214-217;
229, 252, 265, 283, 292.
Missouri compromise, 139-151.
Monroe Doctrine, The, 152-156.
Monroe, James, in Virginia con-
vention, 87 ; proclaims Missouri
a state, 149; and the Monroe
Doctrine, 152-156.
Montana, 285.
Montesquieu, on a confederated
republic, 39 ; " Spirit of Laws,"
> 39-
Mormons, 180, 190.
Mormon church, judicial decision
concerning, 319, 320.
Morris, Gouverneur, 28, 30, 31, 32,
34, 70 ; on the judiciary article,
100, loi ; his opinion of the first
twelve amendments, 119.
Mott, Lucretia, 172.
Municipal and local government,
227, 298, 344, 345.
Morgan, E. D. 251.
N
Napoleon, and the Louisiana Pur-
chase, 131.
Nation, significance of the word,
19, 196, 303, 304,312,313.
Navy, Department of, 10.
Nebraska, constitution of, and suf-
frage in, admission of, 259, 260,
265, 270.
Negro, The, representation of,
under the Constitution, debated,
27, 28, 29, 30 ; rights of, under
the Louisiana Purchase, 135, 139;
as an element in the Missouri
compromise, 139-151 ; rights in
the District of Columbia, 172,
1S3, 184, 210, 259; rights under
the Mexican acquisition ; 174-189;
industrial value of, as a slave,
180-182, 188, 189, 192, 193; as an
element in the Kansas-Nebraska
question, 190-194; status of,under
the decision in the Dred Scott
case, 194-197; an element in
secession, 198-201 ; status of, by
the constitution of the Con-
federate states, 202, 203 ; as
aflfected by the Confiscation Act,
209-212 ; refused emancipation in
Delaware, 211; emancipated by
Lincoln, 212, 214; emancipated
in West Virginia, 213; eman-
cipated in Missouri, 214, 217;
emancipated in Arkansas, 218;
emancipated in Virginia, 219;
emancipated in Lousiana, 219,
220; emancipated in Maryland,
220,221; emancipated in Nevada,
221 ; emancipated in Tennessee,
222; emancipated by the thir-
teenth amendment, 250-252; atti-
tude of Alabama, .South Carolina,
North Carolina, Georgia, Florida,
Mississippi and Texas, towards,
253-258; Congress held respon-
INDEX
455
sible for, at the South, 258, 259;
granted civil and political rights
by the fourteenth amendment,
260-271 ; attitude of the South
towards (1866, 1867), 264-271 ;
attitude of the North towards,
260-271; as affected by the fif-
teenth amendment, 272-277 ; legal
rights under the thirteenth, four-
teenth and fifteenth amendments,
308-312; acts of Congress, of the
state legislatures, and executive
proclamations (1861-1870) affect-
ing the status of the negro, 281-
287 ; general character of these
acts, 287, 290 ; status of, under
the constitutions of southern
states, (1865), 291; under south-
ern constitutions (1867-1870),
291-293; suffrage rights under
southern constitutions (1890-
1902), 293-295; remarks on the
extension of civil and political
rights to, 330, 331, 342, 343.
Nevada, admission of, 22 1 ; prohibits
slavery, 221, 222, 265, 292, 295.
New Hampshire, 74, 76, 86, 253, 280.
New Jersey, 13, 14; 74, 75, 76, 79;
ratifying convention 84 ; 90, 257,
270, 275.
New Jersey Plan, The, 22-26, 29,32.
New Orleans, 219.
New York, 6, 141 ; ratifying con-
vention, 87-89 ; 226,253,265,267,
279, 292, 293, 300.
New York City, 6.
" New York Packet " The, 36.
Nicholas, George, 70, 112.
Nicholas, John, 110.
Nicholson, Joseph H. 133.
North Carolina, in Federal Conven-
tion, 27, 2^^ ; dissensions in (1787),
38; 69, 74, 76, 89, 90; 254, 266,
270, 283, 285.
Nullification, 159-169.
O
Ohio, 265, 270 ; rejects the fifteenth
amendment, 275.
Ordinance of 1787, 142.
Oregon (see Oregon question), 225,
257, 265, 275, 285, 2S6.
Oregon question. The, 176-178.
Paine, Thomas, 11.
Parliament, and the Stamp Act, 7.
Paterson, William, 22, 23.
Peace Conference, The, 205, 206,
207.
