ft

 
 OF THE 
 
 UNITED STATES OF AMERICA. 
 
 BY 
 
 DR. H. VON HOLST, 
 
 AUTHORIZED EDITION. 
 
 TRANSLATED BY 
 
 ALFRED BISHOP MASOtf. 
 
 CHICAGO, ILL. t 
 
 CALLAGHAN & COMPANY. 
 
 1887.
 
 3 ) 
 
 Entered according to Act of Congress in the year eighteen hundred and eighty-seven 
 
 BY CALLAGHAN & COMPANY, 
 In the office of the Librarian of Congress, at Washington, D. C. 
 
 DAVID ATVTOOD, PRINTER AND STEREOTYPED MADISON, 'VTIS.
 
 PREFACE. 
 
 This treatise on the constitution of the United States is 
 but a sketch. I, this time, could not attempt to write a 
 more pretentious work, for it was to form part of Mar- 
 quardsen's "Handbuch des Oeffentlichen Rechts." Ed- 
 itor and publisher had to insist upon it that I, like all 
 the other contributors, consented to being bound by con- 
 tract not to exceed a certain number of pages. Though 
 they afterwards kindly allowed me nearly double the 
 space originally agreed upon, yet no sooner had I dipped 
 my pen into the inkstand than it became evident that 
 even the most essential questions had to be treated with 
 a brevity which more than once sorely tried my temper. 
 Questions of less importance, though, too, of considerable 
 interest, had to be compressed into a still smaller com- 
 pass, and many a point which .had found a place in my 
 preparatory notes had to be thrown out entirely. 
 
 The difficulty in deciding what to retain and what 
 to let go by the board, how much space to allow to 
 each question and last, not least how to treat them, 
 was greatly increased by the consideration that I was 
 to write for European readers. Even the foremost 
 American authors could serve me but to a very limited 
 extent as models, because they have all written for Amer- 
 icans, while my task was not to be the instructor of those 
 who are to the manor born, but the cicerone of strangers. 
 These having but little time to spare, and their interest in 
 the subject being but limited and quite unconnected with
 
 IV PREFACE. 
 
 any practical purposes, they expect to be shown what 
 from their standpoint merits the most attention. Be- 
 sides, everything has to be presented in such a manner 
 that they can really understand what they see in this 
 case by no means an easy task, for even educated Euro- 
 peans frequently show an astonishing talent for misunder- 
 standing the most lucid expositions of American institu- 
 tions and their working. 
 
 It is not necessary further to enlarge upon these points^ 
 for what I have said is sufficient to show why the first 
 inquiries with regard to a translation of the treatise were 
 not received by me with a feeling of unmixed satisfac- 
 tion. I not only could have dived deeper, and would 
 have done so, if I had intended to write for Americans, 
 but even if I had confined myself to a mere sketch, the 
 perspective would have been somewhat different. Be- 
 sides, the treatise had to be written at a time when I 
 could not go either to England or the United States. 
 My only literary resources were my private library and 
 the notes previously taken in the British Museum and 
 American libraries. 
 
 These statements I have had to make in justice to my- 
 self as a scholar and an author. To clear the way for a 
 new book by explanations which have a rather strong 
 flavor of excuses will, however, never be exactly to the 
 liking of an author who thinks that he has any reputa- 
 tion to lose. Nevertheless I have concluded, upon more 
 mature reflection, to give my formal assent to having the 
 treatise translated, trusting that the American public 
 will deal with it not only fairly but with the same kind- 
 ness with w r hich they have received my other and more 
 pretentious writings. I, of course, do not expect to see 
 it in the hands of lawyers arguing constitutional ques- 
 tions before court, or of statesmen busying themselves
 
 PREFACE. V 
 
 in congress to manufacture new constitutional nuts for 
 judges, counselors and publicists to crack. But the jun- 
 iors and seniors of the colleges, and perhaps even the 
 students of the law schools, may find it quite a handy 
 guide in the pursuit of their studies on the public law of 
 their country. Xay, I am bold enough to hope that, as 
 a convenient book of reference, if as nothing else, it will 
 render some good services in the hands of men who have 
 in no professional way anything to do with constitutional 
 law, but are fully conscious how important it is that the 
 citizen of a democratic republic stands on his own legs 
 with regard to the public law of his country, instead of 
 having implicitly to rely upon the wisdom of his daily 
 paper and any stump speaker whom he may chance to 
 
 hear. 
 
 H. VON HOLST. 
 FKEIBURG, i. B., June 4, 1886. 
 
 [The translator has been aided in his work by Mr. 
 C. J. Heyne.]
 
 CONTENTS. 
 
 Page. 
 
 PART I. GENESIS OP THE CONSTITUTION 1 
 
 PART H. THE FEDERAL CONSTITUTION 36 
 
 PART HI, CONSTITUTIONAL AND GENERAL LA\V OF THE SEP- 
 ARATE STATES 263 
 
 APPENDIX : THE CONSTITUTION, AVITII NOTES 337 
 
 INDEX.. . 361
 
 THE CONSTITUTIONAL LAW 
 
 THE UNITED STATES OF AMERICA. 
 
 PART FIRST. 
 
 GENESIS OF THE FEDERAL CONSTITUTION. 
 
 AUTHORITIES. Peter Force: American Archives, 9 vols., Wash., 
 1833-37. The Journals of Congress from 1774 to 1788, 13 vols., 
 Phila., 1777-88 (4 vols., Wash., 1823). Secret Journals of the Acts 
 and Proceedings of Congress from the First Meeting thereof to the 
 Dissolution of the Confederation by the Adoption of the Constitu- 
 tion of the United States, 4 vols., Boston, 1821. J. Elliot: The De- 
 bates in the several State Conventions on the Adoption of the Federal 
 Constitution as Recommended by the General Convention at Phila- 
 delphia in 1787, together with the Journal of the Federal Convention, 
 Luther Martin's Letter, Gates's Minutes, Congressional Opinions, 
 Virginia and Kentucky Resolutions of '98 and '99, and other Illustra- 
 tions, 5 vols., Phila., 1861. Journals, Acts and Proceedings of the 
 Convention assembled at Philadelphia which framed the Constitution 
 of the United States, Boston, 1819. The Federalist (H. B. Dawson's 
 edition, 2 vols., Morrisania, 1864). 
 
 The Works of Benjamin Franklin, 10 vols., Phila., 1840. The 
 Works of John Adams, 10 vols., Boston, 1856. The Writings of 
 George Washington, 12 vols., New York, 1852. The Writings of 
 Thomas Jefferson, 9 vols., Wash., 1853. Letters and other Writings 
 of James Madison, 4 vols., Phila., 1865. The Works of Alexander 
 Hamilton, 7 vols., New York, 1851. The Works of Fisher Ames, 2 
 vols., New York, 1869. 
 
 Sherman: The Governmental History of the United States of 
 America from tlie Earliest Settlement to the Adoption of the Consti- 
 1
 
 '2 COXSTlTfTIOXAL LAW OF THE UNITED STATES. 
 
 tntion, Phila., 1860. R. Frothingham: The Rise of the Republic of 
 the United States, Boston, 1872. G. Bancroft: History of the United 
 States, from the Discovery of the American Continent to the Close of 
 the Revolutionary War, 10 vols., Boston, 1834-74. G. Bancroft: 
 History of the Formation of the Constitution of the United States 
 of America, 2 vols., New York, 1882. R. Hildreth: History of the 
 United States from the Discovery of America to the End of the Six- 
 teenth Congress, 6 vols., New York, 1879 (new edition). G. Tucker: 
 The History of the United States from their Colonization to the End 
 of the Ttrenty-Sixth Congress in 1S41. J. Grahame: The History of 
 the Rise and Progress of the United States of North America from 
 their Colonization till the Declaration of Independence, 4 vols., 
 Phila., 1843. T. Pitkin: A Political and Civil History of the United 
 States of America from their Commencement to the Close of the Ad- 
 ministration of Washington, including a Summary of the Political 
 and Civil State of the New England Colonies Prior to that Period, 2 
 vols., New Haven, 1828. H. Von Hoist: Verfassung und Demokratie. 
 der Vereinigten Staaten von America, I. Theil, Diisseldorf, 1873 
 (Von Hoist's Constitutional History of the United States of America. 
 Vol. I., translated by John J. Lalor and Alfred Bishop Mason, Calla- 
 ghan & Co., Chicago, 1877). G. T. Curtis : History of the Constitution, 
 2 vols., New York, 1863. 1 
 
 1. IN GENERAL. Like every constitution which has 
 or can have a real life, that of the United States of Amer- 
 ica is a result of actual circumstances of the past and the 
 present, and not a product of abstract political theorizing. 
 It can therefore be understood and rightly judged only 
 from the standpoint of the history of the development of 
 the country. A knowledge of the facts of its origin is 
 not, however, sufficient to understand and to judge it. 
 
 1 For lack of space, I cannot enumerate many important biogra- 
 phies. Unfortunately, I must abandon the idea of specifying the 
 1 looks (their number is by no means small) which lay claim to 
 scientific treatment of their subjects, which, while of service on this 
 or that point, are in general either worthless or are crammed full of 
 stupid blunders. Books once named are not repeated in subsequent 
 lists of authorities. In the case of current official publications (laws, 
 stenographic reports of the debates of congress, etc.) I do not give 
 the number of volumes.
 
 GENESIS OF THE FEDERAL CONSTITUTION. 6 
 
 For, since the life of the people is the basis of the consti- 
 tution, and undergoes a steady development, the constitu- 
 tion itself, quite apart from any formal alterations, must 
 have a certain capacity for change, and this not the less 
 real because there is no formal statement of it in the 
 instrument itself. A constitution which resembles a 
 Chinese shoe can suit only a nation that has sunk into 
 Chinese inertia. The fundamental law of a state must 
 have, without hurt to its firmness, enough elasticity to 
 be able to meet fully every new development of national 
 needs, without, however, either breaking loose from its 
 general framework, or subjecting this to sudden change. 
 The real essence of the constitution, as it takes concrete 
 shape in legislation, must grow and change with the 
 advancing public and private life of the people. Thus it 
 is always in a steady process of development. This is an 
 absolutely essential element in forming a judgment upon 
 it, but is wholly ignored when it is interpreted simply by 
 the rules which are binding upon judges in the applica- 
 tion of ordinary statutory law to cases before them. 
 These rules, indeed, are of full force in regard to the 
 fundamental law, but the latter must nevertheless always 
 be read, considered and criticised by the light of history. 1 
 If the statesman is bound to be, in the practical dis- 
 charge of his duties, a conscientious jurist, the jurist 
 must, in his work of examination and testing, always 
 keep in mind the point of view of the statesman. 
 
 2. HISTORY OF THE ORIGIN OF THE UNION. THE 
 ARTICLES OF CONFEDERATION. The English colonies which 
 changed themselves, July 4, 1776, into the United States 
 of America had always with the exception of the Dutch 
 period of New Amsterdam (New York) had an indi- 
 
 ^omeroy: An Introduction to the Constitutional Law of the 
 United States, 18-21.
 
 4 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 rect legal relation to each other, because they were all 
 subject to the political control of the same mother- 
 country. But quite apart from this, some among them 
 very early established closer ties with one another. The 
 contiguous territory of the colonies and the equality in 
 outward conditions of life among the colonists developed 
 a community of interests which grew steadily both broad 
 and deep, and at last necessarily became stronger than 
 the bonds of law which knit the separate colonies to the 
 mother-land. On the other hand, the political and social 
 organization of the different colonies took such different 
 shapes, and the sparseness of the population and insufficient 
 means of communication did so much to promote sepa- 
 rate development, that from the very beginning of these 
 gropings after union a tendency to limit the union at 
 any rate to what was absolutely necessary showed itself 
 clearly. The wishes and struggles of the people for 
 political union did not hurry ahead of the development 
 of actual circumstances. At the most they kept step 
 with this development. Often they hobbled behind it 
 slowly and unwillingly. The league of the united 
 colonies of New England, Massachusetts, Plymouth, 
 Connecticut and New Haven, in 1643 against the In- 
 dians and the Dutch, lost all significance with the occasion 
 which had called it into life. After its unwept death 
 decades passed by before there were any noteworthy signs 
 of the existence of a wish to frame a new, broader and 
 closer alliance. Outside enemies again gave the impulse, 
 and the mother-country took the initiative. On account 
 of the threatened war with France a congress was called 
 at Albany in 1754, at which New Hampshire, Massachu- 
 setts, Rhode Island, Connecticut, New York, Pennsyl- 
 vania and Maryland were represented. But while 
 England expected to gain by this only more assurance of
 
 GENESIS OF THE FEDERAL CONSTITUTION. 5 
 
 the safety of the colonies, and desired especially the 
 establishment of a good understanding with the Indians, 
 the representatives of the colonies were excited by 
 thoughts of a permanent league with correspondingly 
 wide aims. 1 Their suggestions, however, not only were 
 received with no favor by the English government, 
 but were rejected by all the colonial legislatures, with- 
 out exception. The strife with the mother-country 
 over the right of parliament to lay taxes on the colonies 
 first made the latter see that their deepest interests made 
 their firm alliance an imperative necessity. Nine colo- 
 nies were represented at the congress at New York in 
 October, 1765, which was answered by the repeal of the 
 Stamp-act. The more the conflict took the shape of a 
 revolution, the more overwhelming became the conviction 
 that there was no longer a struggle between a number of 
 like-minded colonists and the mother-country over a 
 greater or less share of political rights, but that in fact 
 against European England an America was arrayed. The 
 more the colonies adapted their acts to this fact, the 
 more they were impressed with the other fact, that just 
 so far as they were conscious of belonging to each other, 
 they were forced into a position apart from the rest of 
 the world. They could not make simply ad hoc an offen- 
 sive and defensive alliance, if the common weal was to be 
 victoriously won, but at this time, long before the swing 
 of mind and spirit had reached its highest point, every 
 suggestion of a complete fusion was rejected decisively 
 and with increasing emphasis. The congress which met 
 at Philadelphia early in September, 1774, was attended 
 by delegates from all the colonies except Georgia, was 
 called a " continental congress," and spoke in the name 
 
 Kent: Commentaries on American Law, I., pp. 204-5.
 
 G CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of ** the good people of these colonies," but it immedi- 
 ately voted that each colony should have an equal voice. 
 This remained the rule in the second continental con- 
 gress, which began its session May 10, 1775, at Philadel- 
 phia. In this, Georgia also was finally represented. The 
 strife was now transferred from the forum to the tented 
 Held. Congress did not limit itself to trying to do what 
 a general war demanded, such as the equipment of a con- 
 tinental army, the creation of a common treasury, etc., 
 but it set itself up without being regarded on this ac- 
 count as stepping beyond its powers as an authorized 
 leader of the colonies in their separate affairs, since it 
 exhorted them to give themselves governments such as 
 their needs and the common welfare demanded, and ex- 
 pressed the belief k> that the exercise of every kind of 
 authority under the crown of Great Britain should be 
 totally suppressed." Xot in pursuance of resolutions of 
 the legislatures or of any extraordinary representative 
 assemblies of the people of the different colonies, which 
 might have given instructions binding upon the respective 
 delegates, but by virtue of its own revolutionary author- 
 ity, which, because it was revolutionary, had, and could 
 have, no legal limits, congress stepped forth as the sole 
 representative of the commonwealth to act for the com- 
 mon weal in accordance with this conviction. June 10, 
 1770, it voted to appoint a committee to draw a dec- 
 laration ''that these united colonies are, and of right 
 ought to be, free and independent states." 
 
 As congress acted as a revolutionary representative of 
 the entire commonwealth, so from the beginning it 
 claimed full political independence and sovereignty only 
 for the colonies as a united whole. The resolution passed 
 on the following day to appoint a committee to draft a 
 plan of confederation was, therefore, not only a direct
 
 GENESIS OF THE FEDEItAL CONSTITUTION. 7 
 
 result of, but was already contained in, the resolution of 
 the 10th. Since the decision of congress was ratified by 
 the acts of the colonies, its formal ratification by the gov- 
 ernments or people of the different colonies was thought 
 unnecessary and did not take place. 1 The declara- 
 tion of independence, a formulization on the 4th of 
 July of the resolution of the 10th of June, did not 
 concern itself as to whether the colonies as states 
 should enter into a political league of some kind or other, 
 but simply as to how the Union, made as a matter of fact 
 long before and now declared to exist as matter of law, 
 should be shaped in detail. The constituent members of 
 the Union have never legally or actually been " free and in- 
 dependent states " in the full and proper sense of the term. 2 
 As Lincoln said, the Union is older than the states, and 
 the states became " states " only as constituent members 
 of the Union ; and the word " state " has, therefore, al- 
 ways had in America, legally and actually, only a limited 
 meaning, which excludes the idea of " sovereignty " in 
 the full and proper sense of the word. 
 
 It was more than a year (November 15, 1777) before 
 congress finally decided how its own revolutionary au- 
 thority, which so far had been limited only by its own 
 
 1 The next resolution, which has been much too little considered in 
 the conflict over questions of constitutional law, as to the political 
 nature of the Union, cannot be harmonized with any other view than 
 that here expressed. It reads: " Resolved, that copies of the decla- 
 ration be sent to the several assemblies, conventions and committees, 
 our councils of safety, and to the several commanding officers of the 
 continental troops; that it be proclaimed in each of the United 
 States and at the head of the army." 
 
 2 Riittimann, in his Das Nordamerikanische Bundesstaatsrecht (I., 
 23), affirms the contrary, but bases his opinion too closely upon the 
 assumption that each colony had " its own constitution and a full 
 political organization complete for all public purposes." Moreover, 
 there are weighty arguments easy to cite against this latter assertion.
 
 8 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 ideas and by public opinion, should be brought under 
 and within fixed legal forms. The conclusions reached 
 placed the Union upon a wholly new basis. The very 
 title of the proposed paper showed this clearly. It was 
 not a constitution, but "articles of confederation." The 
 change was even more apparent in the opening sentence. 
 In the declaration of independence the separate colonies 
 are not once named. At the end, it says: "The forego- 
 ing declaration was, by order of congress, engrossed and 
 signed by the following members." Under the signature 
 of the presiding officer followed tho.so of his colleagues 
 in the order of their states. The name of the state was 
 prefixed to the names of its representatives, without the 
 addition of a single word. Xow, on the contrary, there 
 was an enumeration of the separate states whose " dele- 
 gates" had, according to the next article, agreed upon a 
 " confederation and perpetual union," but nothing more 
 was said of the " people," of whom the first sentence of 
 the declaration of independence had spoken. So, too, 
 the articles of confederation did not begin with a recital 
 of the rights and powers of the Union. 
 
 The second article the first relates only to the name 
 declares that "each state retains its sovereignty, freedom 
 and independence," as well as every power and every 
 right not "expressly " delegated to congress. The third 
 article takes a still more significant step forward, for it 
 declares that " the said states hereby severally enter into 
 a firm league of friendship with each other" for the pur- 
 poses enumerated. Thus, in boldest opposition to facts, 
 the Union appears, in the articles of confederation, as 
 being first called into life by them, and the character of 
 a simple league of states, now really given it for the first 
 time, is put forward as one in full conformity with the 
 actual and legal facts of the past. Congress transformed
 
 GENESIS OF THE FEDERAL CONSTITUTION. 9 
 
 itself, so far as the nature of the mandates of its members 
 was concerned, from a (revolutionary) government into a 
 congress of delegates, for the right of recalling the mem- 
 bers was reserved to the states. It is not expressly de- 
 clared that this right belongs to the legislature, but the 
 method of electing their delegates is wholly remitted to 
 them. The people are mentioned only here and there as 
 an object of the Union. As the source of power and as 
 self-governing they never appear. So far as the Union is 
 concerned, the legislatures are treated as the sole and un- 
 limited bearers of sovereignty. They were to ratify the 
 articles of confederation, and give them, by this ratifica- 
 tion, the force of law, although they had been authorized 
 to form a constitution for the Union, neither by the con- 
 stitutions of their respective states, nor in any v/ay what- 
 ever. Moreover, changes in the articles were made 
 dependent upon their approval, and the consent of all the 
 legislatures was required for the slightest change. Con- 
 gress exhorted the legislatures, by an act of public usur- 
 pation against the legal consequences of historical facts, 
 to transform the Union into a league of states, and the 
 legislatures recklessly responded to this demand. The 
 circumstance that some of them delayed, and for so long 
 a time refused, their ratification was in no way connected 
 with their legal incompetence, and did not result from 
 any wish to keep for the Union the political nature given 
 it by the course of the Revolution. They considered it 
 as self-evident that congress, during this whole time, re- 
 garded the articles of confederation as having the force 
 of law, and they would have offered the most stubborn 
 opposition if it had sought once more, as in the beginning 
 of the Revolution, to fix the boundaries of its o\vn power. 
 While it was recognized that the decisive steps of the 
 continental congress had created a legal status for the
 
 10 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 United States, not only as against England and tlio rest 
 of the world, but also in relation to the different states, 
 yet it cannot bo questioned that, with the adoption of the 
 articles of confederation, a revolution was accomplished. 
 This revolution met with no opposition among the people. 
 Its entire correspondence with their whole political 
 thought and impulse was generally fully recogni/ed, and 
 another advance on the part of congress would unques- 
 tionably have met with an opposition not to be over- 
 come. 
 
 The legal consequences of the decisive steps taken by 
 the continental congress in regard to the relation of the 
 colonies, 7. e., the states, to each other, went far beyond 
 the actual facts of the case, and in a conflict between law 
 and fact it goes without saying that the latter must tri- 
 umph. The population of the states was so little one peo- 
 ple, and felt so little as one people, that they wished to be 
 one, in the most essential matters, only far enough to con- 
 quer independence, and to assert their right to self-govern- 
 ment. 1 It was supposed that the articles of confederation 
 had preserved the powers which the central authority 
 needed for the accomplishment of this first and most impor- 
 tant end of the Revolution, but long before they had been 
 ratified by the last legislature (that of Maryland, March 1, 
 1781), the bitterest experience had made it a question of 
 the highest importance as to whether this view was sus- 
 tained by hard facts. The weightiest rights of sover- 
 eignty essential to political life were, of course, granted 
 to congress, and either wholly withdrawn from the sep- 
 arate states or given thorn orjy within very deeply cut 
 limits. But it was soon evident that a wholly useless 
 
 1 The fourth article contains provisions in regard to purely internal 
 relations, and especially in regard to the interests and rights of indi- 
 viduals, which paved the way for a national fusion.
 
 GENESIS OF THE FEDERAL CONSTITUTION. 11 
 
 piece of political machinery bad been created, which, 
 under the best management, could turn out only quite 
 useless work, and finally could not have been kept in 
 order at all, if a number of distinguished men, with ex- 
 traordinary patriotic abandonment and unselfishness, had 
 not constantly put their shoulders to the wheel, and, by 
 their great example, drawn the rest of the people so far 
 after them that the worst was always happily avoided, 
 until, with the help of France, the recognition of inde- 
 pendence had been won. The question early pressed 
 itself upon the most far-sighted patriots where the fault 
 lay. Experience made them more and more of the opin- 
 ion that the fault was one of principle, based not only 
 upon the selfish wish of the states to remain just as far as 
 possible the sole masters of their own fates, but partly 
 also upon the fact that during the colonial period no ex- 
 perience had been gained as to the nature and proper 
 conditions of existence of a great and entirely independ- 
 ent political commonwealth. The provisions which gave 
 all the states the same legal weight, although their 
 actual importance was so very different for the weight- 
 iest decisions the approval of at least nine states was 
 necessary, were responsible for much, but the real 
 evil evidently lay deeper. Matters were not in a bad 
 shape because congress failed in passing the necessary 
 resolutions and laws, but because its resolutions and 
 laws had no result. The articles of confederation failed 
 to recognize not only the fact that a free commonwealth 
 may be no less endangered by a government too weak 
 than by one too strong, but also that a grant of rights in 
 itself confers no power. Eight first becomes might when 
 means are given it to make itself so, and these means had 
 been denied to congress completely and on principle. It 
 could resolve on everything necessary, but it could not
 
 12 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 do the most necessary thing. The execution of its reso- 
 lutions depended wholly upon the thirteen state govern- 
 ments, to whose short-sightedness, laxity, distrust and 
 separatism it could oppose only arguments and an appeal 
 to patriotism, which, in the nature of things, under the 
 most favorable circumstances, could have only a partial 
 result. Congress wished to be a government, and yet 
 could only give advice, because it had a legal will, not in 
 reference to individuals, but only as regards the states. 
 This was no omission in the articles of confederation, but 
 a logical consequence of their fundamental principle. 
 They left no room for organs of government. The 
 United States w^ere a confederation with a federal au- 
 thority, but without a federal government ; and they had 
 a federal law, but needed no federal courts, because the 
 states were almost exclusively the subjects of federal law; 
 and behind the federal courts no federal power was cre- 
 ated to give effect to their judgments. 1 
 
 1 Article IX. gives congress the power to establish prize courts and 
 " courts for the trial of piracy and felonies committed on the high 
 seas." Moreover, " all controversies concerning the private right of 
 soil claimed under different grants of two or more states," and " all 
 disputes and differences now subsisting, or that hereafter may arise 
 between two or more states, concerning boundary, jurisdiction, or 
 any other cause whatever," were to be decided by federal courts, in 
 case one of the parties applied to congress. But these courts were 
 not permanent. They were created by congress ad hoc, and that in 
 a highly complicated and cumbrous way. The view expressed in the 
 text finds its direct proof in the provision that, "if any of the parties 
 shall refuse to submit to the authority of such court, or to appear or 
 defend the claim or cause, the court shall nevertheless proceed to 
 pronounce sentence or judgment, which shall in like manner be final 
 and decisive." But nothing was said as to what should happen in 
 case of a stubborn refusal to obey the judgment. Reporting the de- 
 cision to congress is the only " security " given the parties. See T. 
 Sergeant : On the National Judiciary Powers Prior to the Adoption 
 of the Constitution, appendix to P. S. Duponceau: Jurisdiction of 
 United States Courts, Phila., 1824.
 
 GENESIS OF THE FEDERAL CONSTITUTION. 13 
 
 3. EFFORTS FOR REFORM. During the war, and even 
 before the articles of confederation had received the for- 
 mal sanction of the last state, the knowledge of the fact 
 that the Union could not endure under its then organiza- 
 tion had so far progressed that complaints and sorrows 
 had given way to earnest attempts at reform. In No- 
 vember, 1780, delegates of the four New England states 
 and of New York met at Hartford. Their immediate 
 object was to place the finances of the Union upon a 
 firmer basis, and especially to ensure the payment of in- 
 terest on the federal debt through federal taxes or cus- 
 toms, but they were entirely conscious that this alone 
 would be of no use. " All government supposes the 
 power of coercion," they said in their address to the 
 states. Of course, this had no immediate result. One 
 could scarcely have been expected. It gave, however, a 
 strong push in the right direction, and the work of mould- 
 ing public opinion never ceased thereafter until the goal 
 had been reached. A growing necessity 'forced men to 
 lay their hands to the work again and again. The use- 
 lessness of all half-way measures showed more clearly, 
 day by day, the only road to safety. Destruction often 
 seemed unavoidable, unless, at least, the worst evils could 
 be removed. The failure of the attempts to accomplish 
 even this constantly drove home the conviction that the 
 evil must be grappled with at the roots. The necessity 
 of obtaining the approval of nine states for the more 
 weighty decisions of congress, and of getting the consent 
 of all of the legislatures for any constitutional change, 
 made the application of palliatives impossible. Since 
 this was impossible, a radical cure had to be found. But 
 the struggle of many years over the palliatives did this 
 further great good, that, day by day, it became more 
 clear upon what points attention was to be concentrated,
 
 14- CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 if the people were to be made ripe by necessity for the 
 adoption of a reorganization of the Union upon the basis 
 of another principle. Later, it was recognized as a piece 
 of good fortune that the revolutionary war had been 
 fought out under the articles of confederation, and the 
 reorganization of the Union first undertaken after inde- 
 pendence had been won. Under the pressure of the 
 neods of war single improvements might have been more 
 easily carried through, but the deeper and the more im- 
 portant these partial improvements were, so much the 
 more difficult would have become a reorganization of the 
 Union, complete and based upon principle. This could 
 not possibly have been sought with success during war, 
 at least during one which was, to a certain extent, a civil 
 war. Peace alone could fully show where and how far 
 the articles of confederation failed to ensure a permanent 
 Union. Such a government must be equal, not only to 
 the exceptional circumstances of a war, but, before every- 
 thing else, to the accomplishment of the aims of the 
 Union in the normal condition of peace. If the demands 
 which congress had to meet in time of war were not 
 only different from, but also many times greater than, 
 those of peace, yet upon the other side patriotism and 
 the overwhelming necessity of the attainment of the im- 
 mediate end of the Revolution insured more willing and 
 careful attention to the needs of the commonwealth than 
 when, in the sober selfishness of times of peace, the neces- 
 sity for this attention no longer forced itself, day by day, 
 upon even the smallest understanding. As the pressure 
 of war grew weaker, the evils of an unworkable govern- 
 ment first fully developed. The prophetic phrase of the 
 Hartford convention of November, 1780, that, after the 
 acquisition of independence, peace and freedom could be 
 won only by the legal consolidation of the Union, now
 
 GENESIS OF THE FEDERAL CONSTITUTION. 15 
 
 found its fulfillment in a fashion which opened a darker 
 outlook into the future than in the blackest days of the 
 Avar. Now the most far-sighted felt their courage sink, 
 while the short-sighted were blind, and the self-seekers 
 
 O * 
 
 and ignorant recklessly sought to use for their own ad- 
 vantage the evils which preyed on the life-blood of the 
 Union. The political thought, feeling and will of the 
 people in regard to the Union threatened to fall into a 
 process of dry rot. The best men, who had done the 
 best in time of war, therefore drew very close together 
 in the knowledge that danger lay in delay and that they 
 must not relax their efforts until they had wrung from 
 selfishness, from doctrinaire confusion, and from the nar- 
 row pride and patriotism of the separate states, the salva- 
 tion of the commonwealth which had been called into 
 life at such a terrible cost. 
 
 4. HISTORY OF THE DEVELOPMENT OF THE CONSTITU- 
 TION. In January, 1786, the legislature of Virginia in- 
 vited the other states to send delegates to a convention 
 at Annapolis, in order to consider how far a uniform 
 system was necessary for the regulation of commerce, 
 and to make proposals on this point. At the convention, 
 which met in September, only five states were represented. 
 Partly on account of this scanty representation, and partly 
 because they saw nothing to be gained from the considera- 
 tion of only one of so many weighty questions, the delegates 
 resolved to leave their task undone and to call, instead, a 
 general convention " to take into consideration the situa- 
 tion of the United States," and to ascertain what must 
 be done " to render the constitution of the federal gov- 
 ernment adequate to the exigencies of the Union." The 
 legislature of New York adopted this proposal as its own. 
 On the motion of its delegates, congress voted in February, 
 1787, to call a convention at Philadelphia, " for the pur-
 
 10 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 pose of revising the articles of confederation, and report- 
 ing to congress and the several legislatures such alterations 
 and provisions therein as shall, when agreed to in congress 
 and confirmed by the states, render the federal constitu- 
 tion adequate to the exigencies of government and the 
 preservation of the Union." All of the legislatures, with 
 the exception of that of Rhode Island, responded to this 
 call by naming delegates. The convention met at Phil- 
 adelphia, May. 14. It was the 25th of May before a 
 sufficient number of states (seven) were represented to com- 
 plete the formal organization of the convention by the 
 choice of Washington as presiding officer, and to begin 
 work. Meanwhile, the time had not been suffered to slip 
 by unused. The delegates from Yirginia, whose official 
 head was Edmund Randolph, but whose brain was James 
 Madison, had agreed among themselves that a simple 
 modification of the articles of confederation would not do, 
 but that, as Washington had written to Madison on the 31st 
 of March, it was their duty " to probe the defects of the 
 constitution to the bottom and provide a radical cure." 
 The main points as to the way in which this was to hap- 
 pen had been reduced to writing, and they were laid 
 before the convention b^v Randolph, in order to give a 
 firm basis for its deliberations. This was of great im- 
 portance, for Virginia was the strongest and most influen- 
 tial state of the Union. The tardiness of the delegates 
 of most of the states (Rhode Island never sent delegates 
 to the convention) was not adapted to strengthen the 
 hopes of the patriots. The instructions given by Dela- 
 ware to her delegates, to insist upon it that, as hereto- 
 fore, every state should have an equal voice in the 
 Union, of necessity strengthened the fear that now again 
 no result would be reached. Nevertheless, the conven- 
 tion adopted Washington's view that it must turn out a
 
 GENESIS OF THE FEDERAL CONSTITUTION. 17 
 
 finished piece of work, even if, as a result, its proposals 
 were rejected. Its success was, of course, from the begin- 
 ning greatly endangered, because the resolution of con- 
 gress, literally read, imposed upon it a much more limited 
 task, and the instructions of its delegates, so far as 
 these fundamental questions were concerned, were in 
 part in harmony with the resolution of congress. But 
 the great majority of delegates were of the opinion that 
 the convention was not to be bound by this formal invi- 
 tation, if, in its opinion, its aims could not be reached 
 by keeping within the limits set by that resolution 
 and by the instructions of its members. Wholly inde- 
 pendent of the existing law, it went on with its task to 
 work out a plan for the formation of a Union capable of 
 life and of development. It considered the articles of 
 confederation only so far as the<experience gained under 
 them showed the errors to be avoided, and always with a 
 constant and comprehensive appreciation of the fact that 
 a Union capable of life and of development could be 
 formed only by adapting it to the facts of the past and 
 the present, and not by doing violence to them for the 
 sake of any theory. The articles of confederation also 
 had not been a product of doctrine alone, and the actual 
 facts which had found in them an adequate expression 
 were still a strong factor, even if somewhat weaker than 
 before and no longer with the same claim to attention, 
 because far-reaching changes had been accomplished or 
 at least begun in the political feeling, and especially in 
 the political knowledge, of the people. The knowledge 
 that all the faults of the articles of confederation must be 
 finally referred to their fundamental principle therefore 
 could not mislead the convention. By adopting exactly 
 the opposite direction, it was sure not to wander from the 
 right path. Although it was compelled by necessity to 
 2
 
 IS CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 give the Union another principle as a basis, yet the great 
 question still remained whether it would do this with the 
 necessary completeness and follow out the main lines of 
 thought to their necessary results. Even if it decided to 
 do so, it was still doubtful whether enough of the spirit 
 of statesmanship could be found to so fashion the details 
 of its task that on the one side sufficient care was taken 
 to fully satisfy all the great needs of the state, and yet, 
 upon the other hand, this was not reached by a consol- 
 idation which was not adapted to the actual condition of 
 affairs, either in fact, or, at any rate, in the opinion of 
 the majority. Every page of the history of the Union 
 up to that time testified to the fact that this was a task 
 which made the highest demands upon the political in- 
 sight, as well as upon the patriotic self-sacrifice, of the 
 delegates. The greatest difficulties grew out of the 
 special interests of the slave-holders in the southern 
 states, and out of the enormous differences in the size 
 and population of the separate states ; differences which, 
 so far as concerned the population, were sure to increase 
 constantly. These special interests of the slave-holders 
 were, for two generations, the central problem of the his- 
 tory of the United States. The solution was found in a 
 civil war which lasted four years. Since in this book the 
 history of the constitution needs to be touched upon only 
 so far as required in order to understand the constitu- 
 tional law of to-day, we must omit any discussion of the 
 constitutional provisions concerning slavery, because, 
 apart from some indirect consequences which will be 
 mentioned by-and-by, slavery in the United States belongs 
 as completely to the history of the past as serfdom in Ger- 
 many. Only this much must be said, that the representa- 
 tives of the northern states agreed upon a compromise 
 because some of the delegates on the other side declared
 
 GENESIS OF THE FEDERAL CONSTITUTION. 19 
 
 that their states would never adopt a constitution which did 
 not respond to their demands in regard to this overshad- 
 owing interest. Concerning representation, it was agreed 
 that every five slaves should be reckoned as three free- 
 men. The slave states thought they obtained an equiva- 
 lent for this in the provision that direct taxes should be 
 levied according to representation. As a further conces- 
 sion to the slave-holder, it was agreed that fugitive slaves 
 should be delivered up by the other states upon demand. 
 Finally, the immediate suppression of the African slave 
 trade was postponed, but congress was given the right to 
 forbid the importation of slaves after twenty years, i. e., 
 in 1808. It was thought that this provision ensured the 
 gradual dying out of slavery, something which was still 
 generally considered, or at least declared, desirable. In- 
 asmuch as there was still no opposition to the opinion 
 that slavery was a curse laid upon the land by England, 
 great care was taken not to give the words slave and 
 slavery a place in the constitution. They were expressed 
 by the circumlocution : "persons held to service or labor." 
 The question as to what should be done with the slaves 
 as far as representation was concerned had had, as its 
 condition precedent, that the absolute equality of the 
 states established by the articles of confederation could 
 no longer endure, i. e., that each state could no longer 
 have an equal voice in the government of the Union. But 
 with this change the Union ceased to be a league of states. 
 Whatever arrangement was made, the Union was changed 
 into a federal state. How thoroughly this was to be 
 done, and how strongly the national tendency was to ap- 
 pear in this consolidation, naturally depended, however, 
 in the first place, if by no means exclusively, upon the 
 question how far and in what way the actual importance 
 of the separate states was to be the basis of their lawful
 
 20 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 participation in the federal power. The smaller states 
 wished to maintain, just as far as possible, the then con- 
 dition of affairs, and the large ones wished to make the 
 reform as thorough as possible. This was not on account 
 of any national feeling. The position of each state was 
 determined by its separate interests. The smaller states 
 thought that in a short time they must sink to the posi- 
 tion of mere hangers-on, simply the recipients of the laws 
 dictated by the large states, if the constituent members 
 of the Union were to find their representation amid the 
 federal powers no more as such members, but according 
 to their population. The large states, to whom the actual 
 or at least the claimed extent of their territory and their 
 natural riches promised a development of power scarcely 
 to be reckoned, did not wish to endanger this, and to let 
 their people sink, in a certain sense, into citizens of the 
 second class, ten, twenty, or one hundred of whom would 
 be counted in all federal affairs only for as much as each 
 citizen of the small states. Since the latter based their 
 demands upon the actual law, and the application of force 
 could not be thought of, and since the former were not at 
 all in favor of a complete national fusion, a compromise 
 between the two opposing interests had to be found. It 
 was found when the law-making power was shared be- 
 tween two co-ordinate houses one of them organized, 
 as the large states wished, upon the democratic principle 
 of numbers, while in the other, the states, as such, were 
 represented, although, as I shall show later, the character 
 of a house of states was not given to it in other respects. 
 Jefferson, in his democratic doctrinairism, even after 
 the constitution had come to life, complained bitterly of 
 the adoption of the two-chamber system, but he forgot 
 that this would not have happened in the first place if 
 the choice had been simply between one and two houses.
 
 GENESIS OF THE FEDERAL CONSTITUTION. 21 
 
 It happened because this decision made possible the estab- 
 lishment of the Union in a way in which it could live. 
 So far as this was concerned, the weightiest point was 
 that now, for the first time, a real law-making power had 
 been created. Congress was no longer obliged, upon the 
 address of the states, to pass resolutions in the shape of 
 laws, but it could now pass laws for the people of the 
 United States, and could intrust the execution of federal 
 laws affecting single citizens to the proper federal pow- 
 ers. The Union had obtained such an independent law- 
 making power that it could no longer be deprived of its 
 own permanent courts. The emancipation of the Union 
 from the state governments depended directly upon its 
 emancipation from the state courts, for it would have 
 been absurd to give it a wider sphere of jurisdiction of 
 its own, and yet to deny it the organs needed for exist- 
 ence within that sphere. The union of an independent 
 law-making power, of an independent executive and 
 administration and of independent courts was, however, 
 a national government in the full sense of the word. So 
 far as principles were concerned, "Washington's wish had 
 come to fulfillment. The convention had decided upon 
 the adoption of a radical cure. It was not simply that 
 the powers of the single federal authority (the old con- 
 gress) were now shared between three co-ordinate factors, 
 but these were actual national powers Avhich together 
 formed a national government, because they were en- 
 dowed not only with rights, but with the power to enforce 
 those rights. So far as everything within the domain of 
 the national authority was concerned, the political will 
 of the commonwealth, expressed in a constitutional way, 
 was placed high above the political will of the constituent 
 members of that commonwealth and of their political 
 organs. The subordination of the latter was brought
 
 "2'2 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 about by the use of those fixed forms in which the life of 
 ji modern constitutional and lawful state can pursue its 
 steady and orderly course. 
 
 Opinions were sharply opposed, not only about the 
 ground-plan of the constitution, but also about the de- 
 tails by which this plan was to be filled. The holders of 
 all of these views were forced, now one and now another, 
 to remember not to let the better become the enemy of 
 the good, and not to fear the worst possible consequences, 
 because in this or that state of affairs something either 
 undesirable or utterly repugnant might happen. The 
 convention could not possibly draw a constitution which, 
 in the forum of theory, would appear as a blameless 
 and perfectly harmonious work. But such a constitu- 
 tion would have been of scant use to the United States, 
 for the real conditions could not be compressed into 
 rigidly logical form. The convention, which brought its 
 work to a close September 17, characterized it in its 
 address to congress as "' the result of a spirit of amity 
 and of mutual deference and concession." Since its task 
 had not been to draw a model constitution, this was the 
 best recommendation of its work, for, as it said, many- 
 sided concession was " rendered indispensable " by the 
 " peculiarity of our political situation," and in the nature 
 of things that could not happen which the welfare of all 
 demanded unless all made sacrifices to that end. It laid 
 claim to the highest grade of perfection for its work, 
 gave it the highest praise possible, when it expressed the 
 conviction that the constitution was "liable to as few 
 exceptions as could reasonably have been expected." 
 Whether this self-criticism was well founded only the 
 actual trial of the constitution could show. And whether 
 that actual trial would be had was still by no means cer- 
 tain. It was only too sure that the draft, as it is called
 
 GENESIS OF THE FEDERAL CONSTITUTION. 23 
 
 in the address to congress, would not command universal 
 acquiescence. Since the convention was convinced that 
 the fate of the Union depended upon the adoption or re- 
 jection of the constitution, it had taken care not to leave 
 the weal and woe of the commonwealth wholly in the 
 hands of a lessening minority. Although the articles of 
 confederation required the consent of all the states for the 
 least change in the constitution, and the convention had 
 only been authorized to consider a revision of these arti- 
 cles, it had yet ventured in its proposal for a radical re- 
 organization of the Union to adopt the provision that the 
 new constitution should come into force as soon as it had 
 been adopted by nine states. 1 This did not involve any 
 tyranny by a majority, because it was expressly provided 
 that the ratification was to be good only for the ratifying 
 states. 2 In case four states or less than four did not ratify, 
 they thus ipso facto cut themselves out of the Union until 
 they thought good to re-enter it, or the other states, 
 perhaps by force of irresistible necessity, compelled them 
 to do so. But such compulsion certainly could have been 
 tried with success only against the smaller states, and in 
 that case, as we shall later see more closely, the whole 
 fundamental law of the new federal power would have 
 been shattered and racked in a terrible way. This pro- 
 vision was therefore a two-edged sword. On the one 
 hand it was made very difficult for political blindness and 
 the lack of national feeling to hinder the reorganization 
 
 1 Cooley, Tlie General Principles of Constitutional Law, page 16, 
 rightly says: " It was a revolutionary proceeding." 
 
 2 Since Schlief , Die Verfassung der Nordamerikanischen Union, is 
 often cited by German authors, I think it my duty to show by ex- 
 ample how little trustworthy a guide he is. He says, p. 8: "The 
 fundamental law, according to article 7, was to come into force for 
 all the states represented in the convention at Philadelphia, when 
 nine of them approved it."
 
 24: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of the Union, but on the other hand this might easily 
 bring about such an explosion of these forces that the 
 damage done could be repaired, if at all, only by doing 
 violence to the fundamental principles of the Union. 
 There was another scarcely less significant possibility. It 
 might be that nine or even ten states would adopt the 
 constitution, and yet, as a result of the opposition of one 
 or two states, the Union, in its new organization, backed 
 by force of law, and with a constitution containing within 
 itself all the conditions of life and development, would 
 yet be from the very beginning a torso, incapable of life. 
 For an instant it seemed as if this mischance would hap- 
 pen. 
 
 June 21, 1788, Xew Hampshire ratified the constitution. 
 She was the ninth state to do so. Among those which 
 had not ratified it were Virginia and Xew York. The 
 first had taken such a position in the Union since the days 
 of the continental congress, that the nation, Avithout Vir- 
 ginia, would have been like Hamlet without the role of 
 Hamlet. Public opinion was so evenly divided in Vir- 
 ginia, that a very little would have sufficed to turn the 
 balance in the wrong direction. From the beginning of 
 the debates in the ratification convention it was easy to 
 see that the simple rejection of the constitution was not 
 to be feared, but up to the last instant it seemed not im- 
 possible that the ratification would be merely a conditional 
 one. Many not only shared Patrick Henry's belief that 
 Virginia was in a position to dictate her own conditions 
 to the other states, but they also agreed with him in his 
 wish to do so in such a way that her ratification should 
 be made dependent upon the adoption of certain amend- 
 ments by the other states. In the vote upon this main 
 proposition, the opposition came within eight votes of a 
 majority, and the simple ratification was then carried by
 
 GENESIS OF THE FEDERAL CONSTITUTION. 25 
 
 eighty-nine to seventy-nine. In New York, the condition 
 of affairs was somewhat different. New York was then 
 far removed from being what she is now, the Empire 
 State, but it could not be denied that she had a great 
 future, and her geographical position from the ocean to 
 Lake Erie made her an absolute necessity. If she did not 
 come into the Union, it was torn asunder into two halves 
 which could not possibly remain bound together; for the 
 geographical continuity of the national territory was a 
 condition precedent of that free exchange of opinions, 
 customs and interests, the difference in which had been 
 stigmatized by the Philadelphia convention in the address 
 to congress as the main source of the difficulties with 
 which it had had to fight. While in New York, Alex- 
 ander Hamilton, with the aid of John Jay, and especially 
 of Madison, wrote in the eighty-five numbers of the Fed- 
 eralist the classic argument against the articles of confed- 
 eration, and in favor of the new constitution, yet here 
 also the opposition was the most passionate and stub- 
 born. Yates and Lansing, who, with Hamilton, repre- 
 sented the state in Philadelphia, had been sustained by 
 public opinion when they withdrew from the convention, 
 because it over-passed its powers. Now the opposition, 
 led by Governor Clinton, was so obstinate that even Ham- 
 ilton doubted for an instant whether it would not compel 
 concessions to it. If Madison and his friends had not car- 
 ried the day in Virginia, the friends of the constitution in 
 New York would unquestionably have lost the victory. 
 But even the example of Virginia weakened the opposition 
 in the ratification convention at Poughkeepsie only so far 
 that thev were willing to agree to ratification if the state 
 reserved the right of re-calling it in case the other states 
 did not approve the amendments demanded by New York.
 
 26 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 Madison, who was asked by Hamilton for his opinion 
 upon this proposal, wrote : " My opinion is that a reser- 
 vation of a right to withdraw, if amendment be not 
 decided on. under the form of the constitution, within a 
 certain time, is a conditional ratification; that it does not 
 make Xew York a member of the new Union, and, con- 
 sequently, that she could not be received on that plan. 
 The constitution requires an adoption in toto and forever. 
 It has been so adopted by the other states. An adoption 
 for a limited time would be as defective as an adoption 
 of some of the articles only. In short, any condition 
 whatever must vitiate the ratification. The idea of re- 
 serving a right to withdraw was started at Richmond, 
 and considered as a conditional ratification, which was 
 itself abandoned as worse than a rejection." This letter, 
 which expressed in an authoritative way the views of the 
 father of the constitution upon the legal nature of the 
 federal compact, is of the highest importance in view of 
 the war fought for five and seventy years over this fun- 
 damental question, a war the final history of which was 
 written in blood. The letter gave the day to the friends 
 of the constitution. On July 25, the ratification conven- 
 tion, by a majority of five votes, decided for an uncon- 
 ditional ratification. After this, it was unanimously 
 voted to request the legislatures to call a new convention 
 in order to pass upon the amendments proposed. March 
 i, 1T89, the new federal powers came into existence, 
 although North Carolina and Rhode Island had not yet 
 adopted the constitution. The legal position which these 
 two states occupied in regard to the Union was not 
 sharply insisted upon, because their delay could not be of 
 any especial importance, and no one doubted that they 
 would soon overcome their scruples. North Carolina
 
 GENESIS OF THE FEDERAL CONSTITUTION. 27 
 
 speedily ratified (November 21, 1789). Little Khode 
 Island waited until May 29, 1790, and then decided upon 
 acquiescence only by a majority of three votes. 
 
 John Quincy Adams said in a speech at the fiftieth 
 jubilee of the constitution that it was wrung from the 
 people through "grinding necessity." This was true. 
 Hamilton had written in the Federalist: " The establish- 
 ment of a constitution, in time of profound peace, by the 
 voluntary consent of a whole people, is a prodigy, to the 
 completion of which I look forward with trembling anx- 
 iety." If this miracle now happened, it was due to the 
 fact that the hard lessons of daily experience had finally 
 given wide circles of the " reluctant people " a glimmer- 
 ing knowledge of the great truth that, as he had hitherto 
 said : " A nation without a national government is. in my 
 view, an awful spectacle." Gouverneur Morris had ex- 
 plained, in Philadelphia, his approval of the constitution 
 by saying that the question was simply: " Shall there be 
 a national government or a general anarchy ?" In the 
 same way Washington had written, December 14, 1787, 
 that the choice lay only between the adoption of the consti- 
 tution and anarchy, for, he had added, if another conven- 
 tion is tried, its members will be more at odds than in the 
 first ; they will agree upon no common plan ; either this 
 constitution must be adopted or the Union dissolved. 
 Only the conviction that further experimenting had be- 
 come impossible, and that a trial must be made of this 
 constitution if the nation was to be rescued from the 
 wretched stagnation of all interests under the articles of 
 confederation, wrung the adoption of the constitution 
 from political doctrinairism and from particularist self- 
 ishness. Moreover, it had been adopted by all of the 
 states without the application of any outside force. This 
 was the decisive fact for the future, and not the particular
 
 2b CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 arguments which here and there had carried the day. Xo 
 state could rightly deduce from the history of its develop- 
 ment the right to cut loose from it. If the duties and 
 the limits of self-government were found to be a heavy 
 chain, yet each state had, by a full and free expression of 
 its o\vn will, fastened this fetter upon itself; had placed 
 itself under the control of this fundamental law ; and had 
 done so in the most formal way. The Philadelphia con- 
 vention had not submitted its work to the legislatures 
 for ratification, but had demanded that the legislatures 
 should leave the decision to conventions called for this 
 particular purpose. In accordance with the recommen- 
 dations of congress, this demand had been carried out in 
 all the states. The states were not bound to the consti- 
 tution through the state governments, but the people, the 
 sole source of all political power in a republican govern- 
 ment, had ratified the constitution through their represent- 
 atives, chosen ad hoc. The United States had therefore 
 ceased to be a confederation, and had become in truth a 
 Union. The instrument under which they had decided 
 henceforth to live, not only was no longer called articles 
 of confederation, but it was no longer a confederation com- 
 pact. It was a union compact. It was, in the full sense 
 of the word, a constitution, a fundamental law of the 
 state, a law which could be changed only in the manner 
 provided by itself, could be done away with only by gen- 
 eral and free consent, and could be overthrown only by 
 revolution, but could never, and under no circumstances, 
 be nullified by one or more states. 1 
 
 5. THE FIFTEEN AMENDMENTS. The friends of the 
 constitution had believed that they must stand firm in 
 their demand for its unconditional adoption, but they had 
 not thereby committed themselves to the view that the 
 
 i Texas vs. Wldte, Wallace, VII., 726.
 
 GENESIS OF THE FEDERAL CONSTITUTION. 29 
 
 work of the Philadelphia convention could not be im- 
 proved. As soon as the constitution had come into effect, 
 this question began to be discussed. It was brought to 
 an issue in the manner provided by the constitution. The 
 friends of the constitution would, of course, have been 
 slow to consent to material changes as long as its provis- 
 ions had not been subjected to the only sufficient proof, 
 that of experience. Criticism, however, was not at first 
 directed against what it provided, but against what it 
 either did not provide, or. in the opinion of the opposi- 
 tion, left doubtful. They proposed for the most part not 
 changes but additions, and the victors consented to this 
 the more willingly, since from the beginning they had 
 sought to weaken the opposition by the assertion that 
 everything which they wished to see expressly set forth 
 was implied in the silence of the constitution on the ques- 
 tions at issue. Ten amendments were proposed by the 
 first congress and adopted by the necessary number of 
 legislatures. The first eight additional articles take cer- 
 tain things out of the legislative control of congress, and 
 guarantee to individuals certain rights and the mainte- 
 nance of certain forms of law, thought to be sure safe- 
 guards against abuse of power and injustice. The ninth 
 declares that the enumeration of certain rights is not to 
 be construed to deprive the people of others not enumer- 
 ated, " retained by " the people. The tenth provides that 
 " 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." On 
 account of the fundamental idea from which these ten 
 additional articles sprang, they were and are often called 
 the American Bill of Eights. This phrase, borrowed 
 from well-known events in the history of England dur- 
 ing the seventeenth century, and the contents of the
 
 30 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 first eight articles, clearly show how much the political 
 thought of this generation found its point of departure 
 in the internal struggles of the mother-land, and how far 
 it was still removed from fully recognizing the essential 
 
 / 
 
 differences in the actual conditions of the two countries. 
 However, no one in the United States will to-day deny 
 that experience has justified those who were not content 
 with the legal results to be deduced from the silence of 
 the constitution upon the questions at issue, but wished 
 express provisions which should give the least possible 
 occasion for a controversy. 
 
 The eleventh article, which was recommended by the 
 third congress at its second session (1794:) to the legisla- 
 tures, bears quite a different character. It declares that 
 no state can be brought before the federal courts by cit- 
 izens of another state, or by subjects of a foreign state. 
 This provision, which has given rise to much complaint, 
 and has very recently been again vigorously discussed, 
 was partly a new manifestation of the spirit which before 
 the adoption of the constitution had been the dominant 
 one, but was especially due to the feeling that it was de- 
 rogatory to the dignity of a state to let itself be dragged 
 into court by individuals as a party with the same stand- 
 ing before the court as themselves. 
 
 The twelfth article provided a new method of electing 
 the president and vice-president. It was proposed at the 
 first session of the eighth congress (1803) as a result of 
 the discomforts and dangers which in the fourth presi- 
 dential election had resulted from the original provisions. 1 
 
 The thirteenth, fourteenth and fifteenth amendments, 
 passed respectively at the second session of the thirty- 
 eighth congress, the first of the thirty-ninth, and the third 
 of the fortieth, were caused by the civil war, and relate 
 
 !See my Constitutional History of the United States, I, 168-176.
 
 GENESIS OF THE FEDERAL CONSTITUTION. 31 
 
 to the abolition of slavery, to different questions which 
 arose from the reconstruction of the terribly shattered 
 Union, and to the enfranchisement of the negroes and 
 former slaves. 1 
 
 l The proclamation issued by W. H. Seward, as secretary of state, 
 in pursuance of a law of April 20, 1818. announcing that the thir- 
 teenth amendment had become a part of the constitution, was dated 
 December 18, 1865. The seceded states had been notified by congress 
 and the president, that the adoption of this amendment was a condi- 
 tion precedent to their re-admission into the Union. The reconstruc- 
 tion bill was sent to the president just before the close of the session. 
 It was not signed by him, but in a proclamation dated July 8, 1864, 
 Lincoln declared himself to be in substantial accord with its provis- 
 ions. It may be said with considerable confidence that even without 
 this compulsion the necessary number of states would have approved 
 the amendment, but yet it is not to be questioned that the consent of 
 part of the states was obtained under a certain compulsion. So, 
 too, it must be recognized as an anomaly that states which were 
 actually at the time neither full members of the Union, nor entitled 
 to equal rights under it, voted upon an amendment to the constitu- 
 tion. 
 
 The definitive proclamation about the fourteenth amendment was 
 dated July 28, 1868. A proclamation of July 20 had declared the 
 amendment adopted if the ratifying resolutions of Ohio and New 
 Jersey were to be considered as of full force and effect, although 
 these states (in January and April respectively) had rescinded these 
 resolutions. Congress was not content with the form of this procla- 
 mation. It passed a resolution July 21, which declared that the 
 amendment had been adopted, and named Ohio and New Jersey 
 among the ratifying states. Thereupon Seward issued his second 
 proclamation with express reference to the resolution of congress. 
 The question whether a state has a right to recall its consent as long 
 as an amendment has not yet become an actual part of the constitu- 
 tion has not yet been fully decided. For judicial decisions "in a 
 somewhat analogous case," holding that the approval once given re- 
 mains binding, see Cooley, The General Principles of Constitutional 
 Law in the Uniled States of America, p. 204. In the fourth edition 
 of Story's Commentaries, edited by Cooley, II., pp. 652, 653, the 
 learned judge shows himself decidedly inclined to the opposite opin- 
 ion. Oregon's recall of her approval was evidently of no effect.
 
 32 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 Other amendments to the constitution have often been 
 
 proposed, but these have failed to receive the necessary 
 
 number of votes, either in congress or among the states. 
 
 Experience has shown that the provisions of the constitu- 
 
 ^tion about amendments are sufficient on the one hand to 
 
 ^ meet the demands of development, and on the other to 
 
 \ put so strong a curb upon a restless search after novelty 
 
 ^ that the democratic republic has been more conservative 
 
 in its fundamental law than any state whatever of the 
 
 European continent. 
 
 0. Tin-: TERRITORY OF THE UNION AND ITS CONSTITU- 
 ENT MEMBERS. The original boundaries of the territory 
 of the Union could not exactly be defined, because the 
 provisions about them in the charters of a part of the 
 colonies were decidedly vague. Even the treaty of peace 
 was not entirely clear on this question. The United 
 States have repeatedly been involved in disputes about 
 boundaries with England. Part of these disputes were of a 
 later origin. All of them, however, have been peaceablv 
 settled, which is equivalent to saying that the claims of 
 the United States have not always been completely 
 granted. This was especially so in the compromise which 
 brought to an end the controversy of many years over 
 the Oregon boundary. They accepted a very small part 
 of their original claim. 1 But if they could not obtain 
 everything which they believed might be claimed as their 
 own, or might be got, yet their territory, by purchase, by 
 the provisions of treaties of peace and other treaties, and 
 by annexation, grew to an amazing extent. While the 
 
 because it did not take place until after the issue of Seward's procla- 
 mation. 
 
 The fifteenth amendment was declared adopted by a proclamation 
 of March 30, 1870. 
 
 1 See my Constitutional History, vol. III., chaps. 2, 6, 8 and 13.
 
 GENESIS OF THE FEDERAL CONSTITUTION. 33 
 
 \ 
 
 thirteen original states, New Hampshire, Massachusetts, 
 Rhode Island, Connecticut, New York, New Jersey, 
 Pennsylvania, Delaware, Maryland, Virginia, North Car- 
 olina, South Carolina and Georgia, have within their 
 present boundaries only 325,065 square miles, the whole 
 territory of the Union, according to the latest figures, 
 now contains 3,602,990 square miles. The states which 
 have been made out of the lands ceded to the Union by 
 the original states, and out of the territory more lately 
 acquired, contain 1,761,695 square miles. There are 
 twenty-five of them, which have been admitted into the 
 Union in the following order: 1 Kentucky, February 4, 
 1791 (June 1, 1792); Vermont, February 18, 1791 (March 
 4, 1791); Tennessee, June 1, 1796; Ohio, April 30, 1802 
 (November 29, 1802); Louisiana, April 8, 1812 (April 30, 
 1812); Indiana, December 11, 1816; Mississippi, Decem- 
 ber 10, 1817; Illinois, December 3, 1818; Alabama, De- 
 cember 14, 1819; Maine, March 3, 1820 (March 15, 1820); 
 Missouri, March 2, 1821 (August 10, 1821): Arkansas, 
 June 15, 1836; Michigan, January 26, 1837; Florida, 
 March 3, 1845 ; Iowa, March 3, 1845 (December 28, 1846) ; 
 Texas (resolutions of annexation were passed March 1, 
 1845), December 29, 1845 ; Wisconsin, March 3, 1847 (May 
 29, 1848) ; California, September 9, 1850 ; Minnesota, May 
 4, 1858 (May 11, 1858); Oregon, February 14, 1859; Kan- 
 sas, January 29, 1861; West Virginia, December 31, 1862 
 (June 19, 1863); Nevada, March 21, 1864 (October 31, 
 1864); Nebraska, February 9, 1867 (Marcli 1, 1867); Col- 
 orado, March 3, 1875 (August 1, 1876). The Union, 
 therefore, consists, at the present time (1886), of thirty- 
 eight states, with an area of 2,086,760 square miles. The 
 remainder of the national territory contains nine organized 
 
 1 1 give the date of the act of admission, and, if the actual entry 
 into the Union took place later, I give that date also in parenthesis. 
 3
 
 3-i CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 territories, the Indian Territory, which has no territorial 
 government, and the District of Columbia, the seat of 
 the federal government. The territories were organized 
 in the following order : ]STew Mexico and Utah, Septem- 
 ber 9, 1850; Washington, March 2, 1853; Dakota, March 
 2, 1861 ; Arizona, February 2, 1863 ; Idaho, March 3, 
 1863; Montana, May 26, 1864; Wyoming, July 25, 1868; 
 (Alaska, July 27, 1868). 1 The population of the United 
 States, according to the census of 1790, was 3,929,827 
 souls. According to that of 1880 it was 50,155,783. 2 
 Alaska and the Indian Territory are not included. The 
 
 Organized not as a territory but as a collection district. The ob- 
 ject of the law, according to its title, is "to extend the laws of the 
 United States relating to customs, commerce and navigation " over 
 Alaska. Statutes at Large, XV., 240. 
 
 2 Since, in the part of this work devoted to the constitutional law 
 of the single states, they cannot be all separately treated, it seems 
 proper to give here their area and population according to the census 
 
 of 1880: 
 
 Area in Popula- 
 Square Miles, tion. 
 
 New Hampshire 9,305 346,991 
 
 Massachusetts 8,315 1,783,085 
 
 Rhode Island 1,250 276,531 
 
 Connecticut 4,990 622,700 
 
 New York 49,170 5,082.871 
 
 New Jersey 7,815 1,181,116 
 
 Pennsylvania 45,215 4,282,891 
 
 Delaware 2,050 146,608 
 
 Maryland 12,210 934,943 
 
 Virginia 42,450 1,512,565 
 
 North Carolina 52,250 1,399,750 
 
 South Carolina 30,570 905,577 
 
 Georgia 59,475 1,542,180 
 
 Kentucky 40,400 1,648,690 
 
 Vermont 9,565 332,286 
 
 Tennessee 42,050 1,542,359 
 
 Ohio 41,060 3,198,162 
 
 Louisiana 48,720 939,946 
 
 Indiana 36,350 1,978,301 
 
 Mississippi 46,810 1.131,597 
 
 Illinois 56,650 3,077,871 
 
 Alabama 52,250 1,262,505 
 
 Maine 33,040 648,93(5 
 
 Missouri 69,415 2,168,380
 
 GENESIS OF THE FEDERAL CONSTITUTION. 35 
 
 view almost universally accepted by the founders of the 
 republic, that the federal principle could last only as long 
 as the federal state did not grow beyond certain bounds, 
 has therefore been overthrown by experience. But with- 
 out doubt this is mainly, if not exclusively, on account of 
 the many-sided changes which the life of civilized people 
 has undergone, through the development in modern 
 times of means of communication. No one now doubts 
 that the Union to-day is far stronger than if it counted | 
 only thirteen states, and that it grows stronger with each I 
 passing year. 
 
 Area in Popula- 
 Sguare Miles, tion. 
 
 Arkansas 53,850 802,525 
 
 Michigan 58,915 1,636,937 
 
 Florida 58,680 269,493 
 
 Iowa 56,025 1,624,615 
 
 Texas 265,780 1,591,749 
 
 Wisconsin 56,040 1,315,497 
 
 California 158,360 864,694 
 
 Minnesota 83,365 780,773 
 
 Oregon 96,030 174,768 
 
 Kansas 82,080 996,096 
 
 West Virginia 24,780 618,457 
 
 Nevada 110,700 62,266 
 
 Nebraska 76,855 452,402 
 
 Colorado 103,925 194,327 
 
 Territories. 
 
 New Mexico 122,580 10,844 
 
 Utah 84,970 143,963 
 
 Washington 69,180 75,116 
 
 Dakota 149,100 135,177 
 
 Arizona 113,020 5,280 
 
 Idaho 84,800 32,610 
 
 Montana 146,080 39,159 
 
 Wyoming 64,690 20,789 
 
 According to race, the population is divided into 43,402,970 whites, 
 6,580,793 negroes, 105,607 Chinese, and 66,407 Indians, exclusive of 
 the wild tribes, and of the Indian population in the Indian Territory 
 and in Alaska. About one-eighth of the population (6,679,973) are of 
 foreign birth.
 
 PART SECOND. 
 
 THE FEDEKAL CONSTITUTION. 
 
 AUTHORITIES. U. S. Supreme Court Reports (Dallas, 4 vols. to 
 1804; Cranch. 8 vols. to 1815; Wheaton, 13 vols. to 1827; Peters, 10 
 vols. to 1842: Howard, 24 vois. to 1860; Black, 2 vols. to 1862; Wal- 
 lace, 22 vols. to 1874: Otto, 17 vols. to 1882; since then, Davis. Otto's 
 reports are usually cited in American books, not by his name, but as 
 "U. S. Reports,' 7 the general name for the series of supreme court 
 decisions. I shall follow this example. In my Constitutional His- 
 tory of the United States I have hitherto taken my references from 
 Curtis's edition of the supreme court reports, so far as that goes. In 
 1882 the Lawyers Co-operative Publishing Company (Rochester, N. 
 Y.) began, under the editorship of Stephen R. Williams, an edition 
 which is more complete, more convenient, and in many respects more 
 valuable. Up to April, 1885, 22 volumes appeared, coming down to 
 the October term, 1884). U. S. Statutes at Large. (The student 
 cannot dispense with them, although the Revised Statutes, 1875 ; 2d 
 edition, 1878; Supplement, 1874-81, are more convenient, lighten 
 the task of research by their topical arrangement, and derive an 
 especial value from their references to the decisions of the supreme 
 court. They contain only the laws at present in force.) U. S. Digest, 
 B. V. Abbott, 15 vols., Boston, 1874-78; New Series, 9 vols., 1870-78; 
 10 vols. by J. E. Hudson and G. F. Williams, continuation by Will- 
 iams alone. A. C. Freeman, Digest of American Decisions, vol. I, 
 San Francisco, 1882. Opinions of tJie Attorneys-General. The steno- 
 graphic reports of the proceedings in congress, which have appeared 
 under different titles. The Debates and Proceedings in the Congress 
 of the United States come down to the conclusion of the first session 
 of the twenty-fifth congress (October 6, 1837), 28 vols., Wash., 1825- 
 1837. The Congressional Globe begins in 1833 and extends to 1873. 
 The Congressional Record covers the time since. Some of the offi- 
 cial publications of the government, usually referred to as a whole 
 as Congressional Documents, are an important source of information. 
 Among these, the Reports of Committees are of especial value, and 
 that, too, for constitutional history. Since both the inferior federal 
 courts and the state courts have to pass upon the constitutionality of 
 federal and state laws, and all the disputed questions of constitu-
 
 THE FEDERAL CONSTITUTION. 37 
 
 tional law cannot possibly be brought before the supreme court for 
 adjudication, the decisions of these other courts often carry great 
 weight. But the enormous number of these decisions makes an ex- 
 haustive review of them more and more of an impossibility, even to 
 the most learned American jurists. 
 
 J. Wilson, Works, 3 vols., Phila., 1804. J. Taylor, Construction 
 Construed and Constitutions Vindicated, 1820. Ibid., New Views of 
 the Constitution of the United States, 1823. R. Mohl, Das Bundes- 
 staatsrecht der Vereinigten Staaten von Nord-Amerika, Stuttg. and 
 Tub., 1824. J. Kent, Commentaries on American Law, 1st ed., 1826; 
 12th ed., 1873; 4 vols. Rawle, A View of the Constitution of the 
 United States of America, 3d ed., Phila., 1829. Th. Sergeant, Con- 
 stitutional Law, being a Review of tJie Practice and Jurisdiction of 
 the Courts of the United States and of Constitutional Points De- 
 cided, 2d ed., Phila., 1830. J. Story, Commentaries on the Constitu- 
 tion of the United States, 2 vols., 1st ed., 1833; 4th ed., 1873. A. P. 
 Upshur, The Federal Government, its true Nature and Character, 
 being a Review of Judge Story's Commentaries on the Constitution 
 of the United States, Petersburg, 1840. A. de Tocqueville, De la 
 Democratic aux Etats-Unis, 2 vols., Paris, 1835. 
 
 FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION AND 
 OF CONSTITUTIONAL LAW. 
 
 7. THE SO-CALLED PKEAMBLE. At the beginning; of 
 
 o o o 
 
 the constitution is the following sentence: "We, the 
 people of the United States, in order to form a more per- 
 fect union, establish justice, insure domestic tranquillity, 
 provide for the common defense, promote the general 
 welfare, and secure the blessings of liberty to ourselves 
 and our posterity, do ordain and establish this constitu- 
 tion for the United States of America." This sentence is 
 ordinarily called the Preamble, a title which Farrar 
 (pp. 85-89) rejects, because it must lead to entirely erro- 
 neous conclusions about its legal nature and scope. Far- 
 rar is right, because this is a technical expression, taken 
 from English law; 1 and this expression does not cover 
 
 1 Sedgwick, pp. 42-45.
 
 38 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 the essential part of this introductory sentence of the 
 constitution. It not only speaks, like a preamble, of the 
 motives and aims of the law-giver, but it names the au- 
 thority which here expresses its will; and it declares 
 what this expression of will is, and upon whom it is to be 
 binding. It is evident that this is not simply an outward 
 and purely formal difference, but one of great material 
 significance. This appears from a comparison of the 
 introductory sentences of the articles of confederation 
 with this; from the numerous changes which it had to 
 undergo before it received its final form in the Philadel- 
 phia convention ; 1 and from the long and earnest debates 
 which it caused in some of the ratification conventions. 
 It was almost universally recognized that the enumera- 
 tion of certain objects did not make this clause an inde- 
 pendent source of power to the federal authorities. 
 Nevertheless, it did not by any means follow that no 
 weight at all was to be given it because no legal conse- 
 quences could be deduced from it. It had not " simply 
 an historical significance," and the constitution did not 
 '' first begin with that which followed the preamble," -' but 
 it is, in the proper sense of the word, a most essential part 
 of the constitution itself, for it is to it what the enacting 1 
 clause is to an ordinary law. The discussion of the aims 
 enumerated in it, to which the American commentators 
 for the most part devote much space, is unnecessary in a 
 statement of existing constitutional law, because it is of a 
 political rather than a legal nature. But the other parts 
 of the preamble demand careful attention and would de- 
 serve it even if no independent legal significance were to 
 be given to them, because they provide the natural start- 
 
 1 Collected by Farrar, pp. 33-38. 
 
 2 Schlief , p. 71.
 
 THE FEDERAL CONSTITUTION. 39 
 
 ing point for a discussion of the principles which to a cer- 
 tain extent form the foundation of the whole constitution, 
 as well as of the rules which control its interpretation and 
 construction. The " people of the United States " name 
 themselves as the framers of the constitution, that is, as 
 the possessors of political omnipotence, of sovereignty. 
 But who, then, are the people of the United States? This 
 question was the formal beginning of the struggle between 
 two political schools which culminated in the civil war, 
 and is still carried on to-day with tongue and pen, though 
 in a far milder way. 
 
 8. THE DOCTRINE OF STATE SOVEREIGNTY. The 
 premise of the argument of the so called state's-rights 
 school is that there never has been, either in point of fact 
 or in point of law, one people of the United States. The 
 argument proceeds as follows. The people of each state, 
 without being bound in any way by the action or the 
 non-action of the other states, decided for themselves, 
 through their authorized representatives, whether or not 
 they would accept the draft of the Philadelphia conven- 
 tion. That the constitution is a work of states is there- 
 fore a fact which cannot be gotten rid of on the plea that 
 the constitution begins with the words : " We, the people 
 of the United States." If these words do not contain an 
 evident falsehood, then must the phrase " United States " 
 be read here as ' states united ; " but so read they say 
 simply that the states, in order to better protect their 
 interests, have entered into a new compact to regulate 
 everything in regard to those matters as to which they 
 wish to form one commonwealth. The political existence 
 of the Union was not changed. The states were sovereign 
 afterwards as well as before, and they alone were sover- 
 eign because a partition of sovereignty is impossible from 
 its very meaning. It would be to turn nature upside
 
 40 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 do\vn if the creator were made subordinate to the 
 creature. There was no common judge standing above 
 the federal powers and the states. If a conflict of author- 
 ity broke out between them, the decisive judgment was 
 left to the states, that is, to each of them for itself, as to 
 what rights they had reserved for themselves and what 
 powers they had given to the Union. If the federal 
 government, in the opinion of a single state, exceeded its 
 constitutional authority, that state was justified in declar- 
 ing the particular law, so far as it came in question, to be 
 null and void. John C. Calhoun, 1 of South Carolina, 
 who with great logical acuteness developed into a com- 
 plete system this so-called doctrine of nullification, de- 
 clared that nullification Avas an "eminently conservative 
 remedy,'' and affirmed that it, and it alone, could prevent 
 the dissolution of the Union. 2 The younger school of the 
 southern state's-rights men did not stand by him in this. 
 The doctrine of nullification was constantly pushed into 
 the background and often completely rejected, and on the 
 
 1 See my book about him in the series of biographies edited by 
 John T. Moi'se, under the general name of "American Statesmen." 
 
 2 The doctrine in its beginnings goes back to the last years of the 
 eighteenth century. The hated alien and sedition laws, whose 
 unconstitutionally will scarcely be questioned by anyone to-day, 
 gave the legislatures of Virginia and Kentucky the opportunity to 
 proclaim the doctrine officially. When the anti-federalists in 1801 
 obtained the mastery, and the policy of the United States in the 
 struggle with England seriously embarrassed the industrial interests, 
 especially those of the New England states, the parties changed their 
 standpoints. The federalists were now champions of state's rights. 
 During the war with England they inserted in their political mani- 
 festoes the leading clauses of the Virginia and Kentucky resolutions, 
 word for word. But it was under the pressure of the special inter- 
 ests of the slave-holdei's that the doctrine of state sovereignty was 
 first fully framed, thought out to a logical end, and finally, with the 
 most terrible zeal, transferred from theory to practice.
 
 THE FEDERAL CONSTITUTION. 4:1 
 
 other hand, again and again and more unconditionally 
 the last consequences were deduced from the premises of 
 the state Vrights school. Since the constitution is a com- 
 pact between sovereign states, they said, the states have 
 the power to cut loose from the Union if the compact is 
 broken, either by the national government or by the 
 other states, if it changes from a means of protection 
 and of advancement into a source of destruction and 
 certain ruin. Sovereignty is not only indivisible, but 
 cannot be parted with, and the states, bound only through 
 an act of their own free will, can be bound only as long 
 as their will does not change; that is, as they wish to be 
 bound. Secession is thus not a right under the constitu- 
 tion, that is, a constitutional right, but it is inherent in 
 the nature of the states, and therefore could not possibly 
 be given up by the adoption of the constitution. The 
 attempt to prevent by force the secession of a state is not 
 a suppression of a rebellion, but an international war. 
 Others did not go as far, and thought they had found a 
 middle course. They admitted that secession was a revo- 
 lutionary act, but affirmed that the federal government 
 was not empowered to use force against the sovereign 
 states. This was the non-coercion theory. They claimed 
 that the sovereign states had the right of neutrality; that 
 is, that although they had not cut loose from the Union, 
 they were justified in standing on one side as spectators 
 during a conflict fought out with the sword between the 
 federal government and the seceded states. 
 
 The result of the civil war made this one of the dead 
 and gone doctrines of history. After its champions had 
 appealed to the ultima ratio and had been completely 
 conquered, it had no more political vitality. And it will 
 never again have it. The victorious north did not even 
 consider it necessary to guard itself against the possibil-
 
 42 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 ity of the revival of this doctrine by inserting in the 
 constitution a new express declaration against it. The 
 opposite doctrine is thus unquestionably valid constitu- 
 tional law to-day, whatever one may think on the ques- 
 tion as to what originally was constitutional law. There 
 is no need here of any further critical examination of the 
 doctrine of state sovereignty. This is involved in the 
 statement of the opposite doctrine, which is the constitu- 
 tional law of to-day. 
 