Pendleton, George H. 251.
Pennsylvania, 8, 14, 16, 76, 80;
ratifying convention, 83, 84, 265,
300.
Perry, Benjamin F. 256.
Philadelphia, 8, 17; convention,
1787, 17, 18.
Philippines, The, constitutional
questions involved in the acqui-
sition of, 321, 323, 326.
Pickering, Timothy, 134.
Pierce, Franklin, President, on com-
promise measures of 1850, 190.
Pierpoint government, The (Va.),
219.
Pinckney, Charles, in Federal Con-
vention, 20, 86.
Pinckney, Charles C, 26, 86; on
negro suffrage (1820), 147, 148.
Pinckney, Thomas, electoral votes
for (1796), 108, no.
Pinckney, William, 126.
Political Parties, beginning of, 123,
124, 127; see the federalist party;
attitude of the Republicans
towards the purchase of Louisi-
ana, 133-135; the Independ-
ent Democrats (1854), 192; the
republican party nominates Lin-
coln, 197; attitude of the repub-
lican party toward slavery, 197,
206, 251, 252, 263, 264, 265, 283;
attitude of the democratic party
toward slavery, 264 ; toward re-
construction, 271 ; attitude of the
republican party toward recon-
struction, 271, 272-274, 276, 289;
their function, 337, 338.
Polk, James K., President, 174-178.
Porto Rico, Foraker Act concern-
ing, 324 ; decision respecting, 321-
325-
Post-office, Department of, 10.
President, The, organization of the
office of, 20, 23, 24, 33 ; election
of, 60, 1 1 2-1 17.
Principles of government in Amer-
456
INDEX
ica, The, analyzed in "The Fed-
eralist," 35-6S ; (and see under
"The Federalist") interpretation
of, by the courts ( i789-iS64),236-
249; (1864-1900), 303-326.
Puhlms, pseudonym of authors of
" The Federalist," 89.
Purvis, Robert, 172.
R
Randolph, Edmund, in Federal
Convention, 18, 20, 27, 32; in
Virginia Convention, 87, 102.
Randolph, John, 1 16 ; on the Louis-
iana Purchase, 132.
Randall, Samuel J. 261.
Rats and Anti-Rats, 97.
Read, George, 70.
Reconstruction, 209-224; 252-290;
309-313-
Representation, Basis of (Consti-
tution, 1776-1800), 74, 75 ; (Con-
stitutions, 1800-1860), 227, 228;
inclusion of the negro in (see
under Negro, also wnAax Fourteenth
and Fifteenth Amendments) ; con-
stitutions (1860-1900), 293, 294,
308,312,330,343.
Republican party. The, 197, 206,
251, 252, 263-265, 271, 272, 274,
276, 289.
Revolution, The American, char-
acter of, I, 2, 12.
Rhode Island, 13, 17, 18; becomes
a state, 69; ratifying convention,
99, 100.
Richmond, 202.
Ross, James, 109.
Rush, Richard, 152.
Rutledge, John, 86.
Sauls!)ury, Senator, 250.
Scott, John, 140, 142.
Secession (1803), 134; (1807), 135;
(i860), 197-210.
Sedgwick, Theodore, 98, 105.
Seward, William H., speech on
"California, the Union, and l''rce-
dom," 186, 187; on the Kansas-
Nebraska Bill, 191 ; proposes a
national constitutional conven-
tion, 207, 270, 283.
Seymour, Horatio, 271.
Schools, North and South com-
pared (1850), 181, 182.
Sharkey, William L. 258, 283.
Shays's rebellion, 17.
Sherman, John, 270, 274.
Sherman, Roger, 11, in Federal
Convention, 25, 26 ; 95, 96, 98.
Slavery, discussed in Federal Con-
vention, 27, 28, 29, 30; an issue
in the Missouri compromise,
1 39-1 5 1 ; its extension planned
with the acquisition of territory
from Mexico, and annexation of
Texas, 175, 178, 179, 183-189;
extension of: in Kansas and
Nebraska (Kansas, Nebraska,
1851-1S54), 190-194, case of Dred
Scott, 194-197; extension of,
opposed by the republican party
(i860), 197-200; extension of,
favored by the Southern Con-
federacy, 199-203; attempts to
compromise by constitutional
amendments (1860-1861), 204-
208 ; abolition of, in the terri-
tories and in the District of
Columbia, 210 ; compensatory
emancipation refused by Dela-
ware, 211 ; emancipation by Lin-
coln, 211, 212, 214, 218 ; abolished
by the states (West Virginia,
Missouri, Arkansas, Virginia,
Louisiana, Maryland, Nevada,
Tennessee), 212-222; abolished
by the thirteenth amendment,
250-257.