 9. THE PEOPLE OF THE UNITED STATES of course did 
 not act as one uniform whole when they gave themselves 
 this constitution. The people, that is, the part of the 
 population of each state endowed with full political 
 rio-hts, acted for themselves, and had absolute freedom of 
 
 G " * 
 
 decision. They could accept the draft of the Philadel- 
 phia convention through their authorized representatives, 
 or they could reject it, and therewith cut loose from the 
 Union, if the projected organization of the latter were 
 accomplished. But their ratification did not make the 
 draft a constitution. Their ratification was simply a 
 declaration, binding in law, that if the people of at least 
 eight other states came to the same conclusion, the organ- 
 ization of the Union should therewith become an accom- 
 plished fact; so that, for the states concerned, this draft 
 should be good as a constitution given by the people of 
 the United States to the United States. Only by and 
 through the choice of its own people did each state be- 
 come a constituent member of the Union. This, how- 
 ever, did not happen through an act of will of any single 
 state, but the Philadelphia draft first became a constitu- 
 tion by the equal and co-operating consent of the people 
 of nine states, and the states which ratified it afterwards 
 evidently acquired by their ratification exactly the same 
 legal status in the Union. Chief -justice Chase was un-
 
 THE FEDERAL CONSTITUTION. 4:3 
 
 questionably right when he said that " the Union of the 
 states never was a purely artificial and arbitrary relation." ' 
 This fact, however, did not settle the matter at issue. 
 Whether the states were or were not sovereign from the 
 time of the declaration of independence, by common 
 consent every one of them decided as a sovereign upon 
 the adoption of the constitution, that is, upon its own 
 entrance into the Union. On the other hand, whatever 
 their legal status in the confederation and their political 
 nature up to this time might have been, they were not 
 sovereign by common consent, that is, according to the 
 constitution, as members of the new Union. The Phila- 
 delphia convention began its labor by the adoption of a 
 resolution which declared " that a national government 
 ought to be established, consisting of a supreme legisla- 
 tive, executive and judiciary." If a state adopted the 
 draft, its people thereby declared that they, as far and as 
 widely as this draft provided, should be fused with the 
 people of the other states into one people of the United 
 States; and by the concurrent decision of all, this decla- 
 ration, put in this way, was placed at the beginning of 
 the constitution, so that this proclaimed itself as the 
 work of this one people of the United States. 
 
 10. THE CONSTITUTION is not a compact between the 
 states, but it is, as it declares itself to be, a constitution, 
 and in truth, the constitution of the United States, that 
 is, of the Union, of the commonwealth formed out of the 
 states. Therefore, it is unconditionally binding, as well 
 for the whole people as for the states as such. No room 
 for doubt is left, for the second section of the sixth ar- 
 ticle reads : " This constitution, and the laws of the United 
 States which shall be made in pursuance thereof, and all 
 
 i Texas vs. White, Wallace, VII., 724.
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 treaties made or which shall be made under the authority 
 of the United States, shall be the supreme law of the 
 land, and the judges in every state shall be bound thereby, 
 anything in the constitution or laws of any state to the 
 contrary notwithstanding." The constitution is thus the 
 law, and, moreover, the supreme law of the land. The 
 constitutions of the separate states are their fundamental 
 laws only in regard to those matters which are not sub- 
 mitted by the federal constitution to federal authority. 
 This provision makes the constitution an integral part of 
 the constitution of each state. 1 If there is a conflict be- 
 tween them, then the provision of the state constitution 
 opposed to the federal constitution is ipso facto null and 
 void. All judges, and therefore, evidently, all other state 
 officers, and all citizens of the state, are absolutely bound 
 down to this fundamental principle. He who seeks to 
 overthrow it lays hands on the fundamental law of the 
 land. The federal government, which is bound to give 
 the constitution life and being by law, is therefore not 
 only empowered but directed to break down any opposi- 
 tion ; if possible, by the ordinary and peaceful powers of 
 the state as provided by the constitution, but in case of 
 need, by force. 
 
 11. THE RIGHT AND THE DUTY OF USING FORCE follow 
 directly from the ideas of "law" and "government." 
 They are, moreover, set forth in the constitution in a way 
 quite beyond doubt. The third section of the second 
 article provides that the president " shall take care that the 
 laws be faithfully executed." The constitution is the su- 
 preme law of the land, and the president's highest duty 
 is therefore to take care that it shall be executed every- 
 where and under all circumstances. It provides in the 
 
 i Taylor vs. Taintor, Wallace, XVI., 366.
 
 THE FEDERAL CONSTITUTION. 45 
 
 seventh paragraph of the first section of the second arti- 
 cle that he shall, upon entering office, take the following 
 oath : " I do solemnly swear (or affirm) that I will faith- 
 fully execute the office of president of the United States, 
 and will, to the best of my ability, preserve, protect and 
 defend the constitution of the United States." If the 
 constitution laid upon him this duty, it must also have in- 
 tended that he should have, or should be able to obtain, 
 the means by which to fulfill the duty in all cases. 
 Whether and how far it is his privilege to decide for him- 
 self whether the application of force is necessary in a 
 given case, and actually to use force, need not be discussed 
 at this point, where only questions of general principles 
 are at issue. Here it is sufficient to show that if, and so 
 far as, he is not authorized to do this, the law-making 
 power is. Article I., section 8, paragraph 18, says that 
 congress shall have power " to make all laws which shall 
 be necessary and proper for carrying into execution the 
 foregoing powers and all other powers vested by this con- 
 stitution in the government of the United States, or in 
 any department or officer thereof." It is the president's 
 duty, and therefore also within his power, to preserve, 
 protect and defend the constitution, and congress is 
 therefore bound to give him the means to use this power, 
 that is, to come up to this duty. In case that not only 
 individuals but states as such should rebel against the 
 laws or the constitution, the right of the federal govern- 
 ment to use force can be in no way questioned ; and if 
 other means are not sufficient, it is so much the more 
 bound to use force because the political order or the very 
 existence of the Union is endangered in so much higher a 
 degree. If the federal government seeks by force to com- 
 mand obedience to the laws and the constitution, and the 
 opposition becomes in substance and form a war, this war
 
 4t> CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 may be conducted for the sake of humanity and policy as 
 a war with a foreign power under all the rules of inter- 
 national law, but legally the government has to do only 
 with a rebellion. 1 
 
 12. THE SECESSION OF A STATE is simply a fact, not a 
 legal proceeding. As long as the people of the United 
 States, whose work the constitution is, did not themselves 
 decide to destroy this work, that is, the Union, in other 
 words, as long as they wished to continue to be one peo- 
 ple, the constitution of the Union, despite any fact 
 whatever, remained from the standpoint of law wholly 
 unchanged. 2 On questions of this sort, single states have 
 as little right of action as single individuals. An ordi- 
 nance of secession is wholly null and void. Despite it, the 
 state remains a member of the Union and its citizens re- 
 main citizens of the Union. Its and their duties under 
 
 1 In the Prize Cases (Black, II. . 635), the supreme court says that 
 the rebels were at the same time a war-making power and traitors, 
 and were therefore subject to the consequences to be deduced from 
 either the one or the other character. The United States, on the other 
 hand, bore the double character of a war-making power and of the 
 sovereign, and had therefore the rights of both. 
 
 It seems to me strange to refer the right to suppress a rebellion to 
 the right to declare war, as the supreme court does in Texas vs. White 
 (Wallace, VII., 700). The Philadelphia convention certainly had no 
 thought of civil war when it gave this right to congress. I think, 
 therefore, that it is at least an unfortunate formulization of the idea 
 I have already recognized as just, when the supreme court declares 
 in the Prize Cases just quoted that congress alone has the right to 
 declare war. In the case of a civil war, according to my judgment, 
 formed from the standpoint of constitutional law, the lawful govern- 
 ment has nothing whatever to do with declaring war. A war is a fact 
 which has simply to be recognized. If congress merely recognizes 
 the fact, the views expressed in the text and by the supreme court 
 come into harmony. 
 
 2 These fundamental principles are clearly and sharply formulated 
 in Cohens vs. Virginia, Wheaton, VI., 264.
 
 THE FEDERAL CONSTITUTION". 47 
 
 the constitution continue wholly unaltered. 1 No new act 
 of admission is necessary, therefore, in order to allow a 
 state which has been in rebellion to enter again into the 
 full enjoyment of its constitutional rights. It is again an 
 equal member of the Union when it has been recognized 
 as such by the political powers of the Union, and its 
 representatives and senators have been admitted by con- 
 gress. 2 
 
 13. KECONSTRUCTION. It was thus not a legal, but a 
 political question, how the so-called reconstruction was to 
 be accomplished. The courts had to decide, upon a given 
 case, what the political powers of the federal government 
 had determined in regard to that case, and had to base 
 their judgment upon this determination; but it did not 
 appertain to them to decide, in addition to this, what 
 these political powers ought to have decided. 
 
 These remarks have by no means exhausted the conse- 
 quences which are to be deduced from the opening sen- 
 tence of the constitution. It is only when this sentence 
 is analyzed from exactly the opposite standpoint that its 
 full influence upon the political nature of the Union is 
 first recognized. 
 
 14. THE UNITED STATES. The people of the United 
 States name themselves as the possessors of sovereignty, 
 and act throughout as such ; so that they give to the 
 United States the constitution. The people of the United 
 States, however, is not exactly the same thing as the 
 population of the North American republic. As the 
 Union has never been a purely arbitrary and theoretical 
 creation, so also the name United States is no arbitrary 
 and casual phrase, but is due to the political facts of the 
 
 1 White vs. Cannon, Wallace, VI., 443; White vs. Hart, Ibid., XIII., 
 646. 
 - Texas vs. White, Wallace, VH., 700.
 
 48 CONSTITUTIONAL LAW OF THE EXITED STATES. 
 
 Union. The United States is not only the name of a 
 thing, but the thing itself. As the population of the 
 Union, in giving itself a constitution, acted not as one 
 simple whole but in and through its organization into 
 states, an organization historic and existing by law, so it 
 did not by the constitution organize or wish to organize 
 a close national state. It changed the federation of 
 states, a federation with the loosest powers, into a federal 
 state, upon a deep-laid, national foundation. Out of the 
 federation there came an actual Union, but the Union 
 was not divided into provinces, which were still called 
 states. Its constituent members were actually states and 
 must always remain states. It was a mistaken use of the 
 word " sovereign " (because it led to conclusions false 
 from the standpoint of fact), if afterwards, as before, 
 even in official utterances, men spoke of "sovereign" 
 states; but the states had their own sphere of authority, 
 and within this they were completely independent of the 
 national government. The expression " people of the 
 United States/' it has been well said, does not on account 
 of this become a shadow, without legal existence or in- 
 comprehensible. The possibility of misusing the word 
 "people" in a demagogic way always remains, and this 
 possibility will always be made use of from time to time; 
 but if one has an. honest wish to receive and understand 
 the word in its constitutional sense, then there is less 
 room for doubts than there would be if the Union were a 
 single state. 1 The " people of the United States " are the 
 
 1 Schlief (p. 10) affirms that even the mob can identify itself with 
 this " we, the people of the United States." This is not to be ques- 
 tioned, but the constitution cannot be made answerable therefor. 
 In his view the introductory words are " evidently an imitation of 
 the introductory formula commonly used up to the present day in 
 the constitutional monarchies of Europe in passing a law : ' We, king 
 by the grace of God,'" an assertion which is irreconcilable with
 
 THE FEDERAL CONSTITUTION. 49 
 
 population of the United States, in the organization 
 given them by the constitution and precisely fixed by it. 1 
 A condition precedent of this organization is the main- 
 tenance of their division into self-governing states. The 
 states first came into existence with the Union and by 
 means of it, but they are older than the constitution, and 
 did not abandon their separate political existence by the 
 adoption of the constitution, even if this gave them an 
 essentially different character. If the states had no ex- 
 istence, from the standpoint of constitutional law, outside 
 of the Union and independent of it, yet, on the other 
 hand, the Union, from the same standpoint, had just as 
 little an existence without the states. The supreme court 
 says that " the constitution in all its provisions looks to an 
 indestructible Union composed of indestructible states." 2 
 The same authority declares in Cohens vs. Virginia: 
 " America has chosen to be in many respects and in re- 
 even a superficial knowledge of the history of the development of the 
 constitution. A constitution cannot be " critically developed from 
 one underlying thought *' (p. 6) if it is to be anything more than a 
 worthless product of a doctrine of abstract logic. It is to be under- 
 stood only from the historic standpoint. Schlief, for the most part, 
 does not state, as he promises to do, what "the actual constitutional 
 law of the Union " is. Instead of this he states what, in his opinion, 
 the constitutional law should be, frequently what it should not be, 
 and only what it is in accordance with his erroneous view. 
 
 1 Story is therefore unquestionably wrong when he says (I., 249) 
 that a majority of the whole people can unquestionably change the 
 constitution at will. For in this case "people" seems to be used as 
 synonymous with ' ' population. " Judge Jameson ( The Constitutional 
 Convention, pp. 19, 20) neatly sums up the whole constitutional doc- 
 trine in the sentence: " Sovereignty resides in the society or body 
 politic ; in the corporate unit resulting from the organization of many 
 into one, and not in the individuals constituting such unit, nor in 
 any number of them, except as organized into a body politic and 
 acting as such." See also in the same work pp. 524-526. 
 
 2 Texas vs. White. 
 
 4
 
 50 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 gard to many purposes a nation, and for all these pur- 
 poses her government is complete." The court proceeds 
 to explain, however, that America wished to be a nation 
 only in certain respects and for certain aims, and in re- 
 gard to all others the federal government is without any 
 authority whatever; it is as little sovereign as the states. 
 15. SOVEREIGNTY, which in fact is indivisible, rests 
 only in the people of the United States. The people have 
 intrusted the federal government with the use of certain 
 rights, while others, according to their will, as fixed in 
 the constitution, remain in the states, others, but not all 
 others. The ninth amendment reads: "The enumera- 
 tion in the constitution of certain rights shall not be 
 construed to deny or disparage others retained by the 
 people." This article is in direct connection with the 
 preceding amendments which, as has been said, are ordi- 
 narily called the American Bill of Rights. Speaking 
 generally, it rests upon the fundamental view that certain 
 rights (among them those expressly named) belong to the 
 people, i. e., in this case to the individual citizens, and that 
 these rights are to be completely withdrawn from the 
 cognizance of the political powers. 1 On this point the 
 
 1 While, by the first amendment, certain things were expressly with- 
 drawn from the legislative authority of congress, congress is not named 
 in the seven following amendments. Yet it has always been held 
 by the courts that they relate only to the federal government and not 
 to the state governments. But if the states, so far as the federal 
 constitution is concerned, are in law perfectly free to act in regard to 
 the matters to which the first eight amendments relate, yet the rea- 
 son for these amendments was as a matter of fact the unanimous 
 conviction of the population of all the states that these barriers must 
 be erected against every government, if freedom was to be ensured. 
 It is only in regard to some of the least important provisions that 
 this is either untrue or true only in a limited degree. Farrar 
 (pp. 59, 60) affirms that these rights are "held by every member of 
 the nation, under and by virtue of the constitution of the United
 
 THE FEDERAL CONSTITUTION. 51 
 
 tenth amendment is conclusive. It says: "The pow- 
 ers not delegated to the United States by the constitu- 
 tion, nor prohibited by it to the states, are reserved 
 to the states respectively or to the people." 1 We are 
 considering this tenth amendment here only in regard 
 to the matter immediately before us. It is evident that 
 among the rights which are neither given to the federal 
 government nor reserved to the separate states is the 
 weightiest of all; yes, the one which embraces all others, 
 i. <?., the right to change the constitution and to parti- 
 tion power in whatever way is desired, between the fed- 
 eral government and the states. 2 The sovereign people 
 
 States, independent of any other earthly power, and, of course, can- 
 not be destroyed or abridged by the laws of any particular state." 
 There are numberless judicial decisions against this view, but, never- ' : 
 theless, a state law which forbade the open carrying of arms has 
 been declared unconstitutional. 
 
 1 Cooley, Principles, 29, says that whatever is not granted to the 
 federal government belongs to the states, or to the people thereof. 
 The expression " people" in the tenth amendment is generally un- 
 derstood in this way. In maintenance of this view, it is ordinarily 
 said that here the phrase is used that powers are " reserved to " the 
 states and the people, while the ninth amendment speaks of powers 
 "retained by" the people. I do not overlook the weight of this 
 reasoning, but yet cannot persuade myself that here only the people 
 of the separate states are meant. According to the context, cer- 
 tainly another meaning is possible, and the great care with which 
 the constitution has been drawn throughout suffices to show that 
 the "thereof" which would have excluded every doubt would have 
 been added if only the people of the separate states had been 
 spoken of. Be this as it may, the views expressed in the text would 
 not be influenced thereby, because they need not be made dependent 
 upon the tenth amendment. Jameson (p. 86) is of the opinion that 
 this amendment relates "not to the people of the states but to the 
 people of the Union." 
 
 2 As long as the political nature of the United States is not sub- 
 jected to a change which, in the essential sense of the word, is mate- 
 rial, this can happen only by increasing, diminishing, or in some way
 
 .)Z CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 thus did not, in adopting the constitution, leave the 
 stage, but they can at any instant use again, to the 
 fullest extent, their sovereignty. But even so, only 
 the sovereign people of the United States can do this. 
 The population of the Union cannot. The least, as 
 well as the most incisive and comprehensive, change 
 can lawfully be made only in the way provided in the 
 constitution, because the sovereign people has decided 
 that it will make changes of the constitution only in 
 these fixed ways. Naturally, it can change this decision 
 as well as all others in a constitutional way. 1 In the 
 United States, therefore, sovereignty is actually, as the 
 idea demands, unlimited and undivided, but the exercise 
 of the rights of sovereignty is given to the organs of the 
 commonwealth only in part. 
 
 fashioning differently the powers of the federal government. The 
 supreme court says, in Sturyis vs. Crowninshield, Wheaton, IV., 123, 
 that there was no reason for setting forth in the constitution the 
 powers which remained in the states, and it would have been im- 
 proper to do so, because these had their origin, not in the American 
 people, but in the people of the separate states, and were no further 
 affected by the adoption of the constitution than was involved by the 
 provisions of the constitution. The constitution not only withdraws 
 from the states certain rights in order to give them to the federal 
 government, but it also forbids them to do certain things without 
 authorizing the federal government to do them. But while it says 
 what the federal government can and cannot do, it can only say what 
 the states cannot do ; and it expressly sets forth that certain rights 
 are reserved to them. So far as their relations to the Union do not 
 come into question, it cannot, however, direct them to do anything 
 whatever. We shall discuss later whether and how far powers were 
 taken from the states in order to give them to the federal govern- 
 ment. 
 
 1 Only on one point can it be doubtful whether a constitutional 
 change can be made without the consent of all the states. Article 
 V.. which relates to the amendment of the constitution, provides 
 "that no state, without its consent, shall be deprived of its equal suf- 
 frage in the senate." If a change in the constitution on this point
 
 THE FEDERAL CONSTITUTION. 53 
 
 16. THE AUTHORITY OF THE FEDERAL GOVERNMENT 
 AND OF THE STATES. The authority of the federal govern- 
 ment, as well as of the states, is a limited one, and the 
 boundar}^ between the two is set forth in the constitu- 
 tion. From the " nature of the state/' from the " reason 
 of the state," from " public opinion," from political 
 policy, and even from necessity, the federal government 
 can deduce no powers whatever. 1 It has no inherent 
 rights whatever. All its powers are delegated, and it 
 has only the powers which are given it by the constitu- 
 tion. It is by no means necessary, however, that the del- 
 egation should be expressed in so many words. The 
 provision of the articles of confederation on this point 
 contains the word "expressly," and when the tenth 
 amendment was discussed in congress, it was moved to 
 incorporate this word in the constitution. Madison and 
 others opposed it on the ground that general expressions 
 must be used in the constitution, if it was not to descend 
 into the most minute particulars. A stiff and literal in- 
 terpretation of these clauses is not to be given, for the 
 constitution was framed, not for the moment, and not in 
 relation to one fixed state of facts, but with the idea of its 
 
 should be determined upon by a constitutional majority, and a state 
 which did not consent should thereby be deprived of its equal repre- 
 sentation in the senate, the danger against which the states were to 
 be absolutely assured would be brought about in an indirect way. 
 
 1 The supreme court says that the constitution " is a law for rulers 
 and people, equally in war and in peace, and covers with the shield 
 of its protection all classes of men, at all times, and under all cir- 
 cumstances." The doctrine that it can be thrust on one side in order 
 to meet the pressing necessities of a great crisis has the most destruc- 
 tive consequences. It "leads directly to anarchy or despotism, but 
 the theory of necessity on which it is based is false : for the govern- 
 ment, within the constitution, has all the powers granted to it which 
 are necessary to preserve its existence." Ex parte Milligan, Wallace, 
 IV., 120, 121.'
 
 54 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 lasting for generations and meeting the demands of con- 
 stantly changing conditions of affairs. Every power, there- 
 fore, of such a general character must include also all the 
 powers which are naturally implied in it and are required 
 for the attainment of the end sought by it (implied pow 
 ei's). 1 This argument, which the supreme court has since 
 formulated most precisely in Martin vs. Hunter (Wheaton, 
 L, 304), was convincing, and the proposal was not adopted. 
 If it had been, a change in principle would have been 
 made in the constitution by this tenth amendment. The 
 nation would have gone back in part to the fundamental 
 ideas of the confederation, ideas which were purposely 
 and decisively opposed by the constitution. If congress, 
 in the paragraph already quoted, was authorized to 
 " make all laws which shall be necessary and proper " to 
 carry out any of the powers delegated it by the constitu- 
 tion, yet this " necessary " is. not to be understood in the 
 absolute sense of the word. The " proper " qualifies it. 
 The assertion that congress can use only the means, with- 
 out which it would be absolutely impossible to discharge 
 the task imposed upon the different federal powers by 
 the constitution, imputes, an absurdity to the framers 
 of the constitution. If the end is constitutional, congress 
 
 O 
 
 has free choice of any and all means which in the nature 
 of things correspond to the end to be reached, so far as 
 their use is not forbidden it by the constitution. Whether 
 they are proper, congress alone is to judge. This is a 
 question, not of law, but of politics. The powers of the 
 federal government are in exact relation with the tasks 
 imposed upon it. Paragraph 18 of the eighth section of 
 
 1 In a certain way, therefore, it is right to say that not only the 
 powers of congress, but much more the matters in regard to which 
 congress is empowered to act, are set forth in the constitution, but, in 
 my opinion, Tiffany (p. 179) puts this too baldly.
 
 THE FEDERAL CONSTITUTION. 55 
 
 the first article is just as little a source of new and inde- 
 pendent powers for congress as the tenth amendment is 
 a limitation of the sphere of authority provided by the 
 constitution for the national government. 
 
 17. INTERPRETATION AND CONSTRUCTION OF THE CONSTI- 
 TUTION. The two provisions mentioned simply formulate 
 and make precise the fundamental principles which con- 
 trol the interpretation and construction of the whole con- 
 stitution. We must apply to them, as well as to the rest of 
 the constitution, the further principle that words are to 
 be understood in their natural and when a technical 
 expression of different meanings is used in their ordi- 
 nary sense. No violence must be done to them. Their 
 scope must not be stretched by skillful interpretation. 
 They must not, however, be too literally read. Moreover, 
 the same word has by no means the same meaning in 
 every part of the constitution, and as every single word 
 must be interpreted by its context, so must every single 
 clause be read and interpreted in unison with all the other 
 clauses. The constitution is a whole. It is not to be made 
 an arena for juristic hair-splitting. In every doubtful 
 case, the point of view from which to ascertain the true 
 intent of the framers of the constitution must be the 
 general end which the provision was intended to serve. 
 Judges as well as law-givers must recognize the absolute 
 impossibility of any conflict between the different provis- 
 ions of the constitution. Since the will of the people as 
 expressed in the constitution is unconditionally supreme, 
 the fact must be recognized that this will is never untrue 
 to itself, and is always entirely conscious of itself. But 
 the expression of this will cannot always be put with 
 such absolute certainty as to leave no room for honorable 
 differences of opinion. This is implied, indeed, in that 
 general method of expression in the constitution which
 
 Ob CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 we have recognized as a necessity lying in the very nature 
 of the thing. It is partly due, too, to the fact that the 
 constitution was not, to the people who gave it, an end in 
 itself, but a means to the end, and this end seemed to de- 
 mand that, in regard to certain things, the establishment 
 of an inviolable principle should be avoided. 
 
 18. THE LIMITS OF AUTHORITY. This has especial ref- 
 erence to the dividing line between the authority of the 
 federal powers and of the states. The all-pervading 
 fundamental thought of the constitution is that certain 
 interests are common to the whole people of the Unior, 
 and that therefore, in regard to these, political powers 
 have been intrusted to a central government, and that 
 other interests and needs must be left to the care of the 
 states, because they vary according to locality. But the 
 people have, in addition, rights, interests, and needs 
 which are both national and local in their nature, and, in 
 regard to these, both the federal and state governments 
 must have duties and powers corresponding to these du- 
 ties. It by no means follows from the delegation of a 
 power to the federal government that the same power 
 does not belong to the states. In every single case, the 
 question must be put whether the delegation of authority 
 to the one involves its withdrawal from the other. If 
 this question cannot be answered affirmatively, one must 
 further inquire what relation prevails in general between 
 the concurrent powers of the national government and 
 the states. When the constitution expressly withdraws 
 something from the states, or gives it exclusively to the 
 national government, of course no difficulty can arise. 
 Even when neither of these contingencies happens, the 
 exclusive power of the national government must be rec- 
 ognized, if the nature of things forbids the subjection of 
 the citizens in regard to the question at issue to two dif-
 
 THE FEDERAL CONSTITUTION. 57 
 
 ferent and independent legislative wills. Again, some 
 powers are delegated to the federal government without 
 any obligation to use them. Thus congress has a right 
 to pass a general bankrupt law, but it need not do so. 
 It has repeatedly done so, and repeatedly repealed the 
 law at short intervals. In such a case, there is nothing 
 to prevent the states from exercising a similar power, as 
 long as the federal government does not exercise it, but 
 as soon as the latter does so, the state laws will ipso facto 
 become of no validity unless the nature of the matter 
 permits two different legislative wills to act upon it at 
 the same time. Here, in distinction from the case last 
 mentioned, the exclusiveness of the federal authority does 
 not depend upon the nature of the right in itself, but it 
 comes into force for the first time by the use of the right. 
 Finally, it often happens, as for example, in regard to the 
 right of taxation, that it is either convenient or even 
 
 O 7 
 
 necessary that the individual should be subject at the 
 same time to different legislative wills. But the fact that 
 this may happen without conflict between these wills 
 does not exclude the possibilit}^ of conflict. If conflict 
 comes, the state laws must yield to the national laws, but 
 they yield to them only so far as they are irreconcilable 
 with them. In principle, the authority of the states suf- 
 fers no wrong, but they cannot exercise it in a particular 
 way because the national government, in regard to the 
 method of exercising the same power, has so far the 
 preference that the accomplishment of its will cannot be 
 interfered with, and of course not actually hindered. If 
 a conflict of rights cannot happen, yet, from the mani- 
 fold nature of these legal possibilities, conflicts over 
 rights may easily arise. And even when the respective 
 spheres of the federal and of the state governments do 
 not intersect each other in this way, yet, of course, a
 
 58 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 question may arise between them under every provision 
 of the constitution, as to whether each of them has 
 acted within its constitutional powers. The frainers of 
 the constitution could not have overlooked this, and 
 hence it is a priori evident that they must have taken 
 care to bring about a legal decision of all such questions. 
 If this were not so. the corner-stone of their whole build- 
 ing would have been wanting. But if this is so, then no 
 ground is left for seeking such remedies as nullification, 
 which can be based upon not a single word in the consti- 
 tution. It is not by the spinning of a web of logic out 
 of unproved and unprovable assertions that we can find 
 what the constitutional law upon this point must be. 
 The constitution shows what the constitutional law is. 
 
 19. CONFLICTS OF AUTHORITY. If the rule that words 
 are to be understood in their natural sense is followed, all 
 difficulties which arise from the doctrine of state sov- 
 ereignty in regard to the decision of unavoidable con- 
 flicts of authority disappear. The constitution is not a 
 compact between the federal government and the states, 
 and inasmuch as they do not stand in the relation of par- 
 ties to each other or of parts of one another, there is no 
 need of a common arbiter superior to them to decide 
 questions between them. The non-existence of such an 
 arbiter, therefore, does not imply that either of the al- 
 leged parties must ultimately decide for itself. The peo- 
 ple of the United States and the population of the states 
 are the same individuals. Federal government and state 
 governments are their creatures, and have the same ob- 
 ject the welfare of the people. The co-ordination of the 
 federal government and of the states, so far as the affairs 
 of the commonwealth are concerned, is an absurdity just 
 as it is an absurdity to claim that the federal govern- 
 ment, the creature of the constitution, is one of the par-
 
 THE FEDERAL CONSTITUTION. 59 
 
 ties to the constitutional compact. It is an " agent," as 
 the champions of the doctrine of state sovereignty, in 
 opposition to their own theory of " parties," call it, but 
 it is not, as they affirm, an agent of the states, but an 
 agent of the people of the United States, and their ex- 
 clusive agency for all their affairs as a commonwealth. 
 It is as little master as it is servant of the states; but, as 
 the general delegate of the master of the common- 
 wealth for the commonwealth, it alone has authority 
 within the sphere allotted to it. The Union is through 
 the constitution a legal state. If the constituent mem- 
 bers of a state had each for itself the power of ultimate 
 decision as to what is law, this would be a negation in 
 principle of the idea of a legal state. The commonwealth 
 has given to the federal government its own sphere, and, 
 therefore, the parts of the commonwealth cannot be 
 judges as to whether it has overstepped its limits. 1 The 
 opinion of the commonwealth can find lawful expression 
 only in the manner provided by the constitution, i. <?., 
 through the constitutional organs of the commonwealth 
 in the discharge of their constitutional functions. 
 
 On the other hand, it has been claimed that the fed- 
 eral government could break through the paper barriers 
 of the constitution at every point and make itself abso- 
 lute master, if it alone must decide upon the constitution- 
 ality of its acts. In theory, this conclusion cannot be 
 questioned, but in practice it is, in substance, an utterly 
 false conclusion. The constitution avoids this danger in a 
 practical way by the organization of that whole apparatus 
 
 1 Story, I., p. 256, in his discussion of this question, recalls the fact 
 that even under the articles of confederation, according to an unani- 
 mous vote of congress, the states were not authorized to put then- 
 own construction upon treaties, because treaties were made not by 
 them but by congress.
 
 GO CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of government which the Americans ordinarily call "a 
 system of checks and balances." The law-making power 
 of congress is tinder the direct control of the conditional 
 veto right of the president. The members of both 
 houses of congress are directly or indirectly elected by 
 the people, and not at long intervals. The people are 
 therefore always able to prevent an unconstitutional mis- 
 use of the law-making power by intrusting it to persons 
 who will, with greater faith, fulfill their first duty of 
 keeping the constitution in view, in their law-making, as 
 the supreme and absolutely binding law of the land. In- 
 tentional and preconcerted usurpations are therefore pos- 
 sible only with the actual sanction of the people from 
 the very beginning. This, however, does not give a suf- 
 ficient protection against systematic oppression of minor- 
 ities, and still less does it ensure to individuals that their 
 constitutional rights shall not be interfered with and 
 trenched upon in good faith through unconstitutional 
 laws or acts of the federal powers. But the franiers of 
 the constitution intended to transform the old Union, not 
 only into a state capable of life, but into such a state 
 founded upon law, and they therefore could not forget 
 to endow it expressly with the majesty of law, and that 
 in such a way that the law should be as fully protected 
 under all circumstances as it can be in the nature of man 
 and of human institutions. 
 
 The third article relates to the "judicial power," i. e., 
 to the judicial majesty of the United States, creates the 
 supreme court of the United States as the highest organ 
 of this power, authorizes congress to create other federal 
 courts, and declares that " the judicial power shall extend 
 to all cases in law and equity arising under this constitu- 
 tion, the laws of the United States, and treaties made, or 
 which shall be made, under their authority," that is, under
 
 THE FEDERAL CONSTITUTION. 01 
 
 that which it afterwards designates as the supreme law 
 of the land. It could not be more clearly stated that 
 nowhere and nohow outside of the federal government 
 are single parts of the commonwealth and of the whole 
 people to decide in the last instance, but that a factor of 
 the federal government, created for this purpose, is to 
 decide, in a way binding upon all, what the law is, 
 according to the constitution and the federal laws, 
 provided the questions in dispute eome in form and 
 substance within the scope of this provision. There 
 is not the slightest support in the constitution for 
 the assertion of the state's-rights school that this can 
 never be the case in disputes about the respective author- 
 ity of the federal government and the sovereign states. 
 This assertion rests only upon a general abstract argument 
 from the alleged nature of the Union as a league of 
 states. 1 On the other hand, it has never been questioned 
 that this clause does not cover all the disputed questions 
 of constitutional law, and that even questions of the 
 relative authority of the federal government and of the 
 states cannot always be brought within it. In the first 
 
 1 Even Madison could bring forward no other argument when he, 
 well-called the father of the constitution, was driven by the stream 
 of events into the front rank of the state's-rights school. He said, 
 in 1800, in the Virginia report, " in relation to the rights of the par- 
 ties to the constitutional compact," that the federal courts could not 
 possibly decide in the last instance, because, "on any other hypothesis, 
 the delegation of judicial power would annul the authority delega- 
 ting it." The Federalist, No. 39, had expressly stated that the su- 
 preme court " in controversies between the two jurisdictions," that 
 is, of the states and of the Union, " is ultimately to decide." In 
 1810, Pennsylvania proposed to create, by an amendment to the con- 
 stitution, another tribunal for the decision of such questions. Nine 
 states, among them six slave states, with Virginia at their head, re- 
 jected this upon the ground that the supreme court was already 
 entrusted with this task. Not one state voted for the amendment.
 
 62 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 place, the controversy must have assumed the form of an 
 actual law-suit in order to come before the courts at all. 
 If it has been brought before them in this form, vet they 
 never sit as courts to decide directly upon the constitu- 
 tionality of laws, or of other acts of the government. 
 They decide constitutional questions in a given case only 
 by stating the reasons for their judgment. Strictly 
 speaking, it is only the case which is decided, and there- 
 fore their judgment is absolutely binding on all individ- 
 uals and on all political powers only so far as this case is 
 concerned. But since it is fair to assume that in all anal- 
 ogous cases the same decision would be given, the reasons 
 for a judgment upon the constitutionality of the law 
 usually amount to an actual decision of the question of 
 constitutionality. But that these questions cannot be 
 decided, in a proper sense of the word, is clear from the 
 fact that the supreme court can change its opinion, and has 
 changed it, in constitutional questions of the highest sig- 
 nificance after the lapse of a comparatively short time. 1 
 It sometimes only needs the introduction of a single 
 
 1 Thus, for example, in the so-called legal tender cases in 1870, by 
 five to three votes, the court denied congress the power to make the 
 paper money of the United States legal tender for dehts contracted 
 previously. In the following year, this decision was reversed. The 
 reversal was brought about by adding one judge to the supreme 
 court, and by notifying the president that the senate would make its 
 approval of the nomination of the new judge, as well as of one to fill 
 a vacancy which had meanwhile occurred, dependent upon tho 
 position of the candidates on this question. President Grant re- 
 sponded to the wish of his party and the previous majority became 
 a minority. See the article entitled "The Session," in The North 
 American Revieiv, CXI., pp. 48, 49. The new decision based the 
 power upon the war power. Now, in 1884, the authority has been 
 again recognized, but inasmuch as, in this case, an appeal to the 
 war power was not possible, it has been deduced from the right to 
 borrow money. The majority of 1871 declared that this had nothing 
 to do with the matter, and therefore based it upon the war power.
 
 THE FEDERAL CONSTITUTION. 63 
 
 new judge to transform the minority into a majority. 
 Moreover, the supreme court is not superior, but equal, to 
 the two other factors of the federal government. Within 
 the sphere of their authority, the latter are not only 
 authorized but directed to judge with entire independence 
 of the constitutionality of their acts. While the supreme 
 court has always given its opinion in the last instance in 
 regard to disputed questions of constitutional law which 
 belonged to its forum, and were brought before it in a 
 constitutional way, 1 it has also repeatedly declared that it 
 was neither directed nor permitted to concern itself with 
 the political duties of the president, and especially was 
 not authorized to interfere with them upon the assump- 
 tion that he was about to carry out an unconstitutional 
 law. 2 And it is even more certain that it does not belong 
 to the supreme court to make rules for the exercise by 
 congress of its legislative powers. The task of the court 
 is to say what i-s law under the constitution, the federal 
 laws and treaties. The task of congress, on the other 
 hand, is to decide what shall be law under the constitu- 
 tion. 3 Thus, for example, not the court, but congress 
 
 !See Martin vs. Hunter, Wheaton, I., 304; McCulloch vs. Mary- 
 land, Ibid., IV., 316; CoJiens vs. Virginia, Ibid., VI., 264; Gibbons 
 vs. Ogden, Ibid., IX., 210; Bank of Hamilton vs. Dudley, Peters, II., 
 524; Chisholm vs. Georgia, Dallas, II., 419; Ware vs. Hilton, Ibid., 
 III., 199. 
 
 2 See Mississippi vs. Johnson, Wallace, IV., 475, and Georgia vs. 
 Stanton, Ibid., VI., 51. 
 
 3 That the courts actually take part in the formation of law can- 
 not be questioned. They cannot, however, on this account, lay 
 claim, as Pomeroy (pp. 66, 67) would have them do, to a share of the 
 law-making power. The constitution expressly entrusts congress 
 with "all "the law-making powers delegated in it and by it, and 
 there can be no constitutional law-making power which is not created 
 by the constitution. The judges are never authorized, where they 
 find a gap in constitutional law, in customary law, or in statute law,
 
 C4 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 alone, must decide whether the means chosen by congress 
 for the exercise of a constitutional power are " necessary 
 and proper." The court has simply to decide in a given 
 case whether the power which is claimed is constitutional, 
 and whether the choice of the means selected is not denied 
 by the constitution. In a word, the domain of the court 
 is not politics but law, and this must control it in decid- 
 ing questions of law. The other federal powers must, as 
 Lincoln said in his inaugural address, give great moral 
 weight to the court's decisions upon the constitutionality 
 of laws and other governmental acts, so far as these decis- 
 ions are not dicta. But except in the particular case at 
 issue, the decisions have no political control of the co- 
 ordinate powers. If this were granted, the people would 
 have abdicated and have placed their fate in the hands of 
 the court. 
 
 This has two consequences of far-reaching significance. 
 In the first place, sufficient time may elapse before dis- 
 puted questions of constitutional law come before the 
 supreme court in such a way that it can deliver a judg- 
 ment upon them, so that, meanwhile, the action of the 
 other factors of the national government may create 
 such a state of facts as to make it, from a political, and 
 often even from a legal, standpoint, a very serious mat- 
 ter to declare the laws or actions in question to be uncon- 
 stitutional. The supreme court would, in such a case, 
 come to such a conclusion with the more difficulty, because 
 
 to decide according to their own freewill, i. e., to decide, as law- 
 makers, what the law shall be. Wherever, in such a case, they do 
 by their judgments aid in the formation of law, it happens only in 
 this way : that they follow to their logical conclusion, and apply to 
 the given case, provisions of constitutional, customary or statute law. 
 The formation of law is therefore, in such a case, not to be considered 
 as the creation of a new law. The law is already in existence, but it 
 first assumes fixed form upon its application to a concrete case.
 
 THE FEDERAL COXSTITUTIOF. 65 
 
 from the beginning it has made it a maxim that no law 
 should be declared unconstitutional simply because there 
 were arguments of a certain weight against its consti- 
 tutionality, i. e., that the presumption should always be 
 for instead of against the constitutionality of the acts of 
 the other factors of the government. 1 But besides this, 
 there are other disputed constitutional questions which, in 
 their nature, can never be brought before the supreme 
 court or decided by it. Moreover, violations of the con- 
 stitution may happen, and those who are injured by 
 
 1 See Cooley, Constitutional Limitations, pp. 183-185, where the 
 judicial decisions setting forth this principle are collected. The sen- 
 tence quoted from a decision by Justice Washington is especially 
 noteworthy. In the Sinking Fund Cases (99 U. S., Otto, IX., 7-18), it 
 is said: "This declaration should never be made except in a clear 
 case. Every possible presumption is in favor of the validity of a 
 statute, and this continues until the contrary is shown beyond a 
 rational doubt. One branch of the government cannot encroach on 
 the domain of another without danger. The safety of our institu- 
 tions depends in no small degree on a strict observance of this salu- 
 tary rule." James B. Thayer thinks that the whole emphasis should 
 be laid upon the word " rational," and goes on to say: " But in de- 
 termining the constitutionality of legislative action, a court is called 
 upon to consider what, under the constitution, is the admissible view, 
 rather than what is the right view of legislative power." The Nation, 
 April 10, 1884. Upon the question of the unconstitutionality of laws, 
 the following statements are of great significance: "The same stat- 
 ute may be in part constitutional, and in part unconstitutional, and 
 if the parts are wholly independent of each other, that which is con- 
 stitutional may stand, while that which is unconstitutional will be 
 rejected. But if they are so mutually connected with, and depend- 
 ent upon, each other as conditions, considerations, or compensations 
 for each other, as to warrant a belief that the legislature intended 
 them as a whole, and that if all could not be carried into effect, the 
 legislature would not pass the residue independently, and some parts 
 are unconstitutional, all of the provisions which are thus dependent, 
 conditional or connected, must fall with them." Hammond, I., 22, 
 63, where the judicial decisions upon this question are cited. 
 5
 
 66 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 them cannot, whether states or individuals, obtain justice 
 through the courts. 1 When the wrongs suffered are po- 
 litical in their origin, the remedies must be sought in a 
 political way. Of course, they can frequently be ob- 
 tained only indirectly, and can simply prevent further 
 injustice. They cannot give satisfaction for the wrong 
 already done. Yet it does not by any means follow from 
 this that the sovereign states are authorized " to inter- 
 pose," as the state's-rights school phrases it. In these 
 cases the different factors of the federal government 
 must themselves decide ultimately upon the extent of 
 their constitutional powers. If each state had the right, 
 so far as its interests were in question, to decide on such 
 a point, the federal government would cease to be a gov- 
 ernment, and anarchy would become the supreme law of 
 the Union. And so the argument that the president, and 
 especially congress, if withdrawn from judicial control, 
 can bend the constitution to their usurping wills, is of no 
 avail. It is a fundamental principle, not only of politics, 
 but of constitutional law, that the possibility of the mis- 
 use of a power is not a proof of the non-existence of the 
 power. 
 
 1 So far as the supreme court is concerned, it is a significant fact 
 that it can be appealed to only in certain cases specified in the consti- 
 tution, but congress is to decide in which of these cases there shall 
 be a right to appeal. In one case, in which the question of the con- 
 stitutionality of the reconstruction laws could be raised only by an 
 appeal, congress took away from the supreme court the right to take 
 cognizance of the case, and this, too, after the appeal had already 
 been taken. The reason for this was, of course, that congress thought 
 it undesirable to have a decision of the supreme court. See McCar- 
 dle's Case, Wallace, VII., 506.
 
 THE FEDERAL CONSTITUTION. 67 
 
 ORGANIZATION OF THE FEDERAL GOVERNMENT. 
 
 20. THE THREE DEPARTMENTS. The articles of con- 
 federation preserved the actual condition of affairs 
 brought about by the Revolution, and entrusted the en- 
 tire business of the federation to one single organ. On 
 the other hand, the constitution established three depart- 
 ments. These together constitute the government. In 
 spoken and written discussions of this change, Montes- 
 quieu's doctrine of the division of powers was mainly 
 relied upon. But the type presented by the English con- 
 stitution had already had much greater influence. Yet 
 the lessons derived from the country's own sad experience 
 were decisive. And therefore the authors of the consti- 
 tution did not seek to copy the English pattern exactly. 
 Much less did they pursue the principle they recognized 
 with stubborn doctrinairism and short-sightedness to its 
 logical consequences. The three governmental factors 
 were congress, the president, and the supreme court. 
 They were endowed with the legislative, executive and 
 judicial powers. But while their respective jurisdictions 
 are sufficiently defined as between themselves, these juris- 
 dictions by no means completely coincide with these 
 three forms of political action. They intersect each other 
 in manifold ways, and often the authoritative will works 
 its ends only by their co-operation. The three depart- 
 ments stand side b^v side, but are not, as is frequently as- 
 serted, independent of one another. This is so little the 
 case that Pomeroy (p. 89) rightly says : " Each is so com- 
 pletely dependent on the others that without them it 
 could do practically nothing." That this was so arranged 
 with full intention appears from the Federalist (No. 48) : 
 "Unless these departments be so far connected and 
 blended as to give to each a constitutional control over
 
 OS CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 the others, the degree of separation which the maxim re- 
 quires as essential to a free government can never, in prac- 
 tice, be duly maintained." In the organization of the 
 government each department was given a constitutional 
 control of the other two. Hence there can be no superi- 
 ority or inferiority among them. It is, moreover, a funda- 
 mental principle of the constitution that the three factors 
 of government are in complete co-ordination, co-ordi- 
 nate, but not of equal power. In this respect the consti- 
 tution put them on an entirely different footing, and the 
 actual development of circumstances has very consider- 
 ably increased this original difference. For that differ- 
 ence has its only source in the nature of things, i. e., in 
 the nature of the functions with which they are entrusted. 
 In the political contests of the past sometimes im- 
 pliedly, sometimes expressly congress has repeatedly 
 claimed, and at least once the president l has claimed, a 
 certain superior authority. Both rested the claim upon 
 being in a higher degree than the other the representa- 
 tive of the " people," the source of all power. Of such & 
 difference the constitution knows naught. Even though 
 
 O o 
 
 it existed, the co-ordination of the governmental factors 
 would be absolutely untouched, as each of them indubita- 
 bly possesses only the powers delegated to it by the con- 
 stitution. Apart from this, moreover, the claim would 
 be untenable, because the condition precedent of the 
 argument in support of the claim does not exist. The 
 people of the United States, as a unified, organized body, 
 never appear in the arena of political action. Even where 
 the people act most directly, they always do so through 
 their state organizations. None of the factors of gov- 
 ernment is, therefore, called into life in such a way as to 
 justify it in designating itself as a direct representative 
 1 Andrew Jackson.
 
 THE FEDERAL CONSTITUTION. 09 
 
 of the. people. There could be no claim of an order of 
 rank among them, even if it were permitted to deduce 
 the constitutional law of the land from " the democratic 
 principle." In spite of the great roh which appeals to 
 " the democratic principle " have played in the constitu- 
 tional history of the United States, there is not the least 
 doubt of its absolute inapplicability, for these appeals 
 substitute for the constitution this principle, or what is 
 declared to be a consequence thereof. The sovereign 
 people have made unto themselves the constitution as 
 their supreme law. They have therein merely assigned 
 a fixed place to each of the three factors of government, 
 without regarding it as necessary either to the public 
 dignity or interests to admeasure its respective authority 
 in proportion to the participation of the people the 
 voters in its organization. Had that been the inten- 
 tion of the authors of the constitution, they would not. 
 on the one hand, have given that factor (the supreme 
 court), to which its final interpretation as a rule belongs, 
 the greatest possible stability, and, on the other, have 
 withheld from the " people " every immediate influence 
 upon the formation of this factor. 
 
 21. THE TERM OF OFFICE. Just as the provision that 
 the members of the supreme court shall be appointed by 
 the president with the consent of the senate for life or 
 during good behavior disregards " the democratic prin- 
 ciple," so all the other provisions relating to the terms of 
 office of the other possessors of the powers of government 
 depend solely upon the demands of public policy. The 
 president is elected for four years, and enters upon the 
 duties of his office on the 4th day of March. Relative 
 to eligibility for re-election, the constitution says nothing. 
 A single re-election has frequently occurred, but a re- 
 elected president has never even been renominated bv
 
 70 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 his party, much less actually re-elected, for a third term. 1 
 The suggestion often made, to abolish the right of re- 
 election, has thus far found so little approbation among 
 the people that it has been somewhat vigorously agitated 
 only during a few presidential campaigns. The vice- 
 president is elected simultaneously with the president and 
 for the same period of time. Congress consists of the 
 house of representatives and of the senate. The mem- 
 bers of the house of representatives are elected for two 
 years. Their terms all end on every second 4th of March. 
 Only in cases of vacancies does the governor of the state 
 concerned order a special election to fill the vacancy (art. 
 L, sec. 2, 4). 2 This term of office is absolutely manda- 
 tory for the whole house. A dissolution of congress is 
 not recognized by the constitution. The term of the 
 house of representatives constitutes a legislative period 
 and is the basis of political chronology. The count is 
 by " congresses," and each new house of representatives 
 brings a new "congress" into existence. The presiden- 
 tial term of office covers two legislative periods. The 
 senators are elected by the different state legislatures for 
 the term of six years. If a vacancy occurs, the governor 
 of the state concerned is authorized to fill it provisionally 
 by appointment, if the legislature is not in session at the 
 time (art. L, sec. 3, 2). 3 After the legislature is again 
 in session, a new election of a senator takes place, not for 
 a term of six years, but only for the unexpired part of 
 the term. This is because the senate is not subject to an 
 
 1 A portion of the republican party made very energetic but ulti- 
 mately fruitless efforts in 1880 to break through this tradition in favor 
 of General Grant. 
 
 2 Vacancies occur through death, resignation, expulsion, and accept- 
 ance of an office incompatible with that of congressman. 
 
 3 The governor is not authorized to make the appointment if the 
 vacancy has not yet actually occurred, but is only prospective.
 
 THE FEDERAL CONSTITUTION. 71 
 
 integral or total renewal, but yet at the expiration of 
 each legislative period, one-third of the senators retire. 
 On this account (according to art. I., sec. 3, 2), at the 
 foundation of the government, the senators were dis- 
 tributed into three classes by lot ; but care was taken 
 that both senators from one state did not fall into the 
 same class. When a new state is admitted into the Union, 
 its senators are likewise placed by lot in different classes. 
 Thus the senatorial term of office, next to that of the 
 federal judges, is not only the longest, but the senate 
 itself is likewise, though not in the manner of the supreme 
 court, a permanent body with perpetual succession. The 
 government is on the one hand assured, by this systematic 
 diversity of official terms, of the continual influx of new 
 blood, which keeps it in immediate and active sympathy 
 with the existing wishes of the people. On the other 
 hand, the danger of the government's reflecting only the 
 momentary popular humor is thus also obviated. 
 
 22. MODE OF ELECTION. THE ACTIVE RIGHT OF SUF- 
 FRAGE. A like amalgamation of a self-conscious demo- 
 cratic spirit and conservative forecast characterizes every 
 provision concerning the formation of those two depart- 
 ments which, in the more limited sense of the word, are 
 designated as the government. 1 
 
 The members of the house of representatives must be 
 elected " by the people of the several states " (art. I., sec. 
 2, 1). Farrar (p. 150) thinks that by " people " is meant 
 only citizens, and, in fact, only citizens of the United 
 
 1 What is called the government in Europe is styled the administra- 
 tion in the United States. The difference of speech is well founded 
 in fact. In these, as in all like cases where the ideas do not com- 
 pletely coincide, for the purpose of greater accuracy I shall always 
 adhere to the American terminology, after the expression has once 
 been explained.
 
 <2 CONSTITUTIONAL LAW OF TUB UNITED STATES. 
 
 States. This assertion is neither justified by the most 
 famous commentators on the constitution, nor is it in ac- 
 cordance with practice. The provision is simply that 
 the representatives shall receive their authority by a di- 
 rect election, for further on it is set forth : " The elect- 
 ors in each state shall have the qualifications requisite 
 for electors of the most numerous branch of the state 
 legislature." The active right of voting for congress- 
 men, it thus appears, is not established on the same basis 
 for all of the United States, either by the constitution or 
 laws of the Union. In each state it may be made de- 
 pendent upon different conditions. Formerly the great- 
 est diversities prevailed in this respect, and even no\v 
 there is no complete uniformity. Yet from a constitu- 
 tional standpoint it is not correct merely to state that 
 the constitution left it entirely to the judgment of the 
 states to determine the qualifications of the voter at elec- 
 tions to the house of representatives. It would be more 
 correct to say that the states have never had any power 
 whatever in the matter. 1 The states have only to decide 
 who shall possess the franchise at elections to the most 
 numerous branch of the state legislature. The constitu- 
 tion makes the possessors of this franchise the electors 
 for the house of representatives. It may seem at first 
 sight that this is only a logical distinction, without any 
 practical difference. But this is not so. The states, in 
 many instances, in framing their election laws, paid no 
 attention to the elections for the house of representatives. 
 
 1 Congress also has the right to protect voters in the exercise of the 
 franchise; to punish election officials for unlawful practices; to di- 
 rect the registration of voters, etc. How far it may exercise these 
 rights is within its judgment, but so far as it does exercise them the 
 conflicting provisions of the state laws will he of no avail. Ex parte 
 Siebold, 100 U. S., 371; Ex parte Clarke, 100 U. S. (Otto, X.), 299.
 
 THE FEDERAL CONSTITUTION. 73 
 
 They considered simply their own public affairs. This is 
 why, for instance, many states have given the franchise 
 to non-naturalized foreigners, who thereby were endowed 
 under the constitution with the franchise at elections to 
 the house of representatives. We have, then, this curious 
 spectacle: that, in the democratic republic, male citizens 
 of full age, of good character, and of sound mind, cannot 
 vote for members of the people's house of the Union, 
 while certain persons who are not citizens can do so. 
 Having or not having the franchise depends, in the first 
 place, upon the domicile. A change in that may give or 
 may forfeit the franchise. In the United States, as such, 
 universal suffrage (so called) does not exist. Moreover, 
 citizenship is not a condition precedent of the fran- 
 chise. 1 
 
 The amendments adopted after the civil war have 
 brought about a much greater uniformity with regard to 
 the franchise, but the anomalies just noted have not been 
 set aside. The second section of the fourteenth amend- 
 ment declares that the states shall be represented in the 
 house of representatives in proportion to the total number 
 of their inhabitants, exclusive of the untaxed Indians. 2 
 
 1 See Scott vs. Sanford (better known as the Dred-Scott decision), 
 Howard, XIX., 404-414. 
 
 2 Art. I., sec. 2, 3, provides that each five slaves (but this word 
 was avoided) should be counted, in regard to representation, as three 
 persons. The further declaration of this paragraph, that "direct 
 taxes '' should also be levied in proportion to the population of the 
 states, is not touched by the fourteenth amendment, and is therefore 
 still in full force. What is meant by " direct taxes " has evoked very 
 divergent views, and there nas been no authoritative decision of the 
 question. I must therefore rely upon the simple statement of the 
 clause, and can do this the more readily since before the civil war 
 direct taxes were levied only thrice, in 1798, 1813 and 1815. The 
 nature of certain taxes levied during the war is a subject of contro- 
 versy. Since its termination the controversy has again assumed a 
 
 7
 
 7-i CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 " 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 judi- 
 cial officers of a 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 par- 
 ticipation in rebellion or other crime, the basis of repre- 
 sentation therein shall be reduced in the proportion 
 which the number of such male citizens shall bear to the 
 whole number of male citizens twenty-one years of age 
 in such state.'' So far as this provision is concerned the 
 rio-ht of the states to regulate the franchise according to 
 
 O o o 
 
 their own opinions is not in the least abridged ; but it puts 
 a strong pressure on the states to introduce universal suf- 
 frage. Every considerable limitation of the right of suf- 
 frage henceforth would bring about a sensible diminution 
 of a state's representation in the house of representatives. 
 Pomeroy (p. 135) justly observes that this provision, di- 
 rected mainly against the former slave states and in- 
 tended to force them to grant full political equality to the 
 freedmen, was the surrender of a fundamental principle 
 of the constitution. It is not limited to the exercise of 
 an influence upon the elections to the house of represent- 
 atives. It subjects the states to the strongest pressure 
 in framing their laws concerning the right of suffrage in 
 state elections. Hitherto, on the contrary, the constitu- 
 tion had, as a matter of fundamental principle, left with 
 
 purely academic character, and the economic relations of the Union 
 suggest that it will retain this character for generations to come. 
 According to the decision of the supreme court in Springer vs. The 
 United States (102 U. S., 586), the income tax is not a "direct tax" 
 within the meaning of the constitution ; only poll taxes and taxes on 
 real estate are to be regarded as " direct."
 
 THE FEDERAL CONSTITUTION. 
 
 75 
 
 the states the absolute right of self-government in all 
 affairs peculiarly their own. 
 
 In one provision, the fifteenth amendment went far in 
 advance of the fourteenth. It reads: " The right of citi- 
 zens 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." In 
 opposition to a widespread opinion, the courts have de- 
 cided, in every case brought before them, that nobody 
 obtained the right to vote by reason of this amendment. 
 The United States, as well as the several states, can still 
 withhold it forever from every colored man and former 
 slave, but they cannot do so on account of his race, color 
 or previous condition of servitude. The states' right of 
 self-government relative to the franchise has now un- 
 doubtedly suffered a legal limitation, not because they 
 have been obliged to grant the suffrage to certain per- 
 sons, but because they are forbidden to refuse it on cer- 
 tain grounds. 
 
 The number of members of the house of representatives 
 is not fixed by the constitution. It merely declares that 
 every tenth year an enumeration of the people shall be 
 made, that the number of representatives shall not exceed 
 one for every 30,000 inhabitants, and that each state 
 shall have at least one representative (art. L, sec. 2, 3). 
 The basis of representation has been repeatedly changed 
 by law in accordance with the results of the decennial 
 census. After the first census it was fixed at 33,000; 
 now it is 154,325 ; and the number of members has grown 
 from 65 and 105 to 325, to which a delegate from each of 
 the eight territories is to be added. 1 
 
 1 There were 65 members according to the temporary provisions of 
 the constitution, and 105 after March 4, 1793, upon the basis of the 
 first census. Nevada had, according to the census of 1880, only a
 
 i(> CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 Just as with reference to the membership of the house 
 of representatives, so also in regard to the other regula- 
 tions of elections and that too for both houses the 
 constitution has guarded the possibility of letting expe- 
 rience shape matters in fullest accord with the changing 
 demands of every new situation. Art. L. sec. 4, 1, pro- 
 vides: " The times, places and manner of holding elec- 
 tions for senators and representatives shall be prescribed 
 in each state by the legislature thereof, but, the congress 
 may at any time by law make or alter such regulations, 
 except as to the places of choosing senators." This ex- 
 ception is evidently founded on the fact that the senators 
 are elected by the legislatures, and it would not be in har- 
 mony with the federal character of the Union to grant to 
 congress the right of determining the places for the meeting 
 of the legislatures of the several states. For a long time con- 
 gress made no use of the powers granted it by this clause. 
 In 1842, for the first time, it declared that elections for the 
 house of representatives should take place by districts. 1 
 But now, on the contrary, the constant and actual consoli- 
 dation of the Union has found even in this respect a cor- 
 responding legal expression. An act of February 2, 1872, 
 provides that from and after the year 1876 in every second 
 year the election for members of the house of representa- 
 tives shall take place on the Tuesday succeeding the first 
 Monday of November in fixed geographical districts. 2 
 
 population of 62,266, and would thus have probably had no represent- 
 ative, if the constitution had not provided in this way for such a 
 case. So, too, the population of Delaware fell several hundreds be- 
 low the established standard-number of 154,325. At this time four 
 states have each but one representative. 
 
 1 For a discussion of the disregard of this law on the part of several 
 states and the .approval of their action by the house of representa- 
 tives, see my Constitutional History. II., 505 et seq. 
 
 'Statutes at Large, XVII., 28, sees. 2, 3. The fifth section of this 
 law declares that in future no state shall be admitted into the Union
 
 THE FEDERAL CONSTITUTION. 77 
 
 The votes cast must be on either written or printed bal- 
 lots. 1 The elections of senators had already been, by an 
 act of July 25, 1866, very precisely arranged and regu- 
 lated. The election must take place on the second Tues- 
 day after the assembling and organization of the legis- 
 lature. In each house each member declares his vote 
 viva voce. At noon of the day following both houses 
 meet in joint convention, and if in each the same person 
 has obtained a majority of all the votes cast, the election 
 is completed. If this is not the case, or if one of the two 
 houses has not entered upon the election in the manner 
 prescribed, then the joint convention proceeds to viva- 
 voce voting until a majority of the voters have united 
 upon one person. The election is legal only when a ma- 
 jority of all the members elect are present and vote. For 
 elections necessary on account of a vacancy substantially 
 the same provisions obtain. The regular elections are held 
 by the last legislature elected before the expiration of the 
 term of office of a senator. 
 
 " without having the necessary population to entitle it to at least one 
 representative according to the ratio of representation fixed by this 
 bill." After the census of 1870, in accordance with the provisions of 
 this act, there was one representative for every 131,425 inhabitants. 
 As it is not intended to compel the states to headlong changes of 
 their election districts, and the number thereof naturally often fails 
 to agree with the number of representatives to which, on the basis 
 of a new census, the states are entitled, they are permitted to elect 
 the additional quota of representatives from the state at large, con- 
 gressmen at large. 
 
 1 Act of February 28, 1871, sec. 19; Statutes at Large. XVII., 440. 
 Formerly the states even in this respect could act as they deemed 
 proper. It is left for them to determine whether an absolute major- 
 ity is necessary to elect or a plurality shall suffice. In opposition to 
 the law prevailing in England, the New England colonies adopted 
 wholly or in part the principle of the absolute majority, but in the 
 course of time the principle of plurality wins more and more the pre- 
 dominance in the United States, if indeed the former has not yet been 
 completely displaced.
 
 b CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 23. THE RIGHT OF INSTRUCTION. Xo constitutional 
 relation of any kind whatsoever exists between the sen- 
 ators and legislatures, after a valid and complete election. 
 Legislatures have, indeed, very frequently, by passing 
 resolutions, "instructed'' the senators of their state 
 and that, too, without regard to whether they were elected 
 by them or former legislatures as to what attitude they 
 should take upon certain questions. The senators 
 especially in early tunes those of the democratic party, 
 as a rule frequently acknowledged the right of ''in- 
 struction." There is not, however, a particle of doubt 
 that the claim of such a right, as has already been said, 
 is not only extra-constitutional, but directly unconstitu- 
 tional. The constitution does not once recognize the 
 constituent's right of instruction. But the legislatures 
 are as little the constituents of the senators as the presi- 
 dential electors are the constituents of the president. 
 Like the latter, they are merely entrusted with the elec- 
 tion. If legislatures possessed the right of instruction, 
 they would necessarily possess the power to enforce 
 obedience. They would, therefore, have to be able to 
 unseat a disobedient senator. But the constitution fixes 
 the term at six years, and the legislatures cannot lengthen 
 or shorten it by even one day. Since, moreover, in all the 
 states, one house of the legislature is renewed at least every 
 two years, the balance of parties during the senatorial 
 term of office may be overthrown at least once, and quite 
 likely twice. But even the most extreme state's-rights 
 advocate never ventured the assertion that such an event 
 imposed on a senator a moral obligation to resign. Nev- 
 ertheless, if this happens, it is not simply on one certain 
 question that he is out of accord with the will of the leg- 
 islature; on all party questions he opposes it. A right of 
 instruction that presupposes an identical partisan position 
 is a manifest absurdity. And yet it must depend upon
 
 THE FEDERAL CONSTITUTION. 79 
 
 this presupposition, for the two senators of a state are 
 elected by two different legislatures, and it is therefore 
 a matter of common occurrence that they should belong 
 to two different parties. Despite this, they are absolutely 
 equal representatives of their state. The constitution 
 (art. I., sec. 3, 1) provides : " Each senator shall have 
 one vote." It is therefore proper only in a very limited 
 sense to call the senate the congressional house of states. 
 The votes of the states are not cast there. Each senator 
 votes according to his own convictions, and on his own 
 personal responsibility. A legislature cannot assert that 
 the state is practically deprived of its proper weight in the 
 senate because the vote of a senator elected by a former 
 legislature neutralizes the vote of one of an opposite 
 party elected by a more recent legislature. The state 
 has no right of complaint, moreover, even when as 
 may easily be the case both senators belong to a party 
 which, at the moment, is in a minority in the state. 
 
 There is no difference in the political existence of the 
 house of representatives and of the senate, from the 
 standpoint of constitutional law. Their functions are not 
 quite the same; the mode of election, the voters, and the 
 tenure of office are different; and in the senate the states 
 as such have equal representation, whereas in the house 
 of representatives representation is in proportion to the 
 population. But the constitutional nature of the tenure 
 of office is the same for both houses of congress. The 
 mistake of the state's-rights conception of this question 
 is, that it treats the legislatures and the states as identical. 
 But according to the constitution, the latter, not the 
 former, are represented in the senate. 1 
 
 1 It has happened that senators have resigned because obedience to 
 instructions was irreconcilable with their consciences, and they rec- 
 ognized the right of the legislature to demand the representation of 
 its views in the senate.
 
 80 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 The conditions upon which the passive right of suffrage 
 (the right to be voted for) depends are in substance the 
 same for both houses of congress. For the senate they are 
 simply somewhat more severe. To be eligible a person 
 must be at least twenty-five (thirty) years of age, have 
 been a citizen of the United States for at least seven (nine) 
 years, and be an inhabitant of the state at the time of the 
 election. 1 The third section of the fourteenth amendment 
 moreover provides : " Xo person shall be a senator or rep- 
 resentative in congress, or 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 as a mem bar 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 disa- 
 bility." During the so-called period of reconstruction, 
 these provisions were of great moment. Since its close, 
 they are of importance only in so far as they tend to pre- 
 vent the revival of doctrines which, in their ultimate con- 
 sequences, led to the absurdity of constitutional rebellion. 
 
 21. CONGRESS. As the elections to the house of rep- 
 resentatives and to the senate in accordance with the 
 provisions of the constitution and the laws proceed with- 
 out the co-operation of the federal executive power, so in 
 the regular course of affairs there is no need of its inter- 
 vention to call the representatives and senators to assem- 
 
 1 The tenure of office does not cease by reason of removal of the 
 elected person to another state after his election. Diplomatic offi- 
 cials of the Union, even when at their posts in foreign countries, are 
 recognized as "inhabitants" of their respective states and are eligi- 
 ble.
 
 THE FEDERAL CONSTITUTION. 81 
 
 ble together in congress. Art. L, sec. 4, 2, provides : 
 " The congress shall assemble at least once in every year, 
 and such meeting shall be on the first Monday in Decem- 
 ber, unless they shall by law appoint a different day." l 
 The president can, however (art. II., sec. 3, 2), "on ex- 
 traordinary occasions convene both houses or either of 
 them." 2 
 
 In congress itself different views have been maintained 
 with great vigor on the question as to whether the con- 
 gress comes into life of and by itself by virtue of the 
 meeting of the members of both houses, or whether the 
 congress first exists when both houses have completed 
 their organization. 3 The question, at bottom, however, 
 has only an academic interest, as the co-operative action 
 of both houses as a congress unquestionably is possible 
 only after their formal organization is effected. Touching 
 the senate, howev 7 er, such an organization can be spoken of 
 only in a very limited sense, since " the vice-president of 
 the United States shall be president of the senate " (art. 
 I., sec. 3, 4). " The senate shall choose their other officers 
 and also a president pro tempore in [case of] the absence 
 of the vice-president, or when he shall exercise the office 
 
 1 By virtue of the authority granted by the las't clause, this pro- 
 vision was enlarged by the act of January 22, 1867, to the extent that 
 congress should also meet upon the day its lawful existence begins, 
 to wit, on March 4 of the odd-numbered years, and that every con- 
 gress should thus have three regular sessions. This law, however, 
 remained in force only for the three legislative periods of the 40th, 
 41st and 42d congresses. 
 
 2 The clause proceeds : " And in case of disagreement between them, 
 with respect to the time of adjournment, he may adjourn them to 
 such time as he shall think proper." This power has never yet been 
 used. It is, however, to be observed, that this right of adjournment 
 by the president accrues only in the one particular case. 
 
 3 See my Constitutional History, V., 212, 218. 
 
 6
 
 S3 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of president of the United States." ' The house of rep- 
 resentatives, on the other hand, in addition to its other 
 officers, has to elect its permanent chairman, who bears 
 the title of speaker (art. I, sec. 2, 5). As he has to ap- 
 point the standing committees which, so far as the house 
 is concerned, as a rule practically shape all legislation, the 
 election of the speaker is an act of pre-eminent political 
 importance. In times of great political excitement, when 
 neither party has an absolute majority, the organization 
 of the house is apt to become a very serious question. 
 The other factors of government have no power to en- 
 force it.- In other words, the majority of the members- 
 elect have the power to deprive the Union for the legisla- 
 tive two-year period of its law-making functions by 
 preventing the organization of the house. On the other 
 hand, neither of the two houses by itjylf can close a ses- 
 sion after congress has once met either by virtue of the 
 constitutional provisions or upon the call of the president. 
 " 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" (art. L, sec. 5, 4). 
 
 25. THE EXECUTIVE POWER. " The executive power 
 shall be vested in a president of the United States of 
 America " (art. II., sec. 1, 1). The vice-president has no 
 share in the executive power. His sole task, as long as 
 the president acts as such, is that of presiding over the 
 senate. Even though the executive authority is far re- 
 moved from independence of the other factors of govern- 
 
 1 Shortly before the close of each session, the vice-president gives 
 the senate an opportunity to choose a president pro tempore, so that 
 it shall not be without a presiding officer, if before the next session 
 of congress the vice-president die or assume the office of president. 
 
 2 See the sketch of the two-months campaign over the speakership 
 in the 34th congress in my Constitutional History, V., 203-219. Tin- 
 house of representatives has no permanent vice-chairman.
 
 THE FEDERAL CONSTITUTION. 83 
 
 ment, it is nevertheless singularly simple. The president 
 is dependent in manifold ways upon the other factors, 
 but he alone is the sole possessor of what the constitu- 
 tion describes as the executive power. The law may con- 
 fer upon the so-called secretaries or members of the 
 " cabinet," as well as upon other executive officers, inde- 
 pendent functions, but the constitution recognizes no rep- 
 resentative of the president, no one upon whom either 
 the law or the free will of the president can temporarily 
 confer even the slightest of the privileges and duties 
 which the constitution grants to and imposes upon the 
 bearer of the executive power. "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 elected." 
 Art. II., sec. 1, 5. The constitution thus creates in the 
 person of the vice-president an official who in a given case 
 is to take the place of the president. It commits to con- 
 gress the task of providing for all cases in which he can- 
 not discharge the duties of the office. But in every case 
 the rights and duties of the place pass fully and wholly 
 over to the designated person, either until the expiration 
 of the term of office or temporarily. Any separation of 
 these rights and duties, or of the responsibility imposed 
 by them, is under all circumstances absolutely excluded. 1 
 
 1 By virtue of the authority conferred in the second clause of the 
 paragraph cited above, congress has already provided, by the act of 
 March 1, 1792, for the case of the inability of both the president and 
 vice-president to act. After the vice-president, the president pro
 
 84: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 As the president and vice-president are elected at and 
 for the same time, the right to be chosen to both oitices is 
 dependent upon the same conditions (12th amendment). 
 To be eligible, it is necessary to be a native-born citizen of 
 the United States, 2 to be at least thirty -five years of age, 
 
 tempore of the senate, and after him the speaker of the house, takes 
 the office. Whether these, like the vice-president, are to exercise the 
 office of president until the expiration of the presidential term de- 
 pends upon how near that is. As soon as the dual vacancy occurs, 
 the secretary of state must notify the governor of every state. If 
 this notification is issued less than two months before the first 
 Wednesday in December, and the presidential term ends on the third 
 day of March following, then the president pro tempore of the senate 
 (or the speaker) performs the duties of the executive authority until 
 the inauguration of the new president. If this be not the case, then 
 the notification directs the choice or the appointment of electors. 
 This is to take place thirty-four days before the first Wednesday in 
 December, if at least two months intervene between this date and 
 the proclamation. Otherwise it is to take place thirty-four days 
 prior to the first Wednesday in December of the following year. The 
 election by the electors is to take place on the first Wednesday of 
 December. Neither the constitution nor the laws provide for vacan- 
 cies occurring by reason of the impossibility of electing either a pres- 
 ident or vice-president. If the house of representatives has to elect 
 the president and does not do so before the 4th of March, when the 
 new presidential term begins, then " the vice-president shall act as 
 president" (12th amendment). Even so there is nothing determined 
 as to who should act as president when, according to the act of 
 March 1, 1792, the speaker ought to do so, and the vacancy occurs 
 between the expiration of the legislative period and the organization 
 of the new congress, so that there is no speaker. Hitherto by the 
 death of the president the presidency has four times devolved upon 
 the vice-president : John Tyler in place of W. H. Harrison, April 6, 
 1841 ; Millard Fillmore in place of Zachary Taylor, July 9, 1850 : 
 Andrew Johnson in place of Abraham Lincoln, April 15, 1865; Ches- 
 ter A. Arthur in place of James A. Garfield, September 20, 1881. A 
 double vacancy has, however, never yet occurred. 
 
 2 The exception in favor of those who at the time of the adoption 
 of the constitution were citizens of the United States of course no 
 longer applies.
 
 THE FEDERAL CONSTITUTION. 85 
 
 and to have had a domicile in the United States for at 
 least fourteen years. Art. II., sec. 1, 4. 1 As to the 
 eligibility of electors, the constitution contains only the 
 negative provision that no senator, representative or offi- 
 cial of the United States shall be an elector. Article II., 
 1. The election is an indirect one. The constitu- 
 tion provides that every state shall have as many electors 
 as it has senators and representatives in congress, but 
 leaves it wholly to the legislatures to determine how they 
 shall be chosen. Although they are elected at present in 
 all the states by the people, yet so far as the federal con- 
 stitution is concerned, this is solely a matter of fact. 
 Every state is still authorized to do as South Carolina did 
 for a long time, have the electors appointed by the leg- 
 islature. Or they can be chosen in any other manner 
 whatsoever. The time when the election takes place is 
 to be fixed by congress. By act of January 23, 1845, it 
 fixed the first' Tuesday after the first Monday in Novem- 
 ber of every fourth year. This law leaves it to the states 
 to take proper legal measures to fill by substitutes any 
 vacancies at the meeting of the electoral college. 
 
 THE MODE OF ELECTION. The legislatures determine 
 for their respective states the place of the election, but it 
 is the duty of congress to fix the time, and it must be the 
 same day for all of the states. By act of March 1, 17912, 
 the election takes place on the first Wednesday in De- 
 cember. The electors must vote on separate ballots for 
 one person for president, and for another as vice-president.- 
 
 1 The constitution does not prohibit the selection of the president 
 and vice-president from the same state, but the electors must vote, 
 so far as one of the two offices is concerned, for a person who does 
 not belong to their own state (12th amendment). 
 
 2 According to the original scheme of the constitution, each elector 
 simply placed two names on his ballot. Whoever received the great- 
 est number of votes was to be president, and whoever had the next
 
 86 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 The electors must prepare separate lists of all persons 
 who receive any votes for either office, must subscribe and 
 certify the lists, and having sealed them must send them, 
 addressed to the president of the senate, to the seat of 
 the federal government. " The president of the senate 
 shall, in the presence of the senate and the house of 
 representatives, open all the certificates and the votes 
 shall then be counted." A majority of the votes of all the 
 electors is necessary to an election. If none of the can- 
 didates for the presidency has received such a majority, 
 then the house of representatives must elect one of the 
 three candidates who received the greatest number of 
 votes. In this case the house of representatives votes by 
 states, and each state casts one vote. The ballot holds 
 good if one or more members from two-thirds of the 
 states be present. A majority of all the states is neces- 
 sary to an election. 1 If no vice-president has been elected, 
 the senate may choose one of the two candidates who 
 received the greatest number of votes. Each senator 
 casts one vote. To make a ballot valid, the presence of 
 two-thirds of the senators is required. For an election 
 the majority of all the senators is necessary .- 
 
 It is an undisputed fact that the twelfth amendment, 
 which contains the provisions noted above, has become a 
 mere empty form. The parties nominate their candidates 
 in so-called national conventions, which have no legal ex- 
 highest number was to be vice-president, provided, in eacli case, that 
 the candidate received a majority of all the votes cast. For the events 
 of the election of 1800-1801, which led to the adoption of the twelfth 
 amendment, see my Constitutional History, I., 168. 
 
 1 See my Constitutional History (II., 4) as to the one presidential 
 election (that of J. Q. Adams) which took place under this constitu- 
 tional provision. 
 