Smith, Adam, 30.
Smith, William, 108, 112, 115.
South American Republics, 1 52-1 56.
South Carolina and the Western
lands, 14 ; on representation of
slaves, 27; 85,86; tariff protest,
nullification, 159-169; 254, 255,
256, 269, 270, 282, 283.
South Carolina " Exposition," The
(1828), 159, 160.
Sovereignty of the general govern-
ment; of the state, 25, 38, 41, 43,
44. 48, 49. Sr. 53. 54. 55- 5^. 62,
63, 64-67, 71. 87, 100-106, 109;
INDEX
457
formulated in the Virginia and
Kentucky Resolutions, 128-130;
involved in internal improve-
ments, 139; in the Missouri ques-
tion (1S20), 141, 150, 151; and
nullification, 159-168; of the
United States in acquiring terri-
tory (Mexico), 175; of the states
by the decision in the Dred Scott
case, ig6; a working element in
secession, 198; of the states an
element in slavery extension, 199;
of the state declared by tiie
Constitution of the Confederate
States, 202 ; of the state (consti-
tutions 1800-1860), 234; last at-
tempt to claim, by a state, 193, 234;
silence of state constitutions re-
specting, 234; under the United
States Constitution, 239 ; na-
tional, 239, 240, 241, 242, 246,
248, 249; national recognized by
the Nevada constitution (1864),
-95 ! by the Mississippi constitu-
tion (1890), 295; of the national
government declared by the
courts, 304-308 ; spheres of state
and national, 306, 307 ; applica-
tions of the principle of national,
3137326.
" Spirit of Laws," Montesquieu's, 39.
Squatter sovereignty, 193.
Stamp Act, The, 6, 7.
State, department of, 10.
States, The ; perils to, from loca-
tion {1787), 37, 38; the basis of
confederation, 43; encroachment
upon national authority, 44; sov-
ereignty of, 55; supremacy of, in
administration under a confed-
eracy, 62 ; courts of, as viewed
by the Anti-Federalists, 65-67 ;
organized under written constitu-
tions, 69.
Steele, Brig.-General Frederick, 218.
Stephens, Alexander H. 202, 203.
Stevens, Thaddeus, 260, 289.
Stewart, William M. 272.
Story, Joseph, Justice, 244, 245.
Strong, Caleb, 118.
Strong, William, Justice, 315.
St. Louis, 217.
Suability of a state (eleventh amend-
ment), 100-106.
Suffrage, The, under state consti-
tutions (1776-1800), 75; free
negroes and, 145-149; extension
to the negro in Louisiana sug-
gested by Lincoln, 219, 220;
suggested by President Johnson
to Mississippi, 253; suggested in
Texas (1866), 257; North and
South hostile to negro, 258, 267 ;
attitude of President Johnson to
negro, 259 ; negro in District of
Columbia, 259; extension of, to
the negro (fourteenth and fifteenth
amendments), 260-277, 309-311;
under the Civil Rights Act, 258,
284 ; negro, in the territories
(1867), 259, 284, 285; right of,
under the fifteenth amendment,
286, 287, 309-311 ; in the Philip-
pines, 323-326 ; attitude of former
slaveholding states to negro, 292,
295, 343 ; woman, 295 ; for the
Indian, 228 ; disappearance of
property and religious qualifica-.
tions for, 228 ; property qualifi-
cation for negro, in New York,
22S (note.)
Supreme Court, organization, 19,
20) 33) 34 > powers of, examined
in " The Federalist," 63-66 ; of
the states, 77-79, 232, 233, 300;
Chief-Justice Marshall's services
in, 171, 236-249, 305, 306, 316,
31S, 323, 326; Roger B. Taney's
services in, 237, 244, 246, 247 ;
and the Dred Scott case (see
under Dred Scott case) ; Salmon
P. Chase's services in, 237, 306,
314; Melville W. Fuller's decision
in income tax cases, 318.
Tallmadge, James, 141, 142.
Taney, Roger B., chief-justice,
opinion of, in the Dred Scott
case, 195, 196.
Tappan, Arthur, 172.