 2 Under this constitutional provision, R. M. Johnson was elected in 
 1837.
 
 THE FEDERAL CONSTITUTION. 87 
 
 istence whatever,, and the members of which are chosen 
 without any legal control whatever. It has long been a 
 subject of constant and loud complaint that not the mass 
 of the people, but only the professional politicians, are 
 represented in these conventions. In the interest of the 
 managers, public opinion is often defied. The electors 
 are mere ornamental figure-heads, without any will of 
 their own. The people take not the least interest as to 
 who are made electors, for the persons designated are held 
 to be in honor bound to vote for the party candidates 
 nominated by the national convention. Since the intro- 
 duction of these conventions, no elector has ever ventured 
 to act as the constitution intended, in accordance with 
 his own judgment. 1 Not only in regard to the question 
 as to which party shall carry the day, but also as to the 
 persons chosen, the election of electors is the presidential 
 election, and in ordinary conversation it is so called. The 
 assembling and voting of the electoral college on the first 
 Wednesday in December is an empty formality, for the 
 decision was made in the preceding November. The de- 
 velopment of actual facts has made the constitution a dead 
 letter on this point. 2 The history of the presidential elec- 
 tion of 1876-77 shows that even empty forms may become 
 
 1 So, too, in former times, when the candidates were named by the .> 
 party representatives in congress, the so-called " king caucus." t 
 
 2 Should accident so shape events that the presidential candidate of 
 the victorious party should die immediately before the meeting of the 
 electoral college, then the United States would again have a president 
 who was. not only in form, but in truth, elected by the electors. The 
 effects that such an accident might produce are incalculable. The 
 most substantial result would probably be the final success of the ef- 
 forts to bring the constitution again into accord with facts, and to 
 have the president and vice-president elected directly by the people. 
 If Horace Greeley had been, not the defeated, but the victorious, can- 
 didate, the constitution by his death in 1872 would have come to its 
 rights.
 
 SS CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of great significance. The after effects of the civil war 
 came into play in a manner that threatened to be fatal. 
 In some of the former slave states (Florida, South Caro- 
 lina and Louisiana), both parties claimed the victory. If 
 the electoral votes of all these states were given to the 
 republicans, their candidate would be elected by a 
 majority of one vote. But to whom did the constitution 
 give the right to decide, if the legality of electoral votes 
 was contested ? or if in one state two sets of electors 
 should each claim to be legally chosen ? The clause of the 
 constitution already cited offered no such unquestionable 
 solution of the problem that the most different doctrines 
 might not have been advanced from the general stand- 
 point of principle and of party interests. There were no 
 precedents to indicate so precisely any particular path 
 that congress would have been obliged to proceed therein. 
 The position which congress took in regard to the elect- 
 oral vote of Missouri in 1821, and of Michigan in 1837, 
 had been generally understood hitherto as involving a 
 claim on its part to the right to decide the validity of an 
 electoral vote sent into it; and the twenty -second joint 
 rule, concerning the counting of electoral votes (which 
 was, however, no longer in force in 1870), was also based 
 on this assumption. In 1857 the president of the senate 
 declared, after he had announced the election of Buchanan, 
 that he did not feel authorized to decide whether Wis- 
 consin had voted for Fremont. And in 1873 congress 
 
 O 
 
 refused to count the electoral vote of Louisiana, on ac- 
 count of fraud in the election. If the majority in 
 both houses had now taken the same position, the minor- 
 ity would probably have been voted down by an appeal 
 to precedent, and the affair would have been settled. But 
 in the house of representatives the democrats, and in the 
 senate the republicans, had a majority. It was therefore
 
 THE FEDERAL CONSTITUTION. 89 
 
 to be expected with certainty that they would take 
 directly opposite grounds. The doctrine that both houses 
 should be regarded as one composite body, and that the 
 majority of all of the votes should decide, found not the 
 slightest support in the constitution. Against the claim 
 that congress was capable of deciding, the very impor- 
 tant objection was raised, that the constitution provides 
 only that the certificates shall be opened and counted " in 
 the presence of the senate and house of representatives." 
 All the other provisions indicate, however, an intention 
 to assign to the states the right and responsibility of tak- 
 ing care that their electors shall be appointed in a con- 
 stitutional and lawful manner, and their legal votes be 
 properly conveyed to the president of the senate. The 
 assertion of the republicans, that the decision belonged 
 to this official, was equally untenable. Nowhere does the 
 constitution empower him to count the votes. It declares 
 simply that they "shall be counted," a formula which 
 forces us to suppose that, according to the views of the 
 framers of the constitution, the question was one simply 
 of addition. The claim of the democrats that the de- 
 cisive vote must be accorded to the house of representa- 
 tives, because eventually the election of the president 
 was incumbent upon it, was not a bit better founded. It 
 was evident that no amicable adjustment would be at- 
 tained, if the decision of the question were delayed until 
 the official counting of the electoral votes. In harmony 
 with public opinion, the most thoughtful leaders of both 
 parties wished, however, to avoid the great commotions 
 which would have been inevitable if the question were 
 not decided before the beginning of the new presidential 
 period. Refuge was therefore taken in an expedient 
 which certainly cannot be called unconstitutional, but 
 must be described as extra-constitutional. It could scarcely
 
 90 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 be resorted to again. A law was enacted, the essential 
 provisions of which were as follows: If a state had sent 
 in only one return of the electoral votes, it should not be 
 rejected unless both houses should so decide; if two re- 
 turns were sent in, these, together with all documents 
 relating to them, should be referred to a commission of 
 fifteen members; each house named five members of this 
 commission; the law made four designated justices of the 
 supreme court members, and these four were to select 
 another justice of the supreme court as the fifteenth 
 member; the decision of this commission was to be final, 
 unless set aside by a concurrent resolution of both houses; 
 an appeal to the courts was not forbidden. The repub- 
 lican candidate, Hayes, was installed in office under this 
 law. The democrats accommodated themselves to cir- 
 cumstances, but adhered to the view that Tilden was the 
 legally elected president. The manifold efforts to render 
 the recurrence of such an event impossible, by amending 
 the constitution or enacting proper laws, have not thus 
 far as yet led to the desired result. 
 
 26. THE " CABINET." The constitution knows noth- 
 ing of a " cabinet." Even if the word has become as 
 thoroughly naturalized in the language of America as in 
 European states, it is nevertheless, from a constitutional 
 standpoint, an abuse. The constitution speaks only of 
 "executive departments." It does not call the heads of 
 them ministers. It generally gives them no titles. By 
 statute, the name " secretary " is given them. Collect- 
 ively, the secretaries have no constitutional existence 
 whatever. One of the two clauses of the constitution in 
 which they are mentioned shows, however, that the 
 framers intended to give the president, in the secretaries, 
 not only executive organs of his will, but also counselors 
 upon whose official counsel he might rest his acts and
 
 THE FEDERAL CONSTITUTION. 91 
 
 
 
 deeds not legally, but morally and politically when 
 they were questioned by congress or the people. The 
 president is authorized to " require the opinion in writing 
 of the principal officer in each of the executive depart- 
 ments upon any subject relating to the duties of their 
 respective offices." Art. II., sec. 2, 1. The express 
 grant of such a power in the fundamental law of the state 
 means something only when thus interpreted. It is, 
 therefore, certainly not in opposition to the spirit of the 
 constitution if the secretaries have been more and more 
 fused into a ministry which, as a whole, advises the presi- 
 dent, so that his personal policy expands into the policy 
 of the administration. But even if this is regarded not 
 simply as permissible, but also as self-evident and neces- 
 sary, still the president can never shield himself by an 
 appeal to a resolution of his so-called cabinet. It is not 
 opposed to the spirit of the constitution, and it is an irre- 
 pressible demand of modern government that, while the 
 president resolves upon many things in his cabinet, he 
 alone not the cabinet concludes, i. e., decides. The 
 political responsibility of each secretary extends beyond 
 the limits of his own department, because he has volun- 
 tarily incurred a moral responsibility for the general 
 character of the president's policy by sitting as a mem- 
 ber of the cabinet. But, as the president possesses the 
 sole right of decision, he cannot throw upon his cabinet 
 his legal or political responsibility. As he can seek sup- 
 port in the opinion of each secretary about that official's 
 own department, so he can seek it, by getting the opinion 
 of all the secretaries together, about his general policy ; 
 but he cannot put his cabinet in the place which the con- 
 stitution reserves for him. Because his position in rela- 
 tion to the cabinet is completely free, while as to the 
 single minister it is limited by law, it is so much the more
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 Lis duty to maintain with zealous care the constitutional 
 relation one which utterly excludes, according to its 
 fundamental idea, a cabinet in the sense of those of 
 the constitutional states of Europe. The constitution 
 presupposes the existence of different "executive depart- 
 ments.'' These were, however, first created by law, and 
 by laAV the duties and rights of all the secretaries have 
 been accurately defined. The president decides for him- 
 self what he shall propose to his cabinet, how he shall 
 count and weigh its votes, and to what degree he shall 
 permit its counsels to influence his own decision. The 
 secretaries are not (as executive officers) unconditionally 
 subject to the will of the president. They are actual 
 heads of departments, and that not because it has so 
 pleased the president, or *by force of circumstances, but 
 because the law has made them such. The cabinet is, so 
 to speak, only an inner chamber of the administration. 
 Circumstances and the character of the president may 
 permit it to attain great practical importance, but an 
 official action of any kind whatever by the cabinet, as a 
 body, seems impossible, as long as the whole political 
 structure of the executive power is not subjected to a 
 change in its principles such as could be effected only by 
 a constitutional amendment. The fundamental character 
 of the present relation between the president and con- 
 gress is that they stand side by side. A cabinet, in the 
 European sense of the term, would be justified, and its 
 existence rendered possible, only when, in place of this 
 relation, a far more intimate and organic union of the 
 executive and legislature had been brought about. The 
 introduction of a parliamentary government must not be 
 thought of. That would put the entire constitution upon 
 perfectly new bases. The administration could not be 
 conducted in the name of a president and under the name
 
 THE FEDERAL CONSTITUTION. 93 
 
 of a cabinet by a committee of the law-making power. 
 As before stated, the executive must be an independent 
 and co-ordinate factor of government, and the bearer of 
 this executive power must be president, not merely in 
 form but in fact. The constitution grants the senate a 
 right of control over the appointment of the secretaries, 
 inasmuch as it requires the senate's confirmation of the 
 president's nominations. But it would be a grievous sin 
 against the spirit of the constitution if the senate were to 
 misuse this right of confirmation so as to compel the presi- 
 dent to appoint a particular person, or even a man in 
 political accord with the majority of the senate. The 
 provisions of the constitution as to the time of election, 
 the method thereof, and the terms of office, of president, 
 senators and representatives, leave no doubt that the 
 framers of the constitution did not consider political har- 
 mony between the president and congress, or between 
 the president and one of the two houses, as a matter of 
 necessity. As the president is responsible for the admin- 
 istration, it is self-evident that, so far as political views 
 do and must come into consideration in choosing the cab- 
 inet, those of the president must prevail. In theoretical 
 discussions, as well as in political struggles between the 
 executive and the legislative powers, the view has always 
 obtained that the constitution gave the president full 
 liberty to remove the secretaries. 1 The political school 
 
 1 The conflict between Andrew Johnson and congress led to the en- 
 actment of the tenure-of -office act of March 2, 1867, which related to 
 all the civil officials appointed by the president with the consent of 
 the senate. But its main object was to compel the president to retain 
 in office the secretaries who, in full accord with the majority of con- 
 gress, were the bitterest opponents of his policy towards the rebel 
 states. In my opinion, party passion alone dare dispute that congress, 
 by the passage of this law, became guilty of the boldest usurpation 
 and of gross violation of the true intent of the constitution. Barely
 
 94: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 which treats constitutional and parliamentary govern- 
 ment as identical ideas will not find, in the constitution 
 of the greatest and freest republic of all time, the slight- 
 est support for its doctrine. But although a parliament- 
 ary government is absolutely excluded by the funda- 
 mental ideas of the constitution, yet for several years 
 past the question has been discussed with increasing inter- 
 est, whether the executive power, by law or constitutional 
 amendment, should not be brought into closer communi- 
 cation with the legislative, so that its measures and views 
 could be openly and directly represented in both houses 
 of congress by the secretary of the department concerned. 
 That the development of affairs is tending in this direc- 
 tion, congress has frequently been compelled to acknowl- 
 edge, at least indirectly, for the secretaries furnish it the 
 materials for many of its legislative labors. Its commit- 
 tees are not satisfied with the written information ob- 
 tained, and so summon the secretaries, in order to obtain 
 the desired information by oral discussions. Thus, finally, 
 
 had Grant become president than the most objectionable provisions 
 were repealed by a new act of April 5, 1869. This is so framed that 
 it can scarcely be declared to be unconstitutional. But the tendency 
 to extend the constitutional authority of the senate glimmers even 
 through this. Congress is unquestionably authorized to regulate by 
 law the right of dismissal. Such a regulation in regard to adminis- 
 trative officials is urgently needed. An unqualified right of dis- 
 missal, conditioned only upon the senate's assent, should certainly not 
 be accepted as such a legal regulation. As for the offices of a politi- 
 cal character, the nature of things forbids bringing them into such a 
 scheme. If the constitution had intended to confer on the senate a 
 right of control over dismissals from them, it would have declared it 
 as expressly as it does the senate's control over appointments. But, 
 as to all other offices, the welfare of the state demands a limitation 
 of the arbitrary power of dismissal exercised by the constantly chang- 
 ing political chiefs. The clause just mentioned of the act of April 5, 
 1869, simply couples the arbitrary will of the president and the arbi- 
 trary will of the senate.
 
 THE FEDERAL CONSTITUTION. 95 
 
 many proposed laws, which officially have an entirely dif- 
 ferent paternity, are prepared in some bureau of the ad- 
 ministration. But congress is too well aware of how very 
 much the position of the executive would be strengthened, 
 as against itself, if the secretaries received the right of 
 debate in senate and house, and its tendency is too de- 
 cided to elevate its own dignity and enlarge its own 
 sphere of action at the cost of the executive, to permit 
 those who perceive in such a change one of the most 
 urgent and significant reforms to hope that their views 
 may soon come to pass. But while the relation of the 
 executive to the legislative power constitutes one of the 
 greatest differences between the political institutions of 
 the United States and those of all European constitutional 
 nations, and probably will do so for a long time, the or- 
 ganization of the " administration " in America, and of 
 the "government" in Europe, is in the main similar, and 
 will become more so with the progressive development of 
 the United States. Originally there were only four de- 
 partments : that of state (foreign affairs), of the treasury 
 (finances), of war, and of justice (attorney-general). In 
 , 1794 the postoffice department (postmaster-general) was 
 added; in 1798 the navy department, and in 1849 the 
 department of the interior. 1 
 
 1 By act of May 15, 1862, an agricultural department was also cre- 
 ated. But its head is only a " commissioner." He is subject to none 
 of the secretaries, but is not a member of the "cabinet." 
 
 By act of March 2, 1867, there was created within the department 
 of the interior an "office of education," also administered by a 
 " commissioner." The suggestion has already been made to change 
 this bureau into an independent department, but there is no imme- 
 diate prospect of this and possibly no necessity for it, since the school- 
 system is a matter for the states. 
 
 Only the most important points of the organization and work of 
 the departments can be sketched here. 
 
 The state department is not simply the ministry of foreign affairs. 
 The secretary of state is also keeper of the great seal, and in the
 
 90 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 27. THE FEDERAL COURTS. The constitution estab- 
 lishes only the supreme court of the United States and 
 makes it the duty of congress, according to the changing 
 necessities of the times, to create and organize such in- 
 ferior courts as it shall see proper. To be eligible for 
 appointment to the office of justice in the United States 
 
 archives of this department the original records of the laws, of all 
 resolutions of congress, etc., are preserved. The publication of the 
 laws (in three newspapers), and the proclamation of an adoption of 
 an amendment to the constitution, are among the secretary of state's 
 functions. The fact deserves especial mention, that he is legally 
 bound to present congress annually with a concise report of the 
 changes made by other countries in their commercial and domestic 
 policies. He has as aids a first and second assistant secretary of state, 
 who are appointed by the president, subject to the consent of the 
 senate. 
 
 The treasury department more than any of the others was from 
 the beginning brought into a legal relation witli congress, independ- 
 ent of the president. And as to this department it was admitted 
 from the beginning that congress, in its legislation, could not do 
 without executive co-operation. The very act of organization of 
 September 2, 1789, provides: "That it shall be the duty of the sec- 
 retary of the treasury to digest and prepare plans for the improve- 
 ment and management of the revenue, and for the support of the 
 public credit, ... to make report, and give information, to 
 either branch of the legislature in person or in writing (as he may 
 be required) respecting all matters referred to him by the senate or 
 house of representatives' or which shall appertain to his office." 
 Stats, at Large, I., 65, 66. An act of May 10, 1800, further pro- 
 vides : " That it shall be the duty of the secretary of the treasury to 
 digest, prepare and lay before congress, at the commencement of 
 every session, a report on the subject of finance, containing estimates 
 of the public revenue and public expenditures, and plans for improv- 
 ing or increasing the revenues, from time to time, for the purpose of 
 giving information to congress in adopting modes of raising the 
 money requisite to meet the public expenditures." Ibid., II., 79, 80. 
 Among the reports which the secretary must annually lay before 
 congress are particularly to be mentioned those prepared by the 
 bureau of statistics "on the statistics of commerce and navigation" 
 (act of February 10, 1820, Ibid., III., 541), and " upon the condition 
 of the agriculture, manufactures, domestic trade, currency and
 
 THE FEDERAL CONSTITUTION. 97 
 
 supreme court requires no particular qualifications, ac- 
 cording to the constitution. It provides only that the 
 members of the supreme court shall be appointed by the 
 president, with the advice and consent of the .senate. In 
 regard to the other federal judges, this is not expressly 
 required, but the fact that congress has not reckoned 
 
 banks of the several states and territories" (June 15, 1844, Ibid., V., 
 719), and a summary of the exports and imports of the past fiscal 
 year (July 1 to June 30). Every three months a report of the ex- 
 penditures and revenue, and once a month a report of the condition 
 of the treasury during the last week of the month, must be published 
 (June 17, 1844, Ibid., V., 696). The accounts are examined by six 
 auditors, above whom two comptrollers are placed in charge. The 
 moneys are received and paid out by the treasurer. Payments are 
 made on vouchers of the treasurer, countersigned by a comptroller 
 and entered by the registrar. A commissioner of customs has charge 
 of the revenue arising from custom duties. The system of internal 
 taxation is managed by a commissioner of internal revenue. Among 
 the other officials of the department, the director of the mint and the 
 comptroller of the currency may be mentioned. 
 
 The most important officers of the war department are the adju- 
 tant-general, quartermaster-general, paymaster-general, commissary- 
 general, surgeon-general, judge-advocate-general, chief of engineers 
 and chief of ordnance. It is odd that the signal service also (chief 
 signal officer) is placed under the war department, although its main 
 object is to give information by telegram and by signals, for the ben- 
 efit of agricultural and commercial interests, of the approach and 
 force of storms, by means of observations taken at fixed meteorolog- 
 ical stations. 
 
 The department of justice consists of an attorney-general, solicitor- 
 general, two assistant-attorneys-general, solicitor of the treasury, 
 solicitor of internal revenue, naval solicitor, and an examiner of 
 claims for the state department. In the separate judicial districts, 
 legal matters are attended to by a district attorney. The executive 
 officers are called marshals. (" The marshals and their deputies shall 
 have, in each state, the same powers, in executing the laws of the 
 United States, as the sheriffs and their deputies in such state may 
 have, by law, in executing the laws thereof." Rev. Stat., sec. 788.) 
 
 In respect to the postoffice department, it need only be said that 
 on account of the great number of postmasters necessarily appointed, 
 7
 
 93 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 them among the " inferior officers," the appointment of 
 which it may commit "to the president alone, to the 
 courts, or to the heads of departments," is unquestionably 
 in harmony with the intent of the constitution. This 
 appears, too, from the fact- that none of the federal 
 judges, without exception, according to the constitution, 
 can be removed from office during; "-ood behavior. 1 The 
 
 o n 
 
 the department, under the "spoils" principle, has reached a com- 
 manding importance in party politics, with which, so far as its legiti- 
 mate duties are concerned, it should have no connection. 
 
 The navy department is divided into eight "bureaus:" yards and 
 docks; navigation (combined with a " hydrographic office"); ord- 
 nance; provisions and clothing; medicine and surgery; equipment 
 and recruiting ; construction and repair ; and steam engineering. The 
 heads of the bureaus must be chosen from particular ranks of the 
 officers of the navy. 
 
 The duties of the interior department are the most extensive and 
 comprise the most different objects : (1) census ; (2) public lands : (3) In- 
 dian affairs; (4) patents; (5 1 bureau of education; (6) the geological 
 surveys ; (7) pensions, a branch which, since the civil war, and partic- 
 ularly of late years, has attained vast importance by reason of sweep- 
 ing legislation ; in the fiscal year 1883-84, $55,429,228 were paid out 
 for pensions, more than one dollar per capita of the population ; 
 (8) preservation and distribution of the government's publications. 
 
 The business of the department of agriculture is "to acquire and 
 diffuse among the people of the United States useful information on 
 subjects connected with agriculture in the most general and compre- 
 hensive sense of that word, and to procure, propagate and distribute 
 among the people new and valuable seeds and plants." Rev. Stat., 
 sec. 520. See W. Elmes, Executive Departments of the U. S. Govern- 
 ment, Washington, 1879. 
 
 1 Territorial judges are not federal judges within the meaning of 
 article III., section 1. Although the inferior federal courts within 
 the states are first created by law, they are nevertheless "constitu- 
 tional" courts, i. e., they are made by this article co-bearers of the 
 judicial power of the United States. The territorial courts, on the 
 other hand, are " legislative," i. e., they were created by congress, 
 not by virtue of this constitutional provision, but by virtue of its 
 own general legislative power over the territories. American Insur- 
 ance Co. vs. Canter, Peters, I., 546. I know of no judicial decision
 
 THE FEDERAL CONSTITUTION. 99 
 
 constitution does not fix the number of members of the 
 United States supreme court. The great act of Septem- 
 ber 24, 1789, which filled in the outline drawn by the 
 constitution on this subject, provided that it should be 
 composed of one chief justice and five associate justices. 
 By the act of April 29, 1802, a sixth associate justice was 
 created, and an act of March 3, 1837, increased their num- 
 ber to the present figure of eight. 1 To decide a case six 
 justices must be present. 2 The act of 1789 created thir- 
 teen district courts with one judge each and three circuit 
 courts. The latter form the courts of first appeal. Their 
 organization has been modified in the course of years. 
 There are now nine circuits. One is assigned to each 
 justice of the supreme court. Every circuit has, besides, 
 its own circuit judge, and finally every district judge, 
 within certain limitations, can exercise the office of cir- 
 cuit judge. 3 Each one of these judges may, alone or in 
 common with one of the two other judges, hold circuit 
 court, and therefore in different parts of the same district 
 there may be held simultaneously different circuit courts. 
 
 as to whether the removal of a federal judge by abolishing his office 
 is constitutional. During the presidency of Jefferson, congress 
 claimed this right, and some of the states have adopted the same 
 course in regard to irremovable judges. 
 
 1 It seems doubtful whether an attempt will be made to allay the 
 increasing clamor concerning the extraordinary over-burdening of 
 the supreme court, by a further increase of the number of asso- 
 ciate justices. Manifold attempts have been made to find a good 
 way out of the present wretched state of things, but more or less 
 weighty objections have hitherto been made to each plan proposed. 
 
 2 The term of the supreme court does not correspond with the cal- 
 endar year. Its commencement has been repeatedly changed. By 
 act of July 23, 1866, it was fixed for the second Monday in October. 
 Originally the court was required to hold two sessions a year. This 
 provision was repealed by act of April 29, 1802. These facts should 
 be considered if mistakes in the year of a judicial decision are to be 
 avoided. 
 
 s Act of April 10, 1869.
 
 100 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 The number of district judges has increased to one hun- 
 dred and sixteen. By act of February 21, 1855, the court 
 of claims was created. 1 
 
 RIGHTS, PRIVILEGES AND LIMITATIONS OF THE FEDERAL 
 POWERS AND OF THE SEPARATE MEMBERS THEREOF. 
 
 28. CONGRESS. The constitution expressly grants to 
 both houses of congress the autonomy which in all con- 
 stitutional states is deemed a necessary prerequisite of 
 legislative bodies. Before all, " each house shall be the 
 judge [of the validity] of the elections, returns and qual- 
 ifications of its own members'' (art. I., sec. 5, 1).- It 
 
 ! The organization of the court of claims was altered by act of 
 March 3, 1863. It is at present composed of a chief justice and four 
 associate judges, but only two are necessary to decide a case. The 
 court sits in Washington. The annual session begins on the first 
 Monday in December and continues till the cases before the court are 
 disposed of. The following two provisions contain the most essen- 
 tial features in regard to its authority: It is empowered "to hear 
 and determine all claims founded upon any law of congress, or upon 
 any regulation of an executive department, or upon any contract, 
 expre-sed or implied, with the government of the United States, and 
 all claims which may be referred to it by either house of congress,'' 
 and ''all set-offs, counter-claims for damages, whether liquidated or 
 unliquidated, or other demands whatsoever, on the part of the gov- 
 ernment of the United States against any person making claim 
 against the government in said court." Although the court must in 
 all these cases " decide," yet it has been claimed in the house of rep- 
 resentatives that congress could set aside these decisions, inasmuch 
 as it could refuse to make appropriations to pay the judgments 
 against the United States. The house adopted the motion of Wash- 
 burne. of Illinois, who supported this claim, but, neither from the 
 motion itself, nor from the brief debates, does it appear whether the 
 house pledged itself to this undoubtedly untenable view. See Cony. 
 Globe, 3d sess. 38th Cong., 306. Appeals from the court of claims go 
 to the supreme court. See W. A. Richardson, History, Jurisdiction 
 and Practice of tJie Court of Claims, Washington, 1882. 
 
 2 The "returns"' or "certificates of election" are regarded as
 
 THE FEDERAL CONSTITUTION. 101 
 
 is the province of each house to fix its own order of busi- 
 ness, but the constitution makes a majority of all the 
 members elected necessary to do any business. A less 
 number may adjourn from day to day. In order that 
 their labors may not be brought to a standstill, either by 
 indifference or evil intent, the appearance of the absent 
 members can be enforced in the manner provided and 
 under penalty of the punishments imposed by the re- 
 spective houses. The power to fix the order of business 
 naturally implies the power to invest the chairman with 
 the necessary disciplinary power to maintain order dur- 
 ing the sessions. When it is further provided that each 
 house may " punish its members for disorderly conduct," 
 it is of course evident that something more is intended 
 and a wider authority bestowed. This becomes entirely 
 certain, when finally the right is expressly given them to 
 
 "prima facie evidence " of a legal election, and a further investiga- 
 tion takes place, as a rule, only when the opposing candidate contests 
 the election. If a seat in the house of representatives be contested, 
 the contestant must notify his opponent within a fixed period of time, 
 and inform him in the way prescribed by law that, and upon what 
 grounds, he intends to make the contest. The two parties must then 
 themselves take measures to get the testimony. Ninety days are 
 granted them within which to do <?o. The depositions of the wit- 
 nesses are sent to the house. See, more fully, Rev. Stat., sees. 105- 
 130. See, also, F. C. Brightly, A Collection of Leading Cases in the 
 Law of Elections in the United States, Phila., 1871 ; D. A. McKnight, 
 Electoral System of the United States, Phila., 1878; D. C. McMillan, 
 Elective Franchise in the United States, N. Y., 1878; G. W. McCrary, 
 American Law of Elections, 3d ed., Chicago, 1880: F. Giauque, 
 United States Election and Naturalization Laws, Cin., 1880. 
 
 The idea of "qualifications" was considerably enlarged by the 
 civil war and by the third section of the fourteenth amendment, 
 already cited. By the act of July 2, 1862, nil federal officials were 
 obliged to swear that they had in no manner whatever voluntarily 
 taken part in the rebellion. This " test oath " was repealed in May, 
 1884. 
 
 LIISASY 
 
 UNIVERSITY OF CALIFORNIA 
 RIVERSIDE
 
 102 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 " expel a member " by a two-thirds vote (art I., sec. 5, 
 2). In times of very great excitement, it has neverthe- 
 less been asserted that all these provisions give each house 
 only a power over its members which is disciplinary in 
 the strict sense of the word, and therefore can be put in 
 force only as to improper acts committed during the ses- 
 sions. 1 Since there has been repeated occasion to take 
 steps against members of each house under each of these 
 two clauses, and since the majority has never taken this 
 standpoint, it may now be regarded as finally settled that 
 that interpretation is correct which is the broader, and 
 at the same time, according to ordinary speech, unques- 
 tionably the more natural one. Both houses of congress 
 must have been granted every power needed to guard 
 themselves and their members against any impropriety 
 on the part of a member and to preserve their dignity 
 and reputation among the people. It is wholly for them 
 to say what conduct they are to regard as dishonorable 
 enough to require expulsion. 2 An appeal from their de- 
 cision lies only to the court of public opinion, a court 
 which brings in its verdict at the elections. What other 
 punishments the houses may impose upon members is, 
 on the other hand, a question which has never had an 
 exact and unquestioned ans\ver and never can have. Al- 
 though the power is in form unconditional, it was cer- 
 tainly not intended to be unlimited. Custom has confined 
 all punishments imposed to those not inconsistent with 
 personal dignity, and this corresponds to the intention of 
 the constitution. 
 
 my Constitutional History, V., 324. 
 2 The misconduct need not be legally punishable. See the case of 
 Senator \V. Blount, in 1797. Story, 838. Nor need it have been 
 committe 1 during the session of congress or at the seat of govern- 
 ment.
 
 THE FEDERAL CONSTITUTION. 103 
 
 The congressional power of punishment is not limited 
 to members of the two houses, although the constitution 
 contains no further provision on this point. The exten- 
 sion of the power rests upon the fact that both houses 
 exercise judicial functions in certain cases, and by the 
 common law every court has the power of punishment, 
 in order to protect itself against insult, contempt and dis- 
 obedience. The supreme court decided, in Kilbourn vs. 
 Thompson (103 U. S., 168; Otto, XIII.), that the lower 
 house may punish a contumacious witness whom it has 
 summoned in reference to an impeachment or other mat- 
 ter which falls under one of the provisions of the consti- 
 tution. 1 On the other hand, it has decided that the 
 constitution granted neither house the right of punish- 
 ment simply " for contempt." Whether the right existed 
 in other cases than those enumerated, it did not care to 
 decide on this occasion, but it laid down the general prin- 
 ciple that it could never exist when, as in the case before 
 it, the house had overstepped its constitutional jurisdic- 
 tion. 2 The extensive disciplinary and penal powers of 
 
 1 This, of course, applies also to the senate. 
 
 2 Kilbourn had been committed to prison because he refused to pro- 
 duce his business account-books and correspondence. 
 
 As important as this decision is, it does not clear up all doubt on 
 this question. And the question is of great importance in both prin- 
 ciple and practice. Thus it leaves it doubtful whether the house of 
 representatives of 1832 was authorized to have Samuel Houston 
 arrested by its sergeant-at-arms, brought before its bar and censured, 
 because he had beaten Stanberry, of Ohio, on the public street, on 
 account of a speech delivered by Stanberry in the house. See Ben- 
 ton's Abridgment of the Debates of Congress, II., pp. 644-660 and 663- 
 689. In a much older decision (1821), in Anderson vs. Dunn (Wheaton, 
 VI., 204-235), the supreme court has undoubtedly recognized the right 
 of the house of representatives to punish a " breach of its privileges" 
 by arrest, censure and imprisonment, but not beyond the close of the 
 session, and if the beating and unjustifiable imprisonment of the
 
 lOi CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 both houses over their respective members are counter- 
 balanced by the far-reaching immunity granted the mem- 
 bers as to all other courts and public authorities by the 
 next section, the sixth. The clauses in point are: The 
 senators and representatives "shall in all cases be priv- 
 ileged from arrest "- - treason, felony and breach of the 
 peace excepted "during their attendance at the session 
 of their respective houses," and the}' shall not be called 
 to account at any place whatsoever " for any speech or 
 debate in either house." The word session is to be under- 
 stood as meaning the whole session, and it includes the 
 time "eundo et ad propria redeundo" l So, too, the word 
 arrest must not be interpreted here in its strictest sense. 
 Summonses to appear as a witness or juror, under pen- 
 alty, are not regarded as arrests. Again, the second 
 clause is not, according to one view of it, to be inter- 
 preted in its strict verbal sense. The immunity is not 
 limited to the speeches and debates. It extends also to 
 the votes cast, the reports made, and in general to every 
 official act as a member of one of the two houses. 
 
 In the case already cited of Kilboiirn vs. Thompson, 
 the supreme court dismissed the suit against the members 
 of the committee which had issued the summons and de- 
 clared the scrgeant-at-arms alone liable. It is not, there- 
 fore, entirely without doubt how the clause is to be 
 interpreted from the other standpoint. It is admitted 
 that the privilege relates only to what is said or done 
 
 sergeant-at-arms is such a breach of its privileges, then the beating 
 of a member is naturally much more so. But in the more recent de- 
 cision the supreme court seems no longer to rely upon the reasoning 
 on which it based its decision in the earlier case. 
 
 1 ' Except treason, felony and breach of the peace." This clause 
 is so construed that all " indictable offenses," as well as constructive 
 breaches of the peace, are included, and consequently the protection 
 against arrest extends only to civil actions.
 
 THE FEDERAL CONSTITUTION. 105 
 
 strictissime in the fulfillment of official duties. It is ques- 
 tionable, however, how this can be reconciled Avith the 
 publication of speeches, reports, etc. The official pub- 
 lications, directed by either house or by the law, are now 
 protected, even in England, against any claim for dam- 
 ages. But in the United States it is commonly assumed 
 that a member of congress is at liberty to send to his con- 
 stituents in printed form whatever he has said in congress, 
 without exposing himself thereby to suit for slander, libel, 
 etc. There are, nevertheless, older judicial decisions hold- 
 ing a directly opposite view. The question has not yet 
 been brought to a definite issue b}^ a decision of the su- 
 preme court. 
 
 Congressmen enjoy no further privileges. The constitu- 
 tion provides, however, that a seat in the federal legisla- 
 ture shall not be an unpaid honorary office, but that the 
 senators and representatives shall receive compensation 
 for their services. The amount is fixed by law, and it is 
 paid out of the treasury of the United States. By the 
 act of March 3, 1873, this salary of congressmen and 
 territorial delegates was raised to $7,500 per annum, be- 
 sides actual traveling expenses once each session on the 
 most direct route to the seat of government. Public 
 opinion condemned this law with such emphasis that it 
 was repealed January 22, 1874, and the act of July 28, 
 1866, was again put in force. Under it the salary is $5,000 
 per annum, with mileage at twenty cents per mile for 
 each journey to and from the regular sessions. 
 
 The privileges and rights granted congressmen, as well 
 as the legal limitations to which they are subjected, have 
 been regulated with a view to their office as law-makers. 
 Their peculiar position is due to the fact that the interests 
 of the state require that their, independence be assured, 
 so far as law can assure it. In fulfilling their duties to
 
 106 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 the best of their knowledge and conscience, they should 
 not be influenced by fear of personal unpleasantness, in- 
 jury or wrong resulting therefrom. Nor should they be 
 exposed to the temptation of being turned away from the 
 right path by the prospect of personal gain. Art. I., sec. 
 6, 2, prohibits a senator or representative from being 
 appointed to any federal office which was created, or the 
 emoluments of which were increased, during his term 
 of office. It is further provided, that no officer of the 
 United States can be a member of either house of con- 
 gress as long as he retains his office. A member of con- 
 gress by accepting any other federal office thereby for- 
 feits his seat, and although his re-election is not forbidden, 
 he cannot take his seat again unless, prior thereto, he re- 
 signs his other office. As the members of congress fill a 
 federal ollice in the broader sense of the word, they come 
 under the provision in art. I., sec. 0, 7, according to 
 which no federal officer, without permission of congress, 
 can accept from king, prince, or foreign state any " pres- 
 ent, emolument, office or title of any kind whatever." 
 
 29. THE PRESIDENT. In regard to his personal rights, 
 the president occupies no peculiar position. The constitu- 
 tion (art. II., sec. 1, G) grants him a salary, with the 
 proviso that it is not to be increased or diminished during 
 his term of office. It also forbids his receiving any other 
 income from the United States, or from any of the states. 
 The salary, originally fixed at 825,000 per annum, was 
 doubled by the act of March 3, 1ST3. 
 
 30. THE JUDGES. The judges also at stated times 
 draw salaries, which cannot be decreased as long as they 
 are in office (art. III., sec. I). 1 No personal privileges are 
 
 1 The salary of the chief justice of the supreme court is $10,500; 
 that of the associate justices is $10,000; that of the circuit judges 
 $6,000; that of the district judges from $3,000 to $4,500; and that of
 
 THE FEDERAL CONSTITUTION. 107 
 
 granted them by the constitution, and they are subject to 
 no peculiar legal limitations. 
 
 THE FUNCTIONS OF THE GOVERNMENTAL FACTORS. 
 
 In order to avoid repetitions, otherwise inevitable, in a 
 discussion of the powers of the governmental factors, 
 their functions will be treated in this section principally 
 on their formal side. Nothing will be said, therefore, 
 about the judiciary, since the constitution contains no 
 provisions of this sort in regard to it. A description of 
 the entire judicial procedure is self-evidently out of place 
 here. As for the executive functions, only those should 
 and need be touched upon which present peculiarities of 
 some kind or other. 
 
 31. THE GENERAL LEGISLATIVE FUNCTIONS OF CON- 
 URESS. The authority of either house of congress to 
 establish its order of business is not unlimited. The con- 
 stitution contains several provisions as to this, some of 
 which have already been mentioned in another connec- 
 
 the judges of the court of claims $4,500. It is often said that these 
 salaries are too low, because many lawyers are able to earn much 
 more and there is therefore danger that the jurists best fitted by knowl- 
 edge and character will no longer be willing to go upon the bench. 
 It has, indeed, already happened that the enormous fees the large 
 railroad corporations pay their attorneys have proved more attractive 
 than the honors of the judiciary, but the latter are still prized so 
 highly that finding fit men has, hitherto at least, been easy. It must, 
 however, be admitted that in general the salaries of officials in the 
 United States, especially of the higher grades, are too low. But 
 raising them might have bad results as long as the principle of "ro- 
 tation in office " is not given up. Only when an end is put to this 
 folly can the most vigorous talents be expected to devote themselves 
 gladly to the service of the state. Then they will not long be de- 
 terred by the low salary, especially if a system of pensions is intro- 
 duced. Not only might this then be done without danger, but it 
 would be an advantage from every point of view.
 
 108 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 tion. There remains to be added that each house must 
 keep a journal of its proceedings, in which the yeas and 
 nays of a vote must be entered, whenever this is de- 
 manded by one-fifth of the members present. The jour- 
 nal must be published from time to time, but it is within 
 the discretion of the two houses to suppress those parts 
 which they think it necessary to keep secret (art. I., sec. 5, 
 3). It is evident, therefore, that it is not an oversight 
 that the constitution contains no express provisions as to 
 whether the proceedings of congress shall be public or 
 secret. Evidently publicity was intended to be the rule ; 
 but it was also intended to leave it wholly to the judg- 
 ment of congress in what cases and upon what grounds 
 an exception should be made. This corresponds, too, 
 with actual custom. Till February 20, 179-i, the senate, 
 indeed, always met with closed doors, but since then the 
 only permanent exceptions to the rule of publicity are 
 the executive sessions, in which the senate performs no 
 legislative duties, but acts as the adviser and controller 
 of the executive. Moreover the obligation of secrecy as 
 to occurrences in the executive sessions is frequently re- 
 moved. The legislative functions, as far as the ordinary 
 work of the two houses is concerned, are discharged 
 coram pvMico. When the slavery question frequently 
 brought passions to the boiling point, the " clearing of 
 the galleries " was often demanded, but this was intended 
 simply to secure protection against improper demonstra- 
 tions of the spectators and was never regarded as a de- 
 nial of publicity. 
 
 32. THE PROCESS OF LEGISLATION. The legislative 
 initiative, with a single exception (in favor of the house), 
 which will be mentioned later on, belongs in an entirely 
 equal degree to the two houses of congress. The consti- 
 tution prescribes no forms which are to be observed in
 
 THE FEDERAL CONSTITUTION. 109 
 
 initiating legislation. Their establishment is entirely a 
 matter of the rules adopted by either house. According 
 to these, the preparation of a bill is mainly incumbent 
 upon the standing committees, which, in the house of rep- 
 resentatives, are appointed by the speaker, and in the sen- 
 ate are elected by the majority. 1 Special committees may 
 
 1 In the 48th congress (1883-85), the senate had twenty-nine and the 
 house forty-seven standing committees. For the introduction of a 
 bill the committees require the permission of the respective house. 
 This is, however, usually given either when the committee is ap- 
 pointed or by a permanent provision of the rules. The house must 
 likewise be asked whether it will receive the report of the committee. 
 As a rule the question is not actually put. An affirmative answer is 
 assumed if no objection be made. Many of the customary formali- 
 ties of the English parliament have been set aside. Minority reports 
 are received as a matter of fact, although really, as a matter of parlia- 
 mentary law, only the committee as such can report, and, of course, 
 in a strict sense, only one report is possible that of the majority. 
 It is odd that the committees are bound by their decisions and cannot 
 reconsider them. Cushing's Law and Practice of Legislative Assem- 
 blies, $ 1915. The committees need an especial authorization in order 
 "to send for persons, papers and records;" but the examination of 
 voluntary witnesses may take place without such authority. In ex- 
 ceptional cases the committees are authorized, that is directed, to 
 continue their labors after the close of the session. In the house of 
 representatives, in the "morning hour" of Tuesday, Wednesday and 
 Thursday, that is, after the reading of the journal, the standing com- 
 mittees are called upon by the speaker, in regular order, to present 
 their reports and to make motions. An hour's time is given the 
 maker of the report. He usually gives up a greater or less portion 
 of this short time to general debate. The speaker, however, recog- 
 nizes only those persons who have previously come to a private un- 
 derstanding with the maker of the report, and these only upon their 
 promise to limit their remarks to a certain number of minutes. Im- 
 mediately before the expiration of the hour the maker of the report 
 demands the " previous question," that is, moves to close the debate, 
 and this demand is generally granted, because it is to everybody's 
 interest that the work of legislation be done in the speediest manner. 
 For each one of them is particularly interested in some other bill, and 
 the whole number of the bills is always so enormous that only a small
 
 110 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 also be appointed, and each and every individual mem- 
 ber, with the consent of his house, may introduce a bill. 1 
 "\Vhat further treatment a bill once introduced experi- 
 ences, when it is taken up for discussion; whether a 
 
 fraction of them can ever be disposed of. The great majority are 
 buried forever by reference to some committees, for the committees 
 will not, or cannot, 'ever report upon them. When the previous ques- 
 tion is carried no more amendments are in order, and the maker of 
 the report has another hour for the discussion of the measure before 
 the final vote takes place. An immense number of laws are thus 
 passed in the house in the course of two hours. When a committee 
 is called by the speaker, only the morning hours of two successive- 
 days belong to it. If, however, the morning hours of the second day 
 have elapsed without arriving at a conclusion upon the bill in hand, 
 then it becomes '* unfinished business," and as such is at the head of 
 the order of the day for the morning hours until it is disposed of. 
 The four committees on printing, elections, ways and means and 
 appropriations hold a privileged position. The remaining standing 
 committees must be content with the time that is granted them by 
 these four. Senator Hoar calculates that, on an average, not more 
 than two hours is accorded each of them during an entire session. 
 This fact is the more significant, since most of the bills are really dis- 
 cus ed only in committee, and the committees have the right to meet 
 with closed doors. To mention in the house any occurrence in the 
 committee room, except upon the basis of the official report, makes 
 the offender guilty of a " breach of privilege." It is, moreover, quite 
 usual for the committees to examine experts, and as these are, for the 
 most part, specially interested, the laws are based to a large extent 
 upon ex parte testimony, while the whole bod} 7 of legislation is far 
 removed from anything like uniformity. It is only in regard to the 
 appropriation bills that the house of representatives has retained the 
 character of an advisory body. The appropriations are discussed in 
 committee of the whole; the previous question cannot be moved: and 
 the right to propose amendments is not only formally, but also actu- 
 ally, unlimited. See G. F. Hoar, The Conduct of Business in Con- 
 gress, in the North American Review, February, 1879, p. 113 et seq. 
 
 1 A standing opportunity to do so is presented in the morning hour 
 of Monday. For then the states and territories are called in regular 
 order for this purpose. It is also to be observed that on Mondays, 
 after the morning hours, and on the last ten days of the session, the
 
 THE FEDEKAL CONSTITUTION. Ill 
 
 committee is to pass upon it; whether it is subjected to 
 preliminary consideration in the so-called committee of 
 the whole, etc., all this is regulated by the general pro- 
 visions of the rules or decided by resolution. 1 When a 
 1 ill has passed, it is sent over to the other house with a 
 message to that effect. 2 "Whether the other house will 
 consider and pass upon it is entirely at its pleasure. If it 
 
 "suspension of the rules " may be moved in order to take up and pass 
 any bill. To pass the motion to suspend the rules a two-thirds ma- 
 jority is necessary. If passed, there can be no debate on the bill, and 
 no amendment offered. Consequently, so far as the house of repre- 
 sentatives is concerned, a bill may become a law byone vote, without 
 any discussion and without the possibility of any changes whatever. 
 At every session a vast number of bills are actually passed in this 
 manner. 
 
 1 The committee of the whole is actually the whole house (or sen- 
 ate). In the senate it is called the quasi-committee of the whole. In 
 passing upon a measure it is subject to the same rules as prevail in 
 the house. In truth the committee of the whole is not a committee 
 at all, but the house itself transacting business in a peculiar, and in 
 fact a simpler and freer, way. Its function corresponds with that of 
 the committees in being simply a preparatory one. Its conclusions 
 are only recommendations to the house, without any obligation what- 
 ever. The most significant advantage of the arrangement is the 
 greater freedom and exhaustiveness of the discussions, as each mem- 
 ber may speak as often as he chooses. The committee of the whole 
 can consider only definite resolutions. In sessions of the " committee 
 of the whole house on the state of the Union," every member may 
 speak on any question he desires. The speaker does not preside over 
 the committee of the whole. Any member whom the house may ap- 
 point takes the chair. In the house of representatives, since 1841, no 
 speech is permitted to occupy more than one hour. At the expira- 
 tion of the last minute the speaker's gavel stops the orator short, even 
 in the middle of a sentence. By calling for the previous ques- 
 tion, debate can not only be closed at any moment, but entirely 
 prevented. Debate on the motion for the previous question is not 
 allowed. 
 
 2 That a simple majority of the members voting suffices to pass a 
 bill is not expressly declared in the constitution, but it is regarded as 
 self-evident, and it follows, too, from the exceptional provisions men- 
 tioned further on.
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 passes it without amendment, the bill goes to the presi- 
 dent for his approval. If, on the contrary, it passes it 
 with amendments, the bill is returned to the other house, 
 which, when it again considers the matter, either concurs 
 in the amendments or refuses to do so, or offers new 
 amendments of its own. Thus, a bill may be bandied 
 from one house to the other as long as there is any hope 
 of its passage. If that cannot be directly attained and 
 yet seems attainable, then one or the other house proposes 
 the appointment of a conference committee. If the other 
 house agrees to this and the conference committee arrives 
 at any agreement, its report is, as a rule, concurred in by 
 both houses, although, of course, neither is obliged to do so. 
 If the conference committee does not come to an agree- 
 ment, the usual process of bandying the bill back and 
 forth can be taken up where it was interrupted, or a sec- 
 ond or third conference committee may be appointed, 
 until one of the houses in some way or other declares 
 that it will no longer protract the discussion. 
 
 33. THE CO-OPERATION OF THE PRESIDENT IN" LEGISLA- 
 TION. A bill passed by both houses of congress becomes 
 law as a rule by the approval of the president. Tet this 
 right of approval must not be considered as a part of the 
 legislative power, for the constitution expressly declares 
 that " all " the legislative authority granted shall vest in 
 congress. The co-operation of the president in the mat- 
 ter of legislation is intended only as a control. Congress 
 alone is the author of the laws. If the president has ob- 
 jections to raise against the legislative conclusions of 
 congress, he is in duty bound to submit the latter for 
 reconsideration. Then, in order to become laws, they 
 must receive a two-thirds majority in each house. 1 It is, 
 
 1 The phrase used in the constitution admits of various interpreta- 
 tions, as it is not very precise. Congress has adopted the view that 
 a two-thirds majority of those voting, not of all the members elected.
 
 THE FEDERAL CONSTITUTION. 113 
 
 therefore, unquestionably an abuse of language that the 
 refusal to approve a bill should be called a veto, not only 
 in ordinary speech, but also in official terminology. The 
 word is not to be found in the constitution. It is bor- 
 rowed from a state of affairs essentially different and 
 does not harmonize with the constitutional nature of the 
 president's co-operation in legislation. The president has 
 no right to forbid congress to do anything. He can only 
 state that he does not agree with it and declare his rea- 
 sons therefor. Thereupon the constitution subjects the 
 exercise of the legislative powers of congress in the par- 
 ticular case to more stringent conditions. 1 
 
 is required. Since a simple majority is sufficient to transact business, 
 under certain circumstances a bill may be made a law over the objec- 
 tions of the president by the majority of each house. 
 
 1 On the other hand it is entirely within the discretion of the pres- 
 ident as to what reasons he shall regard as sufficient in order to make 
 use of this power. The exercise of it has led to many violent collis- 
 ions between the executive and the legislative departments. In these 
 conflicts the attempt has been made with much acumen to limit the 
 president's freedom of action by invoking all sorts of doctrines. It 
 is true that some of them have great political weight, but they lack 
 a firm constitutional basis. During the "forties" the whigs agi- 
 tated the entire repeal of the veto power, but only to their own hurt. 
 Very recently an agitation has begun in the opposite direction. The 
 president can refuse to approve only the whole bill, even if he takes 
 exception to but one or two points in it. It is now proposed to give 
 him, so far as the appropriation bills are concerned, the right to re- 
 turn individual appropriations for reconsideration and to give the 
 others the force of law by approving them. It can scarcely be 
 doubted that this decisive reform will surely be enacted sooner or 
 later, but the battle for it will certainly be severe and probably be 
 long. The president must state his objections in writing and return 
 the bill to the house where it originated. The new vote upon it must 
 be by roll-call. The vote of each member must be entered on the 
 journal. The same rules apply in the other house, to which the bill 
 and the president's objections are sent, if the first house has passed 
 the bill again by a two-thirds majority. If the president does not
 
 114: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 34. THE PRESIDENT. The president's direct constitu- 
 tional influence upon legislation is not limited to his co- 
 operation and control, as sketched in the last paragraph. 
 The constitution directs him from time to time to give 
 congress " information of the state of the Union," and it 
 is expressly made his duty to " recommend . . . such 
 measures as he shall judge necessary and expedient '' 
 (art. II., sec. 3). In the legislative initiative, as well as in 
 legislation, congress is subject in a certain way to the 
 control of the president, but this control, so far as the 
 initiative is concerned, is naturally positive, not negative. 
 Even if he cannot himself submit any bills, he can nev- 
 ertheless exert a pressure upon congress to prevent its 
 bein<r sruiltv of sins of omission, for in his messages he 
 
 O O *j 
 
 calls the attention of the whole people to those matters 
 which require the enactment of laws, or at least make 
 new laws seem desirable. His reports " of the state of the 
 Union " appear in the form of the so-called messages. The 
 annual messages are sent to congress at the beginning of 
 the annual session. They discuss all important domestic 
 and foreign relations pretty thoroughly, and are therefore 
 always much more comprehensive than the ordinary crown 
 speeches in the monarchies of Europe. Accompanying 
 the messages are the exhaustive reports by the secretaries 
 about their respective departments. The messages and 
 reports are called the executive documents, and are cited 
 
 sign a bill or return it with his objections within ten days (Sundays 
 excepted) after it has been sent to him, it becomes a law without his 
 approval, unless congress has adjourned within the ten days (art. I., 
 sec. 7, g 2). Thus a bill may become a law, even though the president 
 has refrained from expressing any opinion about it, and it may also 
 not become a law, because he has expressed no opinion. Every other 
 order, resolution, or vote for which the concurrence of the two houses 
 is necessary must likewise be presented to the president and is subject 
 to the same provisions as the bills. The only exceptions are the reso- 
 lutions to adjourn (art. I., sec. 7. 3).
 
 THE FEDERAL CONSTITUTION. 115 
 
 under this title in scientific and political literature. This 
 designation embraces also the special messages, which, as 
 their name implies, are issued on special occasions and 
 relate to special business. The obligation to report to 
 congress upon the state of the Union naturally does not 
 exclude the president's right to express himself publicly 
 in other ways and thus to address the whole people. But 
 this happens very seldom, and in accordance with un- 
 broken custom only in two distinct ways: by the inau- 
 gural address and by proclamations. The oath already 
 mentioned which the president must take upon assuming 
 his office is taken publicly upon the vast open portico of 
 the capitol at Washington, and thereupon the president 
 delivers his so-called inaugural address, in which he un- 
 folds to the people the programme of his administration. 1 
 The occurrence of certain events, such as the admission 
 of new states, is announced to the people, in accordance 
 with legal precedents, by proclamation. The president 
 also issues proclamations upon his own initiative. In 
 these his character as the bearer of the executive power 
 is more clearly and distinctly shown than in the messages 
 or in the inaugural address. Many presidents have never 
 had the opportunity of addressing the people in this most 
 solemn and weighty manner, because the occasion must 
 be highly significant and of a very special character to 
 justify the use of this means or to make it appear neces- 
 sary. 2 
 
 1 Washington, upon his retirement to private life, delivered a fare- 
 well address to the people, which to the present day is regarded by 
 the American nation as among the greatest and most valuable rec- 
 ords of its history. Jackson is the only president who followed this 
 example. His opponents took bitter exception to his venturing in 
 this way to range himself with the father of his country. 
 
 2 By far the most important proclamations which the history of the 
 United States has to show are Lincoln's emancipation proclamations 
 of September 22, 1862, and January 1, 1863.
 
 116 CONSTITrTlONAL LAW OF THE UNITED STATES. 
 
 THE POWERS OF CONGRESS. 
 
 j? 35. GENERAL PRINCIPLES. To rightly understand not 
 only the powers of congress, but also those of the other 
 factors of government, it is necessary, in considering in- 
 dividual instances, to keep constantly in view the general 
 principles concerned and the fundamental doctrines of 
 constitutional law. 
 
 The constitution does not define the powers of the 
 factors of the government. It simply enumerates them. 1 
 Since in their exercise they must necessarily be made 
 definite, it devolves upon the governmental factors them- 
 selves to decide upon the limits of their own capacity. 
 Thus the courts, and in the last instance the federal su- 
 preme court, under the principles and limitations already 
 laid down, must be the controlling power in the decision. 
 To define these powers correctly it must not be lost sight 
 of that all the powers spring from one idea and are in- 
 tended to reach one goal. They must therefore always 
 be considered as a whole. 2 It follows from these premi- 
 ses, not only that besides the powers expressly granted 
 there are others which are implied by those granted and 
 result from them (implied and resulting powers), but that 
 the second kind of powers is not distinguished in sub- 
 stance from the first. If the doctrine that the powers 
 of the government are enumerated must be understood 
 to mean that the expressly granted powers must be liter- 
 ally interpreted and that there can be no unenumerated 
 power, then the federal government would be deprived 
 of the possibility of existence. 3 
 
 If the constitution can be interpreted in two ways, one 
 of which assures the fulfillment of the object of its e,xist- 
 
 1 Gibbons vs. Ogden, Wheaton, IX., 1. 
 
 * The Legal Tender Cases, Wallace, XII., 532.
 
 THE FEDERAL CONSTITUTION. 117 
 
 ence, while the other tends to render it nugatory, there 
 can be no doubt which is the right rendering. 
 
 36. TAXATION, FINANCE AND THE PUBLIC DEBT. The 
 financial distress which ever threatened more and more 
 to be fatal to the republic, under the articles of confed- 
 eration, deserves to be thanked, in the first instance, for 
 the reorganization of the Union. The constitution there- 
 fore naturally takes ample care that the federal govern- 
 ment shall not want the necessary material means to 
 fulfill the object of the federation. Congress is em- 
 powered "to lay and collect taxes, duties, imposts and 
 excises, to pay the debts and provide for the common de- 
 fense and general welfare of the United States, but all 
 duties, imposts and excises shall be uniform throughout 
 the United States " (art. L, sec. 8, 1). Congress may 
 levy imposts of any kind, and as they are collected di- 
 rectly from the individual by organs of the federal gov- 
 ernment, without the mediation of the states, it can 
 constantly satisfy the needs of the nation in their fullest 
 range, for the amount of every impost, which congress is 
 permitted to make, is left wholly to its own discretion. 
 Political and economical considerations and regard for 
 business interests set certain bounds to it in this re- 
 spect, but its constitutional authority is unlimited. 1 But 
 still the power of congress to levy taxes is not entirely 
 unconditioned. In fact bounds are set to it in various 
 directions by several express provisions of the consti- 
 
 1 The Union is divided into collection districts. The president fixes 
 their number and boundaries. In every district there is a collector 
 who is allowed a number of assistants (deputy collectors). After a 
 reduction earnestly undertaken, September 5, 1883, the number of 
 revenue districts was eighty-four. The heads of the custom-houses 
 are called collectors of customs. 
 
 SeeMcCnlloch vs. Maryland, Wheaton, IV., 316, 428. See, also, 
 Veazie Bank vs. Fenno. Wallace, VIII., 548.
 
 118 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 tution. "All duties, imposts and excises shall be uni- 
 form throughout the United States." ' Moreover, direct 
 tuxes must be levied in proportion to the population of 
 the states (art. L, sec. 2, 3) and the census is made the 
 basis (art. I., sec. 2. -i). 2 Finally, ''no tax or duty shall 
 be laid on articles exported from any state."" 3 
 
 Further restrictions of the right of taxation result from 
 the fact that congress can exercise it only for the fulfill- 
 ment of the objects enumerated. The expression "gen- 
 eral welfare '' is indeed so comprehensive and vague that 
 the discretion of congress is given the widest play. But 
 however much this expression may be stretched, the 
 mention of the three general purposes makes it certain 
 that, for other purposes, no federal taxes can be levied. 
 There are certain bounds, more or less clearly marked, 
 within which the right of taxation unquestionably can- 
 
 1 In Loughborough vs. Blake, Wheat on, V., 317, the federal supreme 
 court decided that this means not only the states, but the entire do- 
 main of the Union. The provision thus extends also to the District 
 of Columbia and to the territories. 
 
 -The words used are " capitation or other direct tax." In a recent 
 decision (Springer vs. United States, 102 U. S., 586; Otto, XII.), the 
 supreme court has affirmed the already dominant view, that only 
 poll-taxes and taxes on real estate are direct taxes within the meaning 
 of the constitution. An income tax thus comes under neither of the 
 constitutional provisions cited. 
 
 a Schlief s view (pp. 233. 234), that this refers only to articles ex- 
 ported from one state of the Union into another, has never found a 
 champion in the United States and never can find one. The debates 
 of the Philadelphia convention over this paragraph were a struggle 
 between the northern and southern states. The latter resisted with 
 all their might the attempt to impose an export duty on their staple 
 products, the result of slave labor, which were sent mainly to Europe. 
 (See Elliot's Debates, V., 302, 357, 391, 432, 454, 538, 539.) The fact 
 that the confederate states imposed a heavy tax on the exportation of 
 cotton shows that the fear that congress for fiscal reasons would 
 seize this means of raising money might easily have been justified, 
 at least in times of distress.
 
 THE FEDERAL CONSTITUTION. 119 
 
 not be exercised. Above all, everything which comes ex- 
 clusively within the jurisdiction of the states must be left 
 alone by congress. 1 Every tax which is confessedly laid 
 for a private purpose is unconstitutional. 2 But the tax 
 laws of congress never specify an object to which the 
 funds yielded by the tax shall be applied. The courts 
 are therefore not in a position to guard against the bur- 
 dens imposed by a law upon the ground that an uncon- 
 stitutional application of the resulting funds is intended. 
 The constitutionality of federal taxes and of the use 
 made of the federal funds are wholly distinct questions, 
 which must be kept far apart. So far as appropriations 
 are concerned, the courts evidently should decide against 
 the power assumed by congress only in perfectly clear 
 cases. For, in the nature of things, the legislative and 
 .not the judicial power has to discover what the " general 
 welfare " demands and what may promote it. In con- 
 gress, however, the very comprehensiveness and vague- 
 ness of the expression make it possible to raise the 
 constitutional question continually, but the decision is 
 usually made from a political rather than a legal stand- 
 point, however much legal arguments may have been 
 formally pushed into the foreground during the debate. 
 The legislative history of the Union, especially until the 
 outbreak of the rebellion, forms a continuous chain of 
 illustrations of this fact. Protective taxes and those lev- 
 ied for the so-called " internal improvements," i. e., build- 
 ing roads, improving rivers, etc., have been claimed to 
 be unconstitutional. Theoretically the contest is not 
 entirely at an end at the present day, but the actual de- 
 velopment of affairs has been so great that the one set 
 
 1 Gibbons vs. Ogden, Wheaton, IX., 199. 
 
 2 See a number of instances and the judicial decisions upon them 
 in Cooley, Principles, 58.
 
 1'20 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of contestants carry on the conflict on politico-economical 
 grounds exclusively, and the others make their defense 
 on the basis of the industrial and political interests con- 
 cerned in the particular case, unless, indeed, no national 
 importance can be given to the interest in dispute. 
 
 Finally, the states' concurrent right of taxation puts 
 certain limitations upon the congressional right. Both 
 are alike limited by several express provisions of the con- 
 stitution. Without the consent of congress, the states 
 can burden imports and exports with imposts of any kind 
 whatever, only so far as is absolutely necessary for the 
 execution of their inspection laws (art. I., sec. 10, 2). 1 
 The states cannot levy a tonnage tax without the con- 
 sent of congress (art. L. sec. 10, 3). If. however, the 
 conclusion were drawn from these express prohibitions 
 that the states' right of taxation were subject to no 
 further limitations, they might exert it in such a way 
 that the federal government would be unable, except 
 under great disadvantages, and perhaps not able at all, 
 to carry out what it had found best to do in the discharge 
 of its constitutional functions. And if the congressional 
 power of taxation were subject only to the restrictions 
 thus far noted, congress could so use it that the states 
 would be hindered and crippled, even Avhen they were 
 acting within the constitutional limits of their authority. 
 In either event, violence would be done to the funda- 
 mental idea of the constitution, that the federal govern- 
 ment and the state governments have the same aim the 
 welfare of the people. The concurrent right, therefore, 
 is subject in each case to those limitations which are 
 necessary for the security of the interests entrusted by 
 
 1 The net proceeds of such imposts must be paid over to the United 
 States, and all such laws are subject to the revision and control cf 
 congress.
 
 THE FEDERAL CONSTITUTION. 121 
 
 the people to the protection of the other political factor. 
 It is impossible to point out every single consequence of 
 this general principle. A few instances will make the 
 matter sufficiently clear. The states cannot tax a bank 
 created by the United States and acting as their fiscal 
 agent, or the salary or other emoluments of federal offi- 
 cials, or federal bonds, etc. 1 Congress cannot tax state 
 property, such as a railroad, salaries of state officials, 
 municipalities and their property, etc. 2 
 
 Among the debts of the United States for the payment 
 of which congress could levy taxes are to be understood 
 
 1 The fact that a corporation created by the United States renders 
 its creator some service does not entitle it to exemption from all tax- 
 ation by the states. Railroad Co. vs. Peniston, Wallace, XVIII., 5. 
 
 2 See on this point, MeCulloch vs. Maryland, Wheaton, IV., 316 ; 
 Veazie Bank vs. Fenno, Wallace, VIII., 533; and Collector vs. Day, 
 Wallace, XL, 113. The principal sources of income of the Union are 
 the customs and the internal revenue taxes. The latter are sufficiently 
 characterized by giving the principal heads of the income derived 
 from them. The nation received in 1884 from distilled liquors, 
 $76,905,383 ; from tobacco, $26,092,400 ; from malt liquors, $18,084,954. 
 In 1883, it received from the sale of stamps, with which various 
 articles had to be provided, $7,053,053 ; and from banks and bankers, 
 $3,784,995. The taxation of business formerly went much further 
 than at present. But even now it is not restricted to banks and 
 bankers, as might appear from the above list. (The taxation of the 
 capital and deposits of banks and bankers ceased March 3, 1883 ; they 
 are, however, burdened with several other taxes.) Every manufact- 
 urer and dealer in tobacco or the liquors designated is still subject to 
 taxation as such. The articles and occupations which had to be taxed 
 during the war, but which have since been freed, yielded in 1866 an 
 income of $236,236,037. The proceeds of the customs were, in 1884, 
 $195,067,489. The total imports for the year 1883 represented a value 
 of $723,180,914, of which $515,676,196 consisted of merchandise sub- 
 ject to duties. These goods paid an average duty of 41.63 per cent., 
 equal to 29.68 per cent, on the total import. In 1884 the imports 
 decreased to $667,697,993. On the questions here treated, see F. 
 Hilliard, Taxation, Boston, 1885, and Cooley, Law of Taxation, Chi- 
 cago, 1876.
 
 122 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 those incurred under the articles of confederation as well 
 as those contracted afterwards. The former are covered 
 by the provisions of article YL, 1, that the validity of 
 existing obligations shall not be touched by the adoption 
 of the constitution. 1 The latter are covered by the express 
 grant of the right to contract new debts. Congress is em- 
 powered ''to borrow money on the credit of the United 
 States " (art, L, sec. 8, 2). This power is granted with- 
 out any limitation. Money may therefore be borrowed 
 in every way known to modern mercantile life; nay, 
 according to the decisions of the supreme court, in 
 such a way that there is no borrowing whatever, even in 
 the broadest sense of the term, but simply an advantage 
 gained to the nation by the strengthening of its credit. 
 The right to create the United States bank was deduced 
 from this provision. Upon this clause, moreover, the 
 constitutionality of the present s\ r stem of national banks 
 must be based. 2 Whether (and, if so, how far) congress 
 has the power of making the federal currency a legal 
 tender is a question which has formerly, and again quite 
 recently, actively engaged the attention of the people, the 
 politicians and the courts. But, in spite of the repeated 
 decisions of the supreme court sustaining it, this power is 
 
 1 In this connection the fourth section of the fourteenth amend- 
 ment, which needs no commentary, may be cited. " The validity of 
 the public debt of the United States, authorized by law, including 
 debts incurred 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 loss or emancipation of any slave ; 
 but all such debts, obligations and claims shall be held illegal and 
 void." 
 
 - They are compelled to invest a large portion of their capital in 
 government bonds, and thus the federal government can naturally 
 borrow money much more easily.
 
 THE FEDERAL CONSTITUTION. 123 
 
 not considered as definitely established, since public 
 opinion looks upon these decisions and their motives, at 
 least in part, as very doubtful. Efforts are therefore 
 being made to settle this very important question beyond 
 doubt by an amendment to the constitution. At this 
 point I can supplement what has been stated in another 
 connection concerning this great contest by pointing out 
 another constitutional provision, which cannot be prop- 
 erly wholly disregarded in the argument, but, neverthe- 
 less, contains no certain indication of the intentions of the 
 authors of the constitution on this question. The states 
 are forbidden to "make anything but gold and silver 
 coin a tender in payment of debts." 1 The question was 
 therefore not overlooked by the Philadelphia convention. 
 But what conclusion is to be drawn from the express pro- 
 hibition on the one hand and silence on the other? Was 
 there no need of prohibiting congress because it has only 
 the powers granted it ? Or may the disputed power be 
 deduced from this silence, because without it the worth 
 of the power to borrow money would have been substan- 
 tially diminished and this power was granted without 
 any limitation ? No party and no political school has 
 ever declared it to be a general principle of constitutional 
 law that the federal government must be authorized to 
 do whatever the states are expressly forbidden to do. 
 And the very matters most closely related to the question 
 in hand are not so treated by the constitution as to neces- 
 sitate such a conclusion. In the very same paragraph 
 the states are forbidden to coin money, but although this 
 right must rest somewhere and could appertain only to 
 the federal government if denied the states, yet the 
 constitution does not let the matter rest with that 
 
 i Not "their" debts, as Schlief (p. 469) very arbitrarily translates 
 this.
 
 1'2-i CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 express prohibition, but expressly grants congress the 
 power (art. I., sec. S, 5) " to coin money, to regulate 
 the value thereof and of foreign coin." l But on the 
 
 1 The coinage act of April 2, 1792, provided that the dollar should 
 have 371^ grains of pure silver (416 standard) and the ten-dollar gold 
 piece, the eagle, 247^ grains of pure gold (270 standard). The rela- 
 tion of gold to silver was fixed at 1 :lo. The disadvantages which 
 soon arose in commerce were not traced back to the principle of the 
 "double standard," but were attributed simply to the circumstance 
 that gold had been valued too low. This difficulty was relieved by a 
 law of J me 28, 1834, which fixed the legal proportion of the two 
 metals at 1 :16. Thereafter the eagle was to contain only 232 grains, 
 pure gold (238 standard). But if the former rule prevented the coin- 
 age of gold, the silver dollars, now above par, vanished out of cir- 
 culation still more rapidly. A new coinage act of February 12, 1873, 
 made the gold dollar the unit of coinage, but did not change the 
 weight or fineness of gold coin ($1 equals 25.8 grains troy). The 
 same law demonetized the silver dollar, i. e., thereafter only silver 
 coins of fifty cents or less and also a new coin, 420 grains troy, called 
 the trade dollar, because it was struck off solely in the interests of 
 trade with Asia, were issued. The reason of the demonetization of 
 the silver dollar was because, on account of its being above par, it had 
 long since disappeared from circulation. In the preparation of the 
 Revised Statutes, which became law June 20, 1874, the demonetiza- 
 tion of the silver dollar probably simply by an oversight was 
 made complete. The act of February 12, 1873, had provided that the 
 silver thereafter coined should be legal tender only for 5 or less. 
 The Revised Statutes extended this provision to all silver. Scarcely 
 had the act of February 12, 1873, been passed than the value of silver 
 began to sink rapidly in consequence of the extraordinary yield from 
 the mines of Nevada, the adoption of the gold standard in Germany, 
 etc. The result of this was an energetic agitation for the remonetiza- 
 tion of silver, which speedily won over public opinion. A bill which 
 President Hayes had refused to approve became a law February 28, 
 1878. The secretary of the treasury was directed to buy every month 
 not less than two and not more than four million dollars' worth of silver 
 at its market value and to coin it into silver dollars. The efforts to put 
 the silver into circulation have, nevertheless, had only scant success. 
 Of the $175,355,829 coined up to June 30, 1884, only $39,794,913 could 
 be issued. In addition to this, there are $96,427,011 of " silver certiti-
 
 THE FEDERAL CONSTITUTION. 125 
 
 other hand the states are forbidden to issue "bills 
 of credit," and the right of the federal government to 
 do so- is unquestioned, although this right was not ex- 
 pressly granted to it, but is merely deduced from the 
 authority to borrow money. 1 Yet the debates of the 
 Philadelphia convention leave it very doubtful whether 
 the intention was to give the federal government the right 
 to issue paper money. An express grant of this power 
 was in the draft of the constitution 2 and was stricken out 
 by a vote of nine states to two. The views of the dele- 
 gates differed, however, as to what rights congress would 
 have in this respect, if nothing were said about it. The 
 prevailing, if not quite unanimous, view was that congress 
 would not be able to make the federal notes a legal ten- 
 der. 3 On the other hand it may be alleged that the orig- 
 inal idea was simply to forbid the states to issue bills of 
 
 cates " which are received in payment of taxes and customs by the 
 government. There is a growing fear that the government will soon 
 be no longer able to make its payments in gold, and that then there 
 will be a great crisis. President Cleveland, shortly before his inaugu- 
 ration, declared himself in favor of the discontinuance of the coinage 
 of silver, but in February, 1885, both houses of congress defeated 
 proposals to that effect. 
 
 1<( Bills of credit" are simply direct obligations of the state in- 
 tended to circulate as money. Bank-notes do not fall under this 
 description, even if the state is the sole holder of the bank stock. 
 Craig vs. Missouri, Peters, IV., 410; Briscoe vs. Bank of the Common- 
 wealth of Kentucky, Ibid., XL, 257; Darrington vs. Bank of Ala- 
 bama, Howard, XIII., 1?. 
 
 2 " And emit bills on the credit of the United States." 
 
 3 Madison had proposed to declare this expressly instead of strik- 
 ing out the clause, but thereafter he voted to strike it out because 
 he, as he says, had convinced himself that it "would not disable 
 the government from the use of public notes, as far as they could 
 be safe and proper ; and would only cut off the pretext for a paper 
 currency, and particularly for making the bills a tender, either for 
 public or private debts." Elliot's Debates, V., 434, 435.
 
 ll>ti CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 credit and make something else than gold and silver a legal 
 tender when, and only when, congress did not consent. 1 
 There is much to be said in favor of the view that this is 
 one of the cases where, by force of circumstances, an 
 actually valid constitutional right has been created which 
 runs counter to the true intent of the constitution. This 
 cannot, however, be asserted with certainty. The pro- 
 visions of the constitution and the debates of the Phila- 
 delphia convention show beyond doubt that the intention 
 was to place the entire monetary system in the hands of 
 the federal government, not only for the sake of uniform- 
 ity but because the states were distrusted. 2 
 
 'Elliot's Debates, V., 484. 
 
 2 Here it must be noted that congress is expressly authorized to 
 enact penal laws against counterfeiting both coin and paper currency. 
 Art. I. , sec. 8, g 6. 
 
 The national debt of the United States reached its highest point in 
 1863. It was then $2,844,649,026. At the close of the fiscal year 
 1883-84, it had been reduced to $1.830,528,923. The annual payment 
 of interest has been diminished from $150,977,697 in 1865 to 
 $47,926,432 in 1884. The per capita debt of $78.25 in 1865 has been 
 reduced to $25.89 in 1884, and the per capita interest from $4.29 to 
 86 cents. 
 
 The history of paper money in the United States economically, po- 
 litically and legally has formed one of the most significant chap- 
 ters in the story of national development. Upon the recommendation 
 of the first secretary of the treasury, Alexander Hamilton, the act 
 of February 25, 1791, created a "Bank of the United States." Its 
 capital was not to exceed $10,000,000 in shares of $400, of which the 
 government might take one-fifth, in consideration of which it was 
 bound to receive the notes of the bank in payment. Its franchise 
 was good for twenty years. When the bank sought a renewal it was 
 refused. In the meantime the states had evaded the provisions of 
 the constitution which forbade them to issue bills of credit by author- 
 izing the creation of banks with the right of issuing notes. These 
 small banks, the jealous complaints of which had much to do with pre- 
 venting a renewal of the franchise of the United States Bank, now 
 had a free field. Like mushrooms after a warm summer shower, they
 
 THE FEDERAL CONSTITUTION. 127 
 
 37. THE BUDGET AND ADMINISTRATION OF FINANCE. 
 The axiom, that " the purse strings must be in the hands 
 of the representatives of the people," i. e., of the legis- 
 lature, the Americans obtained from England. In its 
 application, however, it has undergone an important 
 change and won a much wider range. In this connection 
 it becomes particularly clear and evident that there is a 
 
 sprung into existence, and very often did business in a most extraor- 
 dinary manner. 
 
 The " wildcat currency " period still survives in the memory of the 
 people. Scarcely was the United States Bank dissolved than the 
 United States had to create a substitute for its notes. Trouble with 
 England, finally leading to war, produced financial embarrassments 
 which induced congress in 1812 to authorize the issue of interest- 
 bearing treasury notes. They were the first federal notes under the 
 constitution of 1789, which, although not legal tender, were never- 
 theless issued in order to circulate as money. In 1815 the issuance of 
 non-interest-bearing notes was begun. The cessation of cash pay- 
 ments in almost the entire country and the innumerable different 
 bank-notes produced boundless confusion. The report of the secre- 
 tary of the treasury in 1815 says: " Hence it has happened (and the 
 duration of the evil is without any limitation) that, however ade- 
 quate the public revenue may be in its general product to discharge 
 the public engagements, it becomes totally inadequate in the process 
 of its application, since the possession of public funds in one part no 
 longer affords the evidence of a fiscal capacity to discharge a public 
 debt in any other part of the Union." The treasury notes varied in 
 market value in different portions of the country as much as fifteen 
 per cent. Congress sought to stem the evil by creating a new United 
 States bank, again for a period of twenty years. The chief provis- 
 ions of the law of April 10, 1816, were as follows : There was a capi- 
 tal of $55,000,000, of which the United States took a fifth ; all the 
 government offices had to take bank-notes at par; the bank was 
 bound, under heavy penalties, to redeem its notes in coin ; the gov- 
 ernment funds were to be deposited at the bank, and it was to pay 
 the government $1.500,000 annually for its privileges. 
 
 From the outset the bank had to contend with difficulties of the 
 most diverse kinds. Vigorous and, in part, not unfounded complaints 
 were made of its business management, and President Jackson made 
 its annihilation a chief end of his administration. When the bank
 
 1:28 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 substantial difference (in the proper sense of this word 
 " substantial " ) between what is called in Europe the 
 " government " and in the United States the " adminis- 
 tration." It is the duty of the president and certain 
 organs of the executive authority to administer the af- 
 fairs of state in the manner prescribed by law. But so 
 far as their determination is concerned, his constitutional, 
 
 in 1832 asked for the renewal of its franchise, the bill was passed by 
 congress, but vetoed by the president July 10. The bank held, it 
 is true, a charter from the state of Pennsylvania, but was neverthe- 
 less unable to maintain itself. It is now generally accepted as a 
 good thing that the connection of the government with the bank was 
 dissolved, but the new order of things was ushered in at the time of 
 a general bank and monetary crisis. When the conflict between the 
 north and south had ripened into a catastrophe, the government in 
 its embarrassment laid hold of the means used before and issued 
 treasury notes. Besides this it negotiated a number of loans in coin 
 in exchange for interest-bearing bonds from the state banks whose 
 notes were at par. While its necessities grew apace from day to day 
 to gigantic proportions, it nevertheless continued to issue treasury 
 notes and refused to receive the bank-notes. These were presented 
 to the banks in large amounts for redemption. The banks thereupon, 
 on December 27, 1861, suspended cash payments. On January 1, 
 1862, the government did likewise. Secretary Chase now wished to 
 issue irredeemable paper money. The law of February 25, 1862, 
 passed after a long debate, authorized the government to issue 
 $150,000,000 in notes, the lowest denomination to be $5, which should 
 be " legal tender " for all public and private debts then existing or 
 thereafter contracted, and exchangeable for six per cent, bonds. The 
 import duties were to be paid in gold. Even though the law did not 
 explicitly declare it, it was nevertheless understood that the sum of 
 $150,000,000 should not be exceeded. But necessity soon compelled 
 the issuance of new notes, likewise made a legal tender ; at the same 
 time, the provision forbidding the issue of notes in sums less than $5 
 was repealed. Moreover, the law of March 3, 1863, authorized inter- 
 est-bearing notes ; provided that the right to exchange the paper cur- 
 rency for six per cent, bonds at par should lapse July 1, 1863 ; and 
 burdened the notes of the state banks with a tax of two per cent. 
 But this taxation was not, however, the only means with which the 
 secretary of the treasury and congress attacked the sixteen hundred
 
 THE FEDERAL CONSTITUTION. 129 
 
 legal, and practical influence is restricted to the fact that 
 he can recommend to congress such measures as seem 
 good to him, and that by refusing to approve an act he 
 can put before congress the alternative either of stopping 
 the wheels of government in whole or part or else chang- 
 ing its conclusions, unless both houses by a two-thirds 
 majority persist therein. In European countries one of 
 
 state hanks, the notes of which at the beginning of the war com- 
 prised the largest part of the circulating medium. The attack was 
 justified, for the genuine notes were about seven thousand in num- 
 ber, and the counterfeits Upton distinguishes between "altered, 
 spurious, imitated, and other kinds more or less fraudulent " also 
 ran up among the thousands. The system of national banks, towards 
 which Chase gave the first impetus in December, 1861, put the axe to 
 the root of this wretched confusion. The first law about the national 
 banks (approved February 25. 1863) has in the course of time re- 
 ceived manifold, more or less substantial, amendments. The most 
 important of the provisions in force at present are the following : A 
 minimum capital is fixed, which increases with the size of the place ; 
 a minimum number of stockholders is likewise fixed ; at least one- 
 half of the capital must be paid in immediately, and the rest in 
 monthly instalments of at least ten per cent. ; at least one-third of 
 the paid-up capital is to be deposited with the treasurer of the United 
 States in the form of interest-bearing, registered United States bonds ; 
 for ninety per centum of the market value of the bonds deposited 
 provided that does not exceed the par value the bank receives 
 notes of different denominations engraved in blank; if the bank 
 desires to diminish the note circulation, it pays the United States 
 treasurer " legal tender notes," receiving a corresponding amount of 
 its bonds on deposit, and the treasurer redeems the notes of the bank 
 to an equal amount when they are presented to him ; each bank must 
 deposit an amount equal to five per cent, of its notes in the United 
 States treasury, and the treasurer uses this deposit to redeem the 
 notes presented to him ; every national bank must receive the notes 
 of every other national bank at par ; the government pays out the 
 notes at par, except for interest on the public debt; the notes re- 
 deemed by the treasurer are destroyed, and in lieu thereof new notes 
 are given the bank upon its making its deposit for redemption good ; 
 no limit of time is fixed for the redemption of the notes of banks 
 which have ceased to exist for one or the other reason, and the part 
 9
 
 130 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 the chief tasks of the government is to prepare and pre- 
 sent the budget. The legislature must accept it, after 
 making such corrections as it may see fit. The ministers 
 are free to escape any responsibility for these corrections 
 by resigning. In the United States, on the other hand, 
 so far as the constitution is concerned, the labor and the 
 entire responsibility of the budget rest upon congress. 
 It is permitted to summon the organs of the executive to 
 its aid as much and in whatever way it may see fit. If 
 
 of the five per cent, deposit not used for redemption must finally fall 
 to the United States, as no other use for it is provided. At the con- 
 clusion of the civil war there were still $143,000,000 of the state bank- 
 notes in circulation, against $146,000,000 of national bank notes. 
 But as from July 1, 1865, the state banks had to pay a tax of ten per 
 cent, on their notes, the state bank currency disappeared entirely. 
 All the notes of the United States of every kind whatever added to- 
 gether reached at the time $695,000,000. With the spring of 1866. 
 measures were taken to reduce this monstrous mass of depreciated 
 money. The speculations of the exchanges ran the price of gold in 
 a wild whirl up and down and at times staggered even the policy of 
 congress and of the administration. Under the operation of the gen- 
 eral business crisis of 1873, congress resolved, in April, 1874, to in- 
 crease the amount of notes outstanding, but President Grant refused 
 to sign the bill. An act of January 14, 1875, fixed the resumption of 
 specie payments for January 1. 1879, and despite all opposing prophe- 
 cies this was carried out without any difficulties, fourteen and a halt' 
 years after the legal tender notes had sunk to about one-third of their 
 face value. (On the llth day of July, 1864, gold was quoted at its 
 highest point, 285.) But the national banking system, which has 
 finally given the country a uniform and safe circulating medium, 
 and even in the judgment of its original opponents has proved itself 
 of substantial excellence, is approaching a crisis. The basis of the 
 system is the deposit of United States bonds, and this basis is being 
 destroyed by the rapid extinction of the public debt and the vigorous 
 reduction of the rate of interest. See E. G. Spaulding, History of 
 Legal Tender Paper Money, 3d ed., Buffalo, 1875 ; F. Q. Ball, National 
 Banks, Chicago, 1881 ; "W. G. Sumner, A History of American Cur- 
 rency, N. Y., 1874; J. J. Knox, United States Notes, 1884; J. R. 
 Upton, Money in Politics, Boston, 1884.
 
 THE FEDERAL CONSTITUTION. 131 
 
 it does so, in so far as it makes their co-operation a legal 
 duty, it imposes a legal and political responsibility ; but 
 the constitutional responsibility belongs to congress alone, 
 *. ., it cannot hide itself behind the cabinet. As the 
 administration can present no bills, and consequently 
 cannot be made responsible either for the public revenue 
 or for the manner and means of its collection, so also, 
 in regard to the public expenditures, it can make no de- 
 mands, but can simply work out estimates of expenses 
 and make suggestions. So far as the initiative is con- 
 cerned, the administration has no will of its own, but 
 only an opinion. The only right or duty the secretaries 
 can have in the matter is to report as experts upon the 
 business affairs of the state. 
 
 After making such a report when congress permits or 
 desires it the whole matter is constitutionally and legally 
 at an end from the standpoint of the administration. 
 The president and the heads of the departments cannot 
 even take a stand against a proposition which is opposed 
 to their well considered recommendations, while it is 
 under discussion in congress. And when the final con- 
 clusions of congress reach the president, he can send back 
 the bill concerned only as a whole. Only the particular 
 bill, and not the whole budget, for the entire budget is 
 not framed at once. The appropriations are made in 
 groups, each of which is covered by a separate so-called 
 appropriation bill. 1 These bills always originate in the 
 house of representatives and they are in fact prepared by 
 
 iThe legislative, executive and judicial expenses appropriation; 
 civil expenses appropriation; consular and diplomatic appropria- 
 tions ; army appropriation ; Indian appropriation ; pension appropria- 
 tion; military academy appropriation. To these are added special 
 appropriations and a greater or less number of deficiency appropria- 
 tions.
 
 132 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 its "" committee on appropriations.'' ! They must emanate 
 from this house, because the constitution provides: "All 
 bills for raising revenue shall originate in the house of 
 representatives." 
 
 It has always been undisputed in the United States 
 that " bills for raising revenue " include all the so-called 
 " money bills," but there have often been different views 
 as to the legitimate application of this doctrine. 2 The 
 house of representatives has always asserted that its func- 
 tions embraced the framing of the appropriation bills, and 
 the senate has never succeeded in its occasional efforts to 
 maintain the contrary. A literal interpretation of the 
 constitutional provisions must evidently decide the mat- 
 ter against the claims of the house of representatives, 
 and, too, the discussions of the Philadelphia convention 
 tell more against than in favor of these claims. But 
 Seward was right in saying, February 7, 1S5G, in the sen- 
 ate, that the fact that from the beginning the house 
 claimed the framing of the appropriation bills as its priv- 
 ilege and that the senate did not contest it, was weightier 
 than these arguments. 3 The question whether the doc- 
 trine should be narrowed or widened is, however, as expe- 
 rience has taught, one without practical significance, as 
 
 1 The committee on appropriations bears the same relation to the 
 expenditures that the committee on ways and means does to the 
 public revenue. There are thus two budget commissions and no 
 budget. Congress does not place the revenue and expenditures in 
 juxtaposition and thus make a simple whole of the public finances. 
 How far congress has made it the duty of the secretary of the treas- 
 ury to elaborate a sketch of the budget for it, was explained in dis- 
 cussing the organization of the treasury department. 
 
 - See especially the debate in April, 1872, Congressional Globe, 2d 
 session, 42d Congress, p. 2105 et seq. 
 
 3 Cong. Globe, 1st sess., 34th Cong., 376. When the senate, despite 
 this, sent some appropriation bills to the house, the latter simply laid 
 them on the table.
 
 THE FEDERAL CONSTITUTION. 133 
 
 the constitution itself reduced the idea, borrowed from 
 the constitutional law of England, to a merely formal 
 privilege of the house of representatives. The paragraph 
 goes on to say that " the senate may propose, or concur 
 with, amendments, as on other bills." In practice, how- 
 ever, the privilege of the house of representatives has 
 become a public wrong of no slight consequence. The 
 senate's amendments are not discussed in the house, but 
 simply rejected. The senate persists, and the bill is re- 
 ferred to a conference committee in which both houses 
 are equally represented. The proposals of this committee 
 cannot be amended. They must be adopted or rejected 
 as a whole. As action upon them is generally postponed 
 until towards the end of the session, the house adopts 
 the committee's report, because it shrinks from the re- 
 sponsibility of letting an entire appropriation bill go to 
 wreck on account of a few questions of detail. . While 
 thus, in the senate, the appropriations suggested by the 
 house are carefully investigated, amended at will and per- 
 fected, the house by its own beloved rules subjects itself 
 to a certain moral compulsion by which it is forced to 
 assent to the conclusions reached by only three of its 
 members and a like number of senators. Occasionally 
 indeed, one of the general appropriation bills has failed 
 to pass. 1 But neither of the houses will lightly undertake 
 this responsibility, because the constitution provides that 
 no money shall be drawn from the treasury but in con- 
 sequence of appropriations made by law (art. I., sec. 9, 7). 
 The administration therefore has no constitutional right 
 to apply the moneys in the treasury to meet any public 
 needs whatever, even if they be the most urgent, which 
 congress has not provided for by making appropriations. 
 In the event, therefore, of the failure of an appropriation 
 1 See, for instance, my Constitutional History, V., 414.
 
 134 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 bill, a most wretched and unendurable state of affairs 
 must quickly come to pass. 
 
 Even under the most favorable circumstances the ad- 
 ministration can get along for but a few months, because 
 the appropriations are made only for one year. This is 
 not due, however, to any constitutional necessity. On 
 this point the constitution contains only the provision 
 that congress may " raise and support armies, but no ap- 
 propriation of money to that use shall be for a longer 
 term than two years" (art. I., sec. 8, 12). Congress, 
 therefore, unquestionably has a right to substitute a bi- 
 ennial for the annual budget. It is, however, a different 
 question, whether the provision just quoted implies the 
 power of congress except as to the army to have a 
 triennial or quadrennial budget. While it can certainly 
 make appropriations for a longer time, it also certainly 
 cannot frame an entire budget which shall be good for 
 more than two years. And it can make one good for two 
 years only when it does so at the beginning of its own 
 existence. 1 No congress can bind subsequent congresses 
 in such a way as to curtail their constitutional powers. 
 And it is, moreover, evident not only that no congress 
 would permit its predecessor to deprive it of its right of 
 framing a budget, but that it could not constitutionally 
 renounce its independent exercise of this right. Even a 
 
 1 The constitution keeps a few appropriations beyond the control of 
 congress. By several acts, however, the number of the so-called "per- 
 manent appropriations " has gradually grown to between twenty and 
 thirty. Some years ago the senate passed a bill which repealed these 
 altogether, save those for the president's salary, the salaries of the 
 federal judges and the interest on the public debt. The assent of 
 the house of representatives, however, could not be obtained, because 
 the bill would have endangered the continuance of the act known 
 as the "Bland bill," which requires the annual coinage of at least 
 twenty-four million silver dollars.
 
 THE FEDERAL CONSTITUTION. 135 
 
 single appropriation extending- over a longer period must 
 always presuppose the tacit sanction of the new congress. 
 It is not likely that these questions will ever become 
 practical. The United States is in too eminent a degree 
 a popular state to let it seem possible that one congress 
 would ever show a desire to usurp the prerogatives of 
 future congresses in this respect. In fact the annual 
 framing of the budget was probably not required by the 
 constitution, only because it was regarded as a matter of 
 course. 
 
 As the budget is fixed annually, the statement of the 
 public revenue and expenditure, which must be published 
 " from time to time " (art. I., sec. 9, 6), is issued every 
 year. The total revenue for the fiscal year 1883-84 was 
 x.'54S,519,S69 (against $398,287,581 in the preceding year). 
 The chief individual sources of revenue have already 
 been mentioned. Here we may add that the sale of pub- 
 lic lands yielded $9,810,705. The income from land 
 sales exceeded these figures only in the three years 1835, 
 1836 and 1855, in the two former very considerably. 
 But in the other years as a rule the receipts were much 
 smaller. Congress appropriated for the fiscal year 
 1884-85 $137,451,398, distributed as follows: deficien- 
 cies, $4,385,836; legislative, executive and judicial ex- 
 penses, $21,556,902; sundry civil expenses, 22,346,750; 
 support of the army, $24,454,450 ; naval service (for only 
 the first half of the year), $8,931,856; Indian service, 
 $5,903,151; rivers and harbors, $14,948,300; military 
 academy, $314,563; forts and fortifications, $700,000; 
 pensions, $20,810,000; consular and diplomatic service, 
 $1,225,140; agricultural department, $480,190; District 
 of Columbia, $3,594,256; miscellaneous, $7,800,004.
 
 136 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 COMMERCE, INTER-STATE AND NATIONAL.! 
 
 38. TRADE AND COMMERCE scarcely came within the 
 range of congress, under the articles of confederation. 2 
 The many and great evils resulting from this gave the 
 most direct and vigorous impetus to the struggles for re- 
 form which led to the Philadelphia convention and to the 
 adoption of its plan for a constitution. The convention 
 therefore naturally considered it to be one of its Greatest 
 
 ** O 
 
 tasks to nationalize the Union in this respect. It has 
 been rightly said that the consolidation of the industrial 
 interests of the country has proved to be the strongest 
 bond of the federal state. 
 
 Congress (says art. L, sec. 8, 3 of the constitution) is 
 authorized "to regulate commerce with foreign nations 
 
 <-s O 
 
 and among the several states and with the Indian tribes." ;i 
 
 1 F. Chatnberlin, American Commercial Lair, Hartford, 1872; R. 
 Desty, Commerce, Navigation and Shipping of the United States, 
 San Francisco, 1880; L. Houck, Law of Navigable Rivers, Boston, 
 1868; J. G. Thompson, Law of Highways, 3d eel., Albany, 1881. 
 
 2 So far as trade was concerned, only that with the Indians was 
 subject to its control. As to its other powers in regard to commerce, 
 see the fourth paragraph of article IX. 
 
 a The Indian appears in the constitution only here and in the pro- 
 vision concerning the apportionment of the number of members of 
 the house of representatives and in the clause about direct taxes. The 
 multifarious powers to regulate Indian affairs which the federal gov- 
 ernment has claimed and exercised must therefore be constitution- 
 ally based on all sorts of other constitutional provisions. Neither 
 statesmen nor publicists have as yet, however, taken the pains to 
 enter into the complicated questions involved therein and to analyze 
 and explain them. In congress much has been frequently said con- 
 cerning this or that question of law and the federal supreme court 
 has rendered some important decisions. In general, however, the 
 legal side of the problem has been pushed into the background by tin- 
 practical. In respect to both of them, as Americans themselves 
 admit without reserve, much has been overlooked and much seriously
 
 THE FEDERAL CONSTITUTION. , 137 
 
 From the extremely large number of judicial decisions ren- 
 dered in interpretation of this provision, two most compre- 
 hensive principles are to be deduced: First, the word 
 
 neglected. The first cause of the failures and mistakes has been in 
 no small degree the lack of knowledge of and care for the fundamen- 
 tal question of law. Formal treaties have been concluded with the 
 Indian tribes, as if they were independent nations with equal rights 
 with whom and towards which the United States had an international 
 relation. Yet, as a matter of fact, no such position has been granted 
 them. It could not be granted. Urged on by the development of 
 circumstances and by the fact that the domains of the tribes formed 
 a constituent part of the territory of the Union, the government fell 
 more and more into contradictions in its own actions towards the 
 Indian and piled injustice upon injustice. By degrees men became 
 aware of the blunders of the fathers of the republic. The law of 
 March 3, 1871, put an end to further danger from this source. This 
 law provided that in future no treaties should be concluded with the 
 Indians, because they, as it expressly stated, are not independent na- 
 tions. This put what are left of the unfortunate aborigines in a legal 
 relation to the federal government corresponding with their actual 
 one : They are wards who must be cared for so far as equity and hu- 
 manity demand on the one hand, but on the other with due regard 
 to the demands of civilization as it sweeps over the continent. They 
 are still treated upon the theory that they are to be isolated as far as 
 possible. Their domains are reservations. The largest is Indian Ter- 
 ritory, which has a very peculiar status. It embraces over seventy 
 thousand square miles, is bounded on the south by Texas and the 
 Red river, on the east by Arkansas, on the north by Kansas, and on 
 the west by Texas and New Mexico. A large number of tribes in- 
 habit it and have legal relations with one another. The United 
 States has only "executive jurisdiction," but certain law questions 
 fall within its sphere to decide. A fuller discussion of the very pe- 
 culiar structure of this semi-barbaric pseudo-state of the Union would 
 be out of place here. Only the most important matters as to the reg- 
 ulation of Indian affairs can be brought forward. All tribes which 
 have come to an agreement with the United States have their own 
 districts, called reservations, which are sprinkled over the states and 
 territories. The government is represented among the tribes by 
 "agents" (and sub-agents), over whom are "superintendents" arid 
 " inspectors." At the head of the entire office of Indian affairs, form- 
 ing a part of the department of the interior, is a commissioner. The
 
 138 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 "commerce " has not the same signification as traffic, pur- 
 chase and sale, i. <?., as " trade " in its more limited sense, but 
 includes also the idea of "transportation." The author- 
 agents must give a bond, the amount of which is fixed by the presi- 
 dent and the secretary of the interior. They must reside at a place 
 fixed by the president within the limits of their reservation, or in its 
 immediate vicinity, and must not leave their reservation without per- 
 mission. Neither they nor the other officials of the Indian service 
 are permitted to be interested in any business whatever with the 
 Indians under a penalty of $5,000. Trade can be carried on with the 
 Indians only by citizens of the United States, and these must give 
 bond in the sum of $5,000 to $10,000 and procure a license, which can 
 at an}- time be revoked by the superintendent, whenever Le is con- 
 vinced that the particular person is objectionable. The purchase of 
 implements of the chase, and under some circumstances also the sale 
 of weapons and ammunition, are subject to all sorts of restrictions. 
 The sale, manufacture and introduction of intoxicating liquors on 
 the reservations are most strictly forbidden. In order to prevent the 
 violation of these rules, a comprehensive right of search is granted 
 to the agents. Whoever carries on business without a license for- 
 feits, in addition to all his merchandise, the sum of $500. Contracts 
 can be made only with all sorts of formalities. As a general rule, the 
 purchase of laud is riot permitted. A man who trys to buy land or 
 surveys land in the reservation is liable to fine. Outsiders can enter a 
 reservation, only if provided with a pass, and no one is permitted to 
 settle there. Trespassers are expelled if necessary by the military. 
 Any one who returns after being expelled must pay a fine of $1,000. 
 The right of hunting and grazing in the reservations belongs solely 
 to the Indians. Crimes are punished according to the laws of the 
 places whei'ein the United States have exclusive jurisdiction. The 
 Indian appropriation was $5,903,151 in 1884. The greater part of this 
 is used in paying the tribes the moneys granted them and in supply- 
 ing them witli clothing, cattle, etc. In part it is a payment for lands 
 ceded by the Indians according to treaties or other agreements and 
 in part a gift without any legal obligation whatever. Without such 
 assistance most of the tribes would soon succumb to hunger and mis- 
 ery. The federal government seeks by gifts to raise them gradually 
 to such a degree of civilization that they will become able to support 
 themselves. A business spirit has been stimulated by presenting in- 
 dividuals among them with cattle and rewarding them for the 
 increase. In a similar manner, attempts are made to encourage agri-
 
 THE FEDERAL CONSTITUTION. 139 
 
 ity of congress extends to all international and inter- 
 state commerce, 1 embracing all the means as well as the 
 subjects thereof, including persons in either capacity. 2 
 Second, with commerce within the limits of one single 
 individual state, congress has nothing to do. Thus if the 
 authority of congress is far-reaching, it is nevertheless 
 restricted, and the precise demarcation of its limits is for 
 various reasons not an easy matter. 
 
 Among the infinite possibilities presented by the occur- 
 rences of real life, it is often very difficult to draw the 
 line of distinction just indicated. The exclusive author- 
 ity of the separate and individual state is not under all 
 circumstances co-extensive with its geographical limits, 
 
 culture. In general the efforts of the government are directed towards 
 dissolving the tribal relation and substituting the institution of indi- 
 vidual property. New sources of industry were opened to these 
 people and their self-respect heightened by placing in their own hands 
 the distribution of the government goods and by organizing from 
 their midst an Indian police force. And finally a number of schools 
 have been successfully opened, in which the instruction given :s espe- 
 cially adapted to their peculiar mental and bodily dispositions and 
 desires. The good results of all these measures are already very no- 
 ticeable. They have brought about a new era in the Indian policy. 
 A great part of the credit belongs to Carl Schurz, who, as secretary 
 of the Ulterior under President Hayes, took especially to heart the 
 care of the Indians. Still, only the beginning has been made of a 
 more humane and just policy, corresponding better with the true in- 
 terests of both parties ; and the government has no little trouble in 
 enforcing even the laws which now exist. It is not easy to impress 
 the rough and reckless pioneer population with the idea that the 
 Indians have any rights which must be respected. At the moment I 
 write, it has become necessary to repel by force illegal invasion of 
 the Indian Territory and of the other reservations. 
 
 1 Gibbons vs. Ogden, Wheaton, IX., 189. 
 
 2 The Passenger Cases, Howard, VII., 283. Five judges declare 
 themselves against the view expressed by Judge Barbour in the 
 earlier case of New York vs. Miln (Peters, XI., 102), that persons could 
 not be "the subject of commerce."
 
 "14:0 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 even when these limits are in no wise overstepped in the 
 case in question. Thus, for instance, in 1851, the supreme 
 court decided that Virginia had no right to permit a 
 company to put a suspension bridge over the Ohio river 
 at Wheeling (when the stream was entirely within the 
 territorial limits of the state) so as to interfere with nav- 
 igation, because the Ohio was a navigable water way 
 between different states, and congress must regulate inter- 
 state commerce, and that commerce included navigation. 1 
 In other cases, however, it has been decided that the 
 states, if congress has not exerted its legislative author- 
 ity, can permit the building of a bridge over a navigable 
 stream flowing wholly within their jurisdictions, even if 
 it interferes with navigation. These decisions were based 
 upon the fact that bridges as well as navigable streams 
 are means of commerce, and that the states must be able 
 to determine whether and how far commerce across the 
 water should be preferred to commerce on the water. 2 
 Finally, the right of the states to build bridges or let 
 them be built over navigable streams within their limits, 
 when there was no interference with navigation, has been 
 repeatedly acknowledged. Whether there is or is not such 
 interference is a question of fact that must, in every in- 
 stance, be decided with regard to the circumstances of 
 the particular case. 3 
 
 1 Howard, XIII., 518. But when congress legalized the bridge, as 
 built, a suit brought by the state of Pennsylvania was dismissed by 
 the supreme court because the assertion of an interference with navi- 
 gation, accepted as valid by the court, had not been made good before 
 congress. 
 
 2 Oilman vs. Philadelphia, Wallace, III., 713; The Passaic Bridges, 
 Ibid., 782. 
 
 3 See Wilson vs. Blackbird -Creek Company, Peters. II., 245, as well 
 as the remarks of Justice McLean (Howard, VII., 397, 398), and Jus- 
 tice Clifford (Wallace, III., 743), upon this decision.
 
 THE FEDERAL CONSTITUTION. 14:1 
 
 Further difficulties arise out of the question whether 
 and how far the constitutional authority of congress is 
 an exclusive one, i. e., whether and how far the states 
 possess concurrent power. When congress enacts a law, 
 then, according to the judicial decisions, all state legisla- 
 tion is overruled, even if it does not immediately concern 
 the same subject-matter. 1 Strictly taken, the authority 
 of congress is an " exclusive " one, and a " concurrent " 
 power of the states cannot be recognized.- But, in spite 
 of this, legislative action on the part of the states, within 
 the range of the constitutional authority of congress, is 
 admissible. If congress has not made use of its powers, 
 the inference may be drawn either that it does not wish 
 any legislation on the matters in question, or else that it 
 wishes to let the particular local circumstances control, 
 and that it therefore commits the matter to the states or 
 state concerned. Thus, for instance, if congress were en- 
 titled to enact a general pilot law on the ground that the 
 pilot system belongs to navigation, and the regulation of 
 navigation is included in the right to regulate commerce, 
 and if it should nevertheless refuse to enact such a law, 
 it would thereby say that it does not regard the pilot 
 system as adapted to a general and entirely homogenous 
 regulation. In such a case the state laws concerning 
 pilotage could not be declared to be unconstitutional en- 
 croachments upon the domain of congress. 3 The states 
 are by no means always entitled to legislate, if, and so 
 
 1 The Passenger Cases, Howard, VII., 283. The reasons for the de- 
 cision of the court as such were not given in this case ; only the indi- 
 vidual judges gave reasons ; but five of them maintained the opinion 
 stated in the text. 
 
 2 See Judge McLean's remarks in the Passenger Cases, cited supra, 
 upon Marshall's decision in Gibbons vs. Ogden, and Story's reference 
 thereto in New York vs. Miln. 
 
 3 Cooley vs. The Port Wardens, Howard, XII., 299.
 
 14:2 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 long as, congress does not exercise its authority, but ac- 
 cording to the above decision the exclusiveness of the 
 authority of congress is not always absolute. In what 
 case it is or is not to be regarded as such is manifestly 
 not always quite certain from a legal standpoint. The 
 courts must base their decision more or less upon consid- 
 erations of a practical political nature, and therefore it 
 may often be highly doubtful to which category the case 
 in hand should be referred. 
 
 Difficulties grow apace because, as the federal supreme 
 court has decided, " it is not everything that affects com- 
 merce that amounts to a regulation of it, within the 
 meaning of the constitution; " l and the states, moreover, 
 have certain powers by the exercise of which they may 
 very easily come into conflict with the congressional leg- 
 islation which regulates commerce. First and foremost 
 of these are the police powers of the states. Drawing 
 the line up to which a direct or indirect invasion of the 
 province of congressional legislation on trade and com- 
 merce will be acknowledged as authorized, must neces- 
 sarily be a somewhat arbitrary process. Thus, for in- 
 stance, health and quarantine laws fall within the domain 
 of the state. 2 It is very evident, however, that such laws 
 could readily be made to interfere with many of the provis- 
 ions of congressional legislation about trade and commerce. 
 Moreover the supreme court in the License Cases (How- 
 ard, V., 504) decided that the states might, under certain 
 restrictions, require the trade in liquors imported or 
 brought from another state to be licensed, while in an 
 older case (Brown vs. Maryland, Wheaton, XII., 419) it 
 was decided that in general the importer's right of sale 
 must not be interfered with by the state's requiring him 
 
 1 State Tax on Railway Gross Receipts, Wallace, XV., 293. 
 
 2 Gibbons vs. Ogden, Howard, IX., 203.
 
 THE FEDERAL CONSTITUTION. 143 
 
 to buy a license. The judges, however, assigned the 
 most diverse reasons for their decision in the License 
 Cases. And it can by no means be discovered from these 
 reasons how far the states may go in the exercise of their 
 police power in restricting commerce in articles which 
 they regard, for any reason whatever, as injurious or dan- 
 gerous to the community. Similar conflicts may arise 
 from the right of taxation possessed by the states. In 
 inter-state or international commerce, neither the goods 
 nor the transportation of property or persons can be 
 taxed by the states. 1 But the business as such and the 
 capital used in it are subject to the state's right of taxa- 
 tion. The correctness of this principle certainly cannot 
 be attacked, but just as little can it be disputed that it 
 gives the states the power of encroaching very seriously 
 upon the congressional domain, if they are only careful 
 about the way in which they do so.- The courts indeed 
 are in no wise bound to permit the simple question of the 
 sufficiency of the form in which a state carries out its 
 right of taxation to determine their decisions, and they 
 do not do so. As soon as they enter upon the question, 
 whether the tax-laws of a state materially encroach upon 
 the right of regulating international and inter-state com- 
 merce, subjective views are again given more or less 
 sway. v 
 
 These observations will be sufficient to show why an 
 accurate judgment of the extent of this constitutional 
 provision in all its ramifications is possible only in con- 
 nection with all the judicial decisions to which it has 
 
 1 State Freight Tax, Wallace, XV., 232; The Passenger Cases, How- 
 ard, VII., 283. 
 
 2 How easily and in what various ways this may occur will be suf- 
 ficiently indicated by pointing to the decision in Liverpool Insurance 
 Company vs. Massachusetts, Wallace, X., 566, according to which a 
 state can tax a foreign corporation higher than similar corporations 
 created by its own laws.
 
 1-Hr CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 given rise. And they also show why no general and 
 fixed commercial law, in the European sense of the word, 
 has been developed in the United States. The narrow 
 frame of this work makes it necessary to let this suffice 
 and only to mention briefly the matters subject to the 
 authority of congress, under this general provision, either 
 by force of custom or of judicial decisions. 
 
 This authority extends to the places, the means and the 
 subjects of trade and commerce. 
 
 As to the places, congress must not only provide where, 
 under what conditions, and how certain events in interna- 
 tional and inter-state commerce such as the departure 
 and arrival of vessels, the discharge of their freight, the 
 payment of duties, etc. shall take place, but it must 
 also take care that the places meet the demands of com- 
 merce and trade. That is, it must put and keep the har- 
 bors in good condition, must improve the navigability of 
 the rivers, must build light-houses, piers, etc. 
 
 As to the means, the principle prevails that the author- 
 ity of congress is not restricted to those means which 
 were known and in use at the time of the adoption of the 
 constitution. Steamboat and railroad traffic and the tel- 
 egraph system are as much subject to congressional regu- 
 lation as were the media of commercial intercourse of 
 earlier times. Its powers '" keep pace with the progress 
 of the country and adapt themselves to the new develop- 
 ments of time and circumstances. ... As they were 
 entrusted to the general government for the good of the 
 nation, it is not only the right but the duty of congress 
 to see to it that intercourse among the states and the 
 transmission of intelligence are not obstructed or unnec- 
 essarily encumbered by state legislation." 1 Whether and 
 how far congress is entitled to itself provide media of 
 
 l Pensaco!a Tel. Co. vs. Western Union Tel. Co., Otto, VI., 124; Coo- 
 ley, Principles, 65, 66.
 
 THE FEDERAL CONSTITUTION. 145 
 
 commerce, i. e., to establish highways, to build or mate- 
 rially aid in building railroads, etc., is one of the oldest 
 and most important questions, and one which has not yet 
 received a final and comprehensive legal decision. But 
 the tendency of actual development has always been to- 
 wards the subordination of legal arguments to consider- 
 ations of expediency. On the other hand the power of 
 congress to use its authority to regulate trade in such a 
 way as to indirectly accomplish other objects is generally 
 recognized. 1 Congress has done this in the numerous 
 laws usually referred to under the name of registration 
 and navigation laws. These are in great part designed 
 to give American ship-builders and ship-owners an advan- 
 tage over their foreign competitors. To the power to 
 regulate the means of commerce we must also refer the 
 laws as to building and outfitting of vessels, the number 
 and safety of the crews, as well as of the passengers, the 
 discipline, the legal rights and duties of the sailors, etc. 2 
 
 1 How far congress may do this has, however, been a hotly con- 
 tested question in the battles between protection and free trade. 
 
 2 The influence of the federal government upon the means of com- 
 mercial intercourse apart from those used in navigation has been 
 up to the present time comparatively very limited. As to the rail- 
 roads, it has reserved a somewhat more comprehensive power only as 
 to the roads in the construction of which, to be discussed further on, 
 it assisted in part. In the discharge of its constitutional duties, in 
 which it could not do without the railroads, as in the carrying of the 
 mails, congress promptly used its legislative powers as far as the pub- 
 lic interests seemed to demand. But as to the rest, the federal laws 
 contain little more in reference to the railroads than the provisions 
 that relate to all "common carriers." But that this is not due to any 
 doubts as to its own authority is plain from the act of March 3, 1873, 
 which was dictated solely by a humanitarian regard for the rest, 
 feeding and watering of cattle transported by rail or water. (Stat. 
 at Large, XVII. , 584, 585.) For years, however, congress has debated 
 a considerable number of proposed laws of every kind which cut 
 deeply into the autonomy of railroad companies and in part also 
 
 10
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 Under the authority of congress as to the subjects of 
 commercial intercourse, the laws which regulate the im- 
 port and export of certain commodities and the move- 
 ments of certain persons have been passed. Many of the 
 powers of congress under this division of its authority 
 enure also to the states from their police power. Kestric- 
 tions on the importation of poisons and explosives, pro- 
 hibitions of the introduction of indecent publications and 
 pictures, etc., could be imposed also by the states. The 
 application of the principles of constitutional law in this 
 respect may easily lead in disputed questions to no slight 
 difficulties. As far as persons are concerned, the author- 
 sharply invade the realm of legislation which the states have thus 
 far been permitted to monopolize. The opposition of material inter- 
 ests, however, and especially the general political considerations 
 against such action, have thus far defeated every effort for a more 
 uniform regulation of the railroad system by federal legislation. As 
 late as the spring of 1884, congress considered, but again without re- 
 sult, a number of proposals as to railroad freights, a matter which 
 Leyen justly designates as the "true germinal point of the so-called 
 railroad question " in the United States. It will probably depend to 
 a large extent upon the conduct of the railroad companies themselves 
 as to whether, or how soon, the tendency manifested by such at- 
 tempts at legislation will finally, however, begin to triumph over 
 difficulties to be overcome. What decisive action congress might 
 think itself authorized to take, under certain circumstances, appears 
 from the act of January 31, 1862, which authorized the president to 
 take possession of all railroads and telegraph lines, as far as he 
 thought public safety required, and invested the secretary of war 
 with sole control of the transportation of troops and of all military 
 stores. (Stat. at Large, XII., 334.) See J. F. Lacey, Digest of 
 American Railway Decisions, Chicago, 1875; E. L. Pierce, Law of 
 Railroads, Boston, 1881 ; D. Rorer, A Treatise on the Law of Rail- 
 icays, 2 vols., Chicago, 1884; A. v. d. Leyen, Die Nordamerikanischen 
 Eisenbahnen in iliren wirthschaftlichen und politischen Beziehungen , 
 Leipzig, 1885. 
 
 As to the telegraph companies, the federal government has some- 
 what more extensive rights. An act of July 24, 1866, grants the tele-
 
 THE FEDERAL CONSTITUTION. 147 
 
 ity of the states goes to the full extent required by the 
 "law of preservation." As they may protect themselves 
 by their health and quarantine laws against the introduc- 
 tion of contagious disease, so they may guard themselves 
 likewise against the " moral pest " of vagabonds, paupers 
 and criminals. But apart from this the regulation of 
 immigration is the exclusive domain of congress. Thus, 
 for example, a state cannot prohibit the immigration of per- 
 sons (Chinese, for instance) because it fears that they will 
 not obey the laws, or because it regards them, for economic 
 or other political reasons, as a pernicious element of the 
 
 graph companies organized under state laws the right of way along 
 post-roads or military lines, along navigable streams and over public 
 lands, and permits them to take from the public domain wood, stone 
 and other material for the building of their lines and station-houses, 
 provided they bind themselves to send government telegrams ahead 
 of all other dispatches at rates fixed by the postmaster-general, and 
 to sell their lines upon demand by the government to the United 
 States, at a price to be determined by five impartial men, two of 
 them named by the postmaster-general, two by the company, and 
 the fifth by the four. I am not, however, aware that any telegraph 
 line has actually been bought under this law. Telegraphs and rail- 
 roads are both still private enterprises and private property, but the 
 continuous consolidation of these important instruments of com- 
 merce in the hands of mammoth corporations disturbs public opinion 
 more and more. Discontent is widespread and has at times attained 
 such proportions that the "monopolies" would probably have been 
 already broken, if it were clear what should take the place of the ex- 
 isting circumstances, and if an agreement could be reached on this 
 point. As long as the appointment of nearly fifty thousand post- 
 masters is not wholly withdrawn from party politics, the thoughtful 
 part of the people will scarcely be persuaded to add to the post- 
 office department the telegraph employees, who are counted by 
 tens of thousands (the Western Union Telegraph Company alone 
 had, in 1883, twelve thousand nine hundred and seventeen). Pres- 
 ident Grant recommended this in his annual message of December, 
 1871.
 
 14:8 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 population. 1 Whenever congress exercises its legislative 
 authority in this respect, it must always be in a general 
 way, treating all the states alike. 2 This is, indeed, no- 
 where expressly declared ; but it would be opposed to the 
 general spirit of the constitution to give certain parts of the 
 Union a separate and distinct position, because this would 
 too readily excite at least the suspicion that the conclu- 
 sions of congress were influenced by partiality for one 
 section or dislike of another. 
 
 So far as the regulation of trade is concerned, this 
 fundamental doctrine of complete equally is expressly 
 ordained in regard to certain matters. Art. L, sec. 9, 5, 
 provides that '' no preference shall be given by any regu- 
 lation of commerce or revenue to the ports of one state 
 over those of another." And it declares further: "jSTor 
 shall vessels bound to or from one state be obliged to 
 enter, clear or pay duties in another." The freedom from 
 taxes of the entire coast trade and of the commerce on 
 inland waters is thus firmly established by the consti- 
 tution, and it has been rightly said that this provision 
 alone is sufficient to show the immense worth of the 
 Union. 3 
 
 39. XATUKALIZATION. Immediately after the provision 
 as to the regulation of trade and commerce, the right is 
 granted to congress "to establish a uniform rule of 
 naturalization." To this is added the power already men- 
 
 1 The states are not only not authorized directly to prohibit immi- 
 gration, but they cannot even indirectly hinder it by laws about the 
 landing of passengers from foreign ports. Chy Lung vs. Freeman, 
 92 U. S. (Otto, II.), 272. 
 
 - A law of May 2, 1882, "suspended" the immigration of Chinese 
 for ten years. 
 
 3 In this connection it should also be said that in the clause already 
 discussed as to exports, the states are also forbidden to tax imports.
 
 THE FEDERAL CONSTITUTION. 14:9 
 
 tioned, to enact a uniform bankruptcy law, and further 
 provisions relating to trade and commerce follow. It 
 seems from this juxtaposition that the authors of the 
 constitution regarded naturalization especially from the 
 standpoint of the industrial interests, and that therefore, 
 in the adoption of this provision, they had in mind mainly 
 the encouragement of immigration. In this sense, too, 
 congress has made use of this power. The debt of the 
 United States to this for their unexampled development 
 is well known. If the efforts of the different nativist 
 parties and especially of the " Know Nothings " in the 
 fifties to substantially increase the time of probation, 
 fixed at five years (they wished to make it twenty-one), 
 had been successful, the stream of immigration would 
 unquestionably have been very considerably reduced. 1 
 From a legal point of view, it need be observed only 
 that the power of congress is exclusive, 2 but is of course 
 restricted to the grant of the right of citizenship of the 
 United States. 3 
 
 Among the other powers of congress over commercial 
 
 1 A person must have resided five years in the United States and 
 at least one year in the state or territory where he wishes to be 
 naturalized. Two years prior to naturalization, the immigrant must 
 declare under oath in court his wish to become a citizen. This is not 
 necessary if he came to the United States at least three years before 
 attaining his majority. The widow and the minor children of an 
 immigrant who had declared his intention to be naturalized in the 
 manner required, need only take the prescribed oath to obtain the 
 right of citizenship. Children of immigrants obtain citizenship 
 without naturalization, if they reside in the United States and at 
 the time of their parents' naturalization are still in their minority. 
 Titles of nobility must be expressly renounced at the time of natural- 
 ization. 
 
 2 Chirac vs. Chirac, Wheaton, II., 259, 269. 
 
 3 The peculiar consequences of the right of the states to grant state 
 citizenship have already been discussed.
 
 150 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 intercourse are those in regard to money, already stated 
 in another connection. 
 
 -ii). MEASURES AND WEIGHTS. So far as the right "to 
 fix the standard of weights and measures " is concerned, 
 it need but be noted that it is not an exclusive one. 
 Congress may make a uniform system of weights and 
 measures obligatory, but it has contented itself with legal- 
 izing the metric system, by an act of July 28, 1866, and 
 with fixing the relations of the customary weights and 
 measures (mile, foot, inch ; acre, yard, inch ; gallon, quart, 
 gill; pound, ounce, grain). 
 
 41. THE MAILS. Of the power given congress " to 
 establish postoffices and post-roads," Pomeroy (p. 264) 
 rightly says that the words express the intention in the 
 most insufficient manner. " To create and regulate the 
 entire postal system of the country is the evident intent/' 
 Accordingly congress has always done so without any 
 opposition. But this clause has given rise to a more sig- 
 nificant controversy, namely, whether congress can simply 
 convert existing roads into " post-roads " or whether it 
 itself may build post-roads. It has done the latter, but 
 very seldom. 1 
 
 1 The act of April 30, 1802, for the admission of the state of Ohio, 
 involves a claim of the right to build such roads, but with an impor- 
 tant limitation. Whether congress thought this limitation was re- 
 quired by expediency in the particular case, or generally as a matter 
 of constitutional law, does not appear. The act provides that the 
 twentieth portion of the net proceeds from the sale of public lands 
 within the state should be applied to the building of roads "leading 
 from the navigable waters emptying into the Atlantic, to the Ohio, to 
 the said state, and through the same, such roads to be laid out under 
 the authority of congress, with the consent of the several states through 
 which the road shall pass." Stat. at Large, II., 175. The building of 
 the Cumberland road, which was authorized by act of March 29, 1806 
 (Ibid., 357), and its maintenance gave occasion to repeated and very 
 incisive discussions of the question as to how far the power of the
 
 THE FEDERAL CONSTITUTION. 151 
 
 42. PROTECTION OF INTELLECTUAL PROPERTY. The 
 power to do this quite naturally follows the powers as 
 to commerce, because this has to do to a certain extent 
 with commercial intercourse. Congress may " promote 
 the progress of science and useful arts by securing for 
 
 United States to build roads extended. President Monroe, in a mes- 
 sage of May 4, 1822 (Statesman's Manual, I., 492-537), defended the 
 view " not only that the power necessary for internal improvements 
 has not been granted, but that it has been clearly prohibited ; " but he 
 adds : " To the appropriation of the public money to improvements hav- 
 ing these objects [to facilitate the operations of war and the transpor- 
 tation of the mail] in view, and carried to a certain extent, I do not 
 see any well-founded constitutional objection." Jackson adopted 
 Monroe's views in substance; but, in the application of the principles 
 laid down by Monroe, Jackson took his position more decisively with 
 the state's-rjghts party, and emphasized more sharply "the general 
 principle that the works which might be thus aided should be of a 
 general, not local, national, not state, character." See his Maysville 
 Road Veto of May 27, 1830; Statesman's Man., I., 719-728. Subse- 
 quently, the interest in the question, as one of constitutional law, 
 became much less. The power of the United States to construct 
 roads is deduced, however, not only from this clause about post-roads, 
 but also from the duty of taking care of the country's defenses, and 
 from the right to regulate commerce. The railroads, the building of 
 which was aided in any way whatever by the United States, are under 
 an unconditional legal obligation to carry the mails at prices fixed by 
 congress. All railroads which carry the mail must do so, if required, on 
 every train, and can make no extra charge for the transportation on 
 such train of mail matter, or of the persons in charge of it. If the post- 
 master-general can make no bargain, such as the law allows, with a 
 railroad to carry the mails, he is authorized to send the letters by mes- 
 sengers on horseback, and the rest of the mail by wagon. Contracts for 
 mail carrying are let, after public advertisement, to the lowest bidder, 
 if he gives a sufficient bond. Yet a letting of this sort is obligatory 
 only where the mail is not carried by rail or steamer. It is only letters 
 which must be sent by mail. Packages are usually forwarded by 
 express companies, and latterly the larger newspapers have availed 
 themselves in great measure of these means, because this costs less 
 than sending the papers by mail. The act of June 8, 1872, introduced 
 the money-order system for sending money by mail.
 
 152 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 limited times to authors and inventors the exclusive right 
 to their respective writings and discoveries." The author- 
 ity of congress to promote art and science is thus a very 
 limited one, but as far as the power extends it is exclusive 
 and plenary, i. <?., it extends also to the enactment of 
 special laws. The exclusive right acquired under na- 
 tional law does not, however, in itself, embrace an unlim- 
 ited right to use and sell an invention. 1 For, in this re- 
 spect, the possessor of a patent is subject to state laws, 
 which may impose conditions upon the use of the article 
 and may, under some circumstances, even forbid its use as 
 dangerous to the community. Copyrights and patents 
 under the existing law are granted citizens and inhab- 
 itants of the United States for seventeen years. They 
 may be extended on a proper petition for fourteen years 
 more. The widow and children of a deceased author or 
 inventor can also obtain this extension. The words 
 "authors and inventors'- and "writings and discover- 
 ies " have received an extraordinarily broad interpreta- 
 tion in legislation. All kinds of printed matter, mechan- 
 ical reproductions of works of art of every sort, photo- 
 graphs, etc., may be legally protected. According to 
 recent decisions of the supreme court (United States vs. 
 Stiffens and United States vs. Wittemann, IS 79) congress 
 cannot, under this clause, enact laws as to trade-marks. 
 The right to do so may, however, be deduced from the 
 provision as to the regulation of commerce, but the trade- 
 marks would then be protected only in inter-state com- 
 merce. In the separate states, however, trade-marks are 
 protected by the common law. Foreign countries are 
 not considered at all in the legislation on copyrights and 
 
 1 The common law grants an author protection only against the 
 unauthorized publication of his manuscript, but not an exclusive 
 right of property in his published work.
 
 THE FEDERAL CONSTITUTION. 153 
 
 patents. 1 The agitation for international agreement on 
 these subjects has been vigorously carried on of late, but 
 as yet without result. 
 
 JUSTICE, 
 
 43. GENERAL POWERS. After the observations already 
 made as to the organization of the judicial system, the 
 right of constituting inferior tribunals (art. I., sec. 8, 9) 
 needs no further commentary. 
 
 The next paragraph in this section grants congress a 
 legislative authority as to piracies and felonies committed 
 on the high seas and offenses against the law of nations. 
 To give a more distinct idea, we must' treat these provis- 
 ions in connection with those found in other parts of the 
 constitution which also relate to the administration of 
 justice. 
 
 It belongs to congress to fix the penalties for piracies 
 and for felonies committed on the high seas and to define 
 what shall be considered as crimes falling under either of 
 these two heads. As piracy is covered by international 
 law, congress is not bound to define it; but whatever is 
 made piracy by international law is subject to the penalty 
 for piracy fixed by congress. 2 It is, of course, also au- 
 thorized to declare certain crimes to be piracies, and to 
 punish them as such, which by international law are not 
 piracies. 3 Various views have been held as to the correct 
 interpretation of the expression " high seas " in this clause. 
 It is, however, established that the authority of congress 
 to enact penal laws is not restricted to crimes committed 
 on the high seas, but that it is co-extensive with the crim- 
 inal-law jurisdiction of the admiralty and maritime courts, 
 
 1 Brown vs. Duchesne, Howard, XIX., 183. 
 * U. S. vs. Smith, Wheaton, V., 153. 
 3 The Antelope, Wheaton, X., 66.
 
 154: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 a jurisdiction Avhich, according to art. III., sec. 2, 1, is 
 within the scope of the federal sovereignty. The federal 
 supreme court has, moreover, decided that the large in- 
 land lakes and the navigable rivers also fall within the 
 jurisdiction of the admiralty and maritime courts. 1 
 
 The act of June 30, 1864 (Rev. Stat., 5413), defines 
 what is meant by the " securities and current coin of the 
 United States," the counterfeiting of which congress may 
 punish by law. 
 
 44. TREASON. Finally, the crime of treason against 
 the United States falls within the criminal jurisdiction of 
 congress. Art. III., sec. 3, sets forth: "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 person shall be convicted of treason 
 unless on the testimony of two witnesses to the same 
 overt act, or on confession in open court. The congress 
 shall have power to declare the punishment of treason ; 
 but no attainder of treason shall work corruption of blood 
 or forfeiture, except during the life of the person at- 
 tainted." Determining what shall be treason lies entirely 
 without the sphere of congress, for this the constitution has 
 itself done with painful care. Congress has solely the 
 power of fixing the penalty for the crime. The interpre- 
 tation of this highly significant provision of the consti- 
 tution is to be sought, not among the laws of congress, 
 but amid the decisions of the courts. 2 These decisions lay 
 down two important principles: first, the crime of " con-' 
 
 1 The Nine, Wallace, IV., 553. See S. R. Betts, Admiralty Practice, 
 N. Y., 1838; E. C. Benedict, Am. Admiralty, 2d ed., N. Y., 1870; R. 
 Desty, Admiralty and Shipping, San. Francisco. 1879; T. M. Etting. 
 Admiralty Jurisdiction of the United States, Phila., 1879. 
 
 2 An act of April 30, 1790, contains, indeed, a definition of treason, 
 but the substance of it is a verbal transcript of the constitutional pro- 
 vision. Compare Revised Statutes, sec. 5331.
 
 THE FEDERAL CONSTITUTION. 155 
 
 struct! ve treason," which in England has caused more 
 than one noble head to fall below the axe, does not exist 
 in the United States; 1 second, only a citizen of the 
 United States can commit treason, for the crime presup- 
 poses allegiance. 2 Apart from these principles, the de- 
 cisions, gauged by both moral and political standards, 
 present many striking features. War is " levied " as 
 well by inciting war as by carrying on war. But a con- 
 spiracy to overthrow or coerce the government, as well 
 as the enlistment of men for such a purpose, is not, how- 
 ever, treason. Treason is committed only when persons 
 assemble for the purpose of carrying out a treasonable 
 plan. In such a case, all are guilty of treason who have 
 taken part in the meeting, even in the slightest degree, 
 and if ever so far removed from the place of action, pro- 
 vided they are connected with the general conspiracy. 3 
 The act alone does not of itself constitute treason; 
 there must also be a treasonable intent. The intent 
 need not, however, be the overthrow of the government. 
 Even the attempt to prevent the execution of a single 
 law, or to compel its repeal, is treason, if force is used 
 and the resistance is of a public and general character. 
 The amount of force used is a matter of indifference. 
 These observations explain the provision at first sight a 
 curious one of the act of July 17, 1862, that treason 
 is punishable either by death or by imprisonment in 
 the penitentiary for not less than five years and a fine 
 
 iSee my Constitutional History, V., 292, 293. 
 
 2 U. S. vs. Wiltberger, Wheaton, V., 79. The act of April 30, 1790, 
 already quoted, is in unison with this. On the other hand, quite a 
 modified doctrine is stated in U. S. vs. Greathouse, 2 Abbott's U. S. 
 Rep., 380. See Kurd, Theory of Our National Existence, 61. 
 
 3 Ex parte Bollman, Cranch, IV., 75.
 
 156 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of at least SICKOOO. 1 From the power of congress to fix 
 the punishment for treason, its power also to fix punish- 
 ments for crimes of lesser degree but of like character, 
 such as insurrection, conspiracy, etc., is inferred. 2 The 
 expression " attainder of treason " must be understood as 
 referring only to a judicial sentence. " Bills of attain- 
 der," that is, legislative sentences, which at one time 
 played such an important part in English history, are 
 unconstitutional. 
 
 The authority of congress is limited to cases of treason 
 against the United States. The clause providing for the 
 extradition of fugitive criminals (art. IV., sec. 2, 2) 
 shows that the constitution recognizes the possibility of 
 treason against a single state. This is an important mat- 
 ter, for the usual assumption is that treason can be com- 
 mitted only against a sovereign power. If the separate 
 states are, however, really ''sovereign," and if treason 
 can be committed against them, there may then be a 
 dangerous and unfair conflict of duties for the individual 
 
 1 The act of April 30, 1790, provided that every traitor should 
 "suffer death." Stat. at Large, I., 112. The same act further de- 
 clared that whoever had knowledge of a treasonable crime, and did 
 not as soon as possible give information of it, should " be adjudged 
 guilty of misprision of treason and be punished by imprisonment of 
 not more than seven years and by a fine of not more than 1,000." 
 
 2 The civil war gave extensive occasion for the use of this implied 
 power. On July 31, 1861, an " act to define and punish certain con- 
 spiracies," and on August 6, 1861, an act in regard to the enlistment 
 of soldiers and sailors "to engage in armed hostility against the 
 United States," became laws. The penalties provided by these laws 
 are extraordinarily mild. Then followed the law already mentioned, 
 the act of July 17, 1862, " to suppress insurrection, to punish treason 
 and rebellion, to seize and confiscate the property of rebels, and for 
 other purposes," and finally, on February 25, 1863, an "act to pre- 
 vent correspondence with rebels." Stat. at Large, XII. , 284, 317, 
 589, 696.
 
 THE FEDEEAL CONSTITUTION. 157 
 
 citizen. This was pointed out when the constitution was 
 being drafted and when its adoption was being discussed. 1 
 This appeared on a broad stage during the civil war. 
 Many southerners, like General Robert E. Lee and Alex- 
 ander H. Stephens, the vice-president of the Confederate 
 States, were opposed to secession, but, after secession was 
 once ordained by their respective states, they declared them- 
 selves not only willing to go with their states, but bound 
 to go with them unless they were to be guilty of treason, 
 for they owed allegiance to their respective states and 
 indeed only to them. The federal government naturally 
 refused to admit this, and Chief-justice Chase decided, 
 in Shortridye vs. Macon, that no " rebel " could defend him- 
 self from the charge of treason by pleading the ordinances 
 and commands of his state. Logically, however, this 
 question, on account of its connection with other prob- 
 lems of constitutional law brought to the surface by the 
 civil war, leads to a whirlpool of conflicting conclusions. 
 But a further discussion of the question (upon which 
 Kurd throws a penetrating light in the book already 
 cited) must not be attempted here. This remarkable 
 fact, however, should be stated, that the doctrines of 
 constitutional law in relation to treason were not clearly 
 stated and sharply defined by reason of the civil war, but 
 were rather obscured thereby. 
 
 45. OTHER CRIMINAL LAW POWERS. Further express 
 authorizations to enact criminal laws are not to be found 
 in the constitution. It is, however, self-evident, and it 
 has never been seriously denied, that congress may not 
 only punish all violations of the federal laws, but may 
 also impose penalties upon acts which, if committed with 
 impunity, would render impossible the effective exercise 
 
 i See Elliot, I., 382, 383; V., 488.
 
 158 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of its constitutional powers. 1 This right is based upon 
 the provision authorizing congress " to make all laws 
 which shall be necessary and proper " to carry out the 
 powers belonging to it or to any other factor of the gov- 
 ernment (art. I., sec. 8, IS). That the constitution did 
 not intend to charge the respective states with the duty 
 of enforcing the observance of the federal laws by means 
 of their own penal laws is so certain that, according to 
 the decision of the federal supreme court in Martin vs. 
 Hunter (Wheaton, I., 304), not even a part of the crimi- 
 nal-law powers of the United States can be conferred 
 upon the state courts. 2 
 
 46. IMPEACHMENT. Impeachment is a judicial pro- 
 ceeding, and its discussion therefore belongs to this chap- 
 ter on the powers of congress in regard to the adminis- 
 tration of justice. It has undoubtedly nothing in common 
 with the powers hitherto discussed, and is absolutely sui 
 generis. Congress, as such, is not in question. It is not 
 a legislative but a judicial power which comes into play. 
 In this proceeding the two houses have entirely different 
 functions: the house of representatives acts as accuser, 
 and the senate as judge. 3 It is evident, therefore, that 
 the constitutional provisions concerned cannot be inter- 
 preted by judicial decisions, because any controverted 
 questions under them do not come before ordinary courts. 
 
 1 The latter principle was established by the decision of the supreme 
 court in U. S. vs. Marigold, Howard, IX., 560. 
 
 2 See T. F. Waterman, U. 8. Digest of Criminal Cases, N. Y., 1877; 
 J. P. Bishop, Criminal Law, 6th ed., 2 vols., Boston, 1877; Ibid., 
 Criminal Procedure, 3d ed., 2 vols., Boston, 1880; F. Wharton, Crim- 
 inal Pleading and Practice, 8th ed., Phila., 1880; Ibid., American 
 Criminal Law, 8th ed., 4 vols., Phila., 1881; R. Desty, American 
 Criminal Law, San Francisco, 1882. 
 
 3 Art. I., sec. 2, 5, and art. I., sec. 3, 6. Both clauses use the 
 phrase, "the sole power."
 
 THE FEDERAL CONSTITUTION. 159 
 
 Impeachment is a political process. The decision as to 
 what the la\v is is made by the powers which act in this 
 process as accuser and judge, inasmuch as they carry out 
 the constitutional provisions in accordance with the in- 
 terpretation which seems to them just. There is no appeal 
 from their decision. 
 
 The constitution presupposes that it is well known 
 what an impeachment is. And as it is a technical ex- 
 pression, this implies that the proceeding known in 
 English law by this name is meant. But it is by no 
 means to be said that the English idea must be accepted 
 without any modification. Whether it has been changed, 
 and if so how, must be deduced from the further pro- 
 visions of the constitution on this point, as interpreted by 
 both houses of congress, when engaged in their respective 
 functions in conducting impeachments. 
 
 Art. II., sec. 4, reads: "The president, vice-president, 
 and all civil officers of the United States shall be re- 
 moved from office on impeachment for and conviction 
 of treason, bribery, or other high crimes or misdemean- 
 ors." The wording of this paragraph raises a most sig- 
 nificant question. Farrar (p. 436) thinks that emphasis 
 must be laid upon the effect which conviction is to have 
 upon the designated persons impeached for the causes 
 assigned, and thus he comes to the conclusion that any 
 other person may also be impeached. But since there is 
 nowhere else in the constitution anything said as to who 
 shall be subject to impeachment or in what cases it shall 
 come to pass, while another paragraph contains more 
 definite provisions as to the consequences of conviction, 
 in view of this it has always been the opinion of the most 
 prominent jurists and statesmen as well as of the entire 
 public, that the clause cited must be held to settle these 
 two questions, and, of course, that only the persons named
 
 160 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 are subject to impeachment and they only for the causes 
 mentioned. This must be held to be the valid constitu- 
 tional law, as long as the house of representatives does 
 not impeach, and the senate does not hold itself compe- 
 tent to try, under impeachment, a person who is not a 
 " civil officer " of the United States. The two houses did 
 not at first agree as to the limit of the power. Senator 
 Blount was impeached by the house in 1798, but the sen- 
 ate, by a majority vote, declared itself incompetent to 
 hear the case. It is self-evident that neither the house of 
 representatives nor the senate is bound by this decision. 
 But it will scarcely be questioned that members of con- 
 gress are not "civil officers" of the United States, within 
 the meaning of this constitutional provision. It has 
 never been disputed that judges come under this designa- 
 tion. It has been asserted, however, that impeachment 
 is admissible only as long as the person concerned remains 
 in office. One effect of this would be that every official 
 threatened with impeachment could escape it by resigna- 
 tion. The house of representatives decided against this 
 doctrine, in 1ST6, by the impeachment of Secretary of 
 "War Belknap. 
 
 There have been more vigorous discussions over the 
 proper interpretation of the constitutional provisions in 
 regard to the grounds of impeachment. It is agreed that 
 the incriminating acts must have some relation to the 
 official action of the person concerned, since impeach- 
 ment aims at the preservation of public interests. But 
 the two houses have by no means assented to the view, 
 so energetically defended, that only official acts present 
 a constitutional ground for an impeachment. Just as 
 little have they ever held that the words " high crimes 
 and misdemeanors " are to be understood in their technical 
 sense, and that an impeachment can be based only upon
 
 THE FEDERAL CONSTITUTION. 161 
 
 acts which the federal laws have expressly declared to be 
 "felonies" or ''misdemeanors;" that is, "indictable of- 
 fenses." Some authorities and they agree in this with 
 congress are, nevertheless, of the opinion, that the words 
 are not to be understood in the misty and vague sense 
 they have in ordinary speech, but are to be interpreted 
 by the rules of the common law. This opinion will never 
 go unquestioned, because the very existence of a general 
 " common law " of the United States is strenuously de- 
 nied. 1 Practically the matter takes this form, that the 
 individual views of the then members of congress must 
 always determine what they will regard as high crimes 
 and misdemeanors within the meaning of the constitu- 
 tion. Neither the arguments of authorities on jurispru- 
 dence nor precedents can bind them any further than 
 they wish to be bound. 
 
 As to the effect of impeachment, art. I., sec. 3, 7, 
 says: "Judgment in cases of impeachment shall not ex- 
 tend further than to Removal from office and disqual- 
 ification 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." It is 
 evident from the second clause that the purpose of im- 
 peachment is not the punishment of the guilty person, 
 
 1 Apart from this, the common law, as is well known, plays nearly 
 as large a part in American as in English legal life. An American 
 common law may therefore be spoken of even by one who, like my- 
 self, holds the opinion stated in the text, provided that the expression 
 is understood to mean the common law in the United States and not 
 the common law of the United States. On the common law in the 
 United States, see J. D. Wheeler, American Common Laic, 8 vols., 
 N. Y., 1833-1836; W. A. Cocke, Common and Civil Laic in the U. S. 
 Courts, N. Y., 1871; O. W. Holmes, Jr., The Common Law, Boston, 
 1881. 
 
 11
 
 162 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 but the protection of public interests from danger or in- 
 jury by abuse of official power, neglect of duty or con- 
 duct incompatible with the dignity of the office. The 
 punishment of all crimes and punishable misdemeanors 
 according to law remains entirely with the ordinary 
 courts, in the regular course of judicial proceedings. As 
 to the consequences of a conviction in an impeachment 
 trial, the wording of the constitution admits of a two- 
 fold interpretation. In theoretical circles it is usual to 
 assume that, according to the constitution, conviction in- 
 capacitates the culprit for filling any federal office. This 
 view is, however, not only not shared by the most pro- 
 found jurists, but the senate has already in one case (that 
 of John Pickering, 1804:) passed sentence of only a re- 
 moval from the office then held. The theory which has 
 also been advanced, that a less penalty than removal from 
 office may be imposed (Farrar, pp. -434:, 435), will probably 
 never be approved by the senate. It is founded, indeed, 
 only upon far too subtle verbal criticism, and it conflicts 
 with the very substance and purpose of impeachment. 
 In cases of impeachment the president has no right of 
 pardon (art. II., sec. 2, 1). 
 
 As to the method of procedure, the constitution con- 
 tains three provisions. The "senators shall be on oath or 
 affirmation when the senate meets as a court of impeach- 
 ment; if the president is impeached, the chief justice of 
 the supreme court shall preside; and for conviction a 
 two-thirds majority of all the members present shall be 
 necessary (art. I., sec. 3, 6). Everything else as to pro- 
 cedure is left to congress. 1 But it is self-evident that con- 
 gress is bound by all the provisions of the constitution in 
 point. Tiffany's view (p. 354) is therefore to be rejected 
 
 i See the detailed description in Story, 807 et seq.
 
 THE FEDERAL CONSTITUTION. 103 
 
 without question. He holds that congress may arrest an 
 impeached president and suspend him from office during 
 the proceedings. But this would place the president, who 
 is a co-ordinate, and within his constitutional sphere an 
 independent, factor of the federal government, completely 
 in the hands of a hostile majority of both houses of con- 
 gress. 1 Pomeroy (p. 494) may be cited against Tiffany. 
 He holds that, in the case of an official whoje term of 
 office is not fixed by the constitution, 2 the question is 
 to be decided upon grounds of equity and expediency, be- 
 cause there are no insuperable constitutional objections 
 to suspension in such a case. 
 
 INTERNATIONAL RELATIONS AND MILITARY SOVER- 
 EIGNTY. 
 
 47. INTERNATIONAL RELATIONS. The powers of con- 
 gress in regard to international relations are few in num- 
 ber. The first provision on this point which authorizes 
 congress "to define and punish . . . offenses against the 
 law of nations " (art. I., sec. 8, 10), considered from a cer- 
 tain point of view, should be discussed in the paragraphs 
 concerning justice. The right in this case is clearly also 
 a duty, and the duty has been met and discharged by the 
 passage of so-called neutrality laws, which have often 
 played an important part in the inner history of the 
 United States. 3 
 
 The other powers of congress in this respect all relate 
 to the condition of war, and must be discussed in con- 
 
 1 The disposition prevailing against Andrew Johnson in 1868 leaves 
 little room for doubt that congress would have proceeded against 
 him in this way if it had considered itself able to do so. 
 
 2 Judges are thus excluded. 
 
 8 The other laws enacted by virtue of this provision need no special 
 mention.
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 nection with the question of military sovereignty. More- 
 over, foreign relations are placed in charge of the presi- 
 dent, with the co-operation of the senate. They will 
 therefore be treated in the chapter on the powers of the 
 executive. Here it is necessary simply to lay stress on 
 the fact that foreign relations are the exclusive domain 
 of the federal government. The constitution does not 
 content itself with sharing among the different factors 
 of the national government all the powers concerned. 
 It expressly withholds them from the states. The latter 
 are absolutely forbidden to enter into any treaty, alliance 
 or confederation (art. I., sec. 10, 1). They can make 
 agreements or compacts of any kind whatever with a 
 foreign power only with the consent of congress. 1 
 
 48. MILITARY SOVEREIGNTY. In a military aspect the 
 consolidation or nationalization of the Union has not been 
 carried as far as in reference to the regulation of peaceful 
 relations with foreign powers. Experience has shown, 
 however, that the constitutional provisions on this point 
 render the highest development of national strength pos- 
 sible. 
 
 The right " to declare war " belongs to congress alone 
 (art. I., sec. 8, 11). Of course, the United States may 
 get into a war without congress's having declared w T ar. 
 War is, in the first place, a state of fact, the appearance 
 of which cannot be made wholly dependent, by any con- 
 stitutional provisions whatever, upon the pleasure of one 
 of the nations concerned. As far as that is possible, 
 however, congress has the exclusive right of the initiative. 
 
 1 The other constitutional provisions on this point will be mentioned 
 later in another connection. The "agreements and compacts" are 
 distinguished from "treaties and alliances" in this: that the latter 
 have a more permanent character, while the former have only a 
 momentary purpose and are ended when it is accomplished. Holmes 
 vs. Jennison, Peters, XIV., 540, 572.
 
 THE FEDERAL CONSTITUTION. 165 
 
 If a foreign power begins war against the United States, 
 then it is not only the right, but the duty, of the presi- 
 dent to oppose the enemy with all the means placed at 
 his disposal by the constitution and the laws. But he is 
 not to regard every act of hostility as the opening of an 
 aggressive war and thereupon begin on his own part act- 
 ual war. It is for congress to decide whether he has ex- 
 ceeded his constitutional authority in this respect, or has 
 actually found himself face to face with an accomplished 
 fact by the initiative of a foreign state. 1 That the latter 
 may be the state of the case is expressly acknowledged by 
 the constitution's providing that without the consent of 
 congress " no state shall . . . engage in war, unless act- 
 ually invaded, or in such imminent danger as will not 
 admit of delay " (art I., sec. 10, 3). The states can no 
 more begin war than can the president; they can take 
 into account the presence of actual facts only as far as 
 the inalienable right and imperious necessity of self- 
 defense demand it. If a state gets into serious trouble of 
 this sort when congress is not in session, the president is 
 in duty bound to call forth the entire federal power, if 
 necessary, for its protection ; for the United States must 
 " protect " every state " from invasion " (art. IV., sec. 4). 2 
 It appears, therefore, that the right to declare war may 
 become a duty, and further, that this right implies the 
 powers needed for the effective conduct of a war. 3 If the 
 
 1 The importance of this question appears from the ante-bellum 
 history of the Mexican war, which was quite certainly brought about 
 by the president in an unconstitutional way. See my Constitutional 
 History, III., chs. 6-9. 
 
 2 The two clauses last mentioned apply in case of threats or acts of 
 violence, not only by foreign enemies, but also by sister states. 
 
 3 The question as to whether a " war " against rebellious states was 
 admissible or even possible, constitutionally, has been discussed with 
 much acuteness and much learning. Many stout volumes have been
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 most essential of these powers were expressly granted to 
 congress, this was done, not only to save all doubt, but 
 because they must be vested in congress in time of peace 
 as well, partly for the sake of preparing for war and 
 partly for other reasons. 
 
 The right to grant letters of marque and reprisal, con- 
 ferred upon congress in the same paragraph which treats 
 of the right to declare war, is expressly withheld from the 
 states (art. I., sec. 10, g 1). This is not the case as to the 
 authority to enact laws concerning captures on sea or land, 
 as this right in its very nature is an exclusive one. The 
 property of an enemy can be legally confiscated only in 
 accordance with laws passed by congress, 1 but the power 
 
 tilled with demonstrations pro and con. Even if space allowed, 
 however, further discussion of this controverted question must be 
 waived. It certainly is not without interest and it has a practical, 
 important side. Thus the blockade imposed by Lincoln gave foreign 
 powers a formal legal basis for the recognition of the Confederate 
 States as a war-making power. But from the stand-point of constitu- 
 tional law, the question at bottom involves only an idle exercise of the 
 wits. If abstract logic be followed, it becomes very easy to construct 
 an interminable labyrinth of contradictions. Examine it more closely 
 and the labyrinth is only a house of cards. The American statesmen 
 upon whom devolved the duty of overthrowing the rebellion did not 
 from the outset keep clearly enough in view the fact that it was not 
 a law-suit, which should or could be carried on in accordance with 
 constitutional provisions, but a state of fact, which had as its legal 
 basis, in principle, so far as the rebels were concerned, the annulment 
 of the entire constitution. Legally they were and they remain 
 rebels. Whether and how far it was expedient and necessary, to give 
 the form of a war, conducted according to the laws of nations, to the 
 attempt to subdue the rebels, an attempt which was a constitu- 
 tional right and duty, depended solely on matters of fact and lias 
 nothing to do with constitutional law. As far as the rebels were 
 concerned, the whole constitution was reduced for the federal gov- 
 ernment to the single right and duty of forcing them back to obe'l i- 
 ence; nil else was a question of policy. 
 
 ' Ihnwn vs. United StnL'ft, Craneh. VIII. , 110.
 
 THE FEDERAL CONSTITUTION. 107 
 
 of confiscation possessed by congress is subject to no legal 
 restriction of any kind whatever. This clause has be- 
 "come of great practical significance, because the right of 
 emancipating the slaves in the rebellious states was 
 deduced from it. 
 
 The right to raise and support armies and to provide 
 and maintain a navy (art. I., sec. 8, 12, 13) is not en- 
 tirely exclusive in congress. The states are forbidden 
 only to " keep troops or ships of war in time of peace 
 . . . without the consent of congress " (art. I., sec. 
 10, 3). But if, in times of war, the states are free to 
 act independently in this respect, yet this in no way lim- 
 its the power of congress to call forth the force of the 
 people under the immediate and sole control of the fed- 
 oral government in whatever measure it sees fit. It alone 
 is to decide upon how strong the army and navy should 
 be and how the men are to be got. On account of the 
 smallness of the regular forces needed in ordinary times 
 at present not quite thirty thousand soldiers, seven thou- 
 sand five hundred sailors (officers excepted), and one 
 thousand five hundred marines free enlistment supplies 
 all the men needed. During the civil war, however, con- 
 gress made use of conscription. 1 The constitutionality 
 of the law was, it is true, vigorously contested. The 
 sound sense of the people was, however, so decisively op- 
 posed to the legal subtleties, intended to prove the law's 
 unconstitutionality, that the strange doctrine gained no 
 foothold, despite some decisions in its favor. This asser- 
 tion, that congress was not authorized to act solely upon 
 grounds of necessity and expediency, was the more sur- 
 
 1 Able-bodied immigrants from twenty to forty-five years of age, 
 who had declared under oath their intention to become citizens, were 
 made liable to conscription just as citizens were. For certain excep- 
 tions and more detailed information, see Stat. at L., XII., 731 et seq.
 
 108 CONSTITUTIONAL LAW OF THK UNITED STATES. 
 
 prising, because the constitutional provisions concerned 
 have always been interpreted to mean that congress can 
 do everything demanded by the defense of the country. 
 Upon these provisions have been based the right to build 
 forts and all other fortifications, the right to found and 
 maintain the military school at West Point and the naval 
 school at Annapolis, the right to grant rewards and even 
 pensions to soldiers, etc. 1 
 
 Better founded occasions for constitutional criticism 
 might be found, indeed, in the methods adopted by the 
 federal government to create, before the conscription 
 act of March, 1863, the army needed to make war upon 
 the rebels. The first seventy-five thousand men were 
 called to arms by Lincoln, under an act of 1795 relating 
 to the mustering of the militia. Then, however, " voluii- 
 
 1 The military school at West Point was founded May 16, 1802. Ap- 
 plicants for admission must be from seventeen to twenty-two years of 
 age. The president appoints the pupils, one from each congressional 
 district, each territory and the District of Columbia, and ten at large. 
 The appointees are subject, however, to an examination for admis- 
 sion and are dismissed from the academy if they do not pass the ex- 
 aminations held during the course of studies. These examinations 
 are controlled by a board of visitors consisting of thirteen members. 
 The president appoints seven, the vice-president appoints three sen- 
 ators, and the speaker of the house of representatives appoints three 
 members of the house. The cadets, who must bind themselves to 
 serve for eight years, are supported wholly at the expense of the 
 United State-*. They receive rations and. pay. At the head of the 
 military academy there is a "superintendent." The immediate con- 
 trol of the "battalion of cadets" is vested in a "commandant of 
 cadets." These two military principals as well as the professors are 
 appointed by the president. The corps of teachers is completed by 
 army officers detailed by the secretary of war. The organization of 
 the naval school is substantially the same as that of the military 
 academy. The pupils are appointed, one from each congressional 
 district, upon the recommendation of the representative from that 
 district. The age for admission is from fourteen to eighteen years.
 
 THE FEDERAL CONSTITUTION. 169 
 
 teers " were asked for ; that is, required. This was done, 
 manifestly, upon the ground of the power " to raise 
 armies," and the " volunteers " were designated and 
 treated as a constituent part of the United States army. 
 On some essential points, however, they were treated as 
 militia. Eegiments were organized according to states; 
 the entire number of men called for was divided into 
 quotas for the several states ; and the inferior officers were 
 appointed by the respective governors. It would, indeed, 
 be difficult to prove that this was actually unconstitu- 
 tional, but, at all events, the federal army and the inilitia 
 were not kept so distinctly separate as they should have 
 been, or at least might have been, according to the true 
 intent of the constitution. 
 