Tariff bills, constitutionality of, 156,
157; (182S), 158-160; and nullifi-
cation, 159-169.
Taylor, John W., 142, 143.
Ten amendments, The first, 83-100.
Tennessee, state of, 69, 74, 202 ;
458
INDEX
military governor in, 214; abol-
ishes slavery, 222, 252, 265, 275,
283, 285, 286, 292, 296.
Territory, the North West, the
South West, 122; Missouri, 140-
150; Arkansas, 142; Utah, New
Mexico, 183, relation of Wilmot
Proviso to new, 182, 1S3; pro-
slavery view of relation of the
Constitution to new, 183; status
of new, discussed in debate on
the compromise of 1S50, 184-189 ;
Nebraska, 190-194; status of, de-
fined by the decision in the Dred
Scott case, 195, 196; attitude of
the republican party to slavery
in a, 197 ; Arizona, 203 ; and the
Crittenden resolutions, 205 ;
slavery is abolished, 259, 282 ;
Montana, 285 ; power of Con-
gress over, 323-326.
Texas, 174-178, 183, 1S4, 201, 225,
257, 266, 270, 274, 275, 284, 285.
Texas question. The, 174-178, 183,
184.
Thirteenth Amendment, history of,
21^0-252 ; ratification of, 254-258,
283 ; judicial interpretation of,
308.
Thomas, Jesse B. 143, 144.
Thompson, Jacol:), 204.
Tilden, Samuel J. 313. 335, 336.
Topeka constitution. The, 193, 194.
Townshend Acts, 7.
Trade, British-American, 1774, 9.
Treasury Notes, decisions respect-
ing. 314-318.
Treaties, Jay {1794), 124, 125;
Louisiana (1803), '39; United
States and Great Britain (1862),
suppression of the African slave
trade, 210.
Tucker, Thomas T. 97.
Twelfth amendment, 106-117.
Tyler, John, President, policy of,
^73-175; presides over the Peace
Conference, 206.
U
Utah cases. The, 319, 320.
Union of 1643, The New England,
4, 5 ; plans for colonial, 5 ;
Albany, 5.
Van Buren, Martin, President,
opinions of the Constitution, 172,
173-
Vermont, 69, 76, 100, 226, 253.
Vice-President, election of, 11 2-1 17.
Virginia, 11, 14, 16, 69; ratifying
convention, 87, 88; amendments
to the Constitution, 92, 93 ; Reso-
lutions, 128-130, 161 ; joins the
Confederacy, 202 ; approves Crit-
tenden Resolutions, 205 ; suggests
the Peace Conference, 205; the
Pierpoint Government, 219; rati-
fies the thirteenth amendment,
2(9, 252, rejects the fourteenth
amendment, 271 ; ratifies the
fourteenth and fifteenth amend-
ments, 275; constitution of 1870,
279, 282, 283, 292 , constitution of
(1902), 294.
Virginia plan. The, 18-22, 32.
Virginia resolutions, 12S-130, 160.
Voters, 74, 75. See also, Suffrage.
W
Washington, George, on Shays's
rebellion, 17 ; President of Fed-
eral Convention, 18 ; on " The
Federalist," 35 ; federal influence
in Virginia, 87, 88 ; chosen Pres-
ident, 90 ; on Madison's amend-
ments, 98; popularity, 108.
War, Department of, 10.
Webster, Daniel, on the Missouri
compromise, 149; on the tariff
of 1824, 157; reply to Hayne,
160-165; Seventh of March
speech, 185, i86, 204.
West Virginia, admission of, 212,
213, 252, 265, 282, 283, 286, 292.
Whigs, The, elect Harrison and
Tyler, 173 ; opinion of the Wilmot
proviso, 183.
Whittier, John G., 172.
Wigfall, Lewis T., on the dissolution
of the Union, 208.
Wilkinson, on amendment of the
Constitution, 207.
Wilmot, David, 182.
Wilmot Proviso, 1S2.
INDEX
459
Williamson, Hugh, 27.
Wilson, Henry, 250.
Wilson, James, 22, 24, 31 ; con-
fidence in the people, 42 ; 70, 83;
on suability of a state (eleventh
amendment) 103, 104.
Wisconsin, 228.
Witherspoon, John, 70.
Wyoming, 295.
Wythe, Chancellor, 70.
Yancey, William L. on secession,
198.
Yates, Richard, 28.
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