 49. MILITIA. There is no militia of the United States. 
 The constitution recognizes only a militia of the several 
 states, and the authority of the federal government as to 
 them is precisely defined. It is nowhere made the express 
 duty of the states to have a militia. But not only does 
 the constitution take the existence of a state militia for 
 granted, but the states can be compelled to maintain one 
 by federal legislation, for congress is authorized " to pro- 
 vide for organizing, arming and disciplining the mili- 
 tia." 1 
 
 1 " Every able-bodied male citizen of the respective states, resident 
 therein, who is of the age of eighteen years, and under the age of 
 forty-five years, shall be enrolled in the militia." Rev. Stat., sec. 
 1625. But, as it further says that " all persons who now are or may 
 hereafter be exempted by the laws of the respective states shall be 
 exempted from militia duty," the states are absolutely bound only to 
 have some sort of a militia. Even if this is not the spirit of the law, 
 its letter permits them to make the exceptions so extensive as to be- 
 come the rule. Their freedom of action is expressly restricted only 
 in so far that they must regard the exceptions made by the federal 
 law, especially the exemption of federal officials. If a state abuses 
 the freedom left it by the letter of the law, it might not be able to
 
 170 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 The training of the militia, according- to the rules 
 laid clown by congress, and the appointment of officers, 
 are strictly reserved to the states (art. I., sec. 8. 16). 
 The militia can be called into the service of the Union 
 only for three, distinct purposes: "to execute the laws 
 of the Union, suppress insurrections and repel invasions " 
 (Ibid., 15). The militia cannot be taken out of the 
 country. Moreover it can be directly called into service 
 to suppress an insurrection only when the insurrection is 
 against the United States. In case of domestic violence, 
 
 O 
 
 directed solely against a state government, the federal 
 government can interpose only on application of the state 
 legislature, or of the governor if the legislature is not in 
 
 O O O 
 
 raise an armed force for its own protection. For, when the militia 
 of several states is called int.) the service of the United States, the 
 total number of men required must be distributed among these states 
 in proportion to the number of their representatives in congress. 
 
 By an act of July 17, 1862, the call must not be for more than nine 
 months. If the militia is takea into the service of the United States, 
 it is subject to the same rules and articles of war as the regular army, 
 but also receives ' ' the same pay, rations, clothing and camp equi- 
 page." Its court-martials, however, are made up only of militia 
 officers. A law of July 14, 1862, put militia in the national service 
 upon the same footing as regular soldiers, so far as pension-rights 
 were concerned. The first militia act (May 8, 1792) prescribed exactly 
 the arms and equipments with which every officer and soldier should 
 be provided. As early as 1808, congress appropriated $;JOO,000 per 
 annum for the militia, for the supply of arms, etc., an amount which 
 was to be annually divided among the states in proportion to the 
 number of their representatives in congress. As a result of this ar- 
 rangement the seceded states were able to begin war against the 
 Union with arms furnished them by the government of the Union. 
 The federal laws contain no absolutely binding directions as to how 
 the militia should be subdivided into divisions, brigades, regiments, 
 etc., but the composition of the corps of officers is carefully pre- 
 scribed. Each state must have an adjutant-general, and he must 
 send a report to the pr >sident at the beginning of each year. Army 
 regulations as to discipline and drill are to be taken as a model.
 
 THE FEDERAL CONSTITUTION. 171 
 
 session. In this instance, however, it is bound to lend its 
 aid (art. IV., sec. 4). 1 The constitution does not say in so 
 many words whose duty it is to call out the militia for any 
 of the purposes mentioned. The wording of the partic- 
 ular clause ''to provide for calling forth" shows, how- 
 ever, that congress need not act directly in every case, 
 but may pass general laws providing under what circum- 
 stances and in what way a call shall be made. This it 
 has done, and has transferred the power, with all the im- 
 plied powers and duties, to the president. When the 
 militia is called into the service of the United States, the 
 provision applies to it, which authorizes congress " to 
 make rules for the government and regulation of the land 
 and naval forces " (art. I., sec. 8, 14). The wording of 
 this paragraph, Avhich forms the basis of the whole "mil- 
 itary law," is not sufficiently clear to permit the line be- 
 tween the authority of congress and that of the president 
 as Commander-in-chief to be always drawn with certainty. 15 
 50. QUARTERING SOLDIERS. Traditions of English his- 
 tory caused the passage of the third amendment. This 
 provides that "no soldier shall in time of peace be quar- 
 tered in any house without the consent of the owner, nor 
 in time of war, but in a manner to be prescribed by law." 
 
 1 This provision has this weighty result, that, when two legislatures 
 or two governors are opposed to one another in the same state, the 
 president must decide which government is the legal one. Whether 
 there really is domestic violence is a question of fact, as to which, 
 according to law, the president has the exclusive right of decision. 
 If his decision is held to be erroneous by congress, the latter can ad- 
 minister whatever remedy seems fit, but there can be no appeal to 
 the courts from the judgment of the president. Luther vs. Borden, 
 Howard, VII., 43-45; Martin vs. Mott, Wheaton, XII., 29-31. 
 
 2 See Pomeroy, p. 297, for a case of conflict resulting from this.
 
 172 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 THE SEAT OF GOVERNMENT AND THE SEPARATE PROP- 
 ERTY OF THE NATION. 
 
 51. DISTRICT OF COLUMBIA. "When, after the termi- 
 nation of the war of independence, the wretched effects 
 of a weak government became daily more and more mani- 
 fest, the evils due to the fact that congress had to meet 
 within the limits of a state's jurisdiction were especially 
 felt. This made congress dependent to a certain degree 
 upon the state government, a dependence which was 
 always improper, and under critical conditions might 
 have become fatal. These evils led the authors of the 
 constitution to think of a means of preventing them for 
 the future. And they concluded that they had discov- 
 ered it in the provision authorizing congress to acquire 
 by cession from any of the states a district of not more 
 than ten miles square as the seat of government over 
 which it could " exercise exclusive legislation in ail cases 
 whatsoever " (art. I., sec. 8, 17). The territory called 
 the District of Columbia was acquired from Virginia and 
 Maryland. The part ceded by Yirginia was afterwards 
 ceded back to her. The history of the slavery question 
 teaches on every page the eminent significance of the 
 fact that the capital was built within the domain of 
 slavery. Against the clear wording of the constitution, 
 the south asserted that congress could not, without the 
 consent of Maryland (and Virginia), abolish slavery in 
 the District. Until civil war had come, the representa- 
 tives of the north acknowledged the " moral " obligation 
 of letting it continue. The seat of government w r as 
 withdrawn from the influence of a state government, but 
 instead it was brought under the infinitely more potent 
 influence of the slavocracy. Apart from the slavery 
 question, this paragraph has given rise to no far-reaching
 
 THE FEDERAL CONSTITUTION. 173 
 
 controversies. The principles laid down by the supreme 
 court, that the exclusive legislative power involves exclu- 
 sive jurisdiction, and that congress is not the local legis- 
 lature of the District, but possesses, as the national 
 legislature, exclusive legislative power over it, have never 
 been seriously assailed. 1 The power of giving the city 
 of Washington its own municipal government has there- 
 fore always been regarded as self-evident. On the con- 
 trary, the constitutionality of organizing the District into 
 a territory like the ordinary territories has been disputed, 
 because a partial delegation of the legislative power is 
 inadmissible, on account of the expressly stated exclusive- 
 ness of this power. It is, however, generally admitted 
 that " exclusive " does not mean the same as " unlimited." 
 Congress cannot grant the inhabitants of the District 
 any rights which, according to the general political nat- 
 ure of the Union, belong only to the population of the 
 states such, for instance, as representation in congress, 
 participation in the presidential election, etc. And just 
 as little can congress rule the District without regard to 
 the provisions of the so-called " bill of rights." But 
 what congress cannot do in regard to the District in 
 matters not involving the rights of the states as such, 
 that it also cannot do in reference to anybody or any- 
 thing. 2 
 
 1 Cohens vs. Virginia, Wheaton, VI., 424. 
 
 2 Congress has tried all sorts of experiments as to the local govern- 
 ment of the District, some of them with very unfortunate results. 
 At present there are three commissioners at the head of the admin- 
 istration of the District. The inhabitants cannot well grieve over the 
 loss of their short-lived enjoyment of a limited autonomy, for while 
 their rights have again become more limited (necessarily so under the 
 present system) their interests are better cared for. They must bear 
 the same burdens as the rest of the people, have the same taxes to 
 pay and are bound to terve in the militia. But in spite of their full
 
 174: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 52. NATIONAL PROPERTY. In the same paragraph 
 equally exclusive authority is given congress ' ; over all 
 places purchased, by the consent of the legislature of the 
 state in which the same shall be, for the erection of forts, 
 magazines, arsenals, dock-yards, and other needful build- 
 ings." Real estate within a state may al.->o be acquired by 
 the nation without the consent of the state legislature, but 
 it is only when that consent is given that this provision 
 applies. The inhabitants of such places are legally no 
 longer inhabitants of the state, that is, the\ r do not pos- 
 sess the civil and political rights which would belong to 
 them as citizens of the state. In spite of this provision, 
 the seceded states demanded the evacuation and surren- 
 der of the forts and arsenals as their right, on the plea 
 that the " places " had not ceased to be a portion of the 
 territory of the state on account of congress's acquiring 
 exclusive legislative power and jurisdiction over them, 
 and that consequently they must ipso facto revert to the 
 states if the latter by virtue of their sovereignty cut loose 
 from the Union. If the premises, that is, state sovereignty 
 and the resulting right of secession, are admitted, then 
 the correctness of the conclusion must be granted, and 
 the Union would have had only a right of reasonable in- 
 demnification. But what lec:al claims could the seceded 
 
 citizenship political rights are withheld from them solely because they 
 have their domicile at the seat of government. This is an anomaly 
 that has never been justified theoretically, and its necessity not to 
 say its expediency has become at least doubtful since the power of 
 the federal government has become so firmly established and so far 
 beyond the power of each separate state. This anomaly, moreover, 
 will always remain a thorn in the flesh of the American disciples of 
 the doctrine of natural political rights. The creation of the District 
 of Columbia is one of those steps which it is scarcely possible to re- 
 trace, even if the circumstances, which at one timo made them seem 
 wise, have given room to a completely changed state of things.
 
 T1IE FEDERAL CONSTITUTION. 175 
 
 states, upon these premises, make in regard to that fed- 
 eral property, the territories, which had most directly 
 led to the development of the clash of interests between 
 the north and south into an "irrepressible conflict" which 
 had to lead to a rupture? The abstract logic of this 
 method of interpreting constitutional law would have 
 obliged the south to demand the partition of the territo- 
 rial domain among the several states. This would have 
 been the final practical result of the doctrine, and it puts 
 its absurdity in the most glaring light. 
 
 53. THE TERRITORIES. The slavery question, which 
 every year became more and more the central point of 
 the whole inner history of the United States, culminated 
 in the struggle over the territories; that is, in the ques- 
 tion what rights the slave-holder had, or ought to have, in 
 them. While the southern states had originally preferred 
 to rely upon a claim of equity, and had triumphantly 
 celebrated the fact that their " peculiar institution " could 
 be unconditionally and forever excluded only from the 
 territorial domain north of 36 30', the rapid develop- 
 ment of the north forced them to constantly increase their 
 claims, until they finally laid down the principle that slav- 
 ery could not be prohibited in a territory either by congress 
 or by the people of the territory through its legislature, 
 but that, independent of the constitution, the slave-holder 
 could go with his slaves into any territory, and must be pro- 
 tected in his ownership until the territory became a sov- 
 ereign state and thus acquired the right to determine for 
 itself whether or no slavery should exist within it. The 
 so-called Douglas democrats also denied the power of 
 congress to legislate as to slavery in the territories, but 
 declared that the population of each territory was author- 
 ized to permit or prohibit slavery. The republicans, on 
 the contrary, advocated fully and completely the doc-
 
 176 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 trine, at first generally acknowledged, of the exclusive 
 and unlimited legislative authority of congress over the 
 territories. The assertions of the radical southerners 
 and of the Douglas democrats found not the slightest 
 positive support in the constitution. Neither of these 
 two parties asked what the law was according to the con- 
 stitution, but constructed by general reasoning from pre- 
 tended " principles " outside of the constitution the " right " 
 which they claimed existed. This was made possible be- 
 cause the only express constitutional provision that could 
 be invoked as bearing on this question -certainly gave no 
 sufficiently solid and broad foundation for the correct 
 doctrine. The latter, therefore, had to be to a great ex- 
 tent based upon deductions from other clauses of the 
 constitution, or wholly upon general principles. The con- 
 stitution says nothing whatever about " territories." And, 
 moreover, the word "territory " is used but once, and that 
 in the following provision: "The congress shall have 
 power to dispose of, and make all needful rules and regu- 
 lations respecting, the territory or other property belong- 
 ing to the United States " (art. IY., sec. 3, 2). " Terri- 
 tory " is thus named in connection with " other property." 
 It was argued from this that the word was used only in 
 reference to land as a salable object, and that the " rules 
 and regulations " related only to the methods of turning 
 it into cash. 
 
 Even statesmen and jurists who were by no means 
 " strict constructionists " have recognized that it is at least 
 very doubtful whether there could be deduced from this 
 paragraph a general legislative power of congress over the 
 territories, limited only by the constitution. They based the 
 right upon the power of acquiring territory. This power 
 itself was originally doubted; but the opinion of the su- 
 preme court that it is implied in the grant of power to de-
 
 THE FEDERAL CONSTITUTION. 177 
 
 clare "war and make treaties received general assent. If, 
 however, the right of legislation can be inferred only from 
 the right of acquisition, does it not exist, then, only as to 
 the domain acquired by war or treaty under the constitu- 
 tion? But one of the first laws of congress related to the 
 territorial domain acquired before the existence of the 
 constitution. This law provided that the " ordinance of 
 1787 " as to the territory northwest of the Ohio river, 
 which became inoperative upon the adoption of the con- 
 stitution, should remain in force. 1 The constitutionality 
 of this law was questioned by no one, although it was 
 admitted that the congress of the confederation had no 
 authority to enact the ordinance, and that its usurpation 
 could be pardoned only on the ground of an imperious 
 political necessity. Moreover, as it had cost a long and 
 difficult struggle to persuade the states to transfer to the 
 Union the unsettled " backwoods " districts they claimed 
 under their colonial patents, the great importance of the 
 question must have been very plain to the authors of the 
 constitution. These facts lead to one of two conclusions, 
 either that the right of legislation seemed to the authors 
 of the constitution a self-evident consequence of ownership, 
 or else that the provision cited does not refer simply to 
 the value of " territory " as part of the national wealth. 2 
 The preference must be given to the latter assumption. 
 For, in the first place, the right of sale is a direct legal 
 
 1 It has, however, been disputed whether or no the adoption of the 
 constitution affected the validity of the ordinance. Cooley, Prin- 
 ciples, 169. 
 
 2 Georgia and North Carolina ceded their "backwoods" country 
 < nly after the adoption of the constitution. It is to them that the final 
 clause of the paragraph quoted refers : ' ' And nothing in this constitu- 
 tion shall be so construed as to prejudice any claims of the United 
 States or of any particular state." 
 12
 
 ITS CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 consequence of the fact of ownership, and if an express 
 declaration of the smaller power were deemed necessary, 
 the express declaration of the greater could not be 
 regarded as superfluous. It would have been quite pos- 
 sible, however inexpedient, to transfer to the president 
 the administration of the territorial domain regarded sim- 
 ply as property, if the regulation of territorial relations 
 by law was to be renounced. But the general right of 
 legislation for this most important part of the national 
 domain could belong only to the national legislature, 
 if it existed at all. That it must exist was never dis- 
 puted by the most extreme advocates of states' -rights. 
 It was constantly exercised, with their co-operation, in 
 the most comprehensive manner, although they utterly 
 denied its existence in regard to slavery as a question sui 
 generis. 
 
 In spite of the greatest differences of opinion upon the 
 constitutional basis of the powers in question, legislation 
 as to the territories has thus always had, by common 
 consent, two entirely different sides. On the one side 
 the laws refer to the territorial domain as ayer pullicus, 
 and on the other to the territories as such, i. e., as political 
 structures entirely peculiar to the United States, pointedly 
 called embryo states, states in chrysalis form. As to 
 the former, we need only emphasize here that thoughts of 
 immediate monetary returns were thrust more and more 
 into the background as the country developed and 
 greater stress was laid upon the encouragement of settle- 
 ment. Sales at low prices of course constantly continued, 
 but the free grants increased extraordinarily. Among 
 the more important of the latter were rewards to men 
 who had shed their blood for the country, gifts for school 
 purposes and for the promotion of railroad building, and
 
 THE FEDERAL CONSTITUTION. 179 
 
 above all things grants of homesteads, conditioned upon 
 cultivation of the land a certain number of years. 1 If 
 congress had limited itself to selling the land cheap and 
 to giving it away, the process of settlement, however, 
 would have gone on very slowly. In order to induce a 
 
 1 The general land office was created April 25, 1812, to administer 
 the national treasure of the public lands. Its head is a commissioner 
 appointed by the president with the consent of the senate. It was 
 originally part of the treasury department, but was afterwards at- 
 tached to the department of the interior. How great the business 
 extent of this bureau is may be inferred from the fact that it is the 
 head centre of more than a hundred land offices. But it has already 
 touched its high- water mark. In the near future there will be no 
 ager publicus anywhere in the United States. 
 
 The survey of the public lands is made in accordance with a most 
 comprehensive geometric plan. General meridian lines are first es- 
 tablished. Then, between them, and at distances of six miles apart, 
 parallel lines are drawn north and south, and east and west. The 
 squares thus formed are called townships and are numbered contin- 
 uously in both directions (from north to south Arabic and from east 
 to west Roman numerals). Each township is divided in the same 
 way into thirty-six sections, each one mile square, and every section 
 into sixteen quarters of quarter-sections of forty acres each. 
 
 Acquisition by Purchase. The more the knowledge grew how 
 much the settlement of the " backwoods" was in the interest of the 
 whole people, the more reasonable and moderate were made the 
 prices of the public lands. The more also was attention directed to 
 facilitating the settler's getting an indefeasible title to the land he had 
 begun to cultivate. With this aim in view, very appropriate provisions 
 were devised as to the right of pre-emption. An act of September 
 4, 1841, made subject to pre-emption all public lands with the ex- 
 ception of (1) the reservations made by treaty, law or proclamation 
 of the president ; (2) land within the limits of already incorporated 
 or prospective cities and towns ; (3) land already in use for purposes of 
 trade or business; (4) lands on which salt-pits or mines were known 
 to exist. Citizens of the United States of full age, and immigrants 
 who have legally declared their intention of becoming citizens, can 
 acquire the right of pre-emption at the lowest legal price, by begin- 
 ning to cultivate the land they wish, provided that they do not 
 already own in any state or territory three hundred and twenty acres,
 
 180 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 larger number of people of culture to pull down their 
 domestic altars and bear them into the wilderness, before 
 all things they had to be assured that the principles of 
 social and political order had already found a place 
 there, and that the tribunal of law had been erected. In 
 
 and have not given up their property in that state or territory in order 
 to take possession of public land. The president determines what 
 public lands not claimed under pre-emption are to be offered at pub- 
 lic sale. The necessary proclamations must be published from three 
 to six months before the sale. As a rule the lands are offered for 
 fourteen days, and the upset price is $1.25 per acre. Land offered 
 at public sale and not sold may afterwards be sold privately. The 
 alternate sections reserved in making land grants to railroads are 
 doubled in price. There are special provisions as to mineral lands. 
 Originally only the right of mining, and not the land itself, could be 
 acquired. An act of May 10, 1872, permits the purchase, but re- 
 stricts the right to citizens and to those immigrants who have made 
 the often-mentioned declaration of intent to become citizens. This 
 act authorizes the miners of each mining district to make rules ' ' gov- 
 erning the location, manner of recording, amount of work necessary 
 to hold possession of a mining claim," etc., under the self-evident re- 
 striction that these rules shall not conflict with the laws of the 
 United States or of the state or territory in which the district is lo- 
 cated. To receive a " patent " for a piece of mineral land, proof must 
 be furnished that at least $500 has been expended in preparatory work 
 upon the particular piece of ground. This provision assumes, what 
 is true in fact, that the search for minerals in the public lands is en- 
 tirely free. If within sixty days no counter-claim is made, the claim 
 will be granted upon the payment of $5 per acre. A patent for a 
 mining claim is issued only if the vein or lode has been found on the 
 piece of ground to be patented. The claim cannot extend over one 
 thousand five hundred feet along the vein or lode, and not more than 
 three hundred nor less than twenty-five feet on either side of its cen- 
 tre line, to be measured on the surface. For placer-claims, that is, 
 when the mineral to be excavated is not imbedded in rocks, a patent 
 depends upon analogous provisions ; but according to a law of July 
 9, 1870, no person or association can obtain a placer-claim of more 
 than a hundred and sixty acres. An individual can buy one hundred 
 and sixty acres of coal lauds and an association three hundred and 
 twenty acres, at a minimum price of $10 per acre if the land is more
 
 THE FEDERAL CONSTITUTION. 18 i 
 
 the nature of things, this could happen in this instance 
 only by virtue of federal law. And so the right or duty 
 of congress to " make all needful rules and regulations " 
 to make the territories worth as much as possible in 
 money to the Union implied as its direct and necessary 
 
 than fifteen miles from a completed railroad, and at a minimum price 
 of $20 per acre if it is within this limit. If an association of not less 
 than four persons has already spent $5.000 in opening a colliery, it 
 has a right to buy six hundred and forty acres (act of March 3, 1873). 
 
 Acquisition by Gift. " Mineral land " is excepted from all grants 
 (resolution of January 30, 1865, and act of June 21, 1866). The land- 
 grants made at various times to soldiers were assignable, and there- 
 fore, to a large extent, they were profitable only to speculators. 
 The famous homestead law of May 20, 1862, absolutely forbids 
 any assignment as long as the homestead has not become the sole 
 property of the settler. Under this law citizens of the United 
 States of full age (including women), and immigrants who have 
 declared their intention to become citizens in the legal manner, 
 can enter as homesteads either one hundred and sixty acres of public 
 lands held at $1.25 an acre, or eighty acres of such land held at $2.50 
 per acre, upon paying a fee of $10 or $5 respectively. An affidavit 
 must be made and filed setting forth that the entry is made for the 
 purpose of actual settlement and cultivation, and neither directly nor 
 indirectly for the benefit of any other person. When the settler has 
 lived five years upon his land and cultivated it, it becomes his free 
 property ; but all right to it will be forfeited if he removes to an- 
 other place or actually abandons the land entered for more than six 
 months. For the benefit of minor children, both of whose parents 
 die before perfecting the homestead title, the homestead may be sold 
 within two years after the death of the surviving parent. Creditors 
 cannot levy on a homestead if their claims are older than the patent. 
 Pursuant to tliis law there were entered in the general land office 
 from July 1, 1869, to June 30, 1884, about seventy-one million acres. 
 Under the act hereafter mentioned, to encourage the planting of 
 trees, twenty million acres more were entered. 
 
 Town and City Sites. By act of March 3, 1863, the president is 
 authorized to reserve town sites at harbors, at the junction of 
 rivers, important portages, or any natural or prospective centre of 
 population. These reservations are divided into building lots and 
 offered at public sale at prices fixed by disinterested persons. If not
 
 182 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 result the general power of congress to legislate. Accord- 
 ingly, congress has, as has been said, always and in fact, 
 from the very beginning, made smooth the way for the 
 pushing stream of settlers to the far west by organizing 
 large sections of the territorial domain by la\v into terri- 
 tories bearing distinct names and possessing political sys- 
 
 sold at public auction they may be sold privately, but not for less 
 than the estimated price. Private persons who have laid out a town 
 upon the public lands or propose to lay one out must, pursuant to an 
 act of July 1, 1864, record and submit an exact survey, covering at 
 most six hundred and forty acres. The lots, which must not exceed 
 four thousand two hundred square feet, are then offered at public 
 auction at a minimum price of $10 each. At the subsequent private 
 sales the secretary of the interior may raise or lower the price, as the 
 development of the place seems to demand ; but any change in the 
 minimum price must be made known at least three months in ad- 
 vance. During these three months an actual settler on a lot can buy 
 that and also any other one lot which he has substantially improved 
 at the former minimum price. Pursuant to the act of March 2, 1867, 
 the city authorities of an incorporated city (and in case of non-incor- 
 poration, then the judge of the county court) may enter in trust, for 
 the benefit of the occupants of town lots, the whole area at the min- 
 imum price. The trust is then executed according to state or terri- 
 torial legislation. The same law permits the area of the town to be 
 enlarged as the population increases, and fixes two thousand five 
 hundred and sixty acres as the maximum for five thousand inhab- 
 itants. 
 
 Certain parts of the public domain, distinguished for natural 
 beauty or natural wonders, such as the Yellowstone Park, are re- 
 served by law from sale, gift or other alienation. 
 
 W. W. Lester, Land Laics, Regulations and Decisions of the U. S., 
 2 vols.. Phila., 1860-70; H. N. Copp, Public Land Laws, Washington, 
 1875 ; J. B. Lewis, Leading Cases on Public Land Laics, Wash., 1879 ; 
 D. H. Talbot, Land Laws of the U. S., Sioux City, 1879; G. A. 
 Blanchard and E. P. W T eeks, Leading Cases on Mines, Minerals and 
 Mining Water RigJtts, San Francisco, 1877; W. A. Skidmore, Mining 
 Statutes of the U. S. and Decisions, San Francisco, 1878; M. B. Car- 
 l>enter, Mining Code of the U. S. and Colorado, 3d ed., Denver, 1880; 
 II. X. Copp, U. S. Mineral Lands, Washington, 1881 : D. S. Sickles, 
 U. S. Mining Laics and Decisions, San Francisco, 1881.
 
 THE FEDERAL CONSTITUTION. 183 
 
 terns of their own under the control of the federal 
 government. They are not limbs, but constituent parts 
 of the Union. Therefore the doctrine that the constitution 
 becomes valid as to the territories only by legislation 
 although Webster defended it is utterly inadmissible. 
 The constitution is not only the fundamental law of the 
 united states, but it is the constitution of the United 
 States; and this name comprehends within itself the 
 whole domain of the Union. If the territories were not 
 subject to the constitution, congress could pass no laws 
 about them, for it possesses no power outside of the con- 
 stitution. Webster's principle is true only in this: that 
 a large part of the constitution does not apply to the 
 territories. They have no rights of their own under the 
 constitution, and cannot be granted any such by congress. 
 The inhabitants of the territories, who are citizens of the 
 United States by birth or naturalization, have all the 
 rights guarantied or granted by the constitution or 
 the laws to citizens of the United States as such. But 
 they have not and cannot have the rights which belong 
 to citizens of the states by virtue of the constitutional 
 rights of the states. They can no more have representa- 
 tion in congress or a share in presidential elections than 
 the District of Columbia can. In order to present their 
 wishes, grievances and views directly to congress, the 
 right has been given them by law to elect a " delegate " 
 from each territory to the house of representatives. 
 Delegates, like representatives, can discuss every ques- 
 tion, but even if a territory were ten times as populous 
 as one or another state, the right to vote in congress 
 could be given its delegate only by a constitutional 
 amendment. And such an amendment would overthrow 
 a fundamental principle of the constitution. 
 
 On the other hand, congress can at any moment abol-
 
 184: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 ish the institution of territorial delegates and can subject 
 the general organization of the territories to any change 
 it sees fit. The form of organization has in fact varied. 
 Different plans have been tried, not only as to minor de- 
 tails, but in matters of such an essential character that it 
 is not incorrect to speak of territories of different grades. 
 In the simplest form, the governor and the judges both 
 appointed by the president with the consent of the senate 
 for territories of every grade constitute the law-making 
 body, while in territories of the highest grade the legis- 
 lature is elected by the people and consists of two houses. 
 Some of the territories have had both forms of govern- 
 ment, besides undergoing a transition from one to the 
 other. Xow, there are only territories of the highest 
 grade. Yet there is a substantial difference among them, 
 because some of them have to submit their laws to the 
 approval of congress, while in the case of others l this is 
 not demanded. But even if congress has freely used its 
 power of organizing the territories in each given case ac- 
 cording to the peculiar controlling circumstances of the 
 case, yet the same thought lies at the basis of every dif- 
 ferent form of organization. And this is made necessary 
 by the tenor of the part of the constitution which precedes 
 that which treats of the territories. It must be read and 
 interpreted in connection with the latter. It relates to 
 the admission of new states. 2 
 
 1 Dakota, Idaho, Montana and Wyoming. 
 
 2 The territorial organizations have become, as stated in the text, 
 more and more alike. The following provisions hold good for all of 
 the territories : The executive power is in the hands of a governor, 
 who is appointed by the president with the consent of the senate for 
 a term of four years. In the same way and for the same time are 
 appointed the secretary, the judges of the supreme court, the district 
 attorney and the marshal. Tiie term of office may also be ended by 
 removal, before the expiration of the four years. The governor is
 
 TIIE FEDERAL CONSTITUTION. 185 
 
 54. THE ADMISSION OF NEW STATES. "New states 
 may be admitted by the congress into this Union." It is 
 evident that the authors of the constitution, in adopting 
 this provision, had in mind, in the first place, states which 
 were to develop in and out of the then territorial domain 
 of the Union, because the constitution goes on to say : 
 " But no new state shall be formed or erected within the 
 jurisdiction of any other state, nor any state be formed 
 
 commander-in-chief of the militia. He possesses the right of pardon 
 in cases of violation of territorial laws, and in cases of violation of 
 federal laws he has the right of postponing the execution of the judg- 
 ment until the president's decision can be got. He appoints certain 
 officials. He has the same qualified "veto "-power over territo- 
 rial enactments as the president has over congressional legislation. 
 Other important powers of the governor need not be cited here, be- 
 cause they simply call into life the organs of self-government and 
 themselves expire with the meeting of the first legislature. The sec- 
 retary discharges the functions of the governor, in case of the latter's 
 absence, resignation or removal, until the governor can again attend 
 to his office or another governor is appointed. The secretary keeps 
 the legislative as well as the executive records. He sends the laws 
 to congress and to the president, and to the latter, besides, the jour- 
 nals of the legislature, the pardons and the official correspondence 
 of the governor. The legislative power in striking contrast with 
 the corresponding provisions of the federal constitution, although the 
 governor has in this respect only the same powers as the president 
 is vested in the governor and a legislative assembly. The latter con- 
 sists of a council and a house of representatives. Members of both 
 houses are elected for two years. The legislature meets each second 
 year. The sessions cannot la^t more than forty days, and the print- 
 ing expenses of a session cannot exceed $4,000. A candidate for the 
 legislature must reside in the particular district and must have the 
 franchise. The conditions of the right of suffrage are fixed by 
 the legislature ; but it can be granted only to citizens of full age and 
 to such immigrants as have legally declared their intention to become 
 citizens. As the constitution and all federal laws, so far they are not 
 " locally inapplicable," are valid in the territories, the political equal- 
 ity of the colored people is protected in the territories as far as it is 
 in the states under the constitution and federal laws. The authoritv
 
 186 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 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 " (art. IV., sec. 3, 
 1). 1 It is certain that this is what the fathers had in 
 mind, because in the ordinance of 17$7, already men- 
 tioned, the formation of "not more than " five new states 
 out of part of this territorial domain and their admission 
 into the Union had been taken into view. 
 
 Accordingly, congress, in organizing territories, has 
 always aimed, not to act from the stand-point of colonial 
 administration, but, on the contrary, to ascertain the life- 
 forms adapted to an embryonic state. This explains, too, 
 the different "grades." The more nearly a territory 
 approaches the end of its territorial existence, its trans- 
 formation into a state, that is, the more the number of its 
 
 of the legislature extends "to all legitimate objects of legislation," 
 but congress reserves " the primal disposal of the soil." Federal 
 property cannot be taxed at all, and the property of non-residents 
 cannot be taxed higher than that of residents. The legislature can- 
 not grant private franchises and special privileges ; that is, corporate 
 rights can be granted only by general laws. Justices of the peace 
 and general officers of the militia are chosen in the manner prescribed 
 by the legislature. Whether and how the township, district and 
 county officers are to be appointed or elected is left to the legislature. 
 Members of the legislature are paid $6 a day, besides mileage. All 
 payments for the support of the territorial government from the na- 
 tional treasury are made only upon vouchers signed by the secretary 
 of the treasury. The supreme court consists of a chief justice and 
 two associate justices. Two judges must be present to decide a 
 case. The territory is divided into three judicial districts. Each of the 
 judges of the supreme court is judge of one of the districts. He must 
 live in his district. Cases are heard in the supreme court only upon 
 appeal. Probate courts pass upon matters of inheritance. Justices 
 of the peace have no jurisdiction in litigation over real estate. All 
 other regulations as to the different courts are left to the legislature. 
 1 Congress nevertheless held itself authorized, after the secession of 
 Virginia, to empower the loyal part of the state to organize itself as 
 an independent state, under the name of West Virginia.
 
 THE FEDERAL CONSTITUTION. 187 
 
 people, the density of its population, 1 and its wealth, 2 cor- 
 respond to the claims which a state must meet, the greater 
 is the freedom of action granted it. The times and methods 
 of admitting new states have varied greatly. Congress 
 is under no constitutional obligation either in the one or 
 the other respect, since it may, but never must, admit new 
 states. As to the time of admission, the general rule has 
 been that a territory must have as many inhabitants as 
 are necessary to elect a member of the house of repre- 
 sentatives, but this rule has not been always strictly fol- 
 lowed. 3 As to the manner of admission, the general rule 
 has been that congress, by an " enabling act," has per- 
 mitted the people of "a territory to frame and adopt a 
 state constitution in a constitutional convention. It is true 
 that several territories went to work without this author- 
 ization of congress, and were nevertheless admitted by it. 
 Other irregularities, too, at least extra-legal if not illegal, 
 have occurred, and, although objected to, have not been 
 regarded as sufficient reason for refusing admission. 4 A 
 
 1 The very large territories have been repeatedly divided by con- 
 gress, partly in order not to let the new states be too unequal in size, 
 and partly in order not to hamper the more densely settled portions 
 with those slower of development. The boundaries of a state thus by 
 no means always coincide with the original limits of the territory out 
 of which it is formed. Indeed, parts of different territories may, 
 under certain circumstances, be made into one state. 
 
 2 The expenses of territorial government are borne by the Union, 
 while the state governments are, of course, supported by their re- 
 spective peoples. 
 
 3 Not only have states been admitted before the population had 
 reached the required number, but territories with a population far in 
 excess of this number have been refused admission. The latter was 
 the case with Utah and New Mexico. Mormonism with its polygamy 
 kept out Utah, and the predominance of Spaniards and Indians in the 
 population kept out New Mexico. 
 
 4 All the instances in point will be found in Jameson, The Constitu- 
 tional Convention.
 
 1SS CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 popular vote on the work of the convention has not been 
 deemed absolutely necessary. The new constitution, 
 however, is always subject to the approval of congress, 
 which has virtually already, by the enabling- act, ordered 
 the admission of the state in case the conditions set forth 
 in that act are fulfilled. The question of the limits of 
 the right to impose conditions has repeatedly given rise 
 to violent parliamentary contests. The equality of the 
 states is a fundamental principle of the constitution. 
 Hence it has been argued that conditions which limited 
 the right of self-government, in comparison with the posi- 
 tion in constitutional law of the other states, were inad- 
 missible, and that they could not be enforced ; because, 
 as soon as the admission has taken place, the state has 
 become complete master of its freedom of action. Con- 
 gress, however, in a considerable number of instances, has 
 imposed such conditions, and has also demanded the 
 assurance that the state constitution should never be 
 changed in this or that respect. 1 But, as congress never 
 must admit a state, the imposition of conditions of any 
 sort cannot be hindered, if they be not directly unconsti- 
 tutional. And if a state promises not to make use of a 
 certain right guarantied it by the constitution, this is not 
 unconstitutional; it is simply not obligatory, from the 
 stand-point of constitutional law. The imposition and 
 adoption of such conditions are to be regarded as a polit- 
 ical pact, to the maintenance of which the state is bound 
 by truth and faith, but not by constitutional law r . It 
 must be admitted that such compacts do not respond 
 
 latter occurred particularly in regard to the seceded states 
 before they were again allowed representation in congress. The argu- 
 ment against the constitutional authority of congress applies to these 
 cases in the same degree as to new states about to be admitted. For 
 a collection of the facts in question, see Cooley, Principles, 174-177.
 
 THE FEDERAL CONSTITUTION. 189 
 
 to the spirit of the constitution. Congress would hardly 
 have required them, and, if it had done so, would hardly 
 have commanded public approval, if the slavery question, 
 and later on the civil war and the abolition of slavery, 
 had not brought about a condition of affairs in which 
 legal opinions were, and had to be, pressed into the back- 
 ground by political and moral considerations. Conditions 
 of another kind, as to boundaries, etc., of course cannot 
 be objected to as in any way opposed to the constitutional 
 law. If congress has Jiot provided that the state shall be 
 admitted upon the fulfillment of the conditions imposed 
 by it, this happens as a matter of law by a proclamation 
 of the president. According to the theory of American 
 politicians and publicists, the transformation of the terri- 
 tory into a state has already taken place before its admis- 
 sion; for, they allege, a state must exist in order to have 
 a state admitted. They have never, however, answered, to 
 my knowledge, the question as to w r hat relation prevails if 
 congress, after the passage of an enabling act, and the 
 consequent formation and adoption of a constitution by a 
 constitutional convention, should nevertheless, for some 
 reason, exercise its undoubted right to refuse admission 
 to the state. In my opinion, the failure to regard the 
 admission of a state as the completion of its transforma- 
 tion from a territory involves some serious results. The 
 territorial domain of the United States can be trans- 
 formed, as a matter of constitutional law r , only into states 
 of the Union, and a state can therefore come into exist- 
 ence only when it is one of the states of the United States ; 
 that is, a co-ordinate and recognized constituent member 
 of the Union. The change of a territory into a state has 
 no legal effect upon the status of the public lands. Except 
 so far as they are granted expressly to the state by con- 
 gress for definite purposes (schools), they do not pass into
 
 190 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 its possession, but remain property of the Union, and are 
 subject to the same legal provisions as before. 
 
 The admitted states have all been formed out of parts 
 of the states of the original Union or from the territorial 
 domains of the Union. Texas is the only exception. It 
 was an independent republic. Its incorporation into the 
 Union met with vigorous opposition, on not only political 
 but constitutional grounds. The way in which this was 
 done by a ''joint resolution '' of both houses of con- 
 gress after a treaty of annexation .had failed to receive 
 the necessary majority in the senate was a good cause 
 for serious objection. Nevertheless the assertion that an 
 independent nation cannot be directly transformed into 
 a state of the Union seems unfounded, for the power to 
 admit new states is granted wholly without conditions. 
 
 THE POWERS OF THE PRESIDENT. 
 
 55. POWERS AND DUTIES OF THE PRESIDENT. It has 
 been said that the president of the United States is 
 mightier than the rulers of modern England. This is un- 
 doubtedly true. 1 To correctly estimate the po \vers of 
 the president, one fact must be taken into consideration, 
 which is often wholly overlooked or insufficiently appre- 
 ciated. He has of course certain very important powers 
 which he exercises in full independence of the other fac- 
 tors of government. But this full independence in the 
 most essential matters is restricted to taking the initia- 
 tive. His acts require the sanction of the senate in order 
 
 1 Of those powers of the president already discussed in another con- 
 nection the right to require written opinions from the heads of 
 departments, the so-called veto, his powers as to convening and ad- 
 journing congress and his right and duty to report to congress upon 
 the state of the Union and to make recommendations no further 
 mention will be made here.
 
 THE FEDERAL CONSTITUTION. 191 
 
 to be perfected. In another set of his powers he is like- 
 wise independent of congress to this extent, that it cannot 
 of itself either diminish or increase them. But the oppor- 
 tunity for the exercise of these powers is given the presi- 
 dent only by law and the way in which he shall exercise 
 them is defined by law. To a great extent congress can 
 determine how widely or how narrowly it will draw the 
 limits of his independence. It can grant him a fullness 
 of power that under certain circumstances is little inferior 
 to that of a Roman dictator. It can also bring him so 
 sharply under its own control and bind his hands so 
 closely, that his constitutional position as a co-ordinate 
 factor of the government is seriously endangered and 
 the interests of the country are gravely injured by the 
 weakness of the executive power. If congress wishes to 
 abuse its powers, it can easily bring down the president 
 so far as a number of his most important powers of an 
 eminently political character are concerned to the 
 level of the third duty imposed upon him by the consti- 
 tution, that of acting merely as the executive organ of 
 the legislative will of congress. 1 
 
 1 It has been boldly asserted that parliamentary government as it 
 is known in Europe was entirely excluded in the United States by the 
 constitutional organization of the federal government. On the con- 
 trary the government vests directly in congress to such an extent 
 that in a book just published, which deals incisively with this ques- 
 tion, the author says: " I know not how better to describe our gov- 
 ernment in a single phrase than by calling it a government by the 
 chairmen of the standing committees of congress." (W. Wilson, 
 Congressional Government: a Study in American Politics, Boston, 
 1885.) This exaggerates, as all statements must exaggerate which 
 seek in one pointed phrase to define great and complicated relations. 
 Not only, however, is there much truth in the assertion, but this 
 truth is so clear, and its pre-eminent significance is so plain, that for 
 some years public attention has been more and more strongly drawn 
 to it. The franiers of the constitution did not expect this develop-
 
 192 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 56. MILITARY POWER. The president is commander- 
 in-chief of the army and navy, and also of the militia, 
 when the latter is called into the actual service of the 
 United States (art. II., sec. 2, 1). This is all the consti- 
 tution has to say as to the military power of the presi- 
 dent, This clause in its blunt simplicity is the best 
 illustration of the maxim of American constitutional law 
 already mentioned, that the constitution enumerates but 
 does not define the powers of the federal government. 
 Congress can appoint no other commander-in-chief, and 
 can withdraw from the president not the slightest part 
 of the powers appertaining to the commander-in-chief. 
 This is without doubt, as the constitution confers that 
 office upon him with a categorical "shall be." But what 
 are the powers appertaining to the office proprio juref 
 The constitution cannot possibly mean that the expres- 
 sion " commander-in-chief " should first be given a con- 
 crete meaning by legislation, for the thought underlying 
 
 ment. It undoubtedly runs directly counter to their intentions. 
 They created a separate executive because their experience led them 
 to reject congressional government on principle. They had recog- 
 nized the fact that the many-headed legislative power not only could 
 not govern well, but in the long run could not govern at all ; and so 
 far as the facts correspond with Wilson's assertion, they have demon- 
 strated this truth anew. He calls his study " Congressional Govern- 
 ment; " yet he does not say that congress governs, but that its 
 standing committees or rather their chairmen do; and that, too, not 
 in the sense that they are together actually the government, but that 
 each of them is a particular and isolated part of the government. So 
 far as his assertion is well founded, this " congressional government " 
 is therefore in a great measure a systematic laxity of government, 
 because the organic coherence, the uniform guiding thought and 
 will, and the legal binding of the parts into a comprehensive whole 
 are wanting. Yet, however, matters of constitutional law and of 
 fact may be considered from a political stand-point, this is certain, 
 that in law and in fact America is partly in advance of Europe and 
 partly behind her in parliamentary government.
 
 THE FEDERAL CONSTITUTION. 193 
 
 this provision is manifestly that of ensuring the greatest 
 energy in the application of the military strength of the 
 country by entrusting its direction to one hand. But, as 
 we have seen, all military legislation is entrusted to con- 
 gress, and the president is simply the commander-in-chief 
 and not at all the lord of peace and war. It is thus very 
 difficult, if not impossible, to draw the line of demarca- 
 tion with absolute certainty between the authority of con- 
 gress and that of the president. The general principles 
 of demarcation, however, can be established without 
 difficulty, and their practical application has hitherto led 
 to relatively very few important conflicts. Congress 
 must regulate by law whatever is of general importance 
 and bears a permanent character, but considerations of 
 expediency may demand that even within this, its own 
 domain, it should leave the president free to act at his 
 own discretion, especially in the more technical matters. 
 Of course it is not forbidden to do this. On the other 
 hand, the president alone must determine how the mili- 
 tary force shall be employed, and he must make all pro- 
 visions, temporary and not general in their nature, 
 because, from the nature of things, these must be adapted 
 to special circumstances. Congress to make this rela- 
 tion clear by some illustrations provides where forts 
 shall be built and what kind of forts they shall be, how 
 many and what kind of arms are to be provided, and 
 how the men are to be distributed among the different 
 
 r 
 
 branches of the service ; but as to what the strength and 
 composition of the garrisons are to be, how the arms and 
 ammunition are to be distributed, how and where the 
 army and navy are to be stationed and moved, as to all 
 this, congress can give the president no directions what- 
 ever. In war the entire technical direction of affairs is 
 thus incumbent upon the president. Congress has only 
 13
 
 19-i CONSTITUTIONAL LAW OB' THE UNITED STATES. 
 
 to decide whether there shall be war and what means it 
 will grant the president with which to conduct the war; 
 but how the war declared by congress shall be conducted 
 by the means granted by it is the exclusive affair of the 
 president. Congress may criticise, may express wishes, 
 may pass resolutions, but it can prescribe absolutely 
 nothing to the president, even though his acts and omis- 
 sions be fraught with political consequences of the most 
 pre-eminent importance, as, for example, the declaration 
 of a blockade may be under certain circumstances. This 
 principle was extended so far during the civil war that it 
 was acknowledged to be his right to determine whether 
 and how far the rebels were to be regarded as a war- 
 making power; that is, how far the war should be con- 
 ducted pursuant to the provisions of the law of nations. 1 
 Accordingly, this war-power of the president is not lim- 
 ited to matters involved directly in the conduct of war, 
 but extends beyond purely military actions into the do- 
 main of the exceptional relations which may result from 
 war. If, for instance, in a war with a foreign power a 
 territory has been conquered, the president can put a 
 military governor over it, and this military government 
 will end only upon the conclusion of peace, and in case of 
 a cession of the territory only upon legislation in the 
 matter by congress. This is also true of rebellious states 
 vanquished in civil war. In both cases the president may 
 establish a provisional civil government, with power to 
 organize courts, so that a well-ordered administration of 
 
 O 
 
 justice is rendered possible. In the case of a conquered 
 rebel state, the quickest practicable supplanting of mili- 
 tary government by a provisional civil government is to 
 be regarded as a duty, in so far as the principle applies 
 that the president is not authorized to use military power 
 iThe Prize Cases, Black, II., 635.
 
 THE FEDERAL CONSTITUTION. 195 
 
 where the laws can be enforced without such aid. The 
 president has the greatest liberty in the choice of means 
 not only to attain the most immediate purpose of war, 
 the subjugation of the enemy, but also to meet the 
 further task implied in this, to deprive the enemy of the 
 power of levying war again. 1 But in all this he must 
 steadily keep in mind that the ultimate purpose is the 
 restoration of the normal, the constitutional condition of 
 peace. This maxim leads to the further principle of con- 
 stitutional law, that the immense power which the presi- 
 dent has as commander-in-chief in time of war must 
 be exerted to its full extent only where the authority of 
 the federal government cannot be exerted by peaceful 
 methods ; that is, where the actual condition of war ex- 
 ists. It is only when this is the case, and the ordinary 
 courts in consequence of the war cannot exercise their 
 functions, that military courts can sit. Where these 
 premises do not exist, no one, unless he belongs to the 
 army, can be punished by the military authorities. 2 Spies 
 are an exception. As this exception must be acknowl- 
 edged to be a necessity, and as it is not always certain 
 whether the premises already mentioned exist or not, 
 prominent American publicists take the view that it is 
 not possible to bring all cases under a fixed rule, but that 
 the special circumstances of each must be taken into ac- 
 count, even in a decision upon grounds of constitutional 
 law. 3 It is unquestionable that the constitution recog- 
 nizes the possibility of its being necessary in time of war, 
 
 1 Lincoln justified his emancipation proclamation, as is well known, 
 upon the ground that the freeing of the slaves was a means of sub- 
 jugating the rebels. 
 
 2 Ex parte Milligan, Wallace, IV., 127. 
 
 3 The difficult chapter of the so-called " war-powers " of the differ- 
 ent factors of government has been treated by W. Whiting in a 
 strong volume entitled War Powers under the Constitution of the
 
 100 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 even where the efficiency of legal authority is entirely 
 unimpeded, to suspend the operation of law. It ex- 
 presslv grants a " war-power " by which every inhabitant 
 of the Union whether or no the district in which he 
 resides is within the limits of the theatre of war or not 
 may be deprived for the whole duration of the war of 
 one of the most substantial safeguards of the la\v. It 
 is, however, another question whether the president as 
 coraraander-in-chief can bring about this condition of 
 affairs. This question may now be regarded as decided 
 against him. 
 
 The constitution provides that " the privilege of the 
 writ of habeas corpus shall not be suspended unless when, 
 incases of rebellion or invasion, the public safety may re- 
 quire it " (art. I., sec. 9, 2). This states only in what 
 cases the writ may be suspended, but not who is to order 
 the suspension. At the beginning of the civil war, Attor- 
 ney-general Bates claimed for the president the right to 
 refuse obedience to a writ of habeas corpus. 1 The final 
 result of the conflicts between the president and the 
 courts, and the earnest discussions caused by them, was, 
 however, a decided victory for the doctrine that the sus- 
 pension is a legislative act, and can therefore be ordered 
 only by congress or by the president when and only 
 when he has been authorized to do so by congress. 2 An 
 
 United States. The conclusions which the author reaches have, how- 
 ever, been much questioned. 
 
 Indisputably the doctrine last mentioned in the text must not only 
 be assented to, but must be given great scope, in order to hold con- 
 Ktitutkmal the sentence by a military commission of Mrs. Surratt, an 
 accessory of Booth in the assassination of Lincoln. The District of 
 Columbia was at the time, however, under military law. 
 
 1 Op. of the Attorneys-General, X., 74. 
 
 2 See Horace Binney, The Privilege of the Writ of Habeas Corpus, 
 and, also, Martin vs. Mott, Wheaton, XII., 19. A vote of the house
 
 THE FEDERAL CONSTITUTION. 197 
 
 act of March 3, 1863, authorized the president during the 
 continuance of the rebellion to suspend the privilege in 
 the entire domain of the Union or any part thereof, if he 
 deemed it necessary. In a proclamation of September 
 15, 1863, Lincoln made use of this permission. This law, 
 declared to be constitutional by the federal supreme court, 
 shows that this war-power may be given the widest 
 scope, but the same decision holds that the provision must 
 be strictly construed, in accordance with its verbal tenor. 1 
 Not only in case of a war with a foreign power must 
 the writ be suspended only in the event of an invasion, 
 but the suspension simply denies to a prisoner the right 
 to sue out the writ; it does not authorize arrest without 
 legal cause. 2 
 
 It is beyond doubt that the president has the power of 
 putting himself personally at the head of the army in 
 war and of taking its immediate direction into his own 
 hands, but the view has alwa\ 7 s prevailed that this would 
 not correspond with the intent of the constitution. 3 
 
 of representatives, February 19, 1807, can, however, be interpreted as a 
 direct recognition of the principle that there may be circumstances 
 under which the privilege of habeas corpus, even without a legisla- 
 tive act, must give way to the public safety. 
 
 l Ex parte Milligan, Wallace, IV., 133. 
 
 *Ex parte Milligan, Wallace, IV., 133. 
 
 3 Jefferson Davis, the president of the Conf ederate States, also tried 
 the r6le of a general. 
 
 Some of the powers granted by law to the president as commander- 
 in-chief deserve special mention. His right of promotion is very 
 limited. In general the principle prevails that promotion from rank 
 to rank shall depend upon the time of service. In war, however, the 
 president may, with the consent of the senate, as a reward for dis- 
 tinguished services against the enemy, grant a higher rank "by 
 brevet." The legal position of an officer in the service will not be 
 changed of itself by brevet-promotion, but the president may assign 
 the brevet-officer to duty according to the rank of which he has only 
 the title. In time of peace, there can be no dismissal from the
 
 198 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 FOREIGN RELATIONS. 
 
 57. INTERCOURSE WITH FOREIGN POWERS. In Ameri- 
 can works on constitutional law the statement is fre- 
 quently found that the foreign relations of the Union are 
 
 service, except upon the judgment of a court-martial or in mitiga- 
 tion of a judgment. If an officer id absent without furlough for 
 more than three months, the president can cashier him for desertion. 
 If he has served forty years, he is entitled to be retired from active 
 service. After thirty years' service, an officer may petition to be 
 retired ; it is then optional with the president whether or no to grant 
 the petition. If an officer is sixty years of age, or has served for 
 forty-five years, the president may retire him. The secretary of 
 war, when directed by the president, convokes from time to time an 
 army retiring board, formed of officers and military surgeons, in 
 order to examine and determine whether and how officers have be- 
 come disqualified for service. The decision of the retiring board 
 must be approved by the president. Courts-martial are of two 
 classes: the "general" and the regimental or garrison courts-mar- 
 tial. The former, in times of peace, can be organized only by 
 direction of the general-in-chief commanding the entire army or by 
 a general in command of a separate army or " of a particular de- 
 partment ; " in time of war, they may be convened also by division 
 and brigade commanders. They should when possible consist of 
 thirteen officers and must consist of at least five. Their judgments 
 are subject to the confirmation of the president in the following- 
 cases: When the commanders named are accusers and the accused is 
 an officer under their command (in this case the president appoints 
 the members of the court-martial) ; when in time of peace the sen- 
 tence is dismissal from the service ; when the sentenced person is a 
 general ; when the sentence is death, except in war in cases of a spy, 
 of mutiny, of desertion, of murder, of "guerilla-marauders," and 
 also of other high crimes. A death sentence, moreover, requires a 
 two-thirds majority of the court-martial. Officers cannot be tried 
 before the lower military tribunals; the decisions of these latter 
 can extend only to the deprival of a month's wages, and imprison- 
 ment for a month, with or without " hard labor." There is a bureau 
 of military justice, composed of a judge-ad vocate-generai, an as- 
 sistant judge-advocate-general, and eight judge-advocates. Justice 
 is administered in the navy in substantially the same way. R. A. 
 Ives, Militar-y Law of the United States, N. Y., 1879.
 
 THE FEDERAL CONSTITUTION. 199 
 
 the exclusive domain of the president, or in a manner, of 
 the president and the senate. This is manifestly incor- 
 rect. Congress has, as we have already seen, a number 
 of the most important powers in relation to international 
 affairs. 1 Unlimited, that statement is true only in regard 
 to the intercourse of the Union with foreign powers. This 
 is accomplished only through the president, but he must 
 have the consent of the senate as to the persons by 
 whom he is to be served in this respect. He " shall re- 
 ceive embassadors and other public ministers " (art II., 
 sec. 3), and he is to appoint, with the consent of the sen- 
 ate, "embassadors, other public ministers and consuls" 
 (art. II., sec. 2, 2). 2 He is not the sole bearer of the 
 
 'On April 4, 1864, the house unanimously adopted a resolution, 
 which declared that the United States were not indifferent spectators 
 of the occurrences in Mexico and could not recognize a monarchical 
 government erected in America under the auspices of a European 
 power upon the ruins of a republic. (Congressional Globe, 1st Ses- 
 sion, 38th Congress, p. 1408.) The secretary of state, W. H. Seward, 
 at once instructed Dayton, the ambassador at Paris, to inform the 
 French government that foreign affairs did not fall within the juris- 
 diction of congress. The house of representatives in turn, on De- 
 cember 19, 1864, declared its position in the following resolution: 
 ' Resolved, That congress has a constitutional right to an authorita- 
 tive voice in declaring and prescribing the foreign policy of the 
 United States, as well in the recognition of new powers as in other 
 matters ; and it is the constitutional duty of the executive depart- 
 ment to respect that policy not less in diplomatic negotiations than in 
 the use of the national force when authorized by law ; and the pro- 
 priety of any declaration of foreign policy by congress is sufficiently 
 proved by the vote which pronounces it ; and such proposition while 
 pending and undetermined " (the resolution of April 4 was a "joint" 
 one and the senate had not yet passed upon it) "is not a fit topic of 
 diplomatic explanation with any foreign power." The first part of 
 this resolution was adopted by a vote of one hundred and eighteen 
 to eight, and the second beginning " and the propriety " by sixty- 
 eight to fifty-eight. (Congressional Globe, 2d Session, 38th Congress, 
 65-67.) 
 
 - There lias been much controversy over the question as to whether
 
 200 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 power of the state in relation to foreign countries, but 
 he alone represents it, and that, too, not only where 
 one nation confronts another, but also where the rights 
 and interests of individuals are involved, -so far as they 
 do not come within the jurisdiction of the courts. This 
 exclusive right of the president to represent the state- 
 power in all international relations must not, however, 
 be considered as only a formal right. He is also a co- 
 bearer of the state-power, and the exclusive representative 
 right involves his having the exclusive right of initiative 
 with the exception of the powers granted congress in art. 
 I., sec. 8, 10, II. 1 Congress is, indeed, free to express 
 its views on everything affecting relations with foreign 
 powers, not only by criticism of the president's policy on 
 the part of individual members, but also by formal reso- 
 lutions and positive propositions. But although such 
 action always has considerable actual weight and will 
 often be the decisive factor in the conclusions of the 
 president, it nevertheless cannot legally bind him in any 
 way whatever. At most, there ma\ r be a doubt as to 
 whether the constitutional provision which requires the 
 concurrence of the senate to conclude a treaty is to be so 
 understood that the senate has a certain, so to speak, di- 
 rect participation in the right of initiative so far as treaties 
 are concerned. 
 
 58. THE TKEATY POWKK. The constitution says that 
 the president " shall have power, by and with the ad- 
 
 and how far the president is to determine at what foreign courts the 
 United States shall have representatives, and of what kind these 
 representatives shall be. The actual state of things is, that the pres- 
 ident without any special legal authorization nominates ministers 
 whom the senate either confirms or does not confirm. Fnally, how- 
 ever, the decision rests with congress, for congress cannot he com- 
 pelled to appropriate the money needed for the ministers appointed. 
 1 The powers " to declare war, grant letters of marque and reprisal, 
 and make rules concerning captures on land and water," etc.
 
 THE FEDERAL CONSTITUTION. 201 
 
 vice and consent of the senate, to make treaties, pro- 
 vided two-thirds of the senators present concur " (art. II., 
 sec. 2, 2). The words " by and with the advice and con- 
 sent of the senate " appear also in the provision as to 
 the senate's confirmation of nominees to office. And al- 
 though debates often take place over the nominations 
 sent in by the president, yet the action of the senate is 
 limited to the exercise of the right of saying yea or nay. 
 The provision was never interpreted to mean that the 
 senate was empowered as such, and officially, to advise 
 the president to nominate a certain other person for the 
 particular office. The question is, therefore, whether in 
 the clause concerning the making of treaties the same 
 words are to be interpreted in the same manner, that is, 
 that the senate is also authorized only to say yea or nay 
 when a treaty is placed before it for ratification by the 
 president. The actual practice has always been for the 
 presidents to call for the " advice " of the senate only 
 when they sought its " consent," that is, when they pre- 
 sented to it the treaties perfected up to the point of its 
 assent. And this was never held to be unconstitutional. 
 But it has also happened that a president before negoti- 
 ating a treat} 7 has asked the senate for advice ; and his 
 right to do so has never been disputed. 1 And it has like- 
 wise happened that the senate has said neither simply 
 yea nor simply nay, but has amended the treaty laid be- 
 fore it; and this has not been regarded as unconstitu- 
 tional. 2 I cannot therefore see why the senate should 
 not be authorized to request the president to open nego- 
 tiations for the purpose of concluding a treaty. But the 
 president would unquestionably not be bound to obey the 
 
 1 Washington did this repeatedly, and Polk did it in 1846 as to the 
 treaty with England relative to Oregon. 
 
 2 Thus, for example, the Gadsden treaty of December 30, 1853. See 
 my Constitutional History, V., pp. 6-9.
 
 202 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 request, and the expression of such a wish is undoubtedly 
 also within the power of the house of representatives. 
 A constitutional law claim of the senate to a share in the 
 right of initiative, ho\vever indirect, cannot bear discus- 
 sion, except in so far as the right of amendment is to be 
 understood in that sense. 
 
 As to the extent of the treaty-power, the constitu- 
 tion says nothing, but it evidently cannot be unlimited. 
 The power exists only under the constitution, and every 
 treaty-stipulation inconsistent with a pro vision of the con- 
 stitution is therefore inadmissible and according to con- 
 stitutional law ipso fdcto null and void. Simple and self- 
 evident as this principle is in theory, yet it may be very 
 difficult under certain circumstances to decide whether or 
 not it has been transgressed in fact. Indeed, the chief dif- 
 ficulty arises from the question of the relation the treaty- 
 power of the president with the concurrence-power of the 
 senate bears to the legislative power of congress. This 
 question is answered by saying that these powers must be 
 co-ordinate, for treaties like laws are " sovereign acts," 
 which differ from laws only in form and in the organs by 
 which the sovereign will expresses itself. It follows from 
 this principle that a law can be repealed by a treaty 1 as 
 well as a treaty by a law. 2 If a treaty and a law are in 
 opposition, their respective dates must decide whether the 
 one or the other is to be regarded as repealed. 3 Neither 
 the principle nor the correctness of these conclusions from 
 
 1 Foster vs. Xeilxon, Pct-rs, II., 253. 
 
 2 The Cherokee Tobacco, Wallace, XI., 616. 
 
 3 Foster vs. Neilson, Peters. II., 253. 314; Doe vs. Braden, Howard, 
 XVI., 635. ' The courts of the United States cannot hold a law un- 
 constitutional upon the ground that it violates treaty obligations. 
 Such a question is an international one, to bo settled by the foreign 
 nations interested therein and the political department of the gov- 
 ernment." Gray vs. Clinton Bridge, 7 American Law Register (N. S.), 
 151; Hammond, I., 22, 54.
 
 THE FEDEEAL CONSTITUTION. 203 
 
 it can well be disputed, and they are at any rate valid 
 constitutional law. But in spite of this it must be admitted 
 that the doctrine has its doubtful side, both in theory and 
 practice. It must be called at least an anomaly, that by 
 the ex parte action of the president and two-thirds of the 
 senators present (who may be only a minority of the whole 
 senate), a law can be repealed, the passage of which re- 
 quired the concurrence of the house of representatives with 
 the senate and president or a two-thirds majority of each 
 house of congress. The repeal of a treaty by the enact- 
 ment of a law may, moreover, lead the more easily to 
 serious consequences, because the incompatibility of the 
 law and of the treaty may not be so clearly manifest that 
 the foreign power concerned will immediately take notice 
 of the law. It is in nowise inconceivable that congress 
 itself might know nothing of what it had done, so that 
 only after a long time would the fact be established by 
 judicial decision, that in this indirect manner a treaty was 
 overthrown, the repeal of which had not been contem- 
 plated by either of the two contracting parties. 
 
 On still another side this question of the direct relation 
 between the treaty-power and the legislative-power makes 
 it difficult to fix the limits of the treaty-power. It is cer- 
 tain that no authority granted by the constitution to any 
 of the factors of government can be withdrawn from it 
 by treaty. For that would be a change of the constitu- 
 tion and, as such, unconstitutional. But congress may be 
 bound by a treaty not to exercise in a certain way a 
 power belonging to it, although it might exercise it in that 
 way if not bound by the treaty. The freedom of action 
 of the house of representatives can thus easily be restricted 
 by a treaty to such a degree that the restriction must be 
 admitted to be a violation of the constitution, even if not 
 'strictly of its letter, yet still of its spirit. Thus, for instance,
 
 204: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 the framers of the constitution certainly did not wish that 
 duties should be fixed in a way repugnant to the views of 
 the house of representatives, and yet this might be brought 
 about at any moment by a commercial treaty. Of course 
 it must not be inferred that in general there should be no 
 commercial treaties. But Daniel Webster was certainly 
 right in advising his countrymen to consider carefully be- 
 fore beginning to handle questions of duties in connection 
 with treaties. 1 The considerations which led him to give 
 this advice are of even more importance now. The pres- 
 ident and senate in concluding commercial treaties, and 
 indeed treaties of all kinds, must keep steadily in mind 
 the house of representatives, not only in order not to 
 excite its sensitiveness and jealousy and to avoid anycon- 
 
 * See his letter of November 25. 1842, to Everett, in Curtis, Life ofD. 
 Webster, II., 174. The Nation of January 29, 1885, says: " There have 
 been treaties negotiated by President Arthur and now before the sen- 
 ate, that make, or will make if ratified, anew departure in our diplo- 
 macy. A series of commercial treaties, that tie the hands of the gov- 
 ernment in the future levy of duties on merchandise from all or a 
 large part of the states and colonies on the south of us, must be of 
 tremendous significance. The consequences of such treaties for good 
 or for evil the country is just beginning to appreciate, and does not 
 yet fully comprehend. Fortunately, President Arthur has inserted 
 in the Spanish treaty, and presumably in all the commercial treaties 
 that are on the way, a stipulation that they shall not be exchanged 
 and proclaimed as binding till not only the senate, but the law-making 
 power, has ratified them." As to the important results of this pro- 
 viso it says farther on, in the same article : "If ratified by the senate, 
 those treaties must then by the president be submitted to congress as 
 a legislative body, and President Cleveland [a president, thus, who had 
 nothing to do with the negotiation and conclusion of the treaties] may 
 be called on to approve or veto the doings of congress thereon. There- 
 fore, the responsibility of ratifying, exchanging and proclaiming the 
 Spanish treaty may, and probably will, rest in the end on President 
 Cleveland. He will probably be called on to deal with the whole sub- 
 ject de novo."
 
 THE FEDERAL CONSTITUTION. 205 
 
 flict with it, but also in order not to act in opposition to the 
 spirit of the constitution. It need but be suggested that 
 the treaty-power embraces also treaties of peace to make 
 it clear at the first glance that president and senate may 
 remain fully within the letter of their constitutional 
 authority and yet be in conflict with the fundamental 
 ideas of the constitution. Nobody will assert that no 
 treaty of peace should be concluded which did not in all 
 its parts receive the approval of the house of representa- 
 tives. But since the constitution gives congress the right 
 to declare Avar, a treaty of peace, which a considerable 
 majority of the house of representatives condemns in toto 
 and with great emphasis, would seem to be a stretching 
 of the authority of president and senate, according to 
 the spirit of the constitution, although in a concrete case 
 they may not only be politically fully justified but may 
 also merit hearty thanks. 
 
 This leads to the last great question, to wit: Has the 
 house of representatives the right to annul a treaty made 
 in accordance with the constitution by the president by and 
 with the advice and consent of the senate, by refusing its 
 co-operation when this is necessary to carry out the stip- 
 ulations of the treaty ? 
 
 We already know the constitutional provision which 
 declares that treaties, like the constitution itself and the 
 federal laws, are "the supreme law of the land." As 
 far as a treaty requires no legislation in order to become 
 operative, federal and state judges are bound in making 
 their decisions to regard it as valid from the very moment 
 of its conclusion. If, however, the stipulations are of the 
 nature of a contract, binding the powers concerned to 
 perform certain acts, then the contract must be fulfilled 
 by the action of the legislature (or executive) before the 
 special provisions of the treaty become binding upon the
 
 206 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 courts. 1 But there can be no legislation without the co- 
 
 o 
 
 operation of the house of representatives. /The other 
 factors of government cannot enforce this co-operation. 
 The house, therefore, is always able in such a case to 
 annul a treaty in fact, although it has no part in the 
 power of making a treaty. "Whether it has the right to 
 do so has repeatedly given rise to very incisive and ex- 
 citing debates. These debates have not led, however, to 
 any certain decision of the question. The house has not 
 withheld its co-operation: but it has also not dropped its 
 claim of the right to act entirely in accordance with its 
 own judgment, in cases when the fulfillment of the treaty 
 requires it to make an appropriation or do anything else, 
 as to which it may incontestably decide under all other 
 circumstances witli full freedom. 
 
 59. THE APPOINTING POWER. Since the constitution, 
 as has already been mentioned, imposes upon the presi- 
 dent the duty of taking care that the laws be faithfully 
 executed, it grants him, at the same time, the greatest 
 influence in the selection of the persons by whom these 
 laws are to be executed; that is, the federal officers. 
 The right is unquestionably a necessary consequence of 
 the duty, but only within certain limits. In no state, 
 and least of all in a republic which is pre-eminently a 
 state founded on law and governed "not by persons but 
 by laws," can there be a reasonable ground for every in- 
 ferior officer's being dependent for his office, that is, for 
 his bread, immediately and absolutely upon the head of 
 the state. On the other hand there are weighty reasons 
 why in a republic the head of the state, even in the se- 
 lection of those officers, who in a greater or less degree 
 must be persons having his personal confidence, should 
 not be free from all control. The provisions of the con- 
 
 1 Foster vs. Neilson, Peters, II., 253.
 
 THE FEDERAL CONSTITUTION. 207 
 
 stitution as to the appointment of officials are drawn 
 from both points of view. Besides diplomatic represent- 
 atives and consuls, only the members of the federal su- 
 preme court are explicitly designated as officials to be 
 appointed by the president with the consent of the sen- 
 ate. For the rest, the general phrase is used of "all 
 other officers of the United States whose appointments are 
 not herein otherwise provided for and which shall be 
 established by law." This provision is, however, limited 
 by the clause already mentioned, that " 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." It is difficult to under- 
 stand how the question as to whether the heads of the 
 departments themselves should be regarded as " inferior 
 officers," within the meaning of this clause, could have 
 been seriously mooted. For the rest, it is manifestly 
 entirely within the discretion of congress as to how nar- 
 rowly or how broadly it will fix the limits of this idea. 
 If it regards it as necessary or expedient it can, conse- 
 quently, save as to the diplomatic corps and the con- 
 suls, reduce the power of the president over appoint- 
 ments to a minimum, and could unquestionably do so in 
 such a manner as not to increase the power of the heads 
 of departments unduly. The legal regulation of the 
 question is not confined to enumerating the offices and 
 granting the power of appointment to the president, the 
 courts of law or the heads of departments. This power, 
 taken in connection with the duty of establishing the 
 offices by law, is broad enough to embrace the right to 
 establish all provisions deemed expedient as to the quali- 
 fications required in appointees, the time during which 
 and the conditions under which their incumbency in 
 office is to be ensured, the grounds of claims to promo-
 
 208 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 tions. etc. In a word, the so-called "civil-service reform," 
 by which the federal offices are to be divested of the 
 character of '"spoils," with which party services are paid, 
 is in no kind of opposition to any part of the constitutional 
 law. The framers of the constitution cannot justly be 
 held responsible for the grave abuses in the civil service 
 since the presidency of Andrew Jackson. The constitution 
 renders it possible to satisfy fully in every respect all the 
 requirements of a modern civilized state as to the tenure 
 of office. 1 Xor can they be reproached with having made 
 
 1 A good beginning has been made herein by the law of January 
 16, 1883, the so-called Pendleton bill. The most important provisions 
 of this very significant law are the following: The president is 
 authorized to form a civil-service commission of five persons, of 
 whom only three at most shall belong to the same political party ; 
 two must be federal officers of different departments, residing in 
 Washington, and three occupy no other federal office. The task of 
 the commission is to assist the president in formulating the regula- 
 tions necessary for the execution of this law, on the basis of the fol- 
 lowing principles : The federal offices which have already been or 
 will be cla; sified for this purpose are to be filled by competitive ex- 
 aminations. Preference is to be given those applicants who have 
 passed the best examinations. The offices in the departments at 
 Washington are to be distributed as far as practicable in proportion 
 to the population among the states and territories and the District of 
 Columbia. A period of probation must precede permanent employ- 
 ment. The commission may order non-competitive examinations in 
 such cases as it sees fit. It must regulate and control the examina- 
 tions. It must annually report on everything covered by this law 
 to the president for the use of congress and may use the report to 
 make any further suggestions. The commission is authorized to ap- 
 point an examiner-in-chief, whose duty it is inter alia to see that the 
 examining boards act alike. The commission appoints the examining 
 boards, consisting of at least three federal officials in the particular 
 state or territory; the heads of the departments to which these 
 officials belong must be consulted in relation to their appointment ; 
 the examinations are to be held at least twice a year. The heads of 
 departments must classify inferior officials in conformity with the 
 intent of this law ; officials whose appointment must be confirmed by
 
 THE FEDERAL CONSTITUTION. 209 
 
 the president too dependent upon the senate as to the 
 offices which he must fill with its consent. The nomina- 
 tion, that is, the selection of persons to be nominated, is 
 left wholly to him. The co-operation of the senate comes 
 into play only upon the nomination and is limited to 
 that. If it refuse to confirm, the president again has full 
 and free choice among all citizens, and it has happened 
 that he has repeated his first nomination. And if the 
 senate confirms he is still not yet irrevocably bound. The 
 constitution provides in another paragraph that he shall 
 commission all the federal officials (art. II., sec. 3). As 
 long as he has not done this the appointment is not per- 
 fected, and he can send a new nomination to the senate. 
 But the appointee has a legal claim to the office from the 
 moment the commission is signed, even if it has' not yet 
 been delivered to him. 1 No difficulties arise from the 
 fact that the senate does not remain in permanent ses- 
 sion. Yacancies which happen during the senate's recess 
 are filled by the president provisionally. 2 The commis- 
 
 the senate shall be classified and subjected to examination only upon 
 the request of the senate. Four articles forbid members of congress 
 and all federal officials from asking in any way whatever for money 
 contributions for any political purposes whatever from federal of- 
 ficials and employees, and also from receiving such taxes, and es- 
 pecially from inducing by threats or promises such contributions for 
 political purposes. The prohibition extends to all in all places where 
 federal officials or employees have to perform their official duties. Vio- 
 lations of these provisions are to be punished by fines of as much as 
 $5,000 or by imprisonment for three years or less, or by both fine and 
 imprisonment. See J. M. Comstock, Civil Service in the United 
 States, 1885. 
 
 1 Marbury vs. Madison, Cranch, I., 156. 
 
 2 The unanimous opinions of several attorney-generals claim for the 
 president the right of filling provisionally any vacancies which may 
 occur during the session. They construe the word "happen" as 
 synonymous with " exist." Certain weighty reasons of expediency 
 
 14
 
 210 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 sions lie issues in such cases expire at the end of the next 
 session of the senate (art. II., sec. 2, 3). 1 
 
 00. THE POWER OF PARDON. The president's power 
 of pardon does not extend nearly as far as that of the 
 rulers in monarchical states, but the interpretation of the 
 constitutional provision concerned by various decisions of 
 the United States supreme court has made this power so 
 extensive that several of the principles set forth in these 
 decisions have been most energetically attacked by lead- 
 ing American publicists. The president is authorized " to 
 grant reprieves and pardons for offenses against the United 
 States, except in cases of impeachment " (art. II., sec. 2, 
 1). The president thus has not simply a right of par- 
 don. He can pardon only for offenses against the United 
 States, but as to these the power is entirely unlimited, 
 for, according to the supreme court, the word " pardons " 
 embraces everything which at the time of the adoption 
 of the constitution was understood thereby in English 
 law.' 2 He can remit every punishment, from a money- 
 penalty imposed for a violation of the internal-revenue 
 or customs laws, up to and even including the death pen- 
 alty. In cases of forfeiture, as far as others have acquired 
 a legal right to the goods forfeited, the pardon naturally 
 remains inoperative. And it does not effect a reinstate- 
 ment in a forfeited office. For the rest, however, a full 
 pardon annuls every legal consequence of a sentence. 
 Indeed the pardon need not be a complete one. It may 
 be coupled with a condition; and this, as a rule, tends to 
 
 certainly favor this interpretation, but the wording does not in my 
 opinion justify it. 
 
 1 The important question of removal from office has already been 
 treated. It may be mentioned here that the president cannot refuse 
 the resignation of an official. 
 
 ZExparte Wells, Howard, XVIII. , 309.
 
 THE FEDERAL CONSTITUTION. 211 
 
 a mitigation of punishment. 1 Nevertheless, it is not nec- 
 essary to put the mitigation in the form of a condition. 
 It may be declared directly as a remission of part of the 
 sentence. On the other hand, a penalty of an entirely 
 different kind from the one imposed cannot be inflicted. 2 
 The most important of all the conclusions from the inter- 
 pretation given the word " pardons " is unquestionably 
 that a pardon may be granted before sentence has been 
 passed, yea, even before any legal procedure whatever 
 has been begun against the accused. 3 From this comes 
 the right to issue a general amnesty. The president is 
 subject to no legal control in the exercise of these far- 
 reaching powers. Any legislative encroachment by con- 
 gress upon the pardoning power is excluded. The only 
 remedy against a coarse abuse of it is the right of im- 
 peachment. 4 
 
 THE JURISDICTION OF THE FEDERAL COURTS. 
 
 61. GENERAL PRINCIPLES AND POINTS OF VIEW. The 
 experience endured under the articles of confederation 
 had impressed the more far-sighted patriots with the con- 
 viction that a real federal government could not be 
 created as long as the sovereignty of justice was with- 
 held from the Union. It followed directly from this 
 principle that the jurisdiction of the federal courts must 
 be co-extensive with the sphere of the federal legislature 
 and the federal executive. Political considerations and 
 grounds of expediency, however, determined the framers 
 
 l Ex parte Wells, Howard, XVIII., 307. This is the leading ques- 
 tion decided in this case. 
 *Ibid., 305. 
 
 3 Ex parte Garland, Wallace, IV., 300. See Tiffany's (p. 336 et 
 seq.) keen polemic against this doctrine. 
 
 4 It may be noted that the president may withdraw and annul an 
 undelivered pardon granted by his predecessor.
 
 212 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of the constitution to extend this jurisdiction even beyond 
 these limits. But on the other hand, they did not de- 
 duce from that principle the conclusion that all litigation, 
 in which the constitution, the federal laws or the acts and 
 omissions of federal officials came into consideration, 
 should be decided only in the federal courts. The con- 
 stitution is a constituent part of the fundamental law of 
 all the states and the federal laws are " the supreme law 
 of the land " and consequently also of each several state. 
 The federal constitution and laws must therefore come 
 into question in innumerable litigated cases, which un- 
 doubtedly belong to the state tribunals as long as the 
 Union bears the character of a composite state, so far as 
 its legal existence is concerned. It was absolutely nec- 
 essary to give jurisdiction to the federal courts in only 
 two cases: first, where the preservation of the national 
 authority viewed from the stand-point of duties as well 
 as of rights demanded it ; and, second, where uniformity 
 of decisions was required. But in the second instance the 
 existence of an invincible necessity can, however, be 
 recognized only conditionally. The jurisdiction of the 
 state courts need not be completely excluded on principle, 
 in such cases. If the state courts are subordinated to the 
 federal courts, in these cases, uniformity of decision is 
 sufficiently assured. It is equally as true, however, that 
 no principle requires that in all such cases the state courts 
 must be competent to decide in the first instance, while 
 there are weighty grounds of expediency to the con- 
 trary. As the constitution provides nothing on this point, 
 the question must be regulated by federal legislation, and 
 congress need guide itself in such legislation only by con- 
 siderations of expediency. But as the constitution is silent 
 not only in such cases, but in general, as to whether and 
 when the federal courts shall have exclusive jurisdiction,
 
 THE FEDERAL CONSTITUTION. 213 
 
 congress must always determine this. This does not, 
 however, override the fact that the fundamental ideas of 
 the constitution imperiously demand in certain cases the 
 establishment by law of exclusive jurisdiction, and in 
 others, on the contrary, may as unconditionally require 
 the concurrent jurisdiction of the state courts. Where 
 this concurrent jurisdiction exists in accordance with the 
 federal laws, it is not, however, created by them. Congress 
 is not constitutionally capable of transferring even the 
 slightest portion of the legal sovereignty of the United 
 States to the several states or of delegating it to them ; but 
 the state courts have jurisdiction because the legal sover- 
 eignty indwelling in the states, before the adoption of the 
 constitution, was not taken from them so far as these 
 cases are concerned b} 7 the constitution or by the federal 
 laws passed by virtue thereof. 1 Where the states have 
 concurrent jurisdiction, their rules of procedure alwa} r s 
 prevail. Congress can vest the execution of the legal 
 sovereignty of the United States only in federal courts 
 and the authority of these courts rests exclusively upon 
 the constitution and the federal laws enacted under it 
 (American Insurance Co. vs. Canter, Peters, L, 511); they 
 have no common law jurisdiction ( Wheaton vs. Peters, 
 Peters, VIII., 591, 658). 2 In the third place, where, from 
 
 1 Martin vs. Hunter's Lessee, Wheaton, I., 304. On the other hand 
 the supreme court in the noted case of Prigg vs. Pennsylvania (Peters, 
 XVI., 539) laid down the principle that the states could not grant to 
 their courts the right to carry out federal laws. Just as little can the 
 authority of the federal courts be extended by state laws. But the 
 federal courts may decide, when new rights are created by state laws, 
 whether the law-suits arising thereunder fall according to federal 
 law within the domain of the federal courts. Ex parte McNiel, Wal- 
 lace, XIII., 243. 
 
 2 In general the exceptions to the rule will be hereafter noted 
 the legal sovereignty of the United States thus comes into play first 
 only by virtue of federal legislation. The answer to the question, 
 how far the sovereignty of law extends, can be found only in the
 
 24 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 motives not of principle, but of expediency, the author- 
 ity of the federal courts has been extended beyond the 
 spheres of congress and of the president, the concurrent 
 jurisdiction of the state courts is of course required and 
 their subordination to the federal courts is not a matter 
 of principle. In these cases the jurisdiction of the fed- 
 eral courts depends upon the person or the residence. 
 Therefore the federal courts in their decisions in such 
 cases regard as decisive the local law, the common la\v, 
 the law of custom, the statutory law and the constitution 
 of the state, and that, too, as interpreted by the state 
 courts, 1 provided, however, the judicial decision of the 
 question at issue is dependent solely upon the legal status 
 of the parties in the particular state.- If the decisions 
 of the highest state court on the point at issue are in 
 conflict with one another, the federal courts follow the 
 last decision. 3 
 
 in addition to the above three categories, which, if the 
 cases be divided according to their objects, embrace all 
 
 constitution, but the laws must determine the authority of the federal 
 courts. Congress can neither decrease nor increase the legal sov- 
 ereignty fixed by the constitution, but the constitutional-law powers 
 rest (they lie " dormant ") till it has directed that eventually also 
 when and how they are to be exercised by certain federal courts. 
 In many cases, in which it could indisputably do so, it has not so 
 ordered, or at least has not done so, to the fullest possible extent. 
 But it is not congress, it is the constitution, which grants the federal 
 courts their powers ; congress provides only that, when and how the 
 powers created by the constitutional law shall be exercised by the 
 different courts. 
 
 1 Livingston's Lessee vs. Morse, Peters, VII., 469; Shelby vs. Guy. 
 Wheaton, XI., 361. 
 
 2 The decisions of the state courts are therefore not followed as 
 of course, when they involve passing judgment upon a national 
 power, upon rights, privileges or exemptions claimed under the 
 federal constitution, upon principles of law universally valid, upon 
 state laws which have the nature of contracts, etc. 
 
 3 Green vs. NeaTs Lessee, Peters, VI., 291.
 
 THE FEDERAL CONSTITUTION. 215 
 
 litigation of every kind in the federal courts, there is an- 
 other triple division possible, based with equal clearness 
 and just as naturally upon the particular constitutional 
 provision concerned. It is not easy to find a perfectly 
 appropriate name for the determining principle of this 
 second tripartition, but the basis of division may be most 
 correctly designated as the reason of the suit. And as 
 " object " and " reason " are sometimes very difficult to 
 separate or distinguish, while they are yet manifestly not 
 synonymous, so the three classes of each partition are 
 also co-extensive in great part, but by no means com- 
 pletely so. The sovereignty of law of the Union is 
 based upon : first, the law to be applied ; second, the par- 
 ties to the suit; third, the thing involved. 
 
 62. LAW-SUITS ARISING UNDER THE CONSTITUTION, THE 
 FEDERAL LAWS AND TREATIES. The two first groups co- 
 incide most closely, for where the nature of the law to 
 be applied is the condition of the legal sovereignty of 
 the Union, this is always because the preservation of the 
 national authority demands it. The constitution pro- 
 vides that " the judicial power shall extend to all cases 
 in law and equity arising under this constitution, the laws 
 of the United States and treaties " (art. III., sec. 2, 1). 
 It has already been said that the word " cases " is not 
 synonymous here with " disputed law points." It must 
 be understood as a technical term, and all " disputed law 
 points " which are of a political nature are subject to de- 
 cision by the political powers, by the president or by 
 congress, or by congress and the president. Moreover, 
 all law cases in which, in a general way, the constitution, 
 the federal laws or treaties come into question, do not 
 " arise under " them within the meaning of this provis- 
 ion. The words " arising under " are to be understood 
 as meaning that the correct decision of the legal dispute
 
 216 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 must depend upon the correct construction and interpre- 
 tation of the constitution, of a federal la\v, or of a treaty. 1 
 If the constitution comes in this sense into question, the 
 points involved may be whether or no a federal or state 
 law, or the act of a federal or state ollicei 1 , is constitu- 
 tional. Congress has not thought it necessary to give ex- 
 clusive jurisdiction to the federal courts in any one of 
 these cases. In jts opinion, it has sufficiently assured the 
 preservation of the national authority and the uniformity 
 of judicial decisions by giving the parties the power of 
 transferring a case pending before a state court to a fed- 
 eral court. This can be done only on certain carefully 
 defined conditions. 2 The federal supreme court is the 
 court of last resort. Its decision may be, in fact, re- 
 quired when the constitutionality of a federal law or of 
 a treaty is called into question, or where the action in- 
 volves a power, a title, or a right of some kind claimed 
 
 1 Cohens vs. Virginia, Wheaton, VI., 379. 
 
 2 In all cases to which the legal sovereignty of the United States 
 extends, congress may permit a removal of the case from the state 
 to the federal courts (Railway Company vs. Whitton, Wallace, XIII., 
 270). This is not necessarily done by appeal. A ca^e may be re- 
 moved before it is decided. Even after a decision, the removal is not 
 always by appeal in the technical sense of the word. It is usually 
 by writ of error. On an appeal questions of both fact and law are 
 re-examined. Under a writ of error only questions of law are re- 
 examined. As to what is more properly called "removals of cases," 
 that is, removals before judgments, see details in Cooley, Principles, 
 122-128. If the case involves only money, or money's worth, the 
 sum claimed must be at least $oOO to permit a removal. Federal 
 officers or other persons sued under a tax or customs law of the Union 
 have had. since 1883, special legal rights of removal. The central 
 idea of the whole system of transferring cases is always more or less 
 that of making surer of an impartial judgment. Every direct or 
 indirect limitation, by state law, of the right of removal under 
 federal laws is null and void. J. F. Dillon, Laiv of Removal of 
 Cannes, 3d ed., St. Louis, 1881.
 
 THE FEDERAL CONSTITUTION. 217 
 
 to exist under the constitution, a federal law or a treaty, 
 and the state supreme court has decided against the va- 
 lidity of the claim. If, however, the judgment depends 
 upon whether or no a state law or a right claimed under 
 the authority of a state is opposed to the federal consti- 
 tution, federal law or a treaty, an appeal can be taken to 
 the federal supreme court only in case the supreme court 
 of the state has held the state law to be valid. Again, 
 other cases "arise under" the federal laws or treaties, 
 which question not their validity, but the correctness of 
 their interpretation. Uniformity of judicial decision re- 
 quires the federal courts to take jurisdiction of such 
 cases, and congress has made this jurisdiction in part 
 exclusive. 
 
 Next in order come four kinds of legal controversies 
 to which, from the nature of the matter at issue, the 
 legal supremacy of the United States must extend. In 
 three of them the basis of jurisdiction is the personality 
 of the parties. In the fourth cases of admiralty and 
 maritime law the nature of the law to be applied is not 
 to be understood as the basis of jurisdiction in the same 
 sense as it has been in the preceding paragraph. 
 
 63. EMBASSADORS, OTHER DIPLOMATIC AGENTS AND CON- 
 SULS. As to this provision of the constitution, I need 
 observe only that these representatives and agents of for- 
 eign powers need not necessarily be " parties " to a suit. 
 The jurisdiction extends "to all cases affecting" them, 
 an expression vague enough to leave its interpretation 
 quite at the discretion of the judge. 
 
 64. ADMIRALTY AND MARITIME JURISDICTION. The ju- 
 risdiction of the federal courts in admiralty and maritime 
 cases is to a very large extent exclusive. 1 Congress and 
 
 1 It is so in all cases " of prize, maritime torts and contracts, and 
 liens for maritime services," as far as these are not processes in per-
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 the courts have given this grant of power a broad con- 
 struction. In doing so they have relied especially on the 
 phrase '' maritime jurisdiction," in order to escape a too 
 narrow technical explanation of the word " admiralty." 
 The old opinion that the power extended only to tide- 
 water has been wholly abandoned. Wherever navigation 
 exists in the United States, there this constitutional pro- 
 vision extends (Jackson vs. The Magnolia, Howard, XX., 
 290, and T/te Geuesee Chief, Ibid., XIL, 443). The grant 
 of jurisdiction implies the existence in congress of the 
 right of legislation on these matters; but the jurisdiction 
 extends only as far as congress has exercised its legisla- 
 tive power {Ibid.}. 
 
 In all the subsequent provisions, the word " cases " is 
 replaced by ki controversies " and the word " all " is 
 dropped. It is generally admitted that this change is not 
 simply one of style but that it has a substantial meaning. 
 So far, however, there has been no precise and authorita- 
 tive establishment of this meaning. The doctrine that 
 the legal supremacy of the United States does not extend 
 to '* all " legal controversies, especially those which barely 
 come within the outer borders of these provisions of the 
 constitution, is of no practical value, as long as nothing 
 can be said as to which controversies are excluded. The 
 explanation of the other point is less unsatisfactory. It 
 is said that by " controversies " only civil proceedings 
 are to be understood. 1 
 
 G5. CONTROVERSIES TO WHICH THE UNITED STATES ARE 
 A PARTY. The United States cannot be sued at all in a 
 
 sonam. Cooley, Principles, 114. See especially the decisions of the 
 supreme court in The Moses Taylor, Wallace, IV., 411, and Hine vs. 
 Trevor, Ibid., 533. Many American jurists declare that the jurisdic- 
 tion of the federal courts in admiralty and maritime cases is entirely 
 exclusive; but they have only " suits in rem " in view. 
 1 Cohens vs. Viryinia, Wheaton, VI., 264, 411, 412.
 
 THE FEDERAL CONSTITUTION. 219 
 
 state court (Abhman vs. Booth, Howard, XXI., 506). 
 They can be sued before their own courts only at their 
 own pleasure, that is, only in those cases where the fed- 
 eral laws permit. Land bought by the United States 
 within a state and used for no particular purpose is sub- 
 ject like private property to condemnation for public pur- 
 poses under the authority of the state. 
 
 66. CONTROVERSIES BETWEEN Two OR MORE STATES. 
 This provision is unquestionably of the utmost impor- 
 tance, for in case of a controversy between states, neither 
 would be willing to commit the decision unconditionally 
 to a court of the other. Just because a peaceful deter- 
 mination of such conflicts could only be assured by njak- 
 ing them subject to the legal supremacy of the Union, 
 the omission of the word " all " might become under cer- 
 tain circumstances of much significance. Since the abo- 
 lition of slavery and the annihilation of the doctrine of 
 state sovereignty in its old form by the result of the 
 civil war, it is much less to be feared than formerly, that 
 a controversy can ever arise between the states, in which 
 the jurisdiction of the federal courts might be seriously 
 and energetically disputed. Their jurisdiction over ques- 
 tions of boundary between the states has been established 
 for many years by quite a number of decisions of the 
 federal supreme court. 
 
 The legal controversies enumerated in the remaining 
 provisions of the constitution all belong to those placed 
 under the jurisdiction of the federal courts for reasons 
 of expediency. Moreover, the decisions of the federal 
 courts in these cases do not bind the state courts, which 
 always have concurrent jurisdiction in them. The fed- 
 eral courts as a rule, as I have stated, follow the state 
 courts in these cases, but there is no uniformity of legal 
 decision in them.
 
 220 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 07. CONTROVERSIES BETWEEN A STATE AND CITIZENS 
 OF ANOTHER STATE. It is not sufficient that a state be 
 interested in a legal controversy; it must be a party to 
 it. 1 According to the original and undoubtedly the cor- 
 rect interpretation of this constitutional provision by the 
 supreme court (Chisholm vs. Georgia, Dallas, II., 419), 
 a state could be brought before the federal courts not only 
 as plaintiff but as defendant. Public opinion was against 
 this and the eleventh amendment was adopted. This 
 withdrew from federal jurisdiction suits against a state 
 by citizens of another state or by citizens or subjects of 
 any foreign state. This amendment has led to serious 
 complications, for different states have repeatedly failed to 
 comply with their obligations as debtors. Attempts were 
 recently made (1883) to bring them before the federal 
 supreme court by having the owners of their defaulted 
 securities assign the bonds to their own states which were 
 then to appear as plaintiffs. The supreme court, how- 
 ever, has decided (New Hampshire vs. Louisiana and 
 New York v*. Louisiana) that this was inadmissible, be- 
 cause it would be an evasion of the eleventh amendment. 
 Whether the agitation begun to repeal the amendment 
 will succeed, remains to be seen ; but this can scarcely be 
 hoped for, as quite a number of the states are at present 
 directly interested in maintaining it. This amendment 
 does not, however, prevent appeals to the federal supreme 
 court if the decision of the state court has brought into 
 question rights, titles, etc., under the constitution, the 
 federal laws or treaties (Cohens vs. Virginia, Wheaton, 
 VI., 204). A suit may be brought against a corporation 
 chartered by a state, even if the state holds all the stock 
 (Bank of Kentucky vs. Wister, Peters, II., 318). 
 
 1 Osborn vx. Bank of United States, Wheaton, IX., 738.
 
 THE FEDERAL CONSTITUTION. 221 
 
 68. CONTEOVEESIES BETWEEN ClTIZENS OF DIFFERENT 
 
 STATES. The expression " citizen " is not to be understood 
 here literally. It means "inhabitant." Even corpora- 
 tions are regarded as inhabitants. Inhabitants of the 
 territories or of the District of Columbia, however, are 
 not included. The jurisdiction granted by this provision 
 to the federal courts has been by no means put in full 
 force by congress in its legislation. 
 
 69. CONTROVERSIES BETWEEN CITIZENS OF THE SAME 
 STATE CLAIMING LANDS UNDER GRANTS OF DIFFERENT 
 STATES. This provision also applies when the states con- 
 cerned originally constituted one state. 
 
 70. CONTROVERSIES BETWEEN A STATE OR ITS Crn- 
 z ENS AND FOREIGN STATES, CITIZENS OR SUBJECTS. For- 
 eign corporations, and also immigrants who have declared 
 their intention of becoming citizens, are " foreign," within 
 the meaning of this clause. 
 
 PRACTICE AND PLEADING. 
 
 71. RULES OF PRACTICE were almost wholly left to 
 congress to determine. But on one substantial point the 
 constitution has given congress no discretion. " In all 
 cases affecting embassadors, other public ministers and 
 consuls, and those in which a state shall be a party, the 
 supreme court shall have original jurisdiction " (art. III., 
 sec. 2, 2). These cases are the exceptions to the rule, 
 according to which the judicial power of the United 
 States can come into operation only after legislation by 
 congress. Congress is authorized, here, as everywhere 
 else, to enact the more definitive provisions of procedure, 
 but if it does not do so, the supreme court may itself 
 provide the modus procedendi (Florida vs. Georgia, 
 Howard, XVII., 478). It is uncertain whether or no the 
 constitution intended that this original jurisdiction should
 
 222 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 also have been exclusive. Jurists' opinions differ, and so 
 do judicial decisions. The affirmative view has always 
 had the more support, but legislation has not fully come 
 up to it. For while a suit against embassadors, consuls, 
 etc., can be maintained only in the supreme court, they 
 may bring suits in other courts as well. On the other 
 hand, it is generally admitted that congress cannot ex- 
 tend the original jurisdiction of the supreme court. The 
 extent of its jurisdiction in appeals is practically left 
 wholly to the discretion of congress. The constitution 
 says: "In all the other cases before mentioned, the su- 
 preme court shall have appellate jurisdiction, both as to 
 law and fact, with such exceptions, and under such regu- 
 lations, as the congress shall make." Congress must 
 therefore give original jurisdiction to other federal courts, 
 as far as this is not granted in the first sentence to tin; 
 supreme court. Congress may also give them an appellate 
 jurisdiction. The supreme court has this appellate juris- 
 diction only so far as it is expressly granted by the laws. 
 The circuit courts, consequently, sit in some cases as 
 courts of first as well as last resort. 1 A case in which a 
 jury has rendered a verdict does not conic within the 
 category of those in which the supreme court may re- 
 examine a question of fact on appeal. The seventh 
 amendment, to be hereafter discussed, establishes this. 
 
 1 Details as to practice and pleading in the different federal courts 
 are beyond the scope of this work. The most necessary are grouped 
 in Cooley, Principles, 120 et seq. Among the comprehensive books 
 on the subject are : St. D. Law, The Jurisdiction and Powers of the 
 U. S. Courts, Albany, 18o2; G. T. Curtis, Commentaries on the 
 United States Courts, Phila. , 1804; A. Conkling, Treatise on the Or- 
 ganization, Jurisdiction and Practice of the Courts of the U. 8., 5th 
 ed., Albany, 1870; B. R. Curtis, Jurisdiction, Practice and Peculiar 
 Jurisprudence of the Courts of the U. S., Boston, 1SSO; E. Desty. 
 Federal Procedure, 5th ed., San Francisco, 1881.
 
 THE FEDERAL CONSTITUTION. 223 
 
 The United States therefore cannot appeal in a criminal 
 case, for in ''crimes" impeachments, of course, ex- 
 cepted the decision must be by jurors (art. III., sec. 2, 
 3). Everything which is a crime by the common law 
 or state laws does not come within the limits of this para- 
 graph of the constitution. It refers only to those crimes 
 which are within the jurisdiction of the federal courts. 
 The conditions precedent of the exercise of this jurisdic- 
 tion are that the act in question has been declared to be 
 a crime by federal law, and that congress has conferred 
 the requisite jurisdiction upon a certain court. 1 In the 
 latter respect, congress has not complete freedom of ac- 
 tion. If the crime was committed in a state, the trial 
 must take place within that state and in the particular fed- 
 eral district. 2 If the crime was not committed in a place 
 geographically or legally within a state, but in a terri- 
 tory, in the District of Columbia, in Indian Territory, in 
 a fort, arsenal or other place subject to the exclusive 
 jurisdiction of the United States, then the place of trial 
 must have been fixed by law. 
 
 EXPRESS LIMITATIONS OF AUTHORITY AND PROHIBI- 
 
 TIONS. 
 
 of the provisions belonging under this head have 
 already been treated elsewhere, and may therefore re- 
 main unnoted here. So, too, those provisions which con- 
 cern the rights and legal safeguards of individuals will 
 be passed over here, because they are to be treated in a 
 special section. 
 
 72. BILLS OF ATTAINDER AND Ex POST FACTO LAWS. 
 " No bill of attainder or ex post facto law shall be passed" 
 (art. I., sec. 9, 3). It is not stated who is forbidden to 
 
 1 U. 8. vs. Coolidge, Wheaton, I., 315; U. S. vs. Hudson and Good- 
 win, Cranch, VII., 32. 
 
 2 Sixth amendment.
 
 '2'24: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 pass such measures. The next section of the same article, 
 however, says: "Xo state shall pass any bill of attainder 
 [or] c.r jwxf facto law.'' Hence follows directly the im- 
 p >rtant principle that (as the courts have always held) all 
 prohibitory clauses of the constitution containing no 
 words extending their import bind only the federal 
 powers. 1 According to a decision of the supreme court 
 (Cummings vs. State of Missouri, Wallace, IV., 323, 324) 
 the expression "bill of attainder" is to be understood 
 here in the broadest sense, so that it includes also the so- 
 called bills of pains and penalties. In other words, not 
 only can no death sentence be imposed by an act of the 
 legislative power, but the latter cannot take the general 
 exercise of justice in criminal cases into its own hands. 
 In the United States a punishable crime is only one 
 which is declared to be such by existing laws, and a man 
 accused of such a crime can be made answerable only 
 under existing laws and before a competent court. 2 A 
 correct definition of the expression "ex post facto laws " 
 is not to be got by translating and taking the Latin in 
 its literal sense. The framers of the constitution used 
 the Latin words because they desired to speak only of 
 what this technical term means in English law, and not 
 of all retroactive laws. Indeed, all ex post facto laws 
 are retroactive, but all retroactive laws are not ex post 
 
 1 It suffices to mention Barron vs. Mayor of Baltimore, Peters, 
 VII., 243. 
 
 -In the so-called Test-Oath Cases, viz. : Cummings vs. State of Mis- 
 souri, supra, and Ex parte Garland, Wallace, IV., 333, the supreme 
 court gave such a wide scope to this eminently technical expression, 
 that most jurists will probably agree with the minority of the judges. 
 The controversy in the Cummings case was over certain provisions of 
 the Missouri constitution (and in the Garland case over certain fed- 
 eral laws) which made the capacity of occupying an office depend 
 upon taking a test-oath as to non-participation in the rebellion. In 
 both cases five judges were arrayed against four.
 
 THE FEDERAL CONSTITUTION. 225 
 
 facto. The latter relate only to crimes and misdemean- 
 ors covered by the criminal law. Neither congress nor 
 the states can give a law a retroactive force in such a 
 way as to make an act, already done and not punishable 
 when done, punishable now; or to increase the punish- 
 ment or the legal grade of a punishable act ; or to lessen 
 the legal conditions of conviction; 1 or to withdraw a 
 legally-vested right on account of an action now first 
 made punishable ; 2 or, finally, to deny to a person accused 
 of crime the opportunity of pleading something for in- 
 stance, a declaration of amnesty, a former sentence or an 
 acquittal which would otherwise assure him immunity. 3 
 
 73. NOBILITY. Both the United States and the states 
 are forbidden to grant any title of nobility (art. I., sec. 9, 
 8, 4 and sec. 10, 1). 
 
 74. KELIGIOUS LIBERTY. The principle of the separa- 
 tion of church and state is as completely carried out in 
 the United States as it can be in any nation based upon 
 law ; but religious liberty is not, as most Europeans be- 
 lieve, guarantied by the constitution. . The latter contains 
 only two clauses as to religion. It prohibits a " religious 
 test ... as a qualification to any office or public 
 trust under the United States" (art. YL, 3). 5 The 
 word " test " is unquestionably to be understood in the 
 
 1 In 1798, in Colder vs. Bull, Dallas, III., 390, Justice Chase defined 
 these four classes. 
 
 2 See the convincing criticism of this part of the Test-Oath Cuses 
 hy Pomeroy, pp. 340-347. 
 
 s Cooley, Principles, 286. 
 
 4 Here, too, belongs the provision that no officer of the United 
 States "shall, without the consent of the congress, accept of any 
 present, emolument, office or title of any kind whatever, from any 
 king, prince or foreign state." 
 
 8 The federal and state officers who must pledge themselves to sup- 
 port the constitution are free to take a mere affirmation in lieu of an 
 
 oath. 
 
 15
 
 220 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 technical sense which it possesses in the ecclesiastical- 
 political history of England, but nevertheless it would 
 be unconstitutional if for example faith in God 
 should be declared necessary in order to become a federal 
 officer. The United States are not legally a Christian 
 state; they are not even a theistic state; but just as little 
 are they a pagan state. They are simply a state. The 
 religious convictions of the people and the churches as 
 communities of believers do not exist, so far as the United 
 States are concerned, i. e., all these things lie without 
 their sphere of action. 1 The federal government has 
 only the powers granted by the constitution, and the 
 latter mentioned religion only because it appeared safer to 
 express explicitly what complete silence would have im- 
 plied. The second provision also contains but a single pro- 
 hibition. The first amendment forbids congress to enact 
 any law " respecting an establishment of religion or pro- 
 hibiting the free exercise thereof." : " An establishment 
 
 1 The attempt has been repeatedly made to bring into the constitu- 
 tion in some form or other a recognition of God, but the people have 
 never taken kindly to the thought, perhaps less because they are 
 quite conscious of the objections to it on principle, and regard them 
 as decisive, than because they consider the matter simply unneces- 
 sary. 
 
 A treaty concluded with the Bey of Tripoli November 4, 1796, says : 
 " The government of the United States is not in any sense founded 
 on the Christian religion." U. S. Statutes at Large, VIII., 155. 
 
 2 The Mormons, on account of this amendment, declare that tin- 
 laws against their polygamy are unconstitutional. And it has 
 seemed doubtful to many non-Mormons whether congress was author- 
 ized to assail this "remnant of barbarism " with penal laws. Tin- 
 question is certainly not wholly without difficulty, for it is well to 
 note that the free "exercise" of a religion cannot be prohibited. 
 But the demands of sound common sense have won the victory over 
 scruples of constitutional law. A state cannot be in duty bound to 
 look with folded arms on the subversion of its fundamental principles 
 of morality because the attack is cloaked under the form of practicing
 
 THE FEDERAL CONSTITUTION. 227 
 
 of religion " is also a technical expression borrowed from 
 England, but it must not be understood in its narrowest 
 technical sense. Congress is not only prohibited from 
 making any religion whatever a state religion or any 
 church whatever a state church, but it cannot make any 
 laws favoring one religion or church more than any other. 
 As far as the federal constitution is concerned, not only 
 are all religions and churches tolerated, but they have 
 all perfectly equal rights, inasmuch as congress has no 
 powers whatever in relation to any of them or all of 
 them. On the other hand, neither of the two constitu- 
 tional provisions as to religion imposes any obligation or 
 limitation upon the states. But the constitutions of the 
 states themselves, without exception, contain provisions 
 substantially the same as those of the federal constitu- 
 tion. This is not, however, because the latter binds them 
 to this. Actually and legally the complete religious liberty 
 
 a religious dogma. But although, undoubtedly, no such insane and 
 suicidal obligation can be deduced from this constitutional provision, 
 it must, nevertheless, be admitted that the limits to which congress 
 may proceed, in its application, cannot be defined with absolute cer- 
 tainty. If its application has once become a necessity, only the 
 sound sense of the people can prevent the transgression of the cor- 
 rect line of demarcation on any other occasion. In the United States 
 public opinion offers sufficient security, however, against any such 
 transgression. From a political stand-point it is a more important \ 
 fact that so far no effective means have been found for suppressing j 
 polygamy by legislation. The final reason why all penal laws have 
 remained substantially ineffective is perhaps the unanimity of passive 
 resistance which the Mormons oppose to them. Neither accusers 
 nor witnesses can be found, and there is therefore no opportunity to 
 apply the law. The latest penal act (that of March 22, 1882 ; the so- 
 called Edmunds bill) punishes polygamy in the territories and in 
 other places under the exclusive jurisdiction of congress with a fine 
 not exceeding $500 and imprisonment for not more than five years, 
 and also deprives a polyganiist of the franchise and of the right of 
 occupying any public office.
 
 22S CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 and separation of church and state exist throughout the 
 Union, but not as an effect of the constitution. The lat- 
 ter guaranties this only so far as the federal government 
 is concerned. The separation of church and state is 
 manifestly not to be understood as implying that the 
 churches can do and not do what they please. As cor- 
 porations, they are subject like other corporations to the 
 legislative power of the states, especially as to their 
 property. They are also subject to the police power, and 
 they cannot any more than individuals escape from the 
 laws of the state prohibiting and punishing violations of 
 public morals by appealing to their religious convictions. 1 
 75. FREEDOM OF SPEECH AND OF THE PRESS. The 
 general observations in the last paragraph apply here 
 also. Freedom of speech and of the press are guarantied 
 by the constitution, only so far as the federal government 
 is concerned ; but they are also guarantied by all the 
 state constitutions. 2 It is to be observed that congress is 
 
 1 On the ground that the Christian religion was always acknowl- 
 edged by the common law, and further, that it is the prevailing re- 
 ligion of the United States, the power to punish " blasphemies " has 
 been claimed. The relations of church and state will be more fully 
 discussed in the chapter on the public law of the several states. 
 
 2 The provisions in point are collected by Cooley, Constitutional 
 Limitations, 414-417. Hammond. I., 23. g 67, says, nevertheless, in 
 reference to United States vs. Hall, 13 Int. Rev. Record, 182: "The 
 right of freedom of speech, and the right peaceably to assemble and 
 other rights enumerated in the first eight amendments to the consti- 
 tution, are thereby protected only against the legislation of congress 
 and not against the legislation of the states. These rights, therefore, 
 were not secured to the people of the United States until the four- 
 teenth amendment to the constitution, because till then they might 
 be impaired by state legislation ; but now they are not only secured 
 from congressional interference, but by the amendment, from state 
 interference also." He can refer here only to the clause in the first 
 section of the fourteenth amendment, which prohibits the states from 
 making or enforcing " any law which shall abridge the privileges or
 
 THE FEDERAL CONSTITUTION. 229 
 
 forbidden to "abridge" the freedom of speech or of the 
 press. They were therefore recognized as existing rights. 
 Hence it has been argued that the correct interpretation 
 of the words must be found in the common law. In the 
 opinion of the most prominent English jurists, however, the 
 common-law freedom of the press is in substance merely 
 freedom from a censorship, while in the United States the 
 idea has always been given in fact and in law a far wider 
 range. Cooley defines it as meaning that everything can 
 be published which does not injure public morals or 
 private reputation in a way punishable according to the 
 principles of the common law. There is no responsibility 
 for publication only in those cases which for various 
 reasons are recognized as "privileged." 1 Even proof of 
 the truth of the alleged libel does not always assure im- 
 munity from punishment. In civil cases it is always suf- 
 ficient; but if the complaint is a criminal one, the motive 
 of publication must have been justifiable. In cases 
 of the latter kind, the jury in many states decides not 
 only questions of fact but also questions of law. In some 
 states this principle extends to all actions for libel and 
 slander. Juries always decide the questions of fact. 
 That attacks against the government ought not to be pun- 
 ished as libels has been generally recognized, since the 
 "sedition law," passed during the presidency of John 
 Adams, was condemned by public opinion with great 
 decision and bitterness as unconstitutional. Even attacks 
 upon the form of the state cannot be punishable as long 
 
 .immunities of citizens of the United States." In my opinion this 
 clause cannot be given so comprehensive an interpretation. Com- 
 pare 82. See, also, U. S. vs. Cruikshank, 92 U. S., 542. 
 
 1 See Cooley, Constitutional Limitations, 425, 426; and Principles, 
 275 et seq. A distinction must be drawn between cases of conditional 
 and unconditional privilege.
 
 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 as the change is sought in a constitutional way. In case 
 of plans for the violent subversion of the government or 
 the state, seditious publications can, however, be produced 
 before the criminal judge as part of the res gestce. 
 
 TO. THE ItiG-HT TO ASSEMBLE AND TO PETITION. These 
 rights are likewise guarantied in all the state constitu- 
 tions. In them, as well as in the federal constitution, the 
 former right is subject only to the condition that the 
 people assemble " peaceably." Public authority can, 
 therefore, interfere with a public meeting under no cir- 
 cumstances, unless a violation of law has become an ac- 
 complished fact. This right has never been in danger in 
 the United States. The right of petition, on the con- 
 trary, during many years, occasioned the most heated 
 contests in congress. This aroused much of the opposi- 
 tion of the free states to the steady, reckless and domi- 
 neering advance of the slave-holding interests. 
 
 77. " THE RIGHT OF THE PEOPLE TO KEEP AND BEAR 
 ARMS shall not be infringed " (second amendment) ; because 
 a well-regulated militia is necessary to the security of a 
 free state. It has therefore been argued that the consti- 
 tutional provision refers only to arms necessary or suit- 
 able for the equipment of militia; although it must not 
 be inferred from this that the right is restricted to those 
 citizens who belong to the militia. As to whether or no 
 the bearing of other arms can be forbidden, judicial de- 
 cisions are far apart. It is, however, generally admitted 
 that the secret carrying of arms can be prohibited. 
 
 g 78. SLAVERY is prohibited throughout the entire do- 
 main of the Union by the thirteenth amendment. So, 
 too, is " involuntary servitude," except as a punishment 
 for crime, after due conviction. 1 
 
 1 1 pass over all other provisions relating to slavery, as they have 
 now only an historic interest.
 
 THE FEDERAL CONSTITUTION. 231 
 
 79. CONTRACTS. 1 No state shall pass any " law impair- 
 ing the obligation of contracts " (art. I., sec. 10, 1). 
 This provision, unlike those in the first tw_o_amendments, / AH- / 
 relates wholly to the states. It does not follow, how- 
 ever, that congress may pass such laws. Here, as in all 
 cases, the principle obtains that it has only the powers 
 which are granted it by the constitution. The claim of 
 an express grant of power to pass such laws can scarcely 
 be made. Unquestionably, congress can as little impair 
 the obligation of contracts as a state. If the federal 
 government wishes, however, to violate any of its con- 
 tracts, there will often be practically no legal remedy for 
 this; for the right of suit against the United States 
 exists only so far as they establish it by law. But as to 
 claims for money under such contracts, the right to sue 
 is granted. The court of claims has jurisdiction of all 
 claims founded on a federal law, upon an order of an ex- 
 ecutive department or upon a contract, express or implied, 
 with the government of the United States, and also of 
 all claims referred to it for decision by either house of 
 congress. But the obligations incurred under contracts 
 are not always of such a kind that in case of non-per- 
 formance the injured party can give his suit the form of 
 a claim for money, or that damages in money can atone 
 for his real damages. The proceedings under this consti- 
 tutional provision in the federal and state courts furnish a 
 mass of proofs of this. If these are studied more closely 
 the student is inclined to regard it as, on the whole, a 
 matter of good fortune that the prohibition is not ex- 
 pressly extended to the United States. If it had been, 
 the labyrinth of judicial decisions, through which it is 
 scarcely possible to thread one's way now, would probably 
 be still more extensive and confusing. This apparently 
 
 i J. P. Bishop, Contracts, St. Louis, 1878.
 
 232 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 simple clause, which was hardly mentioned in the debates 
 over the adoption of the constitution, has proved to be 
 one of the most important, has given occasion to as many 
 legal controversies, perhaps, as all the rest of the consti- 
 tution put together, and has laid the heaviest tasks upon 
 judicial brains. Becoming complete master of the whole 
 matter involved would be the task of a life-time, and the 
 trouble taken would be ill repaid; for the decisions vary 
 in manifold ways, and cut across each other at every im- 
 aginable angle. Indeed, a number of recent decisions let 
 it seem quite possible that the very ground lines of con- 
 stitutional law on this question, once supposed to be irrev- 
 ocably and firmly drawn, will by and by be twisted into 
 a radically different outline. I must therefore renounce 
 the attempt to state, even in the most general way, what 
 the actual constitutional law on this point is. I do so 
 with the less hesitation because most of the questions in- 
 volved scarcely come within my idea of the public law, 
 although they form an important part of constitutional 
 law, and are therefore, as a rule, treated in great detail 
 in American books. I shall simply note as briefly as may 
 be those points which are really of especial importance 
 from the stand-point of public law. 
 
 As the constitution speaks simply of contracts, all 
 kinds of contracts come under the provision executed 
 and executory, express and implied. The word covers, in 
 fact, not only contracts between private persons, but also 
 those between a state and private persons. On both these 
 fundamental principles there is no difference of opinion. 
 This is a scanty gain, however, for the importance in 
 public law of these principles depends wholly upon the 
 definition of the word "contract." Giving the word the 
 narrowest possible meaning would have resulted in no 
 difficulty worth notice. But the supreme court has given
 
 THE FEDERAL CONSTITUTION. 233 
 
 the word a scope far beyond what is understood by it in 
 ordinary speech. It is generally admitted that laws are 
 not contracts; but contracts may be entered into by the 
 state under the form of laws, and legislative donations to 
 private persons, which come under the head of " grants," 
 are contracts within the meaning of the constitution. 1 
 Upon these two statements rests the whole significance in 
 public law of this clause of the constitution. Their con- 
 sequences reach to the very root of the whole body of 
 constitutional law and involve the question of the polit- 
 ical character of the constituent members of the Union. 
 The legislative power of the states within their constitu- 
 tional sphere is limited by this interpretation of the con- 
 tract-clause in a way which, in the opinion of many, 
 is absolutely incompatible with the existence of the 
 autonomy of the states. All acts incorporating private 
 corporations by general or special laws and all charters 
 are contracts. In every such contract the state surrenders 
 pro tanto its legislative will. 2 A legislature binds all 
 future legislatures as to the entire extent of the " contract." 
 The provisions which are not in the proper sense of the 
 word essential to the accomplishment of the object, but 
 serve only to advance it, cannot be changed by the state 
 alone any more than the essential provisions can be ; for 
 the constitution forbids not only the annulment, but every 
 impairment of contracts. 3 The state retains only the 
 
 1 Fletcher vs. Peck, Cranch, VI., 87, 137; Providence Bank vs. Bil- 
 lings, Peters, IV., 560. 
 
 2 Charters of municipal corporations are not "contracts" (Dart- 
 mouth College vs. Woodward, "Wheaton, IV., 659, 694). Privileges 
 granted them in the charter, such, for instance, as a ferry franchise, 
 can be again withdrawn by the legislature. These privileges would 
 be inviolable if granted to a private corporation. East Hartford vs. 
 Bridge Co., Howard, X., 510. 
 
 3 Planters' Bank vs. Sharp, Howard, VI., 327. If, for instance, a 
 state in incorporating a bank has agreed not to tax it beyond a cer-
 
 234: CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 powers which come from the right of eminent domain. 1 
 The "contract" must always be strictly construed in 
 favor of the state. No public obligations are to be in- 
 ferred ; the courts recognize only those which are clearly 
 expressed. Some of the state courts especially in Ohio 
 during the fifties made repeated and energetic efforts 
 to overthrow the principles which led to consequences of 
 such enormous practical significance. The result, how- 
 ever, was the very opposite of that striven for. The 
 federal supreme court kept steadily on for a long time 
 building upon the foundations already laid, especially on 
 those outlined in the Dartmouth College decision, the 
 leading case for the interpretation of the contract-clause. 2 
 Nevertheless, the states have found a way to break the 
 chains which this put upon their legislative freedom of 
 action. By general legal provisions, or in the very con- 
 tracts concluded by law, they reserve the right to modify 
 or repeal the obligations entered into. Against this the 
 federal supreme court has had nothing to say. for the 
 reservation is a part of the contract, and therefore a 
 modification or repeal does not impair the obligation of 
 
 tain amount, the state is bound forever. One legislature can thus 
 limit the right of taxation for all future legislatures. It binds, in 
 fact, the people themselves, for even a change in the constitution 
 of the state cannot repeal the contract-obligations entered into by an 
 earlier legislature. See Dodge vs. Woolsey, Howai-d, XVIII. , 331; 
 Mechanics & Traders' Bank vs. De Bolt, Ibid.. 380; Same vs. Thomas, 
 Ibid., 384; Skelly vs. The Jefferson Bank, Black, I., 43G; The Bing- 
 luimton Bridge, Wallace, III., 51. In this last case Justice Grier, 
 who with Chief-justice Chase and Justice Field dissented from the 
 decision, said: " Although an act of incorporation maybe called a 
 contract, the rules of construction applied to it are admitted to be 
 the reverse of those applied to other contracts." Ibid., 82. 
 
 1 Bridge Co. vs. Dix, Howard, VI., 507. See Cooley, Const. Lim- 
 itations, 523-571. 
 
 - Dartmouth College vs. Woodward, Wheaton, IV., 519-715. De- 
 cided in 1819.
 
 THE FEDERAL CONSTITUTION. 235 
 
 the contract. This has not, however, laid the storm 
 against the principles of the Dartmouth College decision. 
 It has raged more violently than before and with some 
 results. 1 Those principles have unquestionably already 
 lost the character of axiomatic truths which they had 
 assumed in the minds of most jurists. The federal 
 supreme court has itself begun to undermine them by its 
 reasoning in the Granger cases, 2 although Chief-justice 
 Waite does not directly attack either the decision in the 
 Dartmouth College case or its foundation. The more 
 recent decision in the Spring Valley Water Works case 
 tends in the same way. These two decisions rest in sub- 
 stance upon the fundamental principle that in states which 
 reserve the right of amending and modifying charters, 
 stockholders in corporations must risk their investment 
 upon the hope that future legislatures will not modify the 
 legal conditions under which the former legislature invited 
 the investment. But there is no legal remedy if this ex- 
 pectation is not fulfilled. If the rigid folio \ving-out of the 
 principles of the Dartmouth College case to their ultimate 
 consequences leads to results of the highest significance, 
 politically and from the stand-point of public law, on the 
 other hand this recent principle might produce economic 
 and political results which make its unconditional accept- 
 ance impossible. Probably, therefore, a compromise be- 
 tween the two will be sought and finally found, a 
 compromise which will be in full accord with this clause 
 of the constitution and will avoid the imminent perils of 
 each of the present doctrines. However this may be, the 
 constitutional law as to the obligation of contracts made 
 
 i See especially Shirley, The Dartmouth College Causes and the 
 Supreme Court of the United States, 1879. 
 -'94U. S., 113-187.
 
 236 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 by legislation is still in embryo, despite the numberless 
 judicial decisions upon it. 1 
 
 EXPRESS OBLIGATIONS. 
 
 SO. GUARANTY OF A REPUBLICAN FORM OF GOVERN- 
 MENT. " The United States shall guaranty to every state 
 in the Union a republican form of government" (art. 
 IT., sec. 4). This is the only constitutional provision 
 which lays an obligation upon the " United States " with- 
 out saying anything as to who shall determine whether ac- 
 tion of any kind is needed for the fulfillment of the duty 
 and what means shall or must be used. Though the 
 framers of the constitution certainly attached great im- 
 portance to this clause, they do not seem to have put 
 these questions to themselves or at least to have been 
 thoroughly clear in their own minds as to the possible sig- 
 nificance of the provision. Manifestly they set out with 
 the thought that the Union would stand on feet of clay 
 if its constituent members had not homogeneous political 
 institutions, and that therefore, so far as might be, every 
 possibility of the growth of monarchical tendencies by 
 reason of internal conflicts or external influences should 
 be cut off. The history of the Union since the rebellion 
 of the colonies against the mother country presented 
 many reasons for the fear lest under certain circum- 
 stances tendencies of that kind might be aroused here 
 and there, if a curb were not provided in the constitution, 
 that is, if the entire Union were not explicitly and uncon- 
 ditionally pledged to use all its powers to suppress these 
 
 1 The most concise compilation of all the important decisions of 
 both federal and state courts under this clause is to be found in the 
 second edition (1884) of Desty's Constitution of tJce United States, 
 pp. 124-186 and 304-311.
 
 THE FEDERAL CONSTITUTION. 237 
 
 tendencies wherever and however they might appear. 
 For this is and should be implied in this clause. It not 
 only promises the states that the Union will interpose 
 with all its might on their behalf, if internal or external 
 enemies threaten or overthrow their republican form of 
 government, but it absolutely forbids them to adopt any 
 other form of government under any conditions, or for 
 any reasons whatever. The United States give a pledge to 
 themselves and to their constituent members that they will 
 always remain a republic and, indeed, a federative repub- 
 lic. Within the limits of the republican idea, the federal 
 and state constitutions can be subjected in constitutional 
 methods to every imaginable modification, but the least 
 transgression of these limits on the part of the Union is, 
 'ipso facto, a legal dissolution of the Union, unless done 
 with the consent of every single state. And even in the 
 latter case legally a new Union will have taken the place 
 of the old one. That is what the framers of the consti- 
 tution had in view, and. it is certainly of more than theoret- 
 ical interest and importance. Up to the present time, 
 however, its immediate practical significance has come 
 wholly from another source, which certainly lies within 
 it, but of which the framers of the constitution had either 
 no idea at all or only an inkling of an idea. 
 
 While at the time of the adoption of the constitution it 
 did not seem utterly impossible that under certain cir- 
 cumstances monarchical tendencies might appear in one 
 or more states, still this was highly improbable. The 
 Union in fact has never had occasion to interpose on this 
 account. And yet the provision has been brought into 
 play, through the prohibition implied in it against a state's 
 assuming any other than a republican form of govern- 
 ment. 
 
 As the United States must guarantee the states a re-
 
 238 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 publican form of government, the}' must also be allowed 
 to judge whether the government of any state is repub- 
 lican, and as the United States can act only by means of 
 the federal government, the latter must determine this. 
 The only question is. to which of its departments the 
 decisive judgment belongs. The supreme court has an- 
 swered this question by saying that congress must decide, 
 and that the courts and the president must recognize its 
 decision as binding. 1 As the question is not legal, but 
 purely political, this view certainly cannot be disputed. 
 But is it not practically quite the same thing, no matter 
 to whom the decision belongs, for could there ever be a 
 difference of opinion as to whether or no a form of gov- 
 ernment is republican ? At first glance it might appear 
 that this was barely possible. More closely examined, it 
 becomes evident that the matter is by no means always 
 and necessarily quite so simple. For it is not the Amer- 
 ican idea that every form of non-monarchical government 
 can be recognized as republican in the sense of this con- 
 stitutional provision. There has never been an authori- 
 tative definition of the word "republican," but neverthe- 
 less attempts have been made to stake off, in a positive as 
 well as a negative way, the approximate limits of the 
 idea. Every form of government essentially the same as 
 the governments of the states at the time of the adop- 
 tion of the constitution must be recognized as republican, 
 for it is self-evident that these were and remain republi- 
 can in the sense of the constitution. Hence it has been 
 argued that the system adopted must coincide with these 
 original forms, at least to the extent of entrusting the 
 legislative, executive and judicial powers to different 
 organs. 2 Indeed a very competent authority has drawn 
 
 1 Luther vs. Bordcn, Howard, VII., 42. 
 
 2 Paschal, The Constitution, etc., 243.
 
 THE FEDERAL CONSTITUTION. 239 
 
 a distinction in principle between the democratic and re- 
 publican form of government. 1 These assertions open a 
 wide field for discussion, but it must be admitted that 
 oligarchies and aristocracies do not come within the con- 
 stitutional provision. No fixed line, however, can be 
 drawn between an aristocracy and a representative re- 
 public in which but a small fraction of the people have 
 full political rights. But no matter how much theories 
 may tiiffer, in practice public opinion is unanimous in 
 deciding that even non-monarchical state-forms may also 
 be non-republican. This may become of the greatest 
 practical importance, for congress may get into such a 
 position that it can, or even that it must, decide a con- 
 crete case. For instance, the question may be raised 
 within a state which of two constitutions and which of 
 two governments is the legal one. While the principle 
 is generally understood that such a question should be 
 decided by the state itself, nevertheless the federal gov- 
 ernment may be obliged to take sides with one or the 
 other. And if it does so, its decision is absolutelv final. 
 
 / 
 
 In such cases, however, it is easily possible that consider- 
 ations arising out of the question here discussed may be, 
 or have to be, taken into account. The accepted inter- 
 pretation of the word " republican " has given congress 
 power to determine not only whether the form of gov- 
 ernment of the states is republican, but also whether the 
 states are in substance republics. The exercise of this 
 right, too, may, under certain circumstances, become an 
 imperious duty. The judgment of history will certainly 
 be that this was the case after the overthrow of the re- 
 bellion, even although in my opinion it will undoubtedly 
 not exonerate congress from the charge of having greatly 
 abused this power in its reconstruction policy. After 
 1 Cooley, Principles, 194.
 
 :240 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 the seceded states had been forced back into the Union 
 by the sword and the sword had destroyed the true root 
 of the rebellion slavery, congress could not and should 
 not have permitted the rebel states to become again full 
 members of the Union until they had adopted constitutions 
 which corresponded in all respects with the new condi- 
 tion of affairs; which were in harmony with the views of 
 the victorious north ; and which were republican in sub- 
 stance as well as form. But demands were made upon 
 the southern states which went far beyond anything re- 
 quired by the most rigid interpretation of a republican 
 form of government in the sense of the constitution. 1 
 
 1 "When the question was discussed in the senate as to whether the 
 state of Louisiana, on the basis of its constitution of 1864, should be rec- 
 ognized as again endowed with full constitutional and legal rights, 
 Charles Sumner said, February 24, 1865, in reply to a question by Hen- 
 derson : " I answer at once, as a constitutional lawyer, that at the pres- 
 ent time, under the words of the constitution of the United States 
 declaring that the United States shall guarantee to every state a repub- 
 lican form of government, it is the bounden duty of the United 
 States, by act of congress, to guarantee complete freedom to every 
 citizen, and immunity from all oppression and absolute equality be- 
 fore the law ( !). No government that does not guarantee these 
 things cnn be recognized as republican in form according to the 
 theory of the constitution of the United States, if the United States 
 are called upon to enforce the constitutional guarantee." (Congress. 
 Globe, 2d Sess., 38th Congress, 1067.) Congress adopted this view, for 
 in the reconstruction act of March 2, 1867, it made the re-admission 
 of the rebel states to the right of representation in congress depend- 
 ent upon, inter alia, the conditions that their new constitutions 
 should be " framed by a convention of delegates elected by the male 
 citizens of said state, twenty-one years old and upward, of whatever 
 race, color, or previous condition," and that "such constitution shall 
 provide that the elective franchise shall be enjoyed by all such per- 
 sons as have the qualifications herein stated for electors of dele- 
 gates.'' (Stat. at Large, XIV., 429.) Wherever congress could do 
 so, it interpreted this constitutional provision in the sense given it by 
 Sumner. The act of February 9, 1867, for the admission of Nebraska
 
 THE FEDERAL CONSTITUTION. 241 
 
 It became evident during the reconstruction period that 
 this clause of the constitution was a weapon of terrible 
 weight and keenest edge. That the weapon was not al- 
 ways rightly used at a time when the country was con- 
 fronted, constitutionally and practically, with an amazing 
 labyrinth of extraordinary difficulties, is certainly no 
 proof that the constitution was wrong in creating the 
 weapon. Whether it will ever be used again to such an 
 extent it is impossible to say definitely ; but this is cer- 
 tainly improbable. An attempt against the republican 
 form of a state has never yet been made, and it is almost 
 inconceivable that such an attempt ever will be; for at 
 the present time in each state the form and substance of 
 the government are in harmony, and moreover all the 
 state governments are becoming more and more alike in 
 both form and substance. The civil war not only hast- 
 ened the political consolidation of the Union in law and 
 in fact, but also greatly promoted the nationalization of 
 the people by making all the constituent parts of the 
 Union, from ocean to ocean and from the great lakes 
 to the Gulf of Mexico, actually and legally so homo- 
 geneous in their political and social structure that further 
 
 provided: "That this shall not take effect except upon the funda- 
 mental condition that within the state of Nebraska there shall be no 
 denial of the elective franchise or of any other right to any person 
 by reason of race or color, except Indians not taxed," and that 
 the legislature should by a solemn public act adopt this condition. 
 (Ibid., XIV., 392.) The fifteenth amendment as originally proposed 
 shows that congress sought to make this new and radical interpreta- 
 tion of the expression obligatory upon all the states, but it was not 
 possible to force it upon the loyal states as a federal law. This, how- 
 ever, does not alter the fact, that for part of the states this clause 
 was construed in a way which the rest of the states would not per- 
 mit in respect to themselves, in other words, the fundamental prin- 
 ciple of constitutional law, the absolute equality of all the states, 
 was overthrown in a matter of cardinal importance by federal laws. 
 16
 
 212 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 development must go steadily on in the same direction 
 until that degree of homogeneity is reached which, under 
 the existing relations, is generally possible, justifiable 
 and desirable. With the increasing density of the popu- 
 lation and the growth of commerce the importance of 
 this provision of the constitution diminishes from year to 
 year in both ways, that is, so far as the duty it imposes 
 upon the United States is concerned as well as in regard 
 to the powers it grants congress. The guaranty offered 
 by the actual condition of affairs is becoming so strong 
 that each day there is less need of an express guaranty 
 in the federal constitution. 
 
 81. STATE COMITY. A study of details would show 
 that the public laws of the individual states still present a 
 variegated picture. Probably this will always be so. 
 And though the differences are by no means all insignifi- 
 cant, none of them are of such a radical nature that an 
 American, who moves from one state into another, cannot 
 at once feel fully and entirely at home in this respect. 
 On the other hand nothing makes him more conscious 
 at every step that he lives, not in a national state, but in 
 a federative republic, than the myriad legal relations of 
 the individual in the different states. Even these, how- 
 ever, are unmistakably alike in type, and all the essential 
 legal principles as well as legal institutions are common 
 to all the states. But when the law relating to individu- 
 als is applied, the decision does not depend, in the great 
 majority of cases, directly upon general legal principles, 
 but rather on how these principles are stated in the 
 specific provisions of the state laws. As a matter of 
 course, although the relations between the citizens of the 
 different states are so many-sided and so close, the state 
 laws differ very much more than they would, if the Union 
 were a single national state. So far as these relations are
 
 THE FEDERAL CONSTITUTION. 243 
 
 legal in their nature, however, they are regulated by the 
 general principles and rules of international la\v as to in- 
 dividuals, unless, indeed, the federal constitution provides 
 otherwise. It does so provide in some important respects, 
 but by no means sufficiently so to make the legal relations 
 correspond with the actual facts as far as might be de- 
 sirable. 1 The nationalization of the Union in this respect 
 is never to be expected. Even if it were possible, there 
 are very many and very important objections to it. The 
 immense extent of the territory, the great diversity of 
 natural relations and the consequent diversity of customs 
 and opinions, as well as of social and economic conditions, 
 would count against it. But, nevertheless, many and 
 great disadvantages result from the fact that every state 
 has its own laws. And in certain directions these disad- 
 vantages will increase and become more serious, the more 
 in all other respects actual nationalization progresses. 2 
 It is so much the more important and praiseworthy that 
 the federal constitution has given parts of the legal system 
 a national character or at least has deprived them of the 
 purely international character which other parts bear. 
 
 The next clause to be considered provides that ' full 
 faith and credit shall be given in each state to the public 
 acts, records and judicial proceedings of every other 
 state," and authorizes congress " by general laws " to 
 " prescribe the manner in which such acts, records and 
 proceedings shall be proved, and the effect thereof " (art. 
 IV., sec. 1). The manner of proof is purely formal and 
 
 1 This comes most clearly to light in New York city, where the 
 cities and towns on the right bank of the Hudson, in the state of New 
 Jersey, are economically and socially simply parts or suburbs of New 
 York. 
 
 2 For example, much has recently been said as to what a great bless- 
 ing a national divorce law would be.
 
 !>44r CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of no interest here. The only question of importance is 
 the meaning of " full faith and credit," that is, what act- 
 ual effect the proceedings in one state shall have in an- 
 other. This question has always been answered in one 
 way. The constitution, it is said, never contemplated 
 ordering or permitting the jurisdiction of one state to 
 extend into the domain of other states; it intended only 
 that every state should be in duty bound to recognize 
 without reservation what other states have done in the 
 exercise of their lawful jurisdiction. A judicial decision 
 rendered in another state will not, for example, be en- 
 forced if the defendant can prove that the court had no 
 jurisdiction, 1 but the correctness of the judgment per se 
 cannot be called into question. If the defendant has no 
 further defense under the laws of the state in which the 
 judgment was rendered, it must be enforced in every 
 other state. If, however, the laws of the former state 
 vouchsafe him any kind of protection whatever against 
 the judgment, he may avail himself of this protection in 
 every other state, but of this protection alone. If. how- 
 ever, the judgment is barred by lapse of time under the 
 laws of the state where it is sought to be enforced, the 
 defendant may claim the benefit of these laws, but no 
 state can pass a statute of limitation which makes it im- 
 possible to enforce judgments rendered in other states. 
 The judicial proceedings of which the constitution speaks 
 in this clause are only civil cases. In criminal cases an- 
 other provision prevails. 
 
 1 This is also true when the necessary formalities, such as due serv- 
 ice of process, were not observed, provided the judgment is in per- 
 vonam. Service by publication is sufficient, however, to warrant 
 a judgment in rem if the property concerned is within the jurisdic- 
 tion of the court. On the other hand, no one is bound to pay any 
 attention to a personal summons served in one state directing him to 
 appear before a court in another state.
 
 THE FEDERAL CONSTITUTION. 245 
 
 82. EXTRADITION OF FUGITIVE CRIMINALS. " 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" (art. IV., sec. 2, 
 2). The duty of extradition is absolute. If a requisi- 
 tion is made, it must be obeyed, provided the three follow- 
 ing conditions are fulfilled : 1. The demand must be in 
 the required form; 2, the charge must have been made 
 in the manner prescribed by law before a court of com- 
 petent jurisdiction; 3, the defendant must have saved 
 himself from criminal prosecution by flight, that is, he 
 must have departed from the state requiring his extradi- 
 tion. He must, therefore, have actually been in that 
 state. If the crime were carried on from another state, 
 as in the case of a conspiracy, the constitutional provision 
 does not apply. The executive department of the state 
 to which the requisition is directed cannot refuse extra- 
 dition on the ground that the act with which the defend- 
 ant is charged is not a crime, according to the laws of 
 that state, but only a misdemeanor or even not an act 
 punishable at all. A crime in the sense of this constitu- 
 tional provision is whatever the laws of the state which 
 makes a demand for extradition declare to be a crime. 1 
 This important doctrine of the supreme court of the 
 United States has, however, been by no means uncondi- 
 tionally recognized in practice. Extradition has often 
 been refused. This has led to wearisome and serious 
 conflicts between states. The most violent and most 
 threatening of these were caused by the slavery question. 
 Certain acts, such, for example, as inducing slaves to run 
 away, which were high crimes under the codes of slave 
 
 1 Kentucky vs. Dennison, Howard, XXIV., 99.
 
 246 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 states, seemed to the more earnest opponents of slavery 
 in the free states to deserve reward rather than punish- 
 ment. Different governors, such as AV. II. Seward, of 
 Xew York, afterwards senator and secretary of state, re- 
 fused to obey a requisition in such a case, because they 
 could not consider as crimes in the sense of the constitu- 
 tion what their laws and the moral judgment of almost 
 the whole civilized world did not consider a crime. In 
 these peculiar cases, it may be readily admitted that the 
 refusal was morally and politically justified; but the re- 
 jection of the doctrine laid down by the federal supreme 
 court might have been fraught with the most serious re- 
 sults. Now that all the states in all matters profess the 
 same moral principles, no considerations of principle 
 oppose the unconditional recognition of this doctrine, al- 
 though in one or another case the question may be raised 
 as to whether the law of the case is also the justice of it. 
 But if a governor sees fit in his official conduct to deter- 
 mine this question subjectively against the demand, the 
 state issuing the requisition has only the choice of submit- 
 ting to the unconstitutional refusal under protest or of 
 repaying like with like, and in its turn retaliating in kind 
 and so committing the same unconstitutional act itself. 
 For the supreme court has declared that it cannot compel 
 the performance of the extradition duty. 1 This constitu- 
 tional provision, certainly one of the most important, 
 an indispensable one, in fact, cannot be quite sufficient, 
 or else the act of February 12, 1793, which provides the 
 means of executing it, must have omissions that should 
 be supplied. 2 
 
 1 Kentucky vs. Dennison, Howard, XXIV., 107, 108. 
 
 2 The next clause in the constitution treats of the duty of delivering 
 up persons held to service or labor in any state. In order not to 
 use the objectionable word slaves, in the constitution, its framers
 
 THE FEDEBAL CONSTITUTION. 247 
 
 83. LEGAL EQUALITY. " The citizens of each state shall 
 be entitled to all the privileges and immunities of citizens 
 in the several states" (art. IY., sec. 2, I). 1 The great 
 importance of this provision is evident at a glance. To it 
 is chiefly due the fact that step by step with the pro- 
 gressive development of the United States the practical 
 nationalization of the people proceeds. As far as the 
 constitution does not expressly prescribe otherwise, the 
 states have a perfect autonomy in all matters not made 
 federal affairs by the federal constitution, but they can- 
 not have two kinds of laws and two kinds of rights, one 
 for their own citizens and one for the citizens of other 
 states. 2 He who is a citizen anywhere in the Union can 
 nowhere within its domain be an alien. If he crosses the 
 boundary into another state he enters its legal jurisdic- 
 tion as the possessor of equal rights with its own citizens. 
 He is not simply tolerated ; his rights are not given him, 
 as a favor; he has not to be contented with this or that 
 being assured him ; but wherever he sets foot he is ipso 
 facto and ipso jure in the full enjoyment of all the privi- 
 leges and immunities of citizenship. What are these 
 privileges and immunities which belong to "citizens in 
 the several states" as such? And does this mean all 
 kinds of citizens or only a particular kind ? Judicial de- 
 availed themselves of this circumlocution. In adopting this provis- 
 ion, indeed, they did not consider slaves exclusively, but apprentices 
 as well. It obtained its historic significance, however, solely through 
 slavery, and with the abolition of that it became purposeless. 
 
 1 The corresponding provision of the articles of confederation ex- 
 pressly excepts " paupers, vagabonds and fugitives from justice." 
 
 - ' ' Its sole purpose was to declare to the several states that what- 
 ever those rights, as you grant or establish them to your own citizens, 
 or as you limit and qualify or impose restrictions on their exercise, 
 the same, neither more nor less, shall be the measure of the rights of 
 citizens of other states within your jurisdiction." The Slaughter 
 House Cases, Wallace, XVI., 77.
 
 248 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 cisions have asserted that the constitution means only 
 citizens of the United States, and that the provision there- 
 fore has no application to non-naturalized immigrants to 
 whom one state has granted its special state citizenship, 1 
 or to free colored people, because the latter could never 
 be citizens of the United States. 2 The fourteenth amend- 
 ment not only permanently set aside the latter doctrine, 
 but also did away with the chief difficulties arising from 
 the very obscure relation between the two kinds of citi- 
 zenship, state and national. The only possible doubt now 
 is in regard to non-naturalized citizens, 3 for " all persons 
 born or naturalized in the United States and subject to 
 the jurisdiction thereof 4 are citizens of the United States 
 and of the state wherein they reside." 
 
 The special right of state citizenship is not granted cit- 
 izens of the United States who immigrate. They acquire 
 it eo ipso by their settlement in a state, and their settle- 
 ment cannot be prevented. On the other hand, they lose 
 their special state-citizenship by emigrating into another 
 state or territory. The free right of emigration is not 
 only as a matter of fact absolutely unlimited in the 
 United States, but it is unquestionably one of the privi- 
 
 1 Davis vs. Pierse, 1 Minn., 13, quoted by Bump, 290. 
 
 2 Dred Scott vs. Sanford, Howard, XIV., 393. 
 
 3 1 cannot understand how Cooley (Principles, 244) can say: " It is 
 impossible to conceive of such a status as citizenship of a state uncon- 
 nected with citizenship of the United States." Even the fourteenth 
 amendment has evidently in no way deprived the states of the right 
 of granting their particular citizenship wholly in their own discretion. 
 It simply restates what was already a recognized principle (Pierre Gas- 
 sies vs. Jean Gassies Ballon, Peters, VI. , 761 ; 1832), that no state can 
 withhold its citizenship from citizens of the United States, and that 
 the latter obtain this state-citizenship by the mere fact of domicile. 
 
 4 This clause excludes Indians who live under the tribal system, for 
 even if the tribe be within a state, the jurisdiction of the United 
 States is only a limited and conditional one.
 
 THE FEDERAL CONSTITUTION. 249 
 
 leges which the fourth article of the constitution guaran- 
 ties all citizens. The state-citizenship of the citizen of 
 the United States goes with him as long as he merely 
 changes his residence, but retains his domicile. This 
 makes it possible to determine what kinds of rights are 
 not intended by the " privileges and immunities" spoken 
 of in article four, and this again makes it easier to an- 
 swer the question as to what kind of rights are meant 
 thereby. Political rights, such as the franchise, the right 
 to hold office, etc., are never an unconditional result of 
 citizenship. This is evident from the fact that they are 
 always withheld from minors, and almost without excep- 
 tion from women. The fourth article speaks only of priv- 
 ileges and immunities which are conditioned upon the 
 right of citizenship. Political rights are consequently 
 excluded. These are always and in all places inseparably 
 bound up with the legal domicile. All rights appertain- 
 ing to any citizens of the state are not guarantied to 
 the citizens of all the states, but only those rights which 
 the citizens of the particular state have under the same 
 circumstances. The legislation of a state can make no 
 distinction in favor of its citizens, but it goes without 
 saying that the constitution did not intend to bind a state 
 to give special privileges to the citizens of other states. 
 And this would be the case if these latter could claim 
 political rights. The law has never defined what kind of 
 privileges and immunities belong to the citizens of the 
 several states as such. Even the judicial decisions do not 
 answer this question exhaustively. Justice Washington 
 sought to enumerate them, 1 and lays special stress upon 
 protection by the government ; the enjoyment of life and 
 
 iCorfidd vs. Coryelf, 4 Wash. C. C., 880, 381. He takes as his 
 predicate that only privileges and immunities are intended which 
 must be regarded as " fundamental."
 
 250 CON'STITUTIOXAL LAW OF THE UNITED STATES. 
 
 liberty, with the right to acquire and possess property of 
 every kind, and to pursue and obtain happiness and 
 safety, subject, nevertheless, to such restraints as the 
 government may justly prescribe for the general good of 
 the whole; the right of a citizen of one state to pass 
 through or to reside in any other state for purposes of 
 trade, agriculture, professional pursuits, or otherwise; to 
 claim the benefit of the writ of habeas corpus" to insti- 
 tute and maintain actions of any kind in the courts of the 
 state ; to take, hold and dispose of property, either real 
 or personal ; an exemption from higher taxes or imposi- 
 tions than are paid by the other citizens of the state ; the 
 exercise of the elective franchise as regulated and estab- 
 lished b}~ the laws or constitution of the state in which it 
 is to be exercised. It has never been disputed that all 
 this falls within the limits of article four. In both legisla- 
 tures and courts, however, the opinion of Judge Curtis 
 has always prevailed. 1 He held that it was not possible 
 to establish pertinently and exhaustively a priori what 
 an immunity or a privilege in the sense of this clause 
 really was. and that it was therefore safer to decide the 
 question as presented in each case. This is of course true, 
 too, of " the privileges or immunities of citizens of the 
 United States," which, according to the fourteenth amend- 
 ment, no state can abridge by law. Cooley (Principles, 
 217) expresses the indisputable view that the adoption of 
 this provision is to be regarded as superfluous, inasmuch 
 as the states manifestly had not the right to do this be- 
 fore. From the adoption of the provision it is evident, 
 however, that the privileges and immunities of citizens of 
 the United States and of the states do not correspond 
 entirely, even if they coincide in part. The former must 
 unquestionably be deduced from the federal constitution, 
 i Conner vs. Elliot, Howard, XVIII., 593.
 
 THE FEDERAL CONSTITUTION. 251 
 
 The federal supreme court cite some examples of them 
 in the Slaughter House cases. 1 It declares that as far as 
 the jurisdiction of the federal government extends, such 
 privileges and immunities also exist. 2 In the same case it 
 decided, however, that so far as the privileges and immuni- 
 ties of the citizens of states were concerned, their " safety 
 and protection" are incumbent on the states, and were 
 not put, by the fourteenth amendment, under the " special 
 care " of the federal government. 
 
 EIGHTS OF INDIVIDUALS AND THEIR SAFEGUARDS. 
 
 84. DUE PKOCESS OF LAW AND EQUAL LEGAL PROTEC- 
 TION. " No person shall be deprived of life, liberty or 
 property without due process of law " (fifth amendment). 
 The fourth, fifth, sixth, seventh and eighth amendments 
 are, in a certain sense, only a more detailed statement 
 and explanation of this principle, which the fourteenth 
 amendment has also made obligatory on the states, and 
 has enlarged for them, so that they cannot refuse to any 
 person under their jurisdiction the equal protection of 
 their laws. It must not be concluded from the fact that 
 the latter provision was not also made expressly obliga- 
 tory on the federal government that it can at pleasure 
 and constitutionally violate this principle. So, too, the 
 adoption of the first clause of the fourteenth amendment 
 must not be interpreted as meaning that the principle 
 contained in it first became binding upon the states, or 
 upon a part of the states, when this amendment went 
 into force. Except in the case of the slaves, and in part 
 
 1 Wallace, XVI., 79, 80. For further examples see Cooley, Princi- 
 ples, 245-347. 
 
 2 " We venture to suggest some which owe their existence to the 
 federal government, its national character, its constitution or its 
 laws."
 
 '2O'2 CONSTriTTIONAL LAW OF THE UNITED STATES. 
 
 also of the free colored people, it was always a funda- 
 mental principle of the constitution of ever} 7 single state. 
 But as it was deemed necessary to take care lest, in the 
 former slave states, the colored people should be exposed 
 to all kinds of oppression and wrong, it was also thought 
 necessary to guarantee them safety under the law, and 
 also equality under the law, through the constitution of 
 the United States. But although this is the real cause 
 of the origin of this part of the fourteenth amendment, 
 yet the two clauses are by no means of significance only 
 for the colored people of the former slave states. Some 
 of the most important law-suits in which these clauses 
 have been involved have been fought out in the northern 
 states, and principles of public law of the broadest kind, 
 but Avith no relation whatever to the race-question, have 
 been involved in them. IIow r ever unnecessary it may 
 seem at first glance, both clauses need, therefore, a some- 
 what more detailed discussion. 
 
 It is generally admitted that the words " due process 
 of law " are to be understood as a technical expression 
 and as equivalent to the " law of the land " of magna 
 charta. It is therefore said that this provision imposes a 
 limitation not only on the courts and the executive, but 
 also on the legislative power, 1 because at the foundation 
 of the law of the land are certain principles; the due 
 process of law is forsaken whenever these principles are 
 violated ; and the fact that the violation occurs under the 
 form of a legislative act will not give it legal force. But 
 the law-giving power is simply forbidden to make arbi- 
 trary injustice into justice under the form of law, for 
 those principles comprehend only the most general doc- 
 trines of the law, viz.: that no one shall be convicted 
 
 1 Den, Murray and Kayser vs. The Hoboken, etc., Company, How- 
 ard, XVIII., 276.
 
 THE FEDERAL CONSTITUTION. 253 
 
 unheard ; that the facts alleged must be examined into ; 
 and that a decision shall be made only after a legal trial 
 of the facts in a court of competent jurisdiction. 1 This 
 leaves, therefore, the broadest scope to the legislative will. 
 The words " due process of law," in the fifth and four- 
 teenth amendments, are in full accord with this funda- 
 mental doctrine, but they do not say that the procedure 
 must be the same under the federal constitution and the 
 federal laws as under the state constitutions and state 
 laws. As far as the fourteenth amendment is concerned, 
 the states are perfectly free to give the " due process of 
 law " whatever shape they please, as long as they do not 
 violate these fundamental principles. Their own consti- 
 tutions or laws have made binding upon them in sub- /, 
 stance the obligations laid upon the federal government 
 by the five amendments already mentioned, but they 
 were not compelled to do this by the federal constitution, 
 and can, so far as it is concerned, change this condition 
 of affairs at any moment. The controversies in consti- 
 tutional law that may arise out of this provision of the 
 fourteenth amendment would probably never present any 
 considerable difficulties, if it were always easy to define 
 with certainty the meaning of the words, " deprive of 
 property." It was long since decided that the corre- 
 sponding provision of the fifth amendment, and conse- 
 quently that the fourteenth, does not forbid every 
 compulsory taking of property without the intervention 
 of a court. The right of taxation absolutely excludes 
 such an interpretation. Moreover, it has not been so 
 much the direct as the indirect taking of property which 
 has given rise to the chief differences of opinion. When, 
 in what manner, and to what extent may a state regulate 
 the management of private property ? These are ques- 
 i Webster's Works, V., 487, 488.
 
 25-i CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 tions which, partly in connection with the great question 
 of the obligation of legislative contracts, and partly in 
 connection with the question of the guaranty of equal 
 legal protection, have repeatedly of late years occupied 
 the courts, and have justly excited the utmost public in- 
 terest. 
 
 In the case already cited, Jfunn vs. Illinois, 9i U. S., 
 113, the supreme court laid down the principle that 
 "private property which is affected with a public interest 
 ceases entirely to be juris prwati. n If any person dedi- 
 cates his property to a use in which the public has an 
 interest, he grants the public an interest in this use, and 
 must himself be subject thereto, so that he must be con- 
 trolled, so far as this interest so created by him is con- 
 cerned, by the common good of the public. As to certain 
 kinds of property, this principle has for a long time had 
 a restricted meaning in American jurisprudence. It has 
 never been disputed, for instance, that common carriers 
 had certain duties to the public, and that these could be 
 regulated by law. The question is, however, whether 
 the principle in its broad generality, as laid down in this 
 case by the supreme court, can be admitted, and whether 
 the control by the public that is, by the state can 
 always assume the shape of the state's deciding entirely 
 by itself what an owner shall be paid for the use of his 
 property? The principles are elastic enough to involve 
 manifest absurdities, such as the regulation of the rent of 
 dwelling-houses by the state; and it is certain that the 
 state, if it can establish the price to be asked for the use 
 of private property affected with a public interest, could 
 establish that price at such a figure that the owner would 
 be deprived of his property within the meaning of the 
 constitution. In such a case the regulation of the price 
 by law would be manifestly unconstitutional, for the
 
 THE FEDERAL CONSTITUTION. 255 
 
 owner would not have been deprived of his property by 
 due process of law. If, for instance, it costs a railroad 
 two cents to carry a passenger a mile, and the state per- 
 mits it to ask only one cent a mile, the stockholders are 
 deprived of part of their property, because they are thus 
 prevented from getting any income from it. But if the 
 state compels them, as common carriers, to continue busi- 
 ness, they are directly deprived, every day, for the benefit 
 of the public using the trains, of a part of their capital, 
 because the operating expenses eat up the capital. Ex- 
 perience has already shown that this kind of oppression 
 does not belong merely to the realm of empty specula- 
 tion. Public opinion has indulged in highly exaggerated | 
 ideas of the profits of railroads, and under the pressure! 
 of this public opinion some most dubious experiments! 
 have been tried. On the other hand, railroads, elevator 
 companies, and similar corporations, often have a prac- 
 tical monopoly, by which they can oppress, and have in 
 fact oppressed, the public in a way most hurtful to the 
 common weal. The state is therefore warranted in inter- 
 fering by law to prevent this. A reasonable legal protec- 
 tion for the public against improper profits, when free 
 competition provides no, or at least no sufficient, protec- 
 tion, will not be regarded as a taking of property in the 
 sense of the constitution. As to railroad companies, it 
 has already become very evident that, from other points 
 of view as well, a more thorough state control than for- 
 merly may rightly be demanded. Free competition has 
 caused far greater evils than monopoly. The so-called 
 railroad wars not only injure the stockholders, but often 
 lead to catastrophes for the bondholders (who are prac- 
 tically unprotected), and throw the whole business system 
 of the country out of gear. These continually increasing 
 evils have reached such a point that, in my judgment.
 
 256 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 public opinion will declare with growing emphasis in 
 favor of the doctrine laid down by the supreme court, in 
 spite of the no small danger that its application will be 
 marked with mistakes and misuse at the outset. Ways 
 and means of preventing and curing mistakes and abuses 
 can certainly be found. Many of them will be prevented 
 by the steady growth in public favor of civil service 
 reform, which deprives the public offices of the character 
 of " spoils," of party rewards for party services, and so 
 exerts a strong influence in giving the better elements of 
 the people once more the preponderance in legislative 
 bodies. This will bring about a deep-seated change in 
 the legal systems of the individual states. On certain 
 points, in reference to which the principles of laisser alter 
 have hitherto had absolute sway, these principles will be 
 gradually narrowed down. Xevertheless, the funda- 
 mental character of all the institutions of the country, 
 the customs and ways, the entire body of thought and 
 feeling of the people, still give ample assurance that state- 
 interference, even if carried too far in this or that partic- 
 ular, will not degenerate into its opposite, that is, into 
 state-control of society. 
 
 Other decisions of the federal supreme court, such, for 
 instance, as the Slaughter House cases, already men- 
 tioned, show the same tendency in another direction. 
 They do not involve so much the establishment of a new 
 principle as the creation of a check upon the attempts to 
 restrict, unfairly, an already recognized principle on the 
 ground of the fourteenth amendment. The attempt was 
 made to interpret the guarantee of equal protection 
 by the laws in a way which sought on the one hand to 
 make out of this guarantee a strait-jacket for the law- 
 giving power at the expense of the common weal, and on 
 the other hand to subject certain sides of social life to a
 
 THE FEDERAL CONSTITUTION. 257 
 
 pressure opposed to the prevailing condition of affairs and 
 simply intolerable. In the name of legal equality efforts 
 were made to limit the police power of the states in a 
 way which would have made a proper care of the public 
 good impossible in many cases. So, too, in the name of 
 legal equality efforts were made to enforce social equality 
 for the negroes. Both views were based on radical ten- 
 dencies. The states retained the freedom of action they 
 need. On the latter point, it is certain that even to the 
 negroes themselves and even in the former slave states 
 this result was of great value. The whites are not con- 
 stantly excited against them by having their society forced 
 upon them daily and hourly in railroads, steamboats, 
 hotels, schools, etc. ; and still the principle of republican 
 equality is preserved, because the colored people are not 
 treated as inferiors ; they get what they pay for ; but the 
 law does not require the fact to be ignored, that they are 
 another race, whose complete social amalgamation with 
 the whites would run counter to nature, and therefore in 
 the interest of both races should not be sought. 
 
 85. ARRESTS, SEARCH WARRANTS AND SEIZURES. The 
 fourth amendment corresponds to the principle of English 
 law which has found its popular formula in the proud 
 phrase : " My house is my castle." Every man is to be 
 protected against arbitrary acts of the public powers. 
 These must be entrusted with sufficient authority to 
 arrest criminals and to remand them; but they cannot 
 use force to find out whether there is good cause for a 
 judicial inquiry. " The right of the people to be secure 
 in their persons, houses, papers and effects against unrea- 
 sonable searches and seizures shall not be violated." The 
 second clause (connected with the first by an '"and") sets 
 forth what conditions must be fulfilled in order to justify 
 searches, seizures and arrests. It is not expressly stated 
 17
 
 2>S CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 that these can take place only under a warrant, but this 
 is evident because this clause is simply explanatory of the 
 former. Such an invasion of individual rights without a 
 warrant is not permissible; and. too, quite a number of 
 conditions must be fulfilled in order to give a warrant 
 legal force. These conditions are that probable cause 
 must be shown by oath or affirmation for its issuance and 
 that the warrant itself must clearly describe the place to 
 be searched, the person to be arrested, or the objects to 
 be seized. This latter provision was directed against the 
 so-called general warrants (since abolished) of England, 
 which without such specifications authorized the making 
 of arrests, searches and seizures. The police may of 
 course, without a warrant, in the legitimate discharge of 
 their duties, demand and force admission into a house and 
 make arrests. When a crime has just been committed, this 
 power to arrest without a warrant belongs to every man. 
 The person so arrested must, however, be brought at 
 once before a competent court or magistrate. If any 
 search or seizure has been made without a full compliance 
 with the conditions of this amendment, the person mak- 
 ing it is always required to prove that the case is one in 
 which the public interest required this to be done. 1 
 
 86. CRIMINAL JUSTICE. The fifth, sixth and eighth 
 amendments treat especially of the legal safeguards and 
 benefits which must be given a person accused of crime. 
 The sixth amendment is simply an amplification of the 
 third paragraph of the second section of the third article 
 of the constitution. The provision that the trial of all 
 
 1 A law which authorized revenue officers to require a merchant to 
 produce his books and papers in order that they might satisfy them- 
 selves that the tax-laws had not been evaded has been held constitu- 
 tional by the courts. This decision may be all right, but the law has 
 led to the grossest abuses.
 
 THE FEDERAL CONSTITUTION. 259 
 
 crimes shall be by jury is enlarged by the guarantee of a 
 speedy and public trial. Inasmuch as some of the states 
 had been divided into two judicial districts, it is more- 
 over provided that the trial shall take place, not only in 
 the state, but also in the judicial district, in which the 
 crime has been committed. Besides this, the accused 
 must be informed of the nature and cause of the charge; 
 must be confronted with the witnesses against him ; is 
 entitled to compulsory process for witnesses for the defense 
 and also to the assistance of counsel. 1 The word "jury" 
 means the common-law jury of twelve men, who must 
 give a unanimous verdict. If they cannot agree a new 
 jury must be drawn. According to the act of June 8, 
 1872, when a jury is being impaneled, in cases of trea- 
 son and other capital crimes, the accused is entitled to 
 twenty peremptory challenges (that is, may reject twenty 
 jurors without giving any reason) and the United States 
 to five ; in other felonies the corresponding figures are 
 ten and three; and in all other cases three jurors may be 
 set aside by each party. The fifth amendment provides 
 that no person shall be held to answer for a capital or 
 "otherwise infamous crime " except " on a presentment or 
 indictment of a grand jury." In a presentment the grand 
 jury acts upon its own knowledge without any indictment 
 having been presented to it, and the indictment must 
 afterwards be supplied by the court. In indictments the 
 grand jury does not act on its own initiative, but on an 
 indictment submitted to it for its decision. It is admitted 
 that the expression " infamous crime " is a technical one, 
 but the definitions are neither sufficiently clear nor en- 
 tirely harmonious. 2 This is, however, to a certain extent, 
 
 l ln England, persons accused of crime were not entitled to the as- 
 sistance of counsel until the passage of the act of 1836. 
 2 Brunner, in the supplement to the second edition of Desty's Con-
 
 200 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 of no importance, because in all crimes which come within 
 the judicial power of the United States, the complaint is 
 made either by presentment or indictment. A grand 
 jury, according to the law of March 3, 18C5, must consist 
 of not less than sixteen nor more than twenty-three 
 jurors. 1 This provision of the fifth amendment does not 
 apply to the federal army or to the militia when the 
 latter, in time of public peril or of war, is in the service 
 of the United States; in other words, they may be sub- 
 jected by law to courts-martial. Ko one can be compelled 
 in any criminal case to be a witness against himself, ^o 
 one can be twice put in jeopardy of life or limb for the 
 same offense. A man is put into jeopardy (in the sense 
 of this clause) only when the jury has given a verdict. 
 If the trial has to be stopped for any legal reason, it does 
 not count as a trial under this provision. So, too, of 
 course, when the person tried is granted a new trial; be- 
 cause the law gives him this for his own benefit. A 
 new trial is granted when the court considers the finding 
 contrary to law or to the evidence produced. In capital 
 cases the court can, even without the consent of the 
 accused, discharge the jury if it thinks there is good 
 ground for doing so. If the jury bring in a verdict 
 which covers only some points of the complaint, the ac- 
 cused is protected against a new trial as to these, but not 
 as to the others. If the jury is dismissed without the 
 consent of the accused, and it was not a case in which the 
 law recognizes this as necessary, such, for instance, as a 
 mistrial, he cannot again be tried for the same offense 
 
 stitution of the United States, p. 320, says: " Infamous crimes, in the 
 meaning of this clause, are only those made infamous or declared a 
 felony by express act of congress:" and cites in proof of this United 
 States vs. Wynn, McCrary, III., 266. 
 
 1 See J. Proffatt, Law of Jury Trial, San Francisco, 1877; H. Hirsh, 
 Law relating to Juries, N. Y., 1879.
 
 THE FEDERAL CONSTITUTION. 261 
 
 although he has not been acquitted. 1 The eighth amend- 
 ment forbids the requirement of excessive bail, the impo- 
 sition of excessive fines and the infliction of cruel and 
 unusual punishments. Bail is always admitted, except 
 when the crime charged is punishable by death or life- 
 long imprisonment. Even in these cases it may be 
 taken. 
 
 87. JURY TRIALS IN CIVIL CASES. The seventh amend- 
 ment provides " that 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." As only the preservation of a right is here con- 
 cerned, this evidently refers to the English common law 
 at the time of the adoption of the constitution, and the 
 intention is to extend the right, so far as constitutional law 
 permits, to cases in which it did not exist before. Moreover, 
 since it is only a right, the parties can waive it. 2 So, too, 
 the right is sufficiently preserved when, in case of appeal 
 from the first decision, a trial by jury may be demanded. 
 It is to be noticed, again, that the right is restricted to suits 
 
 1 To the provisions of the fifth amendment as to criminal procedure, 
 there is coupled-on the prohibition against taking private property for 
 public uses without just compensation. It goes without saying that 
 the right of expropriation belongs to the federal government only when 
 public uses within its jurisdiction are concerned. It relates back to 
 the " right of eminent domain" and this belongs to the states, except 
 as to those rights deduced from this, which the constitutional purposes 
 of the federal government require to be vested in it. In the territories 
 the United States have the right of eminent domain. If a territory 
 be transformed into a state, the right passes over to the latter. As 
 to the right of eminent domain see Cooley, Constitutional Limita- 
 tions, ch. XV. 
 
 - This is not true of criminal cases. In them the jury is a necessary 
 part of the court, and the accused cannot waive it.
 
 262 CONSTITUTIONAL LAW OF THE UNITED STATES. 
 
 at common law; in equity and in admiralty and maritime 
 courts, it does not exist. If in a common-law suit the 
 question of fact has been decided by a jury and an appeal 
 is taken, the appellate court has nothing to do with the 
 question of fact; it has simply to decide whether the law 
 was properly applied. It is only when a new trial is 
 granted that questions of fact are retried, but even then 
 they must be decided again by a jury. The seventh 
 amendment also applies in common-law suits, which have 
 first been tried with a jury in a state court and are then 
 brought by appeal before the United States supreme 
 
 court. 
 
 AMENDMENT OF THE CONSTITUTION. 
 
 88. FOR AMENDING THE CONSTITUTION, different meth- 
 ods are provided by the fifth article. The initiatory step 
 may be taken either by congress or by the state legisla- 
 tures. The latter cannot propose any amendments, but 
 congress must call a convention for this purpose if the 
 legislatures of two-thirds of the states demand it. This 
 
 O 
 
 has never yet happened. All amendments have been pro- 
 posed by congress, in which body two-thirds of each house 
 must favor the proposition. The states decide whether 
 its proposals shall be ratified, but congress determines 
 whether the vote of the states is to be cast by their legis- 
 latures or by conventions called for that particular pur- 
 pose. In either case, a ratification requires the assent of 
 three-fourths of the states. The constitution says noth- 
 ing as to an obligation on the part of the states to come 
 to any conclusion about a proposed amendment. In 
 practice it has been decided that there is no such obliga- 
 tion. I have already discussed the question whether and 
 how far a state is bound by its assent once given. This 
 has never been properly settled, and it is by no means im- 
 possible that it may yet give rise to serious difficulties.
 
 PART THIRD. 
 
 THE CONSTITUTIONAL AND GENERAL LAW 
 OF THE SEPARATE STATES. 
 
 89. PRELIMINARY REMARKS. I cannot attempt to treat 
 the general law of each of the thirty-eight states sep- 
 arately. Regard for space would make this impossible, 
 even if the sketch were confined to the most superficial 
 outline. Yet a superficial sketch would present an end- 
 less array of repetitions. But, on the other hand, the 
 most cursory perusal of the different state constitutions 
 suffices to convince any one that it would be just as inad- 
 missible to select a certain state and to analyze its gen- 
 eral law as a type of the whole. The selection would be 
 entirely arbitrary ; for there are so many and such impor- 
 tant differences in details that no state can be used as a 
 pattern or type of the rest. It must suffice, therefore, to 
 give a general characterization in broad outlines, laying 
 especial stress upon what is common to all or nearly all, 
 and briefly noting the most important differences. In 
 order to lessen the repetition which is unavoidable, and 
 not to heap up a mass of useless details, I shall not 
 always note to how many or to which states what I say 
 applies. If the matters concerned are peculiar to one or 
 to a few states, this will be pointed out. The omission 
 to point it out must nevertheless not be construed as 
 meaning always that the statement is one of quite gen- 
 eral application. In the more important questions in 
 which this is the case I shall say so expressly. 
 
 90. ORIGIN OF THE CONSTITUTIONS. The constitutions 
 of the states arc without exception the work of constitu-
 
 20-i THE CONSTITUTIONAL AND GENERAL LAW 
 
 tional conventions. 1 But many constitutions contain pro- 
 visions that became constituent parts of them without 
 the meeting of any constitutional convention. Conven- 
 tions are instruments which the people use for reasons of 
 expediency in constitution-making ; but their task should 
 always be limited to drafting a plan of a constitution. The 
 people as all the constitutions say, in a more or less 
 precise formula are the sole possessor of political power, 
 and they alone, therefore, can give the state its funda- 
 mental law. These are fundamental principles. It is 
 not only theoretically that they are of the highest im- 
 portance. It has repeatedly become of the greatest polit- 
 ical significance, that conventions partly by appealing 
 to precedents in the struggle of the colonies with the 
 mother country, and partly in imitation of the conven- 
 tion of the first French revolution have claimed to be 
 the bearers of the people's sovereignty, a claim that in 
 its final logical results tends to a complete overturning of 
 the fundamental principle of American popular govern- 
 ment, that is, transforms popular sovereignty into its very 
 opposite. 2 This doctrine, which rests on the logical ab- 
 
 1 Americans distinguish between revolutionary and constitutional 
 conventions, and many conventions are held in the United States 
 which have nothing to do with adopting or amending a constitution. 
 
 2 It suffices to recall those conventions which decreed their respect- 
 ive states out of the Union after the presidential election of 1860. 
 The Lecompton convention in Kansas, in 1857, was theoretically of 
 peculiar interest and practically of great importance. It proposed to 
 the people to vote, not whether or no they would adopt the whole 
 constitution as drafted, but simply whether, they would have " the 
 constitution with slavery" or "the constitution without slavery." 
 The majority of the people did not want the constitution at all. At 
 the election ordered by the convention " the constitution with slav- 
 ery '' wars adopted by 6,266 against 567 votes. The territorial legis- 
 lature had already fixed a later day for voting on the general question, 
 and at this election 10,266 votes were cast against the constitution
 
 OF THE SEPARATE STATES. 265 
 
 surdity of a transfer of sovereignty, which is identical 
 with its entire alienation, is constantly losing ground, 
 especially as far as the drafting of an entire constitution 
 is concerned. Some of the constitutions provide, not only 
 that the people shall decide whether a general revision of 
 the constitution is to be made by a convention, but also 
 that the revised or new constitution shall be submitted to 
 the people and be voted upon by them. Hundreds of 
 thousands of citizens can act, of course, only through 
 representatives, as far as the drafting of the constitution 
 is concerned, but in these cases the people have reserved 
 to themselves, expressly and unconditionally, the initi- 
 ative as well as the final decision. 1 
 
 Here, therefore, no argument can be found in support 
 of the other erroneous, and at least equally dangerous, 
 doctrine that "the people "- meaning by this the major- 
 ity of the persons with full political rights can, by 
 virtue of their sovereignty, amend a constitution in any 
 form or manner other than that prescribed in the consti- 
 tution. The idea of popular sovereignty has entirely 
 lost in the United States that vague and demagogic char- 
 acter which in the first French revolution made it the 
 cause as well as the cloak of all imaginable horrors. 
 
 and only 162 in favor of it. The result was a bitter and protracted par- 
 liamentary struggle, which finally ended with the victory of the free- 
 soil party and of the principle of popular sovereignty, but only after 
 the slave states had seceded. The number of conventions which 
 have not submitted their work to the people is not small. Jameson 
 (p. 446) reckons forty of them up to 1866. Twenty -nine of these re- 
 vised the existing constitutions. During the same time there were 
 seventy-eight conventions which followed the correct principle. Some 
 constitutions contain no provisions at all about revision by conven- 
 tion. 
 
 1 This applies only to the revision of a constitution by a convention. 
 I shall refer hereafter to the initiative of legislatures as to separate 
 amendments.
 
 206 THE CONSTITUTIONAL AND GENERAL LAW 
 
 Popular sovereignty is the sole basis, not only in theory 
 hut in practice, of the entire legal system of the Union 
 as well as of the several states; but according to the 
 American theory and practice, popular sovereignty is not 
 identical with a boundless arbitrariness. The people can- 
 not be bound, but they can bind themselves; and pre- 
 cisely because they have bound themselves they have less 
 right to place themselves above the la\v established by 
 their own sovereign will. Although this pjrvei'tod con- 
 ception of the substance of sovereignty has already had 
 its history in the United States, 1 these principles never- 
 theless, from generation to generation, have more and 
 more mingled with the flesh and blood of Americans; 
 and this explains the fact, often so surprising to Euro- 
 peans, that we see displayed upon the broadest demo- 
 cratic basis a political system which., in general, is 
 characterized by an eminently conservative spirit. Dema- 
 gogy has often found in this system a wido field, but ex- 
 periments and innovations have so far shown themselves 
 only as exceptions which prove the rule., and the agitation 
 in these exceptional cases, except as to the doctrines of 
 the radical abolitionists, has never passed bevcnd legal 
 bounds. Xot despite, but in a great measure because of, 
 the carrying out of the principle of popular sovereignty, 
 the United States have hitherto been a less favorable 
 Held for revolutionary tendencies than most European 
 states. We must not conclude from this, as Americans 
 are wont to do, that this would self-evident!} 7 and always 
 be the case, under other relations and with other nations. 
 91. CONSTITUENT PARTS OF THE CONSTITUTIONS. The 
 constitutions usually consist of three parts: the bill of 
 
 1 See, especially, the history of " Dorr's rebellion " in Rhode Island 
 in 1841. The essential facts of it are concisely stated by Jameson, 
 p. 216 et seq.
 
 OF THE SEPARATE STATES. 267 
 
 rights, the constitution proper, or frame of government, 
 and the so-called schedule. The last, strictly construed, 
 is no constituent part of the constitution at all. but only 
 an appendix of temporary importance. Some constitu- 
 tions do not have it at all. It contains mainly provisions 
 as to how the people shall manifest their acceptance or 
 rejection of the proposed constitution, and as to the ar- 
 rangements necessary (in case of acceptance) in passing 
 from the old to the new condition. 
 
 The bill of rights contains the " fundamental rights." 
 As a rule it is thus entitled, and is put at the beginning 
 of the constitution. The discussion of bills of rights in 
 detail does not seem necessary, for not only do they agree 
 in their essential contents, but they merely set forth at 
 large and in detail the principles which have already 
 been stated as arising from the so-called bill of rights of 
 the federal constitution. It must be emphasized that 
 here, too, the fundamental rights are not first granted by 
 the constitution; they are regarded as existing rights, 
 and are enumerated in the constitution only in order to 
 protect them in the most effective way against any viola- 
 tion by the organs of public power. And for this reason, 
 the bill of rights often ends with the declaration that the 
 enumeration of certain fundamental rights must not be 
 construed as meaning that the people have waived others. 
 
 ORGANIZATION or THE GOVERNMENT. The separation 
 of the legislative, executive and judicial powers is as 
 thoroughly carried out in all the states as in the federal 
 government. Many of the state constitutions expressly 
 declare that no one of the three shall trespass upon the 
 spheres of the others, so far as the constitution does not 
 otherwise provide. 
 
 92. TUB LEGISLATIVE POWER. As a rule the official 
 name of a state legislature is " the general assembly," but
 
 2GS THE CONSTITUTIONAL AND GENERAL LAW 
 
 in ordinary speech it is called simply the legislature. In 
 all the states the legislatures consist of two chambers; 
 the more numerous is styled the assembly or house of 
 representatives, and the smaller the senate. Neither the 
 franchise nor the right to seek office were originally con- 
 trolled by radical democratic principles. In the course 
 of time these have become more and more victorious 
 every where. Although certain restrictions still exist here 
 
 */ o 
 
 and there, yet all in all I am justified in saj'ing that since 
 the adoption of the fifteenth amendment so-called uni- 
 versal suffrage has become the rule every where. So, too, 
 the restrictions on the right to seek office relate only to the 
 age and to the domicile. The provisions as to the latter 
 are much more strict than in the constitutional states of 
 Europe. In the latter the principle prevails that the 
 voters may seek their representatives where they please, 
 but in the United States it is thought necessary to lay 
 great stress upon local representation. In some of the 
 states the regulation of this question is not even left to 
 legislation; the constitutions provide that the transfer of 
 the domicile from the election district involves absolutely 
 the loss of the office and excludes of course re-elec- 
 tion. As generally recognized is the principle that paid 
 officials cannot be members of the legislature. This ap- 
 plies, indeed, to state as well as federal officials. 1 On the 
 other hand, no member of the legislature can be ap- 
 pointed to a state office which was created or had its 
 emoluments increased during his term of membership. 
 In a few of the states clergymen are also excluded from 
 the legislature. If different qualifications are required 
 for membership in the two chambers, it is only as to age. 
 
 1 Some officeholders, such as justices of the peace, are usually ex- 
 cepted, because they cannot be regarded as officials in the ordinary 
 sense of the word, although they occupy a public office.
 
 OF THE SEPARATE STATES. 260 
 
 A difference in principle, such as that which applies to 
 the two houses of congress has no existence in the case 
 of the two chambers of a legislature. The senators as 
 well as the members of the assembly are directly voted 
 for at the polls, and the sole difference is in the size of 
 the election district. 1 
 
 The term of office is, with few exceptions, a different 
 one, and that of the senators is generally twice that of 
 the assemblymen. The rule is four and two years, re- 
 spectively. These figures are never exceeded. In the 
 assembly the members' terms all end at the same time. 
 In the senate, as a rule, half the members hold over. 
 This increases the possibility (as it does in the case of 
 congress) that the two chambers will be controlled by 
 different parties; but, on the other hand, the continuity 
 in the upper chamber serves to strengthen conservative 
 tendencies. More stress may be laid upon this because 
 as we shall see when we discuss the executive power in 
 the separate states even more than in the federal govern- 
 ment, parliamentary government, in the European sense 
 of the word, is something entirely foreign to American 
 constitutional and general law. 
 
 The regular meetings of the legislatures take place, 
 some annually and some every second year. Of late, the 
 drift of public opinion has been such that probably in the 
 
 1 In Illinois the constitution of 1870 introduced minority represen- 
 tation for the house of representatives. The section reads: "The 
 house of representatives shall consist of three times the number of 
 the members of the senate, and the term of office shall be two years. 
 Three representatives shall be elected in each senatorial district. 
 . . . In all elections of representatives aforesaid, each qualified 
 voter may cast as many votes for one candidate as there are repre- 
 sentatives to be elected, or may distribute the same, or equal parts 
 thereof, among the candidates, as he shall see fit, and the candidates 
 highest in votes shall be declared elected."
 
 270 THE CONSTITUTIONAL AND GENERAL LAW 
 
 course of time annual sessions will disappear. Experience, 
 it is said, has proven in many states, that the legislatures, 
 having naught to do with higher politics, can very well, 
 in ordinary times, attend in one session to all real wants 
 in the way of legislation for two years, and extraordi- 
 nary circumstances are sufficiently cared for by the fact 
 that the governor can call special sessions of the legisla- 
 ture. The experience of the states which have annual 
 legislative sessions has also shown that the legislatures. 
 when they do not find enough to do, always know how 
 to make something to do. Once assembled, they seem to 
 feel in duty bound to sit for a certain time and to pass a 
 certain number of laws. The legislative statistics of the 
 states which have tried both plans show that with annual 
 sessions just as many laws are passed each year as with 
 biennial sessions are passed every second year. In the 
 former case it is evident that many laws which were at 
 least unnecessary have been enacted ; and unnecessary laws, 
 simply because they are unnecessary, always do harm. 
 The stability of relations so essential to the welfare of 
 the state and of society is thus quite uselessly destroyed 
 and a highly dangerous craving for experiment fostered. 
 That there is much truth in this argument cannot be dis- 
 puted by any one who examines the facts without preju- 
 dice. The opinion that it might be wise to bridle the 
 legislative zeal for law-making is too old a one, in the 
 United States, to be suppressed by declaring it to be a 
 heresy affecting the fundamental principles of democracy. 
 Several constitutions limit the length of the session. In- 
 deed, they measure out the time in quite a niggardly 
 way forty and forty-five (but also sixty and ninety) 
 days. Of course, the established time can be exceeded, 
 but it needs so large a majority to do this that it cannot 
 be done easily or on any but really valid grounds. The
 
 OF THE SEPARATE STATES. 271 
 
 constitution of Nebraska (adopted 1867) tried an odd 
 remedy. It did not limit the duration of the sessions, but 
 while, like the constitutions of all the other states, it 
 adopted the principle of paying the members of the legis- 
 lature a per diem, it provided that they should not be 
 paid this for more than forty days. As far as the desired 
 effect can be expected from this sort of pressure, it could 
 also be brought about by paying a proper annual salary 
 instead of a per diem. This has also been tried (in Wis- 
 consin, by an amendment adopted by the people in 1867), 
 but except in the case of these states public opinion has 
 either not yet been warmed up to these experiments, or 
 has busied itself only with the question whether changes 
 in this direction are desirable. 
 
 The question of the powers of the legislatures is essen- 
 tially different in constitutional law from the question of 
 the powers of congress. Congress has only the powers 
 granted it by the federal constitution. The legislative 
 power of the state legislatures, on the contrary, is unlim- 
 ited, as far as no limits are set to it by the federal or the 
 state constitution. 1 This does not mean, however, that 
 these restrictions must always be expressed in explicit 
 words. As it is generally admitted that the factors of 
 the federal government have certain "implied powers," so 
 it has never been disputed that the state legislatures are 
 subject to "implied restrictions," that is, restrictions 
 which must be deduced from certain provisions of the 
 federal or state constitution, or that arise from the polit- 
 
 1 " The rule of construction of state constitutions is tliat they are not 
 special grants of power to legislative bodies, like the constitution of 
 the United States, but general grants of all the usually recognized 
 powers of legislation not actually prohibited or expressly excepted. 
 The exception must be construed strictly as against those who stand 
 upon it, and liberally in favor of the government." Southern Pacific 
 R. R. Co, vs. Of cm, 6 Sawyer, 157; Hammond, I., 20, 28.
 
 272 THE CONSTITUTIONAL AND GENERAL LAW 
 
 ical nature of the Union, from the genius of American 
 public institutions, etc. But in a discussion of the author- 
 ity of the state legislatures, the question alwa}'s is, not 
 what can they do, but what cannot they do ? Then comes 
 the further question : how must they do what they are 
 authorized to do? On both questions, I can here present 
 only a few especially significant or especially character- 
 istic results of the doctrines already developed. 
 
 The legislative initiative belongs exclusively to the legis- 
 latures and to both chambers in exactly the same way. 
 It is true that here and there an assembly has been 
 granted the privilege of originating all "money bills," 
 but the idea has steadily become of more general accept- 
 ance that there is even less reason for a legislature's than 
 for congress's taking the English constitution as a pattern 
 in this particular. For the senates of the state legisla- 
 tures are just as much popular bodies (-/. e., representatives 
 of the people) as the assemblies. There is therefore no 
 analogy of relations. This freedom of initiative does not, 
 however, involve complete freedom in matters of form. 
 A large number of state constitutions provide expresslv 
 that every law shall contain but one subject, a provision 
 that might well be brought into the federal constitution, 
 because wrong is often done in federal legislation by the 
 so-called " riders." l The " appropriation bills," especially, 
 have been used to carry through measures which, if pro- 
 posed independently, would either not have received a 
 majority of votes in congress or else not have been ap- 
 proved by the president. As long as it has not been 
 expressly declared unconstitutional, in so many words, to 
 couple together in one law subjects foreign to each other, 
 and, moreover, as long as the president (or, in a state, the 
 governor) can only approve or return appropriation bills 
 
 1 See my Constitutional History, III.
 
 OF THE SEPARATE STATES. 273 
 
 in toto, the majority of one or the other house will be ex- 
 posed to the temptation especially in times of great 
 political excitement of making their will law in this 
 disloyal and disgraceful way. 
 
 Of scarcely less importance is the provision, found 
 likewise in many constitutions, that each bill must be 
 read three times loudly and distinctly, word for word. 
 If this had to be done in congress, much mischief would 
 be prevented. There the bills are often read only by 
 their titles, and at the close of each session a veritable 
 flood of bills breaks upon the house. And they are voted 
 upon, although most members have no inkling of the 
 contents of a large part of them. It goes without say- 
 ing that this results in smuggling through, every year, 
 many things which could not stand the light of day. 
 
 There is a striking clause in several constitutions which 
 provides that for the adoption of a proposed bill the ma- 
 jority of those present, that is, of the members voting, 
 shall not suffice, but that a majority of all the members 
 elected is required. The essential motive for this provis- 
 ion may be the quite general belief that the welfare of 
 the people is best subserved if the legislative machine 
 moves as safely as possible, and that therefore the disad- 
 vantages resulting from the difficulty of passing good 
 laws are more than counterbalanced by the benefits re- 
 sulting from the difficulty of passing bad laws. It is, 
 however, not improbable that this rule is more particu- 
 larly directed against the danger that laws which did not 
 correspond with the real will of the legislature might be 
 carried through by an unscrupulous minority by deftly 
 seizing the opportunity of voting on them at a certain 
 moment when a bare quorum was present. It is easy to 
 think so, because in the constitutions of more recent date 
 manifold other provisions have been adopted that can be 
 18
 
 "27-i THE CONSTITUTIONAL AND GENERAL LAW 
 
 explained only by the conviction that enough care can 
 scarcely be taken to guard against the tricks of unprinci- 
 pled politicians who have known how to win a seat in the 
 legislature. 1 The precautions taken go so far in some 
 cases that the courts either cannot take cognizance of viola- 
 tions of the provisions in point or for other reasons cannot 
 make them the basis of a decision, a manifest and very 
 dangerous anomaly; for, if unconstitutionality makes 
 laws null ancl void, and courts must decide whether laws 
 are unconstitutional, the constitutions should contain no 
 provisions which may cause the constitutional question 
 to be raised at any moment, but in the very nature of the 
 thing exclude every possibility of its decision. More- 
 over, the abuses in the legislatures in the separate states, 
 to which these provisions so pointedly refer, cannot pos- 
 sibly be prevented by such formal precautions. These 
 apply solely to the symptoms. They leave the causes 
 utterly untouched. When, however, it is thought neces- 
 sary to provide in a most skilful way these formal pre- 
 cautions, it is evident that the abuses are so grave as to 
 demand the most serious efforts to reach their roots. 
 And this the more, because the limits of the legislative 
 authority of the legislatures are so wide, and as a result 
 of the principle already laid down cannot be defined with 
 the certainty and clearness that might be wished. It is 
 far easier to prevent an abuse of power if what may be 
 done can be defined than it is when the only statement 
 is as to what may not be done, and yet the necessary 
 freedom of action is to be preserved. But if in the prac- 
 
 ! See in the Nation of July 15, 1875, the article entitled "A New 
 Kind of Veto." It says that ''provisions like these . . . proceed 
 not upon the theory that certain subjects have been proved by expe- 
 rience improper for legislation, but on the much simpler theory that 
 the legislature is a body which cannot be trusted to act honestly."
 
 OF THE SEPARATE STATES. 275 
 
 tical workings of legislation evils have come to light and 
 have developed in such a threatening manner that it has 
 been deemed necessary to provide such formal precau- 
 tions, this is scarcely at all due to the fact that the choice 
 of means to prevent such evils, when the constitutions 
 were drafted, was not quite happy. The appearance and 
 development of these evils is much more due to quite spe- 
 cial causes, chief among which is the fact that offices are 
 treated as party booty (spoils) for the payment of party 
 services, and thereby politics is made a business which is 
 the more profitable the more unclean it is, and which 
 promises a man a surer chance to climb the political lad- 
 der the more he subordinates statesmanship to the polit- 
 ical machine. Apart from this question of office, the 
 regulation of which, moreover, is mainly left to the law- 
 giving power, the constitutions have found very correctly 
 the points which are the most essential for assuring pure 
 legislation intended for the true welfare of the people. 
 Moreover, the correct fundamental principles are as a 
 rule applied to details in a proper and effective way with 
 no small skill. Many of the constitutions put each indi- 
 vidual member of the legislature, as far as possible, under 
 the steady and immediate control of public opinion, by 
 providing that in passing bills and in all elections by the 
 legislature the vote must be by roll-call and viva voce, 
 while, on the contrary, in popular elections the secret 
 vote by ballot is the unbroken rule of all the states. 
 The more recent constitutions are especially careful to 
 keep the legislatures as far as possible from all tempta- 
 tions to abuse their power. Experience has taught that 
 these temptations are most potent in cases of " special 
 legislation," and therefore the tendency has become 
 stronger to bind the hands of the legislatures as firmly 
 as possible in relation to this ; to allow them to enact 
 only general laws in order not to give advantages of one
 
 liiO THE CONSTITUTIONAL AND GENERAL LAW 
 
 kind or another to individuals at the expense of all. 
 Special attention is therefore given in the constitutions to 
 the chapter on "corporations." In relation to these the 
 course of legislation is as precisely defined as the nature 
 of the subject will permit. For inasmuch as this involves 
 moneyed interests, often of vast proportions, the most 
 powerful levers may be applied to break a wide gap for 
 corruption. The power to pledge the means or credit of 
 a state in any wise whatsoever for a corporation is either 
 strictly limited or entirely denied. Some constitutions 
 go still further. They seek generally to keep the state 
 aloof from all matters in which considerable sums are to 
 be spent in a manner which might offer people with easy 
 consciences and dexterous as well as covetous hands a 
 good opportunity to fill their own pockets out of the pub- 
 lic purse. Several constitutions absolutely prohibit the 
 state's undertaking such works of general utilitv as are 
 
 o ^ 
 
 called in the United States "internal improvements.'' 
 Others refuse the power to contract debts in this behalf, 
 a policy that certainly has two sides to it. To show this 
 I need only refer to the history of the Erie canal, which 
 Xew York must in a large measure thank for her domi- 
 nant position in the economic life of the Union. This 
 example points to the second motive, that, besides the 
 reasons assigned, lies at the foundation of these pro- 
 visions. The American people is almost unanimous in 
 the opinion that the state should undertake no tasks 
 which private efforts can compass. This opinion has 
 been strengthened of late by the history of the land 
 grants to railroads, since the completion of the great 
 transcontinental railroads, which without such assistance 
 could not have been built. 1 
 
 1 These roads, however, are not the only ones which have received 
 land grants from congress. The first grants were made September 
 20, 1850, for the benefit of the lUinois Central, Mobile & Chicago.
 
 OF THE SEPARATE STATES. 277 
 
 Among the most intelligent and cultured Americans 
 the admission is, however, not infrequently made that the 
 state's sphere of activity at present cannot be extended 
 beyond what is barely necessary, because the govern- 
 ment is in such hands that increased activity by it in the 
 direction indicated might be expected to add new and 
 greater evils to the evils now due to private control of 
 large public interests, such as the greater part of the pub- 
 lic, channels of commerce. It is evident not only from 
 the formal precautions already mentioned, but also from 
 many other constitutional provisions, that the idea pre- 
 vails that a legislature must be approached with a certain 
 amount of distrust. In this respect, the constitutions are 
 a faithful expression of public opinion. This is, indeed, 
 one of the most characteristic differences between the 
 constitutions of the separate states of the Union on the 
 one hand, and on the other hand the constitutions of 
 European states, and also that of the United States. On 
 an important question this distrust sometimes assumes a 
 shape which lets it appear more in the light of a guardian- 
 ship, but it is none the less overwhelming. 1 As a rule, so 
 
 and Mobile & Ohio River roads. From the date mentioned until 
 March 3, 1873, since then, so far as I know, no grants have been 
 made. there were one hundred g,rauts to seventy-two railroads, 
 making a total of about one hundred and ninety million acres. The 
 last figure is calculated from those given in the report of the com- 
 missioner of the general land office, but the government itself de- 
 clares that these figures are unreliable. The Union and Central Pacific 
 received, besides the land grants, a subsidy of about $55,000,000 in 
 the form of a government guarantee of their bonds. The govern- 
 ment has as security a second mortgage on the railroads. The land 
 grants are so made that a certain number of sections on both sides of 
 the line of road is granted for each mile built. The number of sec- 
 tions varies. 
 
 1 The following utterances of the Nation of January 29, 1885, are 
 very noteworthy: " The assembling of the legislatures of the various
 
 2 78 THi: CONSTITUTIONAL AND GENERAL LAW 
 
 far as financial legislation is concerned, the legislatures 
 are subject to very precise rules. These are intended to 
 prevent a disordered and lax management of the finances, 
 and as they attain their aim as far as constitutional pro- 
 visions can do so, they present no occasion for unfavor- 
 able criticism. The unconditional obligation, when a 
 public debt is contracted, to make arrangements at the 
 same time for its redemption sometimes the redemption 
 must take place within a very limited time unquestion- 
 ably deserves all praise. A very peculiar impression is 
 made, however, by the fact that the constitutions fix the 
 maximum of the permissible state debt, and in fact fix it 
 so low that even a small city could bear the burden with- 
 out peril. The extraordinary instances of a war. of sedi- 
 tion or of an invasion are always excepted, indeed, and 
 
 states for their winter's work has attracted fresh attention to the ma- 
 chinery of legislation and produced many suggestions on the subject. 
 All of these rest generally on the idea that most legislative work in 
 the United States is defective and slipshod ; that the laws are badly 
 drawn : that they are passed without proper reference to and com- 
 parison with statutes already in force ; that they are frequently jobs 
 disguised as statutes. Governor Hill, of this state [New York], in his 
 first message, recommended that a lawyer be appointed as perma- 
 nent legislative counsel, to draft bills, to advise the members and 
 committees with reference to proposed legislation, and to inspect the 
 various bills before their final passage, so as to detect errors and im- 
 perfections and to suggest neccessary amendments. The necessity of 
 taking some such step, he thinks, is shown very clearly by the fact 
 that, during the session of 1883, in this state, some forty -five bills 
 were recalled from the executive chamber after their final passage 
 for necessary amendment and correction, while during the session of 
 1884 there were fifty such instances (!). The critics of the governor's 
 recommendation can only say in reply to this that such work ought to 
 be done by the legislative committees themselves ; but the evil to be 
 cured is the fact that the committees will not do it. The only ma- 
 chinery for preventing bad legislation at Albany is the veto of the 
 governor, and the governor now has to do the work of legal adviser to 
 the legislature, through the veto power, in a very clumsy way; i. e.,
 
 OF THE SEPARATE STATES. 279 
 
 the American states are rich enough to make their or- 
 dinary taxes meet their ordinary wants by honest and 
 half-way reasonable economy without difficulty. But a 
 refusal, except in the cases when the very existence of 
 the state is more or less threatened, of the right to nego- 
 tiate a loan, for the right of borrowing a few hundred 
 thousand dollars is but a nominal one, such a refusal 
 can be justified only on the supposition that certain tasks 
 which are ordinarily performed by the civilized states of 
 the old world ought not to be undertaken by the Ameri- 
 can states, if these tasks require the expenditure of more 
 money than the current revenue can supply. In such 
 matters, the states cannot go to work in a far-sighted 
 way for future benefits. They must limit themselves to 
 a policy of to-day and to-morrow. It is evident from the 
 
 he has in most cases to correct defects by killing the bills, when, if 
 the legislature could have been properly advised at the outset, amend- 
 ments might have been made which would have enabled him to sign 
 them." These circumstances are the more significant because in all 
 legislatures lawyers form the most prominent element. These evils 
 appear in their worst form in the so-called " private bills." Of these 
 the article quoted says: " As soon as business begins, a great crop of 
 bills is introduced, most of which are designed to give some person or 
 corporation a special privilege under, or exemption from, the opera- 
 tion of laws binding on the community. These bills are drawn up, not 
 by the legislators who introduce them, but by lawyers privately re- 
 tained and paid by the special interests behind the bills, and who, 
 naturally enough, as long as they get what their clients want, care 
 very little what the effect on the general body of the law may be. 
 When the bills, thus prepared, get into committee, there are no rules 
 of any value governing the procedure with regard to them. Those 
 interested adversely have not necessarily any notice to appear ; there 
 is no attempt to take proof judicially, but ' counsel ' are permitted to 
 make any statements they please." As a remedy the procedure is 
 proposed, the introduction of which, more than half a century ago, 
 put such an effective end to similar confusion in England. In Massa- 
 chusetts this approved method has already been introduced to a cer- 
 tain extent.
 
 2SO THE CONSTITUTIONAL AND GENERAL LAW 
 
 provisions cited as to internal improvements that this 
 was more or less consciously the intention of the framers 
 of the state constitutions. In this they have found 
 themselves on the whole in accord with the character of 
 the actual development of the relations of life in the 
 United States up to the present time. Americans 
 viewed from the stand-point of the most highly civilized 
 states of Europe are still obliged to apply the greatest 
 part of their strength in working out of the rough and 
 in laying broad and deep the foundations of a civilized 
 state of the highest order. They have not the surplus of 
 time, of intellect and of capital needed to extend the 
 state's activity as far and place it on as sure a footing as 
 in the oldest civilized states of Europe. Hitherto, too, they 
 have had no occasion to give up the fundamental idea of 
 their policy, for the result has proved that the peculiar 
 problems of civilization, with which they have been 
 brought face to face, will be soonest and best solved by 
 the state's retiring into the back-ground/ In that event, 
 the organization of society and its organic work result in 
 the freest possible action ; and in society the initiative 
 and power of the individual is given the widest scope. 
 The duties of the state are much more limited, and there- 
 fore general law has not only a different but a much 
 smaller field; but the (strictly speaking) constitutional- 
 law side of general law is far more developed than in 
 any nation on the European continent. Even the lan- 
 guage shows this. It contains no word that fully corre- 
 sponds to our German idea of general law. It is there- 
 fore scarcely surprising, that at least as far as my 
 knowledge extends -there is no work which treats of 
 general law as we would understand this in Europe. All 
 the books worth consideration treat only of constitutional 
 law or particular parts of it. They simply touch here
 
 OF THE SEPARATE STATES. 281 
 
 and there upon those points of general law which are not 
 in the narrower sense of the word constitutional. This 
 and also the great scarcity of monographs on this part 
 of general law indicate, in fact, that there is no proper 
 interest in such questions. But this is partly explained 
 by the fact that from lack of material many chapters 
 must be written in as many lines as pages would be re- 
 quired in which to treat the subject in a European state. 
 The United States have immense, and some of the 
 states have very considerable, expanses of public lands. 
 But they do not cultivate them. They simply sell them. 
 These public lands hide mineral treasures of every kind. 
 But the state does not mine them. It simply passes laws 
 as to how private persdhs can acquire the right of min- 
 ing. As to how the mining is carried on, it concerns it- 
 self little or not at all. There are no mining-officials 
 just as there is no administration of the public domain. 
 Legislation on mining is practically restricted to the point 
 named. The products of agriculture are so enormous 
 that they have become one of the most important fac- 
 tors in the world's economy, but agriculture is so far out- 
 side the domain of the federal government that it can do 
 little more than gather statistics about it. 1 The separate 
 states on the whole adhere to the principle that the 
 farmer, like the shoe-maker and tailor, must find out for 
 himself what is good for him. 2 There is a series of 
 
 1 It seems, therefore, foolish to try at the present time (January, 
 1885) to create an agricultural department at Washington. 
 
 2 Some attempts have been made to promote the improvement and 
 development of natural resources by state aid. Thus, for instance, 
 the constitution of Maryland provides that a "superintendent of 
 labor and agriculture " shall be elected by the people to serve for four 
 years and leaves it to the legislature to determine whether the office 
 shall continue to exist. His chief duties are to be to " supervise all 
 the state inspectors of agricultural products and fertilizers " and to
 
 2S2 THE CONSTITUTIONAL AND GENERAL LAW 
 
 questions in which the general good imperiously and ur- 
 gently demands the interference of the state (for instance 
 in the management of forests) to lead public opinion to 
 such a point that it will allow or demand the setting 
 aside of the doctrine of laisser fairc. With absolutely 
 criminal laxness all energetic measures to prevent the 
 forest fires caused by carelessness, which annually destroy 
 millions of property, are still neglected. And although 
 de-foresting has already become a public calamity and 
 danger of terrible magnitude, nothing has yet been done 
 to prevent it except offering rewards of different kinds for 
 tree planting. 1 Xeither the United States nor the states, 
 therefore, have taken any especial care about natural 
 products. As far as trade is concerned, the federal govern- 
 
 " enquire into the undeveloped resources of wealth of the state of 
 Maryland, more especially concerning those within the limits of the 
 Chesapeake Bay and its tributaries, which belong to the state, and 
 suggest such plans as may be calculated to render them available as 
 sources of revenue." His duties, moreover, embrace those of the 
 former commissioner of immigration and the immigration agent. 
 (Many states have officials who are charged with the advancement 
 of immigration and everything connected therewith.) In Alabama, 
 the constitution of 1868 created a bureau of industrial resources with 
 similar but still more comprehensive duties. Even where the consti- 
 tutions provide nothing of this kind, something has sometimes been 
 done by legislation here and there. The federal government does a 
 great deal for the discovery and improvement of natural resources 
 by its very exact geological surveys. These show in detail all other 
 particulars about the districts examined. Even the preservation of 
 the wealth of fish in the ocean and in the lakes has been the care of 
 the federal government. The act of February 9, 1871, created a com- 
 missioner of fish and fisheries for the study of the questions involved. 
 1 In this respect the federal government does more than the indi- 
 vidual states. If a man plants trees in a certain way for eight years 
 upon ten out of one hundred and sixty acres, and at the end of the 
 eight years has at least six hundred and seventy-five vigorous trees 
 on each of the ten acres, he becomes the owner of the entire tract.
 
 OF THE SEPARATE STATES. 283 
 
 rnent comes to the front, for it has to regulate foreign 
 and inter-state commerce. Since it has not hitherto deemed 
 it necessary to have a special minister of commerce, the 
 states, of course, have felt much less need of entrusting 
 special officers with the care of commercial interests. 
 Industry is very greatly influenced by federal tariff legis- 
 lation, but industries as such lie outside the jurisdiction 
 of the federal government. Factory-laws and business 
 legislation are matters for the separate states, which, so 
 far as I know, have given them so little attention that 
 they can scarcely be called the care and province of the 
 state. 1 Of the many-sided social-political problems so 
 vigorously agitated in Germany at present, the only one, 
 so far as I am informed, which has played any part in 
 state or federal legislation, is the question of the legal or 
 normal day of labor. In what states and in what way 
 the question of child-labor in factories has been regulated 
 by law, I am unable to say ; for the laws of all the thirty- 
 eight states are not at my disposal. At least some of 
 the states have put certain limits on individual freedom 
 in this respect. This is evident from the general laws 
 relating to attendance at school. The school system and 
 ecclesiastical affairs will, however, be discussed later in 
 special paragraphs. Here it need only be said that the 
 state's interference with these, in comparison with what 
 all the European states do, is also very slight. The bu- 
 reau of education at Washington must confine itself, on 
 grounds of constitutional law, to collecting statistical 
 and other materials, elaborating them in a useful way, 
 and bringing them to the knowledge of the people; and 
 even in the individual states a " minister of public in- 
 
 lr This may not be entirely true of all the states, especially the 
 North Atlantic states.
 
 284 THE CONSTITUTIONAL AND GENERAL LAW 
 
 sh'iict ion " would be a luxury. A "Kultus-minister "- 
 a minister of worship is simply a non-existent thing 
 for the United States and for the separate states. There 
 is no field in the separate states even for a minister in 
 charge of the channels of public intercourse. The post 
 is controlled by the nation, and railroads and telegraphs 
 with few exceptions are purely private undertakings. 
 ' ; Public works" these certainly are, but in general they 
 play such a subordinate part that even where there is a 
 board of public works, its duties are often assigned to 
 other higher public officials as secondary work. Public 
 benevolent institutions, hospitals, blind asylums, deaf- 
 and-dumb asylums, houses of correction for neglected 
 children and juvenile offenders, poor-houses, etc., are sup- 
 ported by all the states. In the new and sparsely settled 
 states, of course everything desirable in this direction is 
 not, and cannot, be done at once. But even in most of 
 the older states the public care for these interests does 
 not go as far and is not as systematic as in the most 
 highly developed nations of Europe. This is partly be- 
 cause even these older states are still in process of devel- 
 opment, but in a great measure also because private char- 
 ity relieves the state of these as well as of many other 
 burdens to an extent which would be strange in Europe. 
 The fact that the states are almost all still in the process 
 of formation, as well as the more intense and compre- 
 hensive independent action of various organizations for 
 public purposes within the states, bring about the result 
 that the entire state administrative apparatus, in organi- 
 zation and in efficiency, has crystallized, far less than in 
 Europe, into fixed, systematic and thoroughly constituted 
 forms. The administrative personnel is much more change- 
 ful and therefore the administration does not possess the 
 same stability. Although this is fraught with manifold
 
 OF THE SEPARATE STATES. 285 
 
 evils, yet these evils are far less numerous and important 
 than an European observer would suppose. This is 
 partly because the administration has much more limited 
 tasks, and partly because the people have for generations 
 undergone a schooling in self-administration and self- 
 government which the people of continental Europe have 
 never had. If the general law of America has much 
 less extent than that of Europe, on the other hand the 
 chapter on self-government in the public relations of the 
 United States is far more extensive. 
 
 93. THE EXECUTIVE. At the head of the executive 
 power of all the states is a' governor, elected directly by 
 the people. All male inhabitants are eligible as gov- 
 ernor, provided they are of full age, have the franchise, 
 and have been for a certain time citizens of the United 
 States and inhabitants of the state. This time is very 
 different in different states. The right of re-election is 
 unlimited in most states. Where this is not the case the 
 same person can occupy the office, at most, only a cer- 
 tain number of years within a fixed period, or else an 
 immediate re-election is prohibited. If the popular elec- 
 tions result in no choice, the legislature elects one of the 
 two candidates who received the highest number of votes. 
 The particular provisions for this event vary greatly. 
 The term of office is from one to four years. In about 
 half the states it is four, and in the majority of the re- 
 mainder two years. If by death, removal from office or 
 sickness a vacancy occurs in the gubernatorial chair, the 
 lieutenant-governor, elected by the people at the same 
 time as the governor and for the same period, exercises 
 the functions of governor. 1 After the lieutenant-gov- 
 ernor, the president of the senate and then the speaker 
 
 1 Impeachment is common to all the states. In all essential mat- 
 ters, the procedure follows the prototype of impeachment under the
 
 286 THE CONSTITUTIONAL AND GENERAL LAW 
 
 of the assembly replaces the governor. A minority of 
 the states have no lieutenant-governor. In these, the 
 president of the senate generally takes the place first, but 
 sometimes the secretary of state does so. 
 
 The duties and rights of the governor correspond on 
 the whole to those of the president of the United States, 
 but in sundry respects his authority is much less. His 
 first and most general duty is to take care that the laws 
 are executed. He represents, further, the state exter- 
 nally, especially in relation to the other states. He influ- 
 ences legislation in the same way as the president does. 
 In his messages, in which he makes a report to the legis- 
 lature of the condition of the state, he also suggests the 
 enactment of such laws as seem necessary or expedient, 
 but he can make no formal proposal of a law. All bills 
 require his assent. If he does not approve them, they 
 must be adopted by a very large majority in both houses 
 in order to become laws nevertheless. As a rule, a two- 
 thirds majority is required, sometimes two-thirds not 
 only of those present, but of the whole membership. 1 
 
 federal constitution. The assembly is prosecutor, the senate judge. 
 A two-thirds majority is required for conviction. Its consequence is 
 the loss of office. It is noteworthy that some of the constitutions 
 express!}* forbid the impeached official's acting in his official capacity 
 during the trial. In others this provision is restricted to the judges. 
 
 The lieutenant-governor, as long as he does not exercise the func- 
 tions of governor, is ex officio president of the senate. He can vote 
 only in case of a tie. 
 
 1 The "system of checks and balances," in which Americans rightly 
 see one of the most substantial guaranties of the preservation of a 
 rational rule of liberty, has found application, in some few constitu- 
 tions, in relation to this question, either not at all or only to a very 
 limited extent. Either the governor has no veto at all or else a sim- 
 ple majority of the members-elect of both houses suffices to make a 
 bill law over the veto. It is, however, significant that these provis- 
 ions are found as a rule in some of the older constitutions. The dom-
 
 OF THE SEPARATE STATES. 287 
 
 Moreover, the governors of some states have this groat ad- 
 vantage over the president, that they can refuse to approve 
 separate parts of an appropriation bill, and yet approve 
 it as a whole. 1 If the governor considers it necessary, 
 he can call an extraordinary session of the legislature. 
 He is cominander-in-chief of the militia, when they are 
 not employed in the service of the United States. The 
 constitutions of several states, however, expressly provide 
 that he must get the consent of the legislature before 
 personally taking command of them and assuming the 
 immediate leadership. Besides this, his right to appoint 
 the militia officers is more or less restricted. Not only 
 do his appointments usually require confirmation by the 
 senate, but the right of appointment is limited in many 
 cases to the higher ranks, sometimes indeed to the high- 
 est. In some states the highest officers are elected by the 
 legislature, and these appoint the others, while the non- 
 commissioned officers are elected by the men. 2 The right 
 of pardon possessed by the governor is also, as a rule, a 
 very limited one. Sometimes he can use it only with the 
 co-operation of other high officials, 3 and more often he 
 must give the legislature an exact report and state the rea- 
 
 inant tendency is undoubtedly the conservative one. For example, 
 the West Virginia constitution of 1861 gave the governor no veto, but 
 it was granted him by the constitution of 1872. 
 
 1 This important provision is rapidly rinding place in an increasing 
 number of constitutions. 
 
 2 All able-bodied citizens from eighteen (or twenty-one) years of age 
 to forty-five are usually liable to serve in the militia. Many consti- 
 tutions permit persons conscientiously opposed to carrying arms to 
 escape by paying a fixed sum. These moneys are often assigned to 
 the school fund. In the Oregon constitution of 1857, the absolution 
 is restricted to times of peace. 
 
 8 For example, the so-called "council," an institution that has 
 proved itself of so little worth that it is found in none of the younger 
 states, and older ones in which it formerly existed have abolished it.
 
 288 TUP: CONSTITUTIONAL AND GENERAL LAW 
 
 sons for the exercise of his power. The greatest distinc- 
 tion between the authority of a governor and that of the 
 president is in regard to the right of" appointment. Even 
 comparatively speaking, the number of offices to be filled 
 bv executive appointment is much less in a state than in 
 the Union. The highest state officials, who take the 
 place, more or less, of ministers, are not appointed at all. 
 This is of the greatest significance. They are the ad- 
 visers of the governor, for he is expressly authorized to 
 demand written opinions from them on all questions in- 
 volved in their duties. They are, however, as a rule, not 
 only deliberative organs of the executive power committed 
 to the governor, but they have, under the constitution, 
 an independent share in the supreme executive power. 
 Some constitutions expressly declare that a " governor 
 and" such and such officials shall constitute "the execu- 
 tive department." This is whv, at the beginning of this 
 
 u ' O O 
 
 paragraph, I could only say that at the head of the execu- 
 tive power of all the states there is a governor. And 
 even where it is not expressly stated that other officials 
 have an independent share of the executive power, it is 
 nevertheless the case in fact, because the other higher 
 officials sometimes all, and sometimes at least some of 
 them are given their offices without any co-operation 
 by the governor, direct or indirect. As a rule they are 
 elected by the people, but sometimes by the legislature. 
 When some are appointed and some elected, the attorney- 
 general is usually among those appointed. In the sepa- 
 rate states, therefore, much less than in the federal 
 administration, is there a cabinet in the European sense 
 of the word. And in the states, in ordinary speech, a 
 cabinet is never heard of. 1 The executive in most of the 
 
 1 The Florida constitution of 1868, under which all the officers in 
 question are appointed by the governor with the consent of the sen-
 
 OF THE SEPARATE STATES. 289 
 
 states is not a unit. This bars parliamentary government 
 in them to even a greater extent than in the Union. The 
 governor of Virginia, according to the constitution of 
 1850, was more dependent upon the legislature in this 
 respect than the governor of any other state. For 
 his term of office was four years, and the higher state 
 officials were elected by the legislature for only two 
 years. The observation just made applies to Virginia, 
 however, in spite of this, just as unconditionally as it does 
 to all other states. The occasional majority of the legis- 
 lature can confide a very considerable part of the execu- 
 tive power to persons in full political accord with it, but 
 the greater portion is still vested in the governor. So far 
 as the constitution makes him the bearer of the executive 
 power, it gives him 'the position of a factor of the govern- 
 ment co-ordinate with the legislature, such as the federal 
 constitution gives the president. It is still more evi- 
 dent from the Indiana constitution of 1851, that the high- 
 ate, is an exception, for it expressly designates them as " a cabinet of 
 administrative officers." A quite peculiar organism was created by 
 the North Carolina constitution of 1868. Although the particular 
 officers are elected by the people, art. III., 14 (executive depart- 
 ment), provides: " The secretary of state, auditor, treasurer, superin- 
 tendent of public works and superintendent of public instruction, 
 shall constitute ex offlcio the council of the state, who shall advise 
 the governor in the execution of his office, and three of whom shall 
 constitute a quorum ; their advice and proceedings in this capacity 
 shall be entered in a journal to be kept for this purpose exclusively, and 
 signed by the members present, from any part of which any member 
 may enter his dissent ; and such journal shall be placed before the 
 general assembly when called for by either house." A council of state, 
 elected by the people, whose individual members are party organs of 
 the highest executive officer, and which.is, as a whole, partly a pseudo- 
 cabinet and partly an agent of the legislature, by which the political 
 acts and omissions of the governor, as well as of the pseudo-cabinet 
 itself, are in a way subjected to permanent police supervision, is a 
 political bastard, that ought indeed to be the only one of its kind. 
 19
 
 290 THE CONSTITUTIONAL AND GENERAL LAW 
 
 est state officials are not ministers, much less as a whole 
 a cabinet, with which the governor is to rule in a parlia- 
 mentary way. Under it the secretary of state, auditor and 
 treasurer are elected by the people for two years, while 
 the governor is elected for four years. Other constitu- 
 tions, too, fix different terms for the treasurer and for the 
 governor. If the treasurer were a minister, this would 
 be an inexplicable anomaly. But not only as to the 
 treasurer, but as to all the others who with and under the 
 governor constitute the executive department, the polit- 
 ical side of the office is relegated to the back-ground. 
 This is true even of the secretary of state, for in spite of 
 his high-sounding title, he is simply chief clerk and cus- 
 todian of the state seal. But if these officials are some- 
 times not simply, and often not even chiefly, organs of 
 the governor, they are fundamentally officials only in the 
 more limited sense of the word. It is onlv the governor- 
 
 / o 
 
 ship which bears a sharply defined political character. 
 This is the natural result of the fact that the executive is 
 granted only such an indirect and restricted share in leg- 
 islation, and of the fact that legislation itself has only a 
 relatively narrow field of operations, and this practically 
 outside of politics. The jurisdiction of the federal gov- 
 ernment is so wide, and the state legislature is (within the 
 sphere of action left to the central powers of the states by 
 the high development of self-government) in the very 
 nature of things so much the dominant factor in a demo- 
 cratic republic, 1 that the separate states have wisely 
 
 1 This is sharply emphasized by the provision in several constitu- 
 tions, that officials even judges on demand of a two-thirds major- 
 ity of the legislature shall be removed from office by the governor. 
 As a rule, certain definite grievances must form the basis for such a 
 demand. At this point, I may mention that the principles of civil 
 service reform are daily gaining ground, that is, that offices without 
 political significance are filled by appointment, are gradually losing
 
 OF THE SEPARATE STATES. 2'Jl 
 
 renounced the complex apparatus of ministers and minis- 
 tries. The number of the officials who with the governor 
 constitute the executive department, viz., i. e., advisers 
 of the executive and executive organs, is different in the 
 different states. Even in their names there is variety. Be- 
 sides, or in place of, those already mentioned, some states 
 have a comptroller-general, a solicitor-general and a sur- 
 vevor-g:eneral. 
 
 v G 
 
 94. THE COURTS. The organization of the judicial 
 system presents so many differences, and even where 
 these are slight, the names of the courts are often so dif- 
 ferent, that a general characterization in a few sentences 
 is impossible, unless the discussion is restricted to that 
 which is common to the judicial systems of all civilized 
 states in modern times. Two points must, however, be 
 presented, because in them the judicial system of the 
 several states is substantially different from that of the 
 United States. Although it has never yet been thought 
 that the provision of the federal constitution, for the ap- 
 pointment of all federal judges " during good behavior," 
 should be complained of as unwise, yet nearly all the 
 states have wholly abandoned this principle. The judi- 
 cial term is only for a fixed number of years, and often 
 by no means for many years. The term of office varies 
 very much in the different states. The general rule, 
 
 their former character of party booty spoils. Whether the United 
 States will ever have as firm an official tenure as prevails in Europe 
 is nevertheless, to say the least, very doubtful. They are still very 
 far from it. How deep the roots of the conviction that " rotation in 
 office " is a democratic principle, or, indeed, a necessary requirement 
 of a free state, have penetrated, can be inferred from, for example, 
 the facts that the Mississippi constitution of 1868 provided that no 
 official should be elected or appointed to serve " during good behav- 
 ior," and that the Oregon constitution of 1857 actually forbade the 
 creation by law of an office with a term of more than four years.
 
 2\*'2 THE CONSTITUTIONAL AND GENERAL LAW 
 
 however, is, that it is longer as the court is higher. "When 
 several judges sit in a court, as a rule no integral re- 
 newal of the court takes place. In addition to the lim- 
 itation last noted, the principle of irremovability is 
 generally recognized. But the judges, like other officials, 
 are subject to impeachment. But it is evident that 
 Americans have not been blind to the dangers involved 
 in yielding too much, on this very point, to the demo- 
 cratic tendency to make everything fluid and nothing- 
 fixed. In another direction, in turn, the "democratic 
 principle '" has made a wide breach in the old traditions 
 and steadily widened it. True, the judges are still ap- 
 pointed, in several states, by the governor, but election 
 has become the rule. In some states the legislature 
 elects, but in a much greater number, the people. The 
 constitutions place no express restrictions upon eligibility 
 to the judicial office, and in spite of some unfortunate 
 experiences the states in which judges are elected by the 
 people believe that they have no less capable or less pure 
 judges than the others. There are no signs of a reaction. 
 The attacks of the opposition have become, moreover, 
 much less frequent and much less fierce. 
 
 95. CONSTITUTIONAL AMENDMENTS. "With the unex- 
 ampled external development of the United States, there 
 has gone hand in hand a progressive democratization of 
 their institutions. Nevertheless, the conservative basis 
 of the character of the American people, derived from 
 England, has remained in force; how much so appears 
 clearly in the provisions which, in a certain sense, must be 
 designated as the most important of every constitution, 
 the provisions for amending the constitution. Amend- 
 ments are not ma.de easily in any state. And in some 
 states they are rendered so difficult, that it may be said 
 that it is almost absolutely certain that a constitution can
 
 OF THE SEPARATE STATES. 293 
 
 be amended only when the people, after mature reflec- 
 tion, have become convinced that they wish the change 
 and why they wish it. But this is noticeably true only 
 when isolated amendments are in question. The guar- 
 anties provided are much weaker when a general revision 
 is undertaken. The reason for this is that such a general 
 revision is always made by a convention elected ad hoc, 
 and such a convention, as has been already shown, rep- 
 resents in a much greater degree than the legislature, ac- 
 cording to the prevalent opinion, the sovereign will of 
 the people, and thus the unspoken argument proceeds 
 consequently also reflects much more the wisdom of the 
 people. And this opinion is not entirely incorrect, in- 
 deed, even on the latter point, for the people are wont to 
 lay much more stress on the election of a convention 
 than on the frequent and ever recurring legislative elec- 
 tions, so that men of fitting character, ability and judg- 
 ment obtain decisive influence and not persons who have 
 won a position in politics simply by their dexterity in 
 guiding and using the party machine. Moreover, a gen- 
 eral revision of the constitution is such an important 
 undertaking, that it will not be attempted if there are 
 not actually urgent decisive reasons for it. And if this 
 be the case, then all the important questions have long 
 beforehand been thoroughly discussed, so that on the 
 one hand the convention knows what public opinion 
 is, and on the other the people cannot come to vote 
 upon the propositions of the convention without a full 
 consideration of their nature and extent. In the consti- 
 tutions of some of the states, indeed, the democratic 
 fundamental principle, that the constitution must corre- 
 spond to the will of the people, reaches rather a drastic 
 expression in the provision that at fixed periods (every 
 twenty years) the question must be submitted to the peo-
 
 THE CONSTITUTIONAL AND GENERAL LAW 
 
 pie, whether or no there shall be a convention. As a 
 rule the people must always decide this, although it is 
 left to the legislature to determine whether and when the 
 question shall be submitted. The certainty, indeed, of a 
 decision by the people, after the expiration of a fixed 
 space of time, and quite independent of the will of the 
 legislature, as to whether a general revision of the funda- 
 mental law shall take place, may also tend to make the 
 people more inclined to give the constitution an "honest 
 trial ' r for a sufficient time, and to turn coldly from dem- 
 agogic agitation for constant criticism and change. The 
 provisions of all the constitutions as to general revisions l 
 admit of the expectation that, if no extraordinary state 
 of affairs exists, no convention will be called without 
 urgent occasion, in a lightsome spirit of innovation ; 
 that a convention will undertake its work in the full con- 
 sciousness of its exalted responsibilities with great care- 
 fulness, cool reflection and sound judgment; and, finally, 
 that the people in its decision upon the results of this 
 work will be guided, not by momentary impulse, but by 
 cairn consideration of facts. Experience has sufficiently 
 proven this, but it has also sometimes shown that, under 
 certain circumstances, passion and demagogic agitation 
 can triumph over sober thought and justice. 2 Without 
 
 1 It has already been mentioned that all the constitutions do not 
 contain detailed provisions as to the holding of conventions. 
 
 -I recall the California constitution of 1879, sometimes called the 
 " sand-lot constitution." This name was given it, because it was 
 formed and adopted under the influence of an agitation which an 
 ignorant demagogue of very ordinary kind brought about by his 
 popular assemblages on the sand lots of San Francisco. It was a 
 campaign of the lower classes of society, in the first place against the 
 Chinese, and to a certain degree also against capital. And even 
 though the programme of tile more radical leaders was not carried 
 out, they nevertheless bore away no insignificant victory.
 
 OF THE SEPARATE STATES. 295 
 
 wishing to decide whether the holding of conventions for 
 a general revision of the constitution or the adoption of 
 their propositions by the people should be made more 
 difficult and how this can best be brought about, I must 
 note with praise the fact that many constitutions in their 
 provisions about single amendments take double and 
 treble precautions against all dangers of this kind. On 
 the other hand, it is unquestionably a disadvantage if 
 as, for example, the constitutions of Kentucky of 1850, 
 and of Nebraska of 1867, provide an amendment can 
 be made only by a convention. 1 
 
 The initiative as to isolated changes and additional ar- 
 ticles belongs to the legislature. The proposed amend- 
 ment must, however, not only be agreed to by both 
 houses, but in nearly half the states, a simple majority 
 of the members-elect is not sufficient; a majority of 
 three-fifths or two-thirds is required. In a minority of 
 the states the proposal is then at once submitted to the 
 people by its publication for a certain time in a fixed 
 number of papers, and at the next general election the 
 people vote for or against it. In most of the states, how- 
 ever, an opportunity is given to the people to express an 
 indirect opinion, because they can let the proposal influ- 
 ence, so far as they see fit, their choice of members of 
 the next legislature. The latter must also vote on the 
 proposition, and only when it has adopted it by the re- 
 quired majority is the matter submitted to the people. 
 In popular votes, almost without exception, a simple ma- 
 jority suffices for adoption. Exceedingly odd are the 
 
 1 Of the obligation of submitting to the people the conclusions of 
 the convention, nothing is said in these constitutions. The new Ne- 
 braska constitution of 1875 allows an amendment by a three-fifths 
 vote in each house of the legislature and a majority of the popular 
 vote. It also requires a constitutional convention to submit its work 
 to the people.
 
 2i)0 THE CONSTITUTIONAL AND GENERAL LAW 
 
 provisions of the South Carolina and Alabama constitu- 
 tions of 1SOS. and the Texas constitution of 1869, which 
 put the popular vote between the decisions of the two 
 legislatures. 1 Of course, the question comes before the 
 second legislature only when the propositions of the for- 
 mer have been adopted by the people. However this 
 method is to be regarded on political grounds, it is never- 
 theless difficult to make it accord with the principle of 
 popular sovereignty. Several constitutions leave to legis- 
 lation the task of providing for the details as to when 
 and how the proposed amendments are to be submitted 
 to the decision of the people. A defeated proposal, ac- 
 cording to several constitutions, cannot be renewed for a 
 certain time. An amendment of the Vermont constitu- 
 tion, adopted in 1870, grants exclusively to the senate the 
 initiative as to proposed amendments; even the senate 
 can use the privilege only every tenth year; two-thirds 
 of its members must be in favor of the proposal, while 
 in the house of representatives a simple majority suffices; 
 in the next legislature, which must vote upon the pro- 
 posal, only a majority in each house is required. The 
 constitution of Delaware is entirely isolated in requiring, 
 after the proposal of amendments by the legislature, their 
 approval by the governor. 
 
 00. THE TAX SYSTEM. ("A) General direct property 
 taxes. Numerous and self-evident as the differences in 
 the tax-systems of the states are in detail, there is never- 
 theless a sufficient agreement in principle to make a gen- 
 eral characterization of them possible. In the discussion 
 of the like provisions of the federal constitution, it was 
 shown that the right of taxation of the federal govern- 
 
 1 Alabama in 1875, and Texas in 1876, each adopted a new constitu- 
 tion. Both of these constitutions allow amendments by the vote of 
 one legislature and ratification at the polls.
 
 OF THE SEPARATE STATES. 297 
 
 ment and of the several states was concurrent, that is, 
 they can levy taxes upon the same objects. Independent of 
 particulars already cited and of no substantial material im- 
 portance, such as the public property, the administration of 
 justice, the salaries of officials, etc., the only exception to 
 this rule, unfavorable to the states, is imported goods. As 
 the federal government alone regulates foreign commerce, 
 so it alone can collect duties on imports. This one excep- 
 tion, however, marks a distinction of taxation between 
 the Union and the separate states which may almost be 
 designated as a radical one. The federal government 
 has always met its financial needs mainly by duties. In 
 comparison with them, the only important taxes in ordi- 
 nary times are those on tobacco and intoxicating liquors 
 (whisky). Land sales, indeed, in the course of years, 
 have brought in considerable sums, and also in the domain 
 of internal revenue the Union has opened many more 
 sources of income. But its financial system is character- 
 ized as to revenue by these three factors and particularly 
 in fact by the duties. Direct taxes have been levied by 
 the federal government only in exceptional cases. The 
 backbone of the financial administration of the separate 
 states, on the other hand, is direct taxation, to which per- 
 sonal and real property is liable. The general taxes are 
 based on assessments made by assessors or appraisers. 
 Some constitutions fix a time after which all personal 
 property must be newly assessed, but this, as a rule, is left 
 to legislation. Several constitutions also contain the 
 provision that the valuation or assessment must corre- 
 spond with the selling-price. As a rule, however, it is, as 
 a matter of fact, lower. The assessment returns there- 
 fore do not present an entirely correct portraiture of the 
 actual prosperity of the people. If the entire Union is 
 taken into view, this is manifestly impossible, because by
 
 8 T1IK CONSTITUTIONAL AND GENERAL LAW 
 
 la\v or custom the valuations in the different states are 
 made according to a more or less varying standard, quite 
 independent of the fact that in spite of the express com- 
 mand of the constitutions, even with the best intentions, a 
 perfectly uniform assessment cannot bo made. The rates 
 at which the different sorts of property are taxed as well 
 as the methods of taxation vary in manifold ways, and 
 change even in the same state. The constitutions gener- 
 ally limit themselves to the establishment of the principle 
 that taxation shall be equal. It is, however, expressly 
 stated that all property is taxable, or that all property 
 shall be taxed according to its actual value, or that no 
 kind of property shall be burdened with a higher tax- 
 rate than any other kind, etc. Sometimes it is especially 
 provided that all corporations for purposes of gain, as 
 well as all investments of capital in paper securities 
 of every kind, shall be taxed. Some constitutions, how- 
 ever, make property taxable only when it exceeds a cer- 
 tain minimum. This minimum is rather small. On the 
 contrary, no state extends the " homestead " privilege so 
 as to bar the collection of taxes due the state. 1 There 
 
 1 The view is still continually met that there is an American home- 
 stead law. But in fact the federal law bearing this name relates, as 
 already shown, only to the granting of a homestead of one hundred 
 and sixty acres or less of the federal lands for a small entrance or 
 patent fee. The homestead privilege, on the contrary, is based on 
 state law or on the provisions of the state constitutions. It is there- 
 fore very different in the different states and it never has the scope 
 often ascribed to it in Europe. The privilege is, in brief, this: That 
 property, real and personal, up to a certain value is exempt from 
 seizure or execution for certain debts, but only for certain debts. 
 Taxes, purchase-money mortgages, debts for buildings erected on 
 the homestead or other work done on it, are excepted. What a com- 
 plicated matter this is may be inferred from the fact that the work 
 of 8. D. Thompson, A Treatise on Homestead and Exemption Laws, 
 1878, contains over eight hundred pages. See, also, J. H. Smith, 
 Law of Homesteads and Exemptions, San Francisco, 1875.
 
 OF THE SEPARATE STATES. 299 
 
 are, however, further and more significant exceptions to 
 the general taxation of property. They are obligatory ac- 
 cording to some constitutions ; others only permit the legis- 
 latures to make them. Cemeteries, public school build- 
 ings, charitable institutions, buildings exclusively devoted 
 to divine services, and public property exclusively sub- 
 serving public purposes, are most frequently exempt from 
 taxation. Some constitutions go much further. The 
 exemption is extended to all literary and scientific insti- 
 tutions, to all property serving religious purposes, to all 
 public property, even that of the counties and municipal- 
 ities, to clothing, furniture, tools, instruments and books 
 up to a certain value, etc. 
 
 (B) Capitation tax. The ideal of tax legislation, in all 
 modern civilized states, must be to have each individual 
 bear the public burdens in the exact proportion that his 
 ability to pay taxes bears to the tax-paying ability of the 
 entire population. The realization of this ideal is impos- 
 sible. ' It can be approached only by combining different 
 taxes in such a way as to make their defects balance each 
 other. An equal tax, judged from the stand-point of 
 absolute justice, can never be proportionate, because 
 equally valuable property of the same kind' is by no 
 means necessarily owned by persons equally able to pay 
 taxes. Legislation, however, cannot from the nature of 
 things take into consideration the particular incidence of 
 taxation on a single piece of property, and the equal taxa- 
 tion of equally valuable property of the same kind is 
 always less inequitable than the levying of an equal 
 direct tax upon all individuals merely as parts of the 
 population. It is only here and there that this point has 
 been given such attention that the levying of such a tax 
 has been unconditionally prohibited. Some constitu- 
 tions but a very small number direct its levy. About
 
 300 THE CONSTITUTIONAL AND GENERAL LAW 
 
 half the constitutions do not touch the question at all 
 and give the legislatures full and free play. The rest 
 occupy a middle ground, corresponding with the public 
 opinion or the actual situation of affairs in those states 
 the constitutions of which are silent on the subject. The 
 legislatures are permitted to levy a poll or capitation 
 tax, but it is admitted that in general such a tax is 
 grievous and oppressive, and therefore the right is given 
 very narrow limits. The maximum rate allowable is 
 almost always fixed; and this considering American 
 monetary conditions is always a small one, usually si or 
 $1.50. The tax is farther restricted to male inhabitants 
 or citizens of at least twenty-one years of age. And, 
 finally, the revenue is generally made applicable to pre- 
 scribed purposes, in fact, as a rule, exclusively to the 
 public schools, but occasionally also to charitable institu- 
 tions. This prescription of purposes shows why the tax 
 is regarded as admissible, although its principle is gener- 
 ally condemned. The poorer classes are most interested 
 in a general free common school system, and the less 
 they have to pay direct property taxes, the more equita- 
 ble, yes, the more desirable, it is that they shall contribute 
 something to the maintenance of these common schools. 
 For it is even more important in democratic free states 
 than in any other to keep alive in the consciousness of 
 every citizen with full political rights, by making him 
 pay some tax, that rights become privileges if not counter- 
 poised by corresponding duties. The weight of these con- 
 siderations in causing the levy of capitation taxes appears 
 quite clearly where the right of voting is made depend- 
 ent on the payment of a poll tax. 
 
 (Cj Other taxes. Income taxes are mentioned only in a 
 very few constitutions. It does not follow that they are 
 not allowable in other states, but as the constitutions for
 
 OF THE SEPARATE STATES. 301 
 
 the most part contain rather exhaustive provisions for tax 
 legislation, this indicates that this method of taxation 
 does not enjoy in the United States the favor it is more 
 and more receiving among European statesmen and land- 
 lords. Indeed, it will not be entirely unjustifiable if the 
 question is decided the other way in America. When 
 the economic and all other relations have not yet attained 
 a certain stability a general income tax causes many sorts 
 of difficulties and inconveniences, which exist either not 
 at all or in a very much more limited degree in relation 
 to other taxes. Americans are aware that in many re- 
 spects incomes are the best measures of taxation. They 
 know, too, how the revenues are increased if taxation 
 falls not only upon property, but also income. Both 
 reasons will probably bring about the introduction of the 
 income tax, sooner or later, in all the states of the Union ; 
 but many a state will consent to this only when the pub- 
 lic needs cannot be met without a considerable increase 
 of the ordinary taxes. However this may be, in fact, the 
 different kinds of " specific taxes," next to the general 
 direct property tax, play at present the most important 
 part in the financial system of the several states. Among 
 these specific taxes, the business or occupation taxes de- 
 serve the first mention. The Louisiana constitution of 
 1868 directly states that these are intended as income 
 taxes. 1 Even where this is not expressly stated, the con- 
 stitutions sometimes take care that the taxes shall not be 
 the same for all the different trades, but shall bear a cer- 
 tain proportion to the extent or proceeds of the business 
 
 1 After the general authorization to levy such taxes, this clause fol- 
 lows : " All tax on income shall be pro rata on the amount of income 
 or business done." The authority to levy an income tax is not un- 
 bounded. It is granted, but only as to "all persons pursuing any 
 occupation, trade or calling." Title VI., art. 118.
 
 302 THE CONSTITUTIONAL AND GENERAL LAW 
 
 carried on. When, for instance, the Alabama constitu- 
 tion of 1S6S obliges the legislature to impose a special 
 tax upon all railroads, insurance and banking companies, 
 etc.. for the benefit of the school fund, it is difficult to 
 assume that it intends to tax a little local railroad a few 
 miles long as much as railroads which might be regarded 
 as the arteries of trade. And this is true even if laws 
 based upon another interpretation of the paragraph can- 
 not be declared certainly unconstitutional. The Illinois 
 constitution of 1870, however, enumerates, in immediate 
 connection with businesses of the kind just mentioned, 
 hawkers, hucksters, jugglers, grocers, hotel and saloon 
 keepers, etc. This is difficult to harmonize with the views 
 stated if it be not assumed that the framers of the constitu- 
 tion intended to leave it to the discretion of the legislature 
 in what cases the specific tax shall be a fixed one, and in 
 what cases the tax shall be determined by the extent of 
 the business. The latter is never the case in a license 
 tax. The Virginia constitution of 1870 calls the specific 
 taxes which are to be levied licenses. There is, there- 
 fore, no doubt that under it only the particularly enumer- 
 ated occupations can be burdened with a specific tax. 1 
 In turn the question might be raised whether this is also 
 true in cases where only the expression '' to tax " is used. 
 For it may be disputed whether licenses can be regarded 
 as taxes in the strict sense of the word. As, however, in 
 the cases of hawkers, peddlers, jugglers, ecc., only licenses 
 can be intended, this argument would be somew r hat 
 forced. But, although it is regarded as inadmissible, 
 naturally the importance of specific taxes as a source of 
 revenue is always more or less impaired by such an enu- 
 
 1 The list, indeed, contains a clause giving to the legislature the 
 widest scope. It says, in conclusion: " And all other business which 
 cannot be readied by the ad valorem system."
 
 OF THE SEPARATE STATES. 303 
 
 meration. 1 In order to avoid this, other constitutions, 
 such, for instance, as that of North Carolina of 1868, have 
 empowered the legislature to tax all trades, professions 
 and franchises. This power, to my knowledge, has hith- 
 erto never been carried out in its full extent in any state. 
 I do not believe that any state has ever overstepped or 
 even reached the limits which the Texas constitution of 
 1879 fixed by adding to the general formula of authori- 
 zation the clause that, by " occupation," agriculture and 
 "mechanical pursuits" should not be understood. On 
 the other hand, no constitution which mentions specific 
 taxes has drawn such narrow limits to them as the Ar- 
 kansas constitution of 1868, which commands the legisla- 
 ture " to tax all privileges, pursuits and occupations that 
 are of no real use to society," and forbids the taxation of 
 all others. How the laws of Arkansas have illustrated 
 this remarkable provision in detail I am unable to say. 
 I have treated this whole question in connection with the 
 constitutions, partly because it seemed to possess not a 
 little interest jw se, partly because it sufficiently appears 
 from the constitutional provisions cited how different the 
 conditions of the states are in this respect, while the 
 
 1 The constitution of Illinois further sets forth : " The specification 
 of the objects and subjects of taxation shall not deprive the general 
 assembly of the power to require other subjects or objects to be taxed, 
 in such manner as may be consistent with the principles of taxation 
 fixed in this constitution." Even if the states, in applying the doctrine 
 that constitutions should establish only the principles of tax-legisla- 
 tion, have not kept within the same limits, yet this doctrine, as a 
 matter of fact, forms the foundation of the provisions in qiiestion in 
 all the constitutions. So the principle already stated applies here, 
 that the legislatures may do whatever they are not forbidden to do. 
 It cannot be concluded, for example, because many constitutions con- 
 tain no special provisions relating to specific taxes, that the ac-tual sys- 
 tems under them must be substantially different from those in the 
 states with constitutions which do contain such provisions.
 
 304: THE CONSTITUTIONAL AND GENERAL LAW 
 
 fundamental character of their tax systems is one and the 
 same. 
 
 97. SCHOOL SYSTEM. 1 Advancement thereof ty the Fed- 
 eral Government. The democratic federal republic's ca- 
 pacity for existence has not diminished, but has rather 
 greatly increased, although in three generations the nar- 
 row settlements along the coast of the thirteen Atlantic 
 states have developed into the giant nation extending from 
 ocean to ocean, and the population has increased more than 
 fourteen-fold. This is in great part due to the fact that 
 close upon the heel of the irrepressible pioneer, penetrating 
 the western wilderness, came the school. The federal gov- 
 ernment was no slight contributor to the possibility of this. 
 Xeither the articles of confederation nor the constitution 
 of 1739 granted the central power any authority what- 
 ever in regard to a system of instruction in the states, but 
 early in the day it saw that the care and development of 
 the school system was a national interest of vital impor- 
 tance. And it found ways and means to aid it greatly 
 without becoming guilty of the slightest usurpation. The 
 old congress deserves the renown of having, at a time 
 when the overwhelming centrifugal tendency had already 
 practically deprived it of all real power, taken the path 
 which the federal government has since steadily trod, to 
 its honor and to the good of the country. Even in the 
 act of 1785, organizing the territory lying northwest of 
 the Ohio, the sixteenth section a square mile of every 
 township was set aside for the support of common schools. 
 In the famous "ordinance of 1787," the definitive act of 
 organization of the Northwest Territory, this provision 
 was renewed and the grant to each state formed out of 
 the territory of two whole townships, "for a university," 
 
 !F. Burke: Law of Public Schools, N. Y., 1880
 
 OF THE SEPAEATE STATES. 305 
 
 was added. 1 A law of September 4, 1841, granted a 
 number of states five hundred thousand acres apiece (in- 
 clusive of the grants made earlier), and provided that 
 every new state should receive a like grant. " Internal 
 improvements" were usually the nominal object of this 
 gift, but as a matter of fact, a large amount of the pro- 
 ceeds went to the schools. With the law of August 14, 
 
 O 
 
 1848, for the organization of the territory of Oregon, con- 
 gress began to give to the school-fund of the new terri- 
 tories the thirty-sixth as well as the sixteenth section of 
 each township. In the midst of the civil war, July 2, 
 1862, congress passed a law giving to each state land 
 enough to endow at least one " college," in which " such 
 branches of learning as are related to agriculture and the 
 mechanic arts " should be especially taught. The size of 
 the gift was made dependent on the population. It was 
 at least thirty thousand acres for each senator and repre- 
 sentative of the state, under the census of 1860. Besides 
 this, the school-funds of certain states got a share of the 
 surplus in the federal treasury distributed in 1836 some 
 $15,000,000 and also part of the proceeds of the sale of 
 more than sixty -two million acres of " s,wamp and over- 
 flowed lands," donated the states by the federal govern- 
 ment in 1849, 1850 and 1860. 
 
 General Characterization, The original states of the 
 Union have thus shared in the land grants for schools 
 only to a relatively small degree. However great these 
 grants have been, of course they could not, even in the 
 new states, be more than a contribution towards the 
 amount needed for the system of instruction. Even 
 in these new states, most of the money needed must be 
 
 1 G. W. Knight, History and Management of Federal Land Grants 
 in the Northwest Territory, N. Y., 1885; in the papers of the Amer- 
 ican Historical Association. 
 20
 
 306 THE CONSTITUTIONAL AND GENERAL LAW 
 
 raised by taxes, partly state and partly local. As to 
 both kinds of school-taxes, the regulations of the thirty- 
 eight states differ widely in both form and substance. 
 The system of instruction is by no means in the same 
 stage of development in all the states, and divergent views 
 prevail on the question as to how far the care of popular 
 education ought to be, or can be, recognized as an im- 
 mediate task of the state. And, therefore, the size of the 
 school-budget whether that of the state alone or that 
 of the state and the municipalities together varies 
 greatly jytv capita. As a rule the former slave-states, es- 
 pecially the planter-states, are more or less in arrear in this 
 respect. If we but consider that at the outbreak of the 
 civil war part of these states had no general common 
 school system and that the slave-children were not allowed 
 to be educated, we must cordially recognize the progress 
 they have made, and made despite their complete eco- 
 nomic ruin and despite the radical social revolution of the 
 last twenty years. Some of them, indeed, have gone so far 
 as to establish in their constitutions the principle of com- 
 pulsory attendance at school or rather of compulsory edu- 
 cation, a principle not yet adopted by many northern 
 and western states. The conclusion must not be drawn, 
 however, from the establishment of the principle, that in 
 these particular states all children now enjoy instruction. 
 In the southern states, the actual condition of affairs makes 
 it in many ways impossible to give all children the oppor- 
 tunitv of an education, much less to compel them to take 
 it. Compulsory education, moreover, has not succeeded 
 hitherto even where such an opportunity has been offered 
 everv child. This is due in a great degree to the fact 
 that public opinion has not yet declared itself in favor of 
 compulsory education as emphatically as it has demanded 
 for manv vears that the state, in connection with the
 
 OF THE SEPARATE STATES. 307 
 
 local authorities, should see to it that every child had, the 
 chance of receiving a common school education, free of 
 cost. 
 
 Common Schools. The demand of public opinion on 
 the whole does not extend further than these, although 
 there are everywhere public free schools of a higher 
 grade. Some of them are supported by the municipali- 
 ties ; some of them by a municipality and the state to- 
 gether. The expression "common schools" as a rule 
 means only the elementary or primary schools. Common 
 schools of a higher grade are called grammar or high 
 schools. Nevertheless there is no "American common 
 school system," although Americans themselves very fre- 
 quently use this expression. Xot only are there different 
 names in the different states, but the same names some- 
 times mean more or less different things. Each state, 
 however, has its common school system, bearing here or 
 there its special stamp. A general characterization, which 
 should give a very correct picture of the organization of 
 the school system of each state, is- therefore impossible. 
 The following statements indicate only what seems to 
 emerge from the multiplicity of details as a general 
 type modified in this or that way, sometimes more and 
 sometimes less. 
 
 Organization of the School System. The tate does 
 not support the common schools, but it contributes a con- 
 siderable part of the cost of their support. The means 
 placed by the state at the disposal of the public schools 
 the proceeds of taxes directly or indirectly levied for 
 school purposes and the interest and other proceeds of 
 the school fund are distributed according to fixed, but 
 not always the same, rules. In general the distribution is 
 based either wholly or in part upon the number of school 
 children. The rich communities, therefore, have to pay
 
 80S THE CONSTITUTIONAL AND GENERAL LAW 
 
 much more in taxes to the school fund of the state than 
 they receive from it. They must not only bear the ex- 
 penses of their own schools, but they must also help to 
 support the schools of the poorer communities. All local 
 boards, however, must raise part of the cost of their 
 schools by local taxation. In fact, they are not always 
 left free to decide how heavily they will burden them- 
 selves for this purpose. Xo maximum is set, but the law 
 prescribes a minimum, by fixing what proportion the local 
 contribution shall bear to that of the state. As far as 
 spending the moneys is concerned, the local boards have 
 a pretty free hand. As the state does not fully support 
 the common schools, it does not claim their sole manage- 
 ment. It takes in hand the general direction and super- 
 intendence, but does not withdraw the school system 
 from the domain of self-government. The highest school 
 authority in most states is a board of education. Its 
 members are sometimes elected by the people or the leg- 
 islature; sometimes appointed by the governor; some- 
 times they are certain officials who ex offieio make up the 
 board; sometimes they are chosen by a combination, in 
 one way or another, of the different methods. The im- 
 mediate head of the system of education is a single of- 
 ficial, generally called superintendent or commissioner of 
 public instruction. He also is elected in the one or the 
 other way or is appointed by the governor. He is al- 
 ways a member of the board where a board exists. Be- 
 sides this, there are commissioners. They are either state 
 or county officials, but in either case are usually elected 
 by the people. The immediate management of the 
 schools is left, however, to the local school boards, school 
 commissioners or trustees. These are generally elected 
 by the voting population of the community. They en- 
 gage and discharge the teachers. The unit in the organ-
 
 OF THE SEPARATE STATES. 300 
 
 ization of the school system is the " school district " or 
 the township. The district system has lost ground of 
 late as against the township system, because experience 
 has shown that decentralization has many dubious results 
 if it passes beyond certain limits. With the development 
 of the system of public instruction the tendency towards 
 somewhat greater centralization has gone hand in hand. 
 In fact, the improvement of the system and the growth 
 of the state's control and direction are to no small extent 
 exactly identical. 
 
 Exclusion of Religious Instruction in the Common 
 Schools. No state gives the churches any footing what- 
 ever in the common schools. Every church and every 
 congregation is left to take such care as it sees fit 
 of the religious instruction of the children belonging to 
 it. Such instruction is usually given in the Sunday 
 schools. These are entirely independent of the state as 
 well as of the community. Religious exercises in the 
 common schools are restricted to the reading of a chapter 
 in the Bible. .Even this has been done away with here 
 and there, because the Catholics claimed that they were 
 wronged by the use of a Protestant translation of the 
 Bible; the Jews protested against the use of the New 
 Testament, and the Freethinkers objected to everything 
 which professed to be the word of God and divine revela- 
 tion. These claims, protests and objections have been 
 recognized without reservation as just by many positive 
 Christians. Some famous Protestant clergymen were 
 among the earliest and most earnest advocates of the 
 doctrine that religion, so far as it took the shape of 
 dogma, was to be absolutely excluded from the common 
 schools. The most vigorous impetus given to the attack 
 against the former practice of beginning the school ses- 
 sion with more or less prolonged devotional exercises was
 
 310 THE CONSTITUTIONAL AND GENERAL LAW 
 
 due to the Catholic clergy. Hitherto, however, the re- 
 sults have been diametrically opposed to their real views. 
 They complained of a Protestant translation of the Bible, 
 but when Bible reading ceased they lamented still more 
 the banishment of God from the schools, and demanded 
 that the Catholics be given their share of the school 
 funds so that they could care for the instruction of their 
 children in the way demanded by their consciences and 
 their religious convictions. 1 So far they have been un- 
 able to carry this through anywhere. Its ultimate con- 
 sequences would be the distribution of the whole school 
 fund among the different churches and the replacing of 
 the complete secularization of the common schools with 
 its exact opposite. But the battle over this question a 
 question which reaches the deepest roots of popular gov- 
 ernment in America is by no means ended. 2 
 
 Normal Schools. It was only in relatively recent times 
 that the states began to make any effort to educate 
 capable common school teachers. These efforts were in- 
 cidentally caused by Dr. Julius, whom the Prussian gov- 
 ernment had sent to the United States to study the prison 
 system. Dr. Charles Brooks, a clergyman of Massachu- 
 
 1 For one of the most interesting and significant episodes of this 
 struggle see my Constitutional History, IV., 91. 
 
 2 President Grant, in his message of December 7, 1875, recommended 
 that a constitutional amendment should be submitted to the states for 
 ratification, " making it the duty of each of the several states to es- 
 tablish and forever maintain full public schools, adequate to the edu- 
 cation of all the children in rudimentary branches, within their 
 respective limits, irrespective of sex, color, birth-place or religion; 
 forbidding the teaching in said schools of religious, atheistic or pagan 
 tenets, and prohibiting the granting of any school fund or school 
 taxes, or any part thereof, either by legislative, municipal or other 
 authority, for the benefit or in aid, directly or indirectly, of any re- 
 ligious sect or denomination." Congress did not act upon the recom- 
 mendation.
 
 OF THE SEPARATE STATES. 311 
 
 setts, was so much interested in Dr. Julius's statements 
 about the Prussian teachers' seminaries that he forthwith 
 made himself thoroughly acquainted with these insti- 
 tutes, and after his return to America began a successful 
 agitation in Massachusetts for their imitation there. By 
 and by other states followed the example of Massachu- 
 setts, and now every state has a greater or less number 
 of teachers' seminaries. They are usually somewhat 
 vaguely called normal schools. Only a very small part 
 of them* are real state institutions. Most of them depend 
 upon the municipalities. These have displayed a splen- 
 did activity and a cheerful self-sacrifice in this respect, as 
 well as in regard to the entire school system. Although 
 the number of these institutes grows steadily and rap- 
 idly, yet they by no meaas suffice to supply the great 
 demand for teachers of the lower grades. Under the 
 blessed working of competitive examination, however, 
 the average teacher has nevertheless become much more 
 capable than formerly, when " school-keeping " was the 
 best means poor half-grown youths had to earn money 
 enough to enter upon whatever career their ambition 
 dictated. The normal schools train not only male but 
 female teachers. 1 
 
 High Schools, etc. The extent of the support given 
 by the states to high schools, and also to academies and 
 colleges, is very varied. The organization as well as the 
 work of these schools differ so much that they often have 
 nothing in common except the name. During the sev- 
 enties possibly on account of the hard times a cur- 
 rent of public opinion against the expensive participation 
 of the state in fostering the higher education seemed to 
 
 1 The absolute as well as the relative number of female teachers is 
 far greater in the United States than in any European nation what- 
 ever.
 
 31:2 THE CONSTITUTIONAL AND GENERAL LAW 
 
 gain breadth and depth. The money taken from the 
 mass of the people so the argument ran - should be 
 used only in such a \vay as to be of direct advantage to 
 ithe whole people. 
 
 Universities. In most of the states a state institution 
 bears the name of university. But it must not be inferred 
 from the name that the institution corresponds with 
 what is understood in Europe by a university. And even 
 among themselves they differ so much that a general 
 characterization is practically impossible. Only thus 
 much may be said, that they are throughout a mixture of 
 the German gymnasia, realschule of a high grade, indus- 
 trial schools of different kinds, and university, but that 
 the mixture and combination differ materially in the dif- 
 ferent cases. Thus, for instance, some of the southern 
 states, which first considered the foundation of a univer- 
 sity after the close of the war, and some of the younger 
 western states, have contented themselves from the be- 
 ginning with a very modest programme, whereas the 
 state university of Michigan, at Ann Arbor, in the num- 
 ber of subjects of instruction, as well as in the work 
 done, is among the foremost institutions of the Union. 
 Theology is excluded from all state universities. The 
 separate religious denominations must care for the edu- 
 cation of the clergy, as such. The state does not concern 
 itself in any way as to whether they do so or how they 
 do so. 1 
 
 1 In 1832 there were one hundred and forty -five theological semi- 
 naries, with four thousand nine hundred and twenty -one students. 
 The Catholic church led them all with twenty-one seminaries and 
 one thousand one hundred and four students. Next came the Bap- 
 tists, with the same number of seminaries, but only eight hundred 
 and ninety-nine students. In all, twenty-five different religious de- 
 nominations support seminaries. It is evident from this that a dis- 
 tribution of the school fund among the denominations is simply
 
 OF THE SEPARATE STATES. 313 
 
 Although they do not come within the theme of gen- 
 eral law, the private institutions must be briefly men- 
 tioned, because they are in the strictest sense of the word 
 an essential integral part of the system of instruction. 
 The most noted institutions of learning of the highest 
 grade are almost wholly private institutions, in this sense, 
 that they are aided neither by the state nor by the com- 
 munities. Their property comes from legacies and gifts. 
 The foundation of their scheme of instruction is the col- 
 legiate department, in which the lower divisions corre- 
 spond to the higher classes of our gymnasia or realschule, 
 und even the highest do not go far beyond these. Where 
 other than academic studies are pursued, it is usual to 
 organize separate schools medical school, law school, 
 etc., which nevertheless form an integral part of the whole 
 institution. If the institution is of a religious character, 
 it occasionally has connected with it a theological semi- 
 nary. The large majority of the colleges of the second 
 and third class as well as of the academies are private 
 institutions in the sense stated. Many of the grammar 
 and high schools are due to private benevolence. Indi- 
 viduals spend year after year immense sums for educa- 
 tional purposes. In 1872, the legacies and gifts ran up 
 to over 11,000,000. This has also its obverse side. The 
 resources of education are not concentrated ; the condi- 
 tions of the donors often prevent the most expedient use 
 of the money given; the arrangements are too dissimilar; 
 and the results are too disproportionate and often very 
 unsatisfactory. 1 Apart from the common schools, the 
 
 impossible. If the Catholic church ever carries through its demand, 
 it can do so only by getting a special privilege for itself. 
 
 1 This is evident enough from the fact that in 1882 there were no 
 less than three hundred and sixty-five " universities " and " colleges* 
 in the United States.
 
 314: Tin-: CONSTITUTIONAL AND GENERAL LAV,* 
 
 system of instruction is in some ways almost chaotic. 
 As far as colleges and high schools arc concerned, the 
 stage of development of the central European states has 
 not been reached. 1 
 
 OS. RELATIONS OF CHURCH AND STATE. 2 " It belongs 
 to American liberty to separate entirely the institution 
 which has for it object the support and diffusion of re- 
 ligion from the political government." 3 The constitutions 
 of all the states proclaim this principle in one form or an- 
 other, and they put its chief consequences in the shape 
 of express prohibitions. The American principle is not 
 general toleration, but absolute religious freedom. This, 
 according to American ideas, involves the complete with- 
 drawal of religio-ecclesiastical relations as such from the 
 sphere of action of the state and of political organi- 
 zations of lower grade. The Americans are mistaken in 
 their frequent assertion that this principle is carried out 
 to its last consequences in all the states, but the differences 
 are few and as a rule of no practical importance. 
 
 In all the states, the constitutions forbid the establish- 
 ment of a state church or any distinction in favor of any 
 religious denomination. If any advantage whatever were 
 given one, this would be an injury to the others, and any 
 injury suffered on account of religious convictions is op- 
 
 1 Compare, besides the annual reports of the bureau of education 
 and Barnard's American Journal of Education: Troschel, Volks- 
 cliarakter nnd Bildungsanstalten der Nordamerilcaner, 1867 ; Rigg, 
 National Education, 1873; A Statement of tlic Theory of Education 
 in tJte United Mates of America, 1874; F. Adams, The Free School 
 System of tlie United States, 1875; Oilman, Education in America, 
 1770-1876, in the Xorth American Review, 1876. 
 
 - See Coolcy, Const. Lim., 467-478; E. H. Tyler, American Ecclesi- 
 astical Lair, Albany, 1866; F. Vinton, American Canon Law, N. Y., 
 1870; W. Strong, Relations of Civil Law to Clntrch Polity, N. Y., 
 1873; S. B. Smith, Ecclesiastical Law, 2d ed., N. Y., 1878. 
 
 3 Lieber, On Civil Liberty and Self -Government, 99.
 
 OF THE SEPARATE STATES. 315 
 
 posed to the principle of absolute religious freedom. If 
 this is true in relation to religious organizations, it must 
 manifestly also be true as to all individuals. States are 
 therefore unfaithful to this principle if their constitutions 
 make the right to hold certain or all public offices de- 
 pendent upon faith in a higher being, in a future life, etc. 
 Some state constitutions do this. This inconsequence is 
 either not recognized or else is regarded as justifiable, for, 
 as far as the Anglo-Americans are concerned, there is 
 very much truth in Kapp's assertion that religious liberty 
 is understood by the great majority to mean " that every 
 one has indeed the liberty to profess any religion but not 
 the right to acknowledge no religion." l All such pro- 
 visions, however, are constantly and in an increasing 
 ratio disappearing from the state constitutions. 
 
 TAXATION FOR RELIGIOUS PURPOSES is forbidden. Such 
 taxes cannot be levied by the townships and counties any 
 more than by the state. 2 Religion is an entirely private 
 affair, and the imposition of public burdens for private 
 affairs is inadmissible. Iso one can be compelled to con- 
 tribute to the cost of satisfying the religious wants of 
 somebody else. Whoever associates himself with others 
 for such purposes and so voluntarily assumes material 
 
 1 Das Verhdlt niss von Staat und Kirche in der Union. Aus und 
 uber Amerika, II., 48. 
 
 2 For an exception, see Cooley, Const. Limit., 468, note 1. I give 
 the provision of the Illinois constitution on this point verbatim, 
 because it may be regarded as typical: "Neither the general as- 
 sembly, nor any county, city, town, township, school district or other 
 public corporation, shall ever make any appropriation, or pay from 
 any public fund whatever anything, in aid of any church or sectarian 
 purpose, or to help support or sustain any school, academy, seminary, 
 college, university or other literary or scientific institution controlled 
 by any church or sectarian denomination whatever ; nor shall any 
 grant or donation of land, money or other personal property ever be 
 made by the state or any such public corporation to any church or 
 for any sectarian purpose." Art. VIII., sec. 1, 3.
 
 310 T1IE CONSTITUTIONAL AND GENERAL LAW 
 
 obligations is nevertheless, of course, bound to meet these 
 obligations. Controversies arising from this may be de- 
 cided by the ordinary courts, but they can never have a 
 general law character. 
 
 The states are forbidden to compel participation in any 
 religious exercises or usages whatsoever. A member of 
 a religious congregation is so solely because he wishes to 
 be, and he can cease to be so for whatever reason and 
 whenever he pleases. On the other hand, the state has 
 no right to direct religious denominations whom they 
 shall admit to membership, why they shall exclude from 
 membership, how they shall arrange their church rules, 
 when and how they shall impose ecclesiastical punish- 
 ments, etc. It is only when they invade the legal rights 
 of the citizen that the person injured can seek the pro- 
 tection of the courts. The churches, as religious com- 
 munities, have unlimited self-government, but they can 
 never, by appealing to their articles of faith or church 
 regulations, justify the least violation of what the state 
 recognizes as a right. Without detriment to their abso- 
 lute autonomy, they are as absolutely subject to the law 
 as any stock company or social club. 
 
 THE FREE EXERCISE OF KELIGION cannot be hindered by 
 the states. The Chinaman cannot be troubled in his 
 temple of idolatry any more than the Catholic archbishop 
 in his cathedral. ~No one is to be prevented from making 
 the craziest religion his own and living up to it in accord- 
 ance with the dictates of his conscience. But this holds 
 good only so far as he does not thus come into conflict with 
 the laws. The laws, in fact, do not affect religion, but 
 always take care that no one, in the name of religion, 
 shall actually oppose the requirements which the state, 
 as a moral, civilized society, may and must make. 1 He 
 
 1 The Illinois constitution provides : " But the liberty of conscience 
 hereby secured shall not be construed to ... excuse acts of
 
 OF THE SEPARATE STATES. 317 
 
 who docs this encroaches upon the legal rights of others, 
 and indeed in this case upon the legal rights of the com- 
 munity, whereas the constitutional guarantee of religious 
 freedom is to him only a guarantee that on that question 
 neither the state nor any one else shall be permitted to 
 encroach upon his legal rights. 
 
 THE FREE EXPRESSION AND DEFENSE OF RELIGIOUS OPIN- 
 IONS by word or pen cannot be restricted by the state. This 
 right, also, is subject to the restrictions stated in the pre- 
 ceding section. No constitution forbids the legislature 
 to prevent the circulation of immoral writings injurious 
 to public morals. In some states this is made its express 
 duty. This right and this duty cannot, however, be set 
 aside because lasciviousness presents herself in the dra- 
 pery of religious conviction. The exercise of the right is 
 also subject to the further restriction that it shall not be 
 so abused as to violate the legal right of others to follow 
 their convictions. 
 
 The fundamental principles are clear, but it is easy to 
 see that their application to concrete cases must involve 
 many and many kinds of difficulties. Whether the great 
 problem of the relations of church and state has been 
 more satisfactorily solved in the United States, by com- 
 plete separation, than it has been in European states, by 
 more or less of alliance, is not a matter of enquiry here. 
 But a presentation of American general law must point 
 out the fact that the American solution does not, as most 
 Americans believe and assert, absolutely exclude all mis- 
 understandings, etc., between these two highest points 
 of civilization. And even were that the case, yet the 
 facts to be stated hereafter show even more clearly than 
 those already cited that the highly complex development 
 
 licentiousness, or justify practices inconsistent with the peace or 
 safety of the state." Art. II., sec. 1, 8.
 
 .318 THE CONSTITUTIONAL AND GENEKAL LAW 
 
 of the relation between church and state in Europe a 
 development which has gone on a thousand years or 
 more makes the adoption of the American theory in 
 the old world utterly impossible. 
 
 The co-existence of absolute legal dominion over the 
 churches, and of their complete autonomy as organized 
 religious societies, is made possible by the fact that the 
 state does not know them as self-contained, complex 
 powers at all. Legislation concerns itself only with in- 
 dividual congregations, and even with them not as com- 
 munities of one faith, but only as corporations which, 
 under the laws, can acquire property, use it and manage 
 it. The state does not, however, ignore the two impor- 
 tant facts that these are corporations for religious pur- 
 poses, and that every congregation belongs to a sect. 
 Church rules, church laws, even doctrines of faith, can 
 be enforced by the courts, and may control judicial de- 
 cisions. The courts decide onl} r questions of law, but 
 these may depend upon a church rule, etc. Without re- 
 gard to the reasonableness, the justice, the worth or the 
 unworthiness of the articles of faith or of the ordinances 
 of the church, they are treated by the courts as facts 
 from which legal consequences may arise for those who 
 have become subject to them by voluntarily becoming 
 members of a church. The church authorities can bring 
 no questions of a civil nature before their forum, and the 
 state never lends them its strong arm except in questions 
 of civil rights, such as may arise under the rules of a club 
 as well as under the ordinances of a church. 1 In other 
 
 1 The loading principles are plainly and pointedly set forth by J. P. 
 Thompson, Kirche und Staat in den Vereiniyten Staaten ron Amerika. 
 He says : 
 
 " Under the laws of the United States, and of the several states of 
 the Union, each church is at liberty to organize itself according to
 
 OF THE SEPARATE STATES. 319 
 
 cases, however, the courts have recognized the right of 
 an incorporated congregation to retain their church prop" 
 
 erty, although they had changed their faith. 
 
 From the political point of view, the opposite side of 
 the question is the more important. The state takes 
 account of both these facts, by seeking to shape its legis- 
 
 its own model, to frame its own laws, to raise its revenue in its own 
 way, and to administer its own discipline. The broad principle is 
 that a church is a voluntary association ; and its constitution, laws 
 and canons are stipulations between the parties, defining their duties 
 and obligations. The civil rights of the member are still protected 
 by the civil tribunals ; but civil courts will not interfere to prevent 
 an investigation before an ecclesiastical tribunal of a voluntary re- 
 ligious association when proceeding according to its constitution, 
 canons or rules, and when the subject-matter or person is within its 
 jurisdiction. 
 
 " Where it appears that a local church and the rector thereof are 
 members of, and under the supervision and control of, a general and 
 superior church organization, to whose faith and discipline they have 
 voluntarily attached themselves, those who continue to adhere to the 
 faith and discipline of the general church are the beneficiaries for 
 whose use the trustees hold the church property, although they are 
 the minority of the local church organization. 
 
 " Where the proper ecclesiastical tribunals have obtained jurisdic- 
 tion, and have tried and passed sentence of deposition upon an al- 
 leged offender, civil courts not only recognize the validity of, but give 
 effect to, the decisions of the church courts. 
 
 "In all matters of religious faith and practice, the ecclesiastical 
 courts, provided they have obtained jurisdiction, are as entirely inde- 
 pendent of the civil tribunals as the latter are of the former upon all 
 questions relating to property interests. 
 
 " Neither will the courts, in the absence of acts of incorporation 
 which change the common law, permit a majority of the members 
 of a church which is itself connected with and subject to the juris- 
 diction and government of a superior church judicatory to secede 
 from the denomination to which they have voluntarily attached 
 themselves, and take with them the church property. Such an act 
 is regarded in law as a perversion of the trust ; and a court of equity 
 will reach forth its strong arm, and prevent it. The holders of the 
 legal title are regarded in a court of equity as holding it in trust for
 
 320 THE CONSTITUTIONAL AND GENERAL LAW 
 
 la t ion so that the churches cannot easily become a power 
 dangerous to it. The greatest safeguard lies in this, that 
 the whole church can never be incorporated in a state. 
 Only a single congregation can be. It may therefore be 
 said that in a certain sense the legal idea of the church 
 is inseparable from that of a particular building devoted 
 to divine worship. The mere permanent union of per- 
 sons who think alike on religion does not form a church. 
 The legal formation of a church involves the creation of 
 a corporation, of a " congregation," which obtains legal 
 existence by this incorporation. The congregation em- 
 braces all those who, by the acceptance of their contri- 
 butions towards the common costs, have been admitted in 
 a certain way as business partners. What a single con- 
 gregation calls the " church " is the closer union of those 
 whose lives show a livelier participation in, and fuller 
 resignation to, the common ideal interests. The church 
 as such legally exists only as a congregation. 1 The 
 method and conditions of incorporation vary in the dif- 
 ferent states. The congregation is always represented in 
 its relations to the state and the outer world by a board 
 of trustees which must consist in part of laymen. This 
 highly important provision may, indeed, be stripped of 
 all significance. In Xew York the Catholic church has 
 been able to arrange matters so that the trustees always 
 
 the maintenance of the faith and worship of the founders of the or- 
 ganization ; and any diversion of it into another use is so far a breach 
 of trust as to demand the interposition of the court. This position 
 is sustained by many cases, English and American.'' See, also, Chase 
 et al. vs. Cheney, 58 111., 509. In other cases, however, the courts 
 have acknowledged the right of incorporated churches to retain their 
 church property notwithstanding a change of faith. J. P. Thompson, 
 Kirclie und Staat in den Ver. St. von Amerika, 73 et seq. 
 
 1 The spiritual head of the congregation is the minister. He is 
 also the pastor of the church.
 
 OF THE SEPARATE STATES. 321 
 
 consist of the archbishop, the bishop of the diocese, the 
 vicar-general, the pastor of the church, and two of the 
 three laymen first elected by the church. The two lay- 
 men are simply a thin veil to hide the fact that the state 
 has struck its flag to the church. 
 
 The ecclesiastical authorities as such have no power 
 whatever to administer the church property. Even the 
 trustees are subject to certain limitations in this respect. 
 Far more important, however, is the fact that the very 
 right of the congregation to acquire property is limited 
 to a certain extent. These limitations affect not only 
 the amount acquired but the method of acquisition. The 
 right to acquire real estate is particularly limited. Yet 
 these provisions often exist only on paper. Sometimes it 
 is not easy to conceal a violation of them ; sometimes the 
 boards make no attempt to conceal it. Nevertheless, the 
 principles of these laws in regulation of ecclesiastical re- 
 lations provide the means for energetic public action, if a 
 church filled with hierarchical tendencies should ever 
 become possessed of such material power that public opin- 
 ion began to perceive a clanger in it. 
 
 THE ORGANS OF SELF-GOVERNMENT. 1 
 
 99. IN GENERAL. While in Europe the eighteenth 
 century was characterized by excessive centralization, 
 and it is only in the nineteenth that the principles of self- 
 government have been toilsomely and very gradually 
 brought into play against the principle of the state's uni- 
 versal control, the development of the United States has 
 taken exactly the opposite course. Here the most extreme 
 decentralization was the original basis. The history of 
 the separate states naturally contains nothing which offers 
 
 ' J. N. Pomeroy, Municipal Law, N. Y., 1864; J. F. Dillon, Munic- 
 ipal Corporations, 3d ed., 2 vols., Boston, 1881. 
 21
 
 3:2:2 THE CONSTITUTIONAL AND GENERAL LAW 
 
 any analogy to the bitter experiences and hard struggles, 
 through which the federal government bit by bit won the 
 power imperiously demanded by the vital interests of the 
 community, and indeed absolutely necessary for the per- 
 petuation of the Union. The factors of the state govern- 
 ment depend so immediately upon the people that there 
 can scarcely be protracted and serious conflicts between 
 government and people. At most, there may be differ- 
 ences between the larger cities and the legislatures; for 
 it is not inconceivable that the former may think their 
 special interests are systematically neglected or badly 
 treated by the majority of the country representatives, 
 either from ignorance or, indeed, from lack of good will. 
 Cities like !New York, Philadelphia, Boston, Chicago, St. 
 Louis, are too populous and too powerful to allow such 
 an opposition of opinions and interests to win a chronic 
 character, without a struggle. In general, however, 
 centralization can never go further in the single states 
 than public opinion demands or at least permits. And, 
 on the whole, public opinion has thus far held fast to the 
 principle that all local atfairs shall as far as possible be 
 left to local authorities. The constitutional-law authority 
 of the legislatures is great enough to cut down local gov- 
 ernment at one stroke to very modest proportions, for 
 individual rights are never the basis of local government. 
 Considerations of expediency lead the state to create 
 municipal organizations of various kinds and grades; and 
 these have only such powers as the state grants them. 
 The powers are either expressly granted or implied in 
 those expressly granted, because necessary in order to 
 execute the latter. The courts also recognize to a certain 
 extent a law of custom, because as a matter of fact cer- 
 tain powers are rooted so ineradicably in custom, that 
 they are frequently not expressly granted simply because
 
 OF THE SEPARATE STATES. 323 
 
 they are regarded as perfectly self-evident. On the con- 
 trary, powers deduced only by analogy are not recognized 
 by the courts, that is, it must not be inferred because a 
 definite right has been granted that analogous rights 
 also exist. The grant of power is made by general law 
 or by a special act, but there is not in the latter case, any 
 more than in the former, a u contract " (in the sense of 
 the federal constitution) which cannot be broken. Acts 
 of incorporation and charters may be amended just like 
 general laws at any moment by the legislature. They 
 may be entirely repealed, for no vested rights pass under 
 them with which the state thereafter cannot interfere. 1 
 City limits may be extended or curtailed, counties divided 
 or combined, towns abolished, cities degraded to towns, 
 etc., and those concerned cannot seek the protection of 
 
 J This is true only of the poiccrs granted. " It is an unsound and 
 even absurd proposition that political power conferred by the legisla- 
 ture can become a vested right, as against the government, in any 
 individual or body of men." Judge Nelson in People vs. Morris, 13 
 Wend., 331, cited by Cooley, Constitutional Limitations, 269. The 
 property of a municipality is of course not wholly subject to the 
 arbitrary will of the legislature. The appropriate constitutional 
 principles are thus stated by Cooley : " When corporate powers are 
 conferred, there is an implied compact between the state and the cor- 
 porators that the property which they are given the capacity to ac- 
 quire for corporate purposes under their charter shall not be taken 
 from them and appropriated to other uses. If the state grants prop- 
 erty to the corporation, the grant is an executed contract which can- 
 not be revoked. The rights acquired either by such grants, or in any 
 other legitimate mode in which such a corporation can acquire prop- 
 erty, are vested rights and cannot be taken away." But as the state 
 has not only a right of general control over this kind of property, 
 but can also change or annul " corporate powers" themselves, it may 
 under certain circumstances be the state's right, and even its duty, 
 to make some other disposition of the property, but always with the 
 limitation "that the purpose for which the property was originally 
 acquired shall be kept in view, so far as the circumstances will ad- 
 mit, in any disposition that may be made of it." Ibid., p. 270.
 
 32-t THE CONSTITUTIONAL AND GENERAL LAW 
 
 the courts on the ground that their former rights \vere 
 violated. On the other hand, the constitutions often 
 set limits to the legislative power in such matters. These 
 measures can be taken only in a prescribed way or are 
 permitted only under prescribed conditions, for instance, 
 the assent of the parties in interest. Such limiting pro- 
 visions especially abound in the constitutions in regard 
 to the division or union of counties, the partition of the 
 public property or debts when such changes are made, 
 the removal of county seats, etc. 
 
 MUNICIPAL CORPORATIONS are divided into two main 
 classes: municipalities in the more limited sense, which 
 are realty public legal corporations, and those often des- 
 ignated by American publicists as " ^wosi-corporations." 
 The latter are created by general laws and have in every 
 state substantially the same rights and duties. 1 Their 
 raison d'etre is not, as with the municipalities proper, 
 an actual separate existence, economically and socially, 
 but the necessity of dividing the state for administrative 
 purposes into departments of greater or less size. They 
 have properly no natural existence at all. They are in 
 substance merely creatures of art. If a map of the United 
 States which shows the chief subdivisions of the states 
 is examined, the predominance of straight lines strikes 
 
 1 The limits of the two are complex and involved. Cooley, Const. 
 Lim., p. 273, defines townships as "municipal corporations " which do 
 "not usually possess corporate powers under special charters; but 
 exist under general laws of the state," and to which so little " corpora- 
 tive existence is granted," "that they are sometimes spoken of as 
 nondescript in character." D. B. Eaton, on the contrary, says: " Our 
 state legislatures have tended towards becoming mere registering 
 offices for city, village and town charters, which in their provisions 
 are almost as diverse and hostile as were the laws and municipalities 
 of the Middle Ages." Municipal Government, Journal of Social 
 Science, 1875.
 
 OF THE SEPARATE STATES. 325 
 
 one at first glance. These lines bound these chief divis- 
 ions; and these repay examination, because the institu- 
 tions of the thirty-eight states show a far greater similarity 
 as to these than as to the smaller or smallest subdivisions. 
 100. COUNTIES. These chief divisions are now called 
 counties in all the states except Louisiana, where they are 
 known as parishes. Several constitutions direct the legis- 
 latures to give the counties natural boundaries, as far as 
 practicable. As a rule this is impossible, even though the 
 counties need not be of the same size. Many constitutions 
 require that new counties shall be of a minimum size, 
 varying, however, from two hundred and seventy-five 
 to nine hundred square miles. In the newer and larger 
 states four hundred to six hundred square miles is the nor- 
 mal extent. It is evident, therefore, that the counties, 
 even in those states which exceed in size many European 
 kingdoms, never bear the character of provinces. They 
 are subdivisions, but subdivisions with quite extensive 
 powers. The officials as a rule are elected, and elected, 
 like most American officials, for a very limited time. In 
 several states, however, they are appointed by the gov- 
 ernor. Even then, nevertheless, they always bear the 
 character rather of organs of self-government than of gov- 
 ernment officials in the European sense. It is one of the 
 most important distinctions between American and Eu- 
 ropean institutions as De Tocqueville insisted that in 
 Europe more or less even in local government the direct 
 or indirect control of the central government is held to be 
 unavoidable, whereas in the United States the facts are just 
 the other way : the state uses the organs of local gov- 
 ernment to discharge its own tasks, for instance, levying 
 and collecting taxes. Both the extent and the manner of 
 this are different in the different states, for on this point as 
 on all others the organization of self-government varies in
 
 326 THE CONSTITUTIONAL AND GENERAL LAW 
 
 a myriad details. But despite many differences, some of 
 them of no slight importance, all the states offer in their 
 county-systems a sufficiently faithful representation of the 
 nature and form of self-government. The geographical 
 centre of county government is called the county-seat. 
 Here are the court-house and the jail. Every county has its 
 own county court, with a rather limited jurisdiction, very 
 different in the different states. Connected with the court 
 are a sheriff, a coroner, and a prosecuting attorney. The 
 sheriff represents the executive and administrative power 
 of the state. He must preserve the public peace and can 
 summon the inhabitants as &po*se comitatus to aid him in 
 doing so. He enforces the judgment of the courts, makes 
 arrests, is responsible for the prisoners, and therefore has 
 charge of the jail. The jailer is generally named by him, 
 and is usually one of the deputies whom he has a right to 
 appoint, either general or special deputies. He has also 
 certain judicial powers, which are fixed by statute and are 
 much more limited than according to the English common 
 law. In most of the states the constitution limits this im- 
 portant officer's eligibility for re-election. The coroner's 
 chief duty is to investigate, with the aid of a coroners jury, 
 cases of sudden, mysterious or violent death, deaths in 
 prison, etc. The coroner need kno\v nothing of medicine. 
 In Massachusetts the office was abolished in 1877. and the 
 governor was authorized to entrust doctors with the inves- 
 tigation of deaths. At the head of the administration of 
 affairs is a board of county commissioners or supervisors. 
 As a rule they are separate officers, but the boards are 
 sometimes made up of township commissioners or super- 
 visors. The South Carolina constitution makes their pow- 
 ers extend to " roads, highways, ferries, bridges, and in 
 all matters relating to taxes, disbursements of money for 
 county purposes, and in every other case that may be nee-
 
 OF THE SEPARATE STATES. 327 
 
 essary to the internal improvement and local concerns of 
 the respective counties." The North Carolina constitution 
 expressly gives them also " a general supervision and con- 
 trol of the penal and charitable institutions, schools," etc. 
 To fulfill these duties, the board can levy and collect 
 taxes and contract debts (in both these respects the con- 
 stitution or the laws limit their actions), can acquire and 
 dispose of property, can adopt by-laws and pass ordinances 
 and punish any violation of them, can make contracts and 
 bring suits .(and, of course, can themselves be sued). 
 Many constitutions expressly forbid counties, townships, 
 etc., to lend their credit to private corporations or to take 
 any direct interest in private enterprises. The cause of 
 this is the misuse which has often been made of such a 
 power. Speculators have taken advantage of the exag- 
 gerated ideas of the people about the industrial results of 
 railroad schemes. The chancellor so to speak of the 
 administration is the county clerk. Where there is no 
 separate recorder or register of deeds, the clerk acts in that 
 capacity. A treasurer has charge of the county funds. 
 Taxes are often levied by separate officials, who are called 
 assessors. The different county officers are not always 
 elected or appointed for the same terms. Where there is 
 a difference in the terms of office, it is especially the sher- 
 iff and treasurer who are most frequently chosen. 
 
 There is no need of going into detail about the election 
 districts and the already-mentioned school-districts, be- 
 cause these are not organizations with a separate life of 
 their own. 
 
 101. TOWNS AND TOWNSHIPS. The town-system has 
 worked so well in the ]S"ew England states that it has 
 been adopted by several of the middle and most of the 
 western states, and has recently begun to find favor in 
 the south. A county is divided into districts of from
 
 THE CONSTITUTIONAL AND GENERAL LAW 
 
 four to six miles square, called a town or township, and 
 forming a body corporate. Its self-government extends 
 to all local affairs, and rests on the broadest democratic 
 basis. Here democratic self-government, as it existed in 
 the city -republics of antiquity, again asserts itself against 
 the representative system. Public affairs are discussed and 
 decided upon in the town meeting, and every inhabitant 
 who has a vote under the state laws is entitled to attend 
 and to vote at the town meeting. In the announcement 
 of a town meeting, all the questions that will be pre- 
 sented for discussion must be clearly set forth, so that 
 everybody may have time to consider and form an opin- 
 ion. The meetings are usually held in the largest vil- 
 lage, or in the one nearest the centre. Populous towns, 
 indeed, have a hall of their own for this purpose, called 
 the town hall. Where there is none such, the church or 
 the school-house usually serves as a meeting place. The 
 meeting is presided over by a chairman, who is called, in 
 the Xew England states, a moderator. The duties and 
 powers ef the town embrace levying and collecting taxes 
 on the basis of assessments made by the town officials; 
 building and maintaining roads and bridges; police; care 
 of the poor; the school system, under the control of the 
 state school laws; the conduct of all elections, etc. The 
 town officials are generally elected by ballot for one year, 
 but in some states for a longer time. The board of 
 county commissioners finds its parallel in a board of 
 selectmen or trustees. The fact deserves especial men- 
 tion, that at the close of the year they make a general 
 statement of accounts, and at the same time an estimate 
 of the expenditures of the next year, which serves as a 
 basis for the tax levy. Taxes are levied by a board of 
 assessors, and collected by a " tax-collector." The town 
 finances are managed by a treasurer. The selectmen
 
 OF THE SEPARATE STATES. 
 
 are often at the same time assessors and commissioners 
 of the poor. The town clerk often holds also the office 
 of treasurer. The clerk is a very important officer. He 
 not only records the proceedings and conclusions of the 
 town meetings and of the selectmen, but also the birth, 
 marriage and death statistics of the town. School affairs 
 are put in charge of a committee. The officers in charge 
 of the streets are called surveyors or road masters. The 
 police officials are called constables. 
 
 102. CITIES. In 1873, a famous and highly respected 
 American said : " It is not only true that we have not 
 created or adopted any municipal system, but it is also 
 true that we have not, except in the past two years, stud- 
 ied the great city problem, much less gained any true 
 conception of the principles and methods best adapted to 
 a great city government. . . . Surety nothing else on 
 this continent has been so badly managed, or is in a con- 
 dition at once so dangerous or so disgraceful." l Since 
 there is no general American municipal system, it is not 
 possible to sketch in a few lines a correct outline of city 
 government and management. Apart from a few facts 
 of a general nature, the differences are so many and so 
 essential that generalization is barred. I must content 
 myself with a few general remarks, chiefly of a histor- 
 ical character, which may serve to explain and establish 
 the assertion I have quoted. The larger cities are espe- 
 cially to be considered in this matter, partly because it is 
 in them that the evils due to the system, or lack of sys- 
 tem, have come most clearly to light, and partly because 
 it is they which make the problem of municipal govern- 
 ment a question of the first rank. The germs of the 
 weeds which have sprouted up so exuberantly can also 
 
 1 D. B. Eaton, Municipal Government, Journal of Social Science, 
 1873, p. 6.
 
 330 THE CONSTITUTIONAL AND GENERAL LAW 
 
 generally be found in cities of the second and third rank. 
 If the germs have not developed in as startling a wa} T , 
 this is not due to the virtue of the inhabitants. Civic 
 virtue outside of the mushroom mining and railroad 
 cities of the far west nowhere rises high above or falls 
 far below the average level. In these smaller cities the 
 evils are less, on account of all kinds of accidental cir- 
 cumstances, and especially because the capacity of de- 
 velopment of these germs has a fixed relation to the size 
 of the community. 
 
 The war of independence and its general political re- 
 sults did not change the basis of municipal affairs. The 
 cities lived quietly along under their royal charters. It 
 was only in the third decade of the present century that 
 a revolution began. It was not by chance that it coin- 
 cided in time with the first great aggressive movement 
 of the slave-holders' aristocracy in 'the battle over Mis- 
 souri. The growth of the slave-holding power and the 
 radicalization of democracy in the free states kept equal 
 pace. Each was one of the conditions of the other. The 
 farther the radicalization of democracy proceeded, the 
 more the statesman had to make room for the profes- 
 sional politician, able only in the little tricks of party 
 politics, and often a demagogue of the first water. And 
 the more the people changed the leadership of statesmen 
 for the rule of these professional politicians and dema- 
 gogues, the easier did the slavocracy find it to carry 
 through its demands. It therefore most energetically 
 supported the development of this tendency in the north. 
 The infusion of radical democratic principles into munici- 
 pal life was the root of all the evils under which the 
 administration of the larger cities sickened more and 
 more, until the condition of ]N"ew York became en- 
 tirely too monstrous, and with the overthrow of the city
 
 OF THE SEPARATE STATES. 331 
 
 government of 1870, thinking people began to turn theii 
 serious attention to this question. 
 
 It was forgotten that the city of modern times is only 
 an economic and social community, and not also a polit- 
 ical one, as the city of the Middle Ages was. As there 
 was no general system of city government, but each city 
 had its own charter, and special laws could be passed 
 any moment on any matter, the cities especially the 
 large ones found frequent opportunity to get greater 
 powers at the expense of the state. 1 At the same time 
 the doctrine that the franchise is a natural right of every 
 man became more and more the basis of municipal insti- 
 tutions. The mayor, the aldermen and the council (or 
 common council) were elected directly by the people, and 
 the vote of the lowest scamp counted just as much as 
 that of the greatest merchant prince. Whoever knew 
 how to cajole the masses, who contribute little or noth- 
 ing to the public burdens, could take the purse of the city 
 into his hands, a booty great enough to allure both po- 
 litical parties. Instead of the common good, party inter- 
 ests were more and more made paramount in the city 
 elections. The frequent recurrence of the elections, often 
 each year, made it still easier to thrust deep into civic 
 life the dragon-seed of partisanship, while the necessary 
 continuity disappeared more and more from the adminis- 
 
 1 "There has been no greater legislative abuse, no more prolific 
 source of fraud, pillage and litigation, than the accumulation of 
 special city and village laws. In New York, for example, in each of 
 the four years succeeding 1867, the number and bulk of such laws 
 enacted have, I think, exceeded all similar legislation in England, 
 since the enactment of the general municipal corporations act in 
 1835. In 1870 the legislature of New York passed thirty-nine special 
 laws for the city of Brooklyn alone ! " Eaton, p. 12. 
 
 " We have too much surrendered the sovereignty of the states to 
 the claims of cities and villages." Ibid., p. 9.
 
 332 THE CONSTITUTIONAL AND GENEKAL LAW 
 
 t rat ion of city affairs, and the business experience of the 
 officials became steadily less. City offices, like those of 
 the state and Union, were regarded as spoils of the vic- 
 torious party, with which the faithful partisan was to be 
 paid and a new horde of "working" and "practical" 
 politicians was to be allured. The method of appoint- 
 ment was often such that no one could well be made re- 
 sponsible for a bad official, and the consequence of this 
 and of the spoils system in general was that year after 
 year a more doubtful class of persons filled the city 
 offices. The principal official task was not the fulfillment 
 of official duties, but the doing of political work; for 
 whoever forfeited the favor of the local party -leaders 
 also loat his office, and that favor depended upon how 
 much a man was worth to the party. The washed or 
 unwashed ward-politician, whose headquarters were usu- 
 ally a tap-room, drove the man of judgment and common 
 sense entirely out of the field, and the city administra- 
 tion steadily developed into a real rat-pit of demagogues 
 of all sorts and of every grade, from the man who used 
 city politics only as a ladder by which to mount to state 
 or national power, down to the insatiable thief whose 
 first stolen million only inflamed his desire for the sec- 
 ond. The better elements either really could not stem 
 the increasing laxity, or they did not know how to take 
 hold of matters, or they did not make a single serious 
 effort to bring about a thorough-going reform. It is un- 
 doubtedly due in no small degree to the extreme optim- 
 ism of the American people that this evil could gain such 
 proportions. To this was added a stubborn un willing- 
 ness to give up the deep-rooted and beloved doctrine that 
 the rights of man must be the foundation of municipal 
 institutions as well as of national. As long as evils can 
 become much worse than they are, Americans are not
 
 OF THE SEPARATE STATES. 333 
 
 easily persuaded to consider them, and to undertake with 
 energy and earnestness reforms which involve substantial 
 changes. But the principal cause was unquestionably 
 that the evil had so affected all sides of municipal life, 
 and had reached such a point, that it had an immense 
 power of resistance. From whatever side the attack was 
 attempted, almost invincible obstacles presented them- 
 selves. When election day came the citizen, as a rule, 
 had only a choice between two evils. "While he had been 
 attending to his business the thoughts and acts of the 
 politicians had been directed during the whole year upon 
 this decisive day. The world was shared before the citi- 
 zen arrived on the ground : i. <?., the official list of party 
 candidates was prepared, and it remained for him only to 
 vote for one or the other, or else tc throw away his bal- 
 lot. Who had the time, the desire and the commanding 
 position needed to assemble individuals, to organize them 
 and to persuade them to act together, not only independ- 
 ently of the existing party organizations, but in direct 
 opposition to them and the thousands and tens of thou- 
 sands of mercenary voters upon whom they reckoned ? 
 The social, intellectual and moral coherence of the people 
 was becoming less and -less, because of the rapid growth 
 of the cities under the influence of modern means of in- 
 tercourse and production. The destruction of the vital- 
 izing communal spirit, as it had existed in the conserva- 
 tive times of the early republic, a nation of small 
 tradesmen and farmers, was greatly promoted by the 
 immense influx of Europeans of different nations. Power 
 was delivered up to the mass, and the mass was a fluctu- 
 ating chaos, made up of men from all parts of America 
 and Europe. A no small fraction of it either took not 
 the slightest exception to the devastating rule of the dem- 
 agogues, or expected to make money out of it. And if
 
 334 THE CONSTITUTIONAL AND GENERAL LAW 
 
 the pressure became so great that the sensible and intel- 
 gent people once assembled and won a victory at the 
 polls, the politicians soon regained their lost ground ; for 
 they kept united and kept hold of the levers of the polit- 
 ical machine. But the citizen \vent back to his business, 
 and the method of civic administration remained un- 
 changed. In other words, the first causes to which the 
 evil was due were allowed to quietly continue. Public 
 opinion, even, was systematically falsified because the 
 leading politicians bought part of the press by the use of 
 the official advertising. The party leaders on both sides 
 circumvented their own parties by corrupt alliances with 
 each other for the distribution of the offices. . Finally, 
 the crown was placed upon the whole monstrosity when 
 an elected judge, belonging to the gang, covered up the 
 bold knavery and the comprehensive crimes of its mem- 
 bers. 
 
 I have intentionally sketched the situation in New 
 York, because the evils in the communal life of great 
 American cities come most clearly to light here. The 
 other municipal pictures show the same general type; 
 only the coloring and tone are not so bright, and in many 
 cities of the third grade they darken into such a harmless 
 grey, that in a few cases even clear eyes would no longer 
 be able to recognize the general type. 
 
 New York seemed to be the fittest example to present, 
 not only because here the typical lines are easiest recog- 
 nized, but because in New York the bow was bent too 
 far by the demagogues, and the catastrophe, which over- 
 threw in 1870 the rule of the leaders of Tammany Hall, 
 gave rise to a serious investigation of the question of city 
 government. Already, indeed, more or less thorough 
 reforms of every sort had been tried and brought about 
 in man\ r states and the initiative given in many cities,
 
 OF THE SEPARATE STATES. 335 
 
 but it was only through the occurrences in New York 
 that a general and thorough discussion of the question 
 was caused. This has borne rich fruit, even if every- 
 thing which might be desired and even everything which 
 is absolutely necessary has not yet been done. The 
 ends sought are to enforce personal responsibility; to 
 make the mayor more independent; to unite the two law- 
 making bodies into one; to guard the appointment of 
 officials; to place the most important executive officers 
 under more stringent control ; to withdraw certain depart- 
 ments especially the police and fire departments 
 wholly from party control ; to give the public new and 
 better opportunities to watch the deeds and omissions of 
 the city office-holders; to give wider scope to the prin- 
 ciples of civil service reform ; to compress within nar- 
 rower limits the evil of special legislation for cities; and 
 gradually, in place of special charters, to bring to pass 
 general laws for municipalities divided by law into 
 classes. 
 
 If the condition of the great cities, of America was by 
 far the darkest picture in the public affairs of the United 
 States, and is so still, in part, yet, on the other hand, the 
 development of the last fifteen years on this very subject 
 has given manifold proofs of the great political capacity 
 and the great moral seriousness of the American people. 
 It is very evident that American public affairs can neither 
 be rightly understood nor fairly judged, if they are stud- 
 ied by themselves, that is, without regard to their histor- 
 ical development. This cannot be urged with too much 
 emphasis, although the doctrine may seem, on account of 
 its generally recognized validity, only a trite truth. Polit- 
 ically and socially the United States are in all essential 
 particulars a community so like the European civilized 
 world, that Europeans almost always fall into the error
 
 330 CONSTITUTIONAL LAW OF THE SEPARATE STATES. 
 
 of judging- about transatlantic affairs simply by compar- 
 ing them with the corresponding European relations and 
 institutions, and so, in spite of the unconditional recogni- 
 tion of this doctrine, they examine and criticise America 
 from European stand-points. They can readily enumerate 
 the essential facts which have made, and must make, the 
 United States, politically and socially, a sui-generis civil- 
 ized state, but they almost never take these facts into 
 consideration in the right way and at their real worth 
 when this theoretical knowledge is applied to concrete 
 questions. This requires, indeed, a long life among 
 Americans, and long work with them; for the history of 
 the old world presents no analogies, and it is therefore 
 only when guided by a thousand single instances of daily 
 life, by direct personal perception and by experience, 
 that one can fully understand the constant and all-per- 
 vading influence of those factors which are peculiar to 
 the new world. These factors, developed to a high de- 
 gree, point out the goal to be reached as well as the best 
 way to reach it, because they form its positive basis. 
 The more comprehensive and thorough one's knowledge 
 is of the conditions under which the United States have 
 attained their present social and political status, the more 
 convinced will one become, despite all sharp criticism of 
 individual instances, that a judgment of the whole phe- 
 nomenon must be embodied in these words: no people of 
 ancient or modern times has shown a greater genius for 
 founding a state.
 
 CONSTITUTION OF THE UNITED STATES -1787. 
 
 NOTE: The figures after the different clauses refer to the pages of the book. 
 
 We the People of the United States, in Order to form 
 a more perfect Union, establish Justice, insure domestic 
 Tranquility, provide for the common defence, promote 
 the general Welfare, and secure the Blessings of Liberty 
 to ourselves and our Posterity, do ordain and establish 
 this CONSTITUTION for the United States of America. 37, 47. 
 
 ARTICLE I. 
 
 SECTION 1. All legislative Powers herein granted shall 
 be vested in a Congress of the United States, which shall 
 consist of a Senate and House of Representatives. 112. 
 
 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 shall have the Qualifications requisite for Electors 
 of the most numerous Branch of the State Legislature. 
 70, 71, 72. 
 
 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. 80. 
 
 Representatives and direct Taxes shall be apportioned 
 among the several States which may be included within 
 this Union, according to their respective Numbers, which 
 22
 
 338 CONSTITUTION OF THE UNITED STATES 1787. 
 
 shall be determined by adding to the whole Number of 
 Free persons, including those bound to Set vice fora 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 Con- 
 gress of the United States, and within every subsequent 
 Term of ten Years, in such Manner as they shall by LaAV 
 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 enumeration 
 shall be made, the State of New Hampshire shall be en- 
 titled to chuse three, Massachusetts eight, Rhode Island 
 and Providence Plantations one, Connecticut five, New 
 York six, New Jersey four, Pennsylvania eight, Dela- 
 ware one, Maryland six, Virginia ten, North Carolina 
 five, South Carolina five, and Georgia three. 73 (note 
 2), 75, 118. 
 
 When vacancies happen in the Representation from 
 any State, the Executive Authority thereof shall issue 
 Writs of Election to fill such Yacancies. 70. 
 
 The House of Representatives shall chose their Speaker 
 and other Officers ; and shall have the sole Power of Im- 
 peachment. 82, 158. 
 
 SECTION 3. The Senate of the United States shall be 
 composed of two Senators from each State, chosen by 
 the Legislature thereof, for six Years; and each Senator 
 shall have one Vote. 70, 79. 
 
 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 Expi- 
 ration of the fourth Year, and of the third Class at the 
 Expiration of the sixth Year, so that one-third may be
 
 CONSTITUTION OF THE UNITED STATES 1787. 339 
 
 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. 70. 
 
 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. 80. 
 
 The Vice President of the United States shall be Pres- 
 ident of the Senate, but shall have no Vote, unless they 
 be equally divided. 81. 
 
 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. 81. 
 
 The Senate shall have the sole Power to try all Impeach- 
 ments. AVhen 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. 158, 162. 
 
 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. 161. 
 
 SECTION 4. The Times, Places and manner of holding 
 Elections for Senators and Representatives, shall be pre- 
 scribed in each State by the Legislature thereof; but the 
 Congress may at any time by Law make or alter such 
 Regulations, except as to the Places of causing Sena- 
 tors. 76.
 
 340 CONSTITUTION OF THE UNITED STATES 1787. 
 
 The Congress shall assemble at least once in every Year, 
 and such Meeting shall be on the first Monday in Decem- 
 ber, unless they shall by Law appoint a different Day. 81. 
 
 SECTION 5. Each House shall be the Judge of the Elec- 
 tions, Returns and Qualifications of its own Members, 
 and a Majority of each shall constitute a Quorum to do 
 Business ; but a smaller Number may adjourn from day 
 to day, and may be authorized to compel the Attendance 
 of absent Members, in such Manner, and under such Pen- 
 alties as each House may provide. 100. 
 
 Each House may determine the Rules of its Proceed- 
 ings, punish its Members for disorderly Behaviour, and, 
 with the Concurrence of two thirds, expel a Member. 101. 
 
 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. 108. 
 
 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. 82. 
 
 SECTION 0. The Senators and Representatives shall re- 
 ceive a Compensation for their services, to be ascertained 
 bv 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. 104, 104 (note). 
 
 No Senator or Representative shall, during the Time 
 for which he was elected, be appointed to any civil Office 
 under the Authority of the United States, which shall
 
 CONSTITUTION OF THE UNITED STATES 1787. 341 
 
 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. 
 106. 
 
 SECTION 7. All bills for raising Revenue shall originate 
 in the House of Representatives; but the Senate may 
 propose or concur with Amendments as on other Bills. 
 132, 133. 
 
 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 Objec- 
 tions, to the other House, by which it shall likewise be 
 reconsidered, and if approved by two thirds of that 
 House, it shall become a Law. 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 
 
 O 
 
 House respectively. If any Bill shall not be returned by 
 the President within ten Days (Sundays excepted) after 
 it shall have been presented to him, the Same shall be a 
 Law, in Like Manner as if he had signed it, unless the 
 Congress by their Adjournment prevent its Return, in 
 which Case it shall not be a Law. 112, 113 (note). 
 
 Every Order, Resolution, or Vote to which the Concur- 
 rence 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
 
 312 CONSTITUTION OF THE UNITED STATES 1787. 
 
 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 Eules and Limitations prescribed in the 
 Case of a Bill. 113 (note). 
 
 SECTION S. The Congress shall have Power to lay and 
 collect Taxes, Duties, Imposts and Excises, to pay the 
 Debts and provide for the common Defence and general 
 Welfare of the United States; but all Duties, Imposts 
 and Excises shall be uniform throughout the United 
 States; 117,118. 
 
 To borrow Money on the credit of the United States; 
 62 (note), 122. 
 
 To regulate Commerce with foreign Nations, and among 
 the several States, and with the Indian Tribes; 136. 
 
 To establish an uniform Rule of Naturalization, and uni- 
 form Laws on the subject of Bankruptcies throughout 
 the United States; 149. 
 
 To coin Money, regulate the Value thereof, and of 
 foreign Coin, and fix the Standard of Weights and 
 Measures; 121, 150. 
 
 To provide for the Punishment of counterfeiting the 
 Securities and current Coin of the United States; 154. 
 
 To establish Post Offices and post Roads; 150. 
 
 To promote the Progress of Science and useful Arts, 
 by securing for limited Times to Authors and Inventors 
 the exclusive Right to their respective Writings and Dis- 
 coveries; 151. 
 
 To constitute Tribunals inferior to the supreme Court; 
 153. 
 
 To define and punish Piracies and Felonies committed 
 on the high Seas, and Offences against the Law of Na- 
 tions; 153, 163, 200. 
 
 To declare War, grant Letters of Marque and Reprisal,
 
 CONSTITUTION OF THE UNITED STATES 1787. 343 
 
 and make Rules concerning Captures on Land and Water; 
 46 (note), G2 (note), 164, 166, 194, 200, 205. 
 
 To raise and support Armies, but no Appropriation of 
 .Money to that Use shall be for a longer Term than two 
 Years; 134, 167. 
 
 To provide and maintain a Navy; 167. 
 
 To make Rules for the Government and Regulation of 
 the land and naval Forces; 171. 
 
 To provide for calling forth the Militia to execute the 
 Laws of the Union, suppress Insurrections and repel In- 
 vasions; 170. 
 
 To provide for organizing, arming, and disciplining, 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 Offi- 
 cers, and the Authority of training the Militia according 
 to the discipline prescribed by Congress; 169, 170. 
 
 To exercise exclusive Legislation in all Cases whatso- 
 ever, 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 172, 174. 
 
 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 Gov- 
 ernment of the United States, or in any Department or 
 Officer thereof. 45, 54, 158. 
 
 SECTION 9. The Migration or Importation of such Per- 
 sons as any of the States now existing shall think proper 
 to admit, shall not be prohibited by the Congress prior
 
 344: CONSTITUTION OF THE UNITED STATES 1787. 
 
 to the Year one' thousand eight hundred and eight, but a 
 Tax or duty may be imposed on such Importation, not 
 exceeding ten dollars for each Person. 19. 
 
 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. 190. 
 
 ~No Bill of Attainder or ex post facto Law shall be 
 passed. 156, 223. 
 
 No Capitation, or other direct, tax shall be laid, unless 
 in proportion to the Census or Enumeration herein before 
 directed to be taken. 118. 
 
 No Tax or Duty shall be laid on Articles exported from 
 any State. 118. 
 
 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. 148. 
 
 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. 133. 
 
 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. 106, 225. 
 
 SECTION 10. No State shall enter into any Treaty, Al- 
 liance, 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
 
 CONSTITUTION OF THE UNITED STATES 1787. 345 
 
 Law impairing the Obligation of Contracts, or grant any 
 Title of Nobility. 123, 164, 166, 24, 225, 231. 
 
 No State shall, without the Consent of the Congress, 
 lay any Imposts or Duties on Imports or Exports, except 
 what may be absolutely necessary for executing its 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 
 all such Laws shall be subject to the Revision and Con- 
 troul of the Congress. 120, 149 (note). 
 
 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 any 
 other State, or with a foreign Power, or engage in "War, 
 unless actually invaded, or in such imminent Danger as 
 will not admit of delay. 120, 164, 165, 167. 
 
 ARTICLE II. 
 
 SECTION 1. The executive Power shall be vested in a 
 President of the United States of America. 82. 
 
 He shall hold his Office during the Term of four years, 
 and, together with the Vice President, chosen for the 
 same Term, be elected, as follows: 
 
 Each State shall appoint, in such Manner as the Legis- 
 lature 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 
 of Trust or Profit under the United States, shall be aj>- 
 pointed an Elector. 85. 
 
 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. 85.
 
 CONSTITUTION OF THE UNITED STATES 1787. 
 
 !N"o person except a natural born Citizen, or a Citizen 
 of the United States, at the time of the Adoption of this 
 Constitution, shall be eligible to the Office of President; 
 neither shall any Person be eligible to that office who 
 shall not have attained to the Age of thirty five Years, 
 and been fourteen Years a Resident within the United 
 States. Si, 84 (note). 
 
 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 elected. 83. 
 
 The President shall, at stated Times, receive for his 
 Services, a Compensation, which shall neither be encreased 
 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. 106. 
 
 Before he enter on the Execution of his Office, he shall 
 take the following Oath or Affirmation : " I do solemnly 
 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 Constitution 
 of the United States." 45. 
 
 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 Opin- 
 ion, in writing, of the principal Officer in each of the 
 executive Departments, upon any Subject relating to the
 
 CONSTITUTION OF THE UNITED STATES 1787. 347 
 
 Duties of their respective Offices, and he shall have Power 
 to grant Keprieves and Pardons for Offenses against the 
 United States, except in Cases of Impeachment. 91, 162, 
 192, 210, 211 (note 4). 
 
 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 Ministers 
 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. 98, 199, 201, 207. 
 
 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. 209. 
 
 SECTION 3. He shall from time to time give the Con- 
 gress Information of the state of the Union, and recom- 
 mend to their Consideration such Measures as he shall 
 judge necessary and expedient. 114. 
 
 He may, on extraordinary Occasions, convene both 
 Houses, or either of them, and, in Case of Disagreement 
 between them, with Respect to the Time of Adjourn- 
 ment, he may adjourn them to such Time as he shall 
 think proper; he shall receive Ambassadors and other 
 public Ministers; he shall take Care that the Laws be 
 faithfully executed, and shall Commission all the Officers 
 of the United States. 44, 81 (and note 2), 199, 209. 
 
 SECTION 4. The President, Vice President and all civil 
 Officers of the United States, shall be removed from Office
 
 348 CONSTITUTION OF THE UNITED STATES 1787. 
 
 on Impeachment for, and Conviction of, Treason, Bribery, 
 or other high Crimes and Misdemeanors. 159. 
 
 ARTICLE III. 
 
 SECTION 1. The judicial Power of the United States, 
 shall be vested in one supreme Court, and in such inferior 
 Courts as the Congress ma} 7 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 
 Compensation, which shall not be diminished during their 
 Continuance in Office. 60, 96, 98 (note), 106. 
 
 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 affect- 
 ing Ambassadors, other public Ministers and Consuls ; 
 to all Cases of admiralty and maritime Jurisdiction ; to 
 Controversies between two or more States; to Contro- 
 versies to which the United States shall be a Party ; be- 
 tween a State and Citizens of another State; between 
 Citizens of different States; between Citizens of the 
 same State claiming Lands under Grants of different 
 States, and between a State, or the Citizens thereof, and 
 foreign States, Citizens or subjects. 60, 154, 215. 
 
 In all Cases affecting Ambassadors, other public Minis- 
 ters 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 Ilegulations 
 as the Congress shall make. 66 (note), 221, 222. 
 
 The Trial of all Crimes, except in Cases of Impeach- 
 ment, shall be by Jury; and such Trial shall be held in
 
 CONSTITUTION OF THE UNITED STATES 1787. 349 
 
 the State where the said Crimes shall have been commit- 
 ted; but when not committed within any State, the Trial 
 shall be at such Place or Places as the Congress may by 
 Law have directed. 223. 
 
 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. 154. 
 
 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. 154. 
 
 AETICLE IV. 
 
 SECTION 1. Full Faith and Credit shall be given in 
 each State to the public Acts, Eecords, 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. 243. 
 
 SECTION 2. The Citizens of each State shall be entitled 
 to all Privileges and Immunities of Citizens in the sev- 
 eral States. 247, 249. 
 
 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 Au- 
 thority of the State from which he fled, be delivered up 
 to be removed to the State having Jurisdiction of the 
 Crime. 156,245. 
 
 No Person held to Service or Labour in one State, under 
 the Laws thereof, escaping into another, shall, in Conse- 
 quence of any Law or Regulation therein, be discharged
 
 350 CONSTITUTION OF THE UNITED STATES 17S7. 
 
 from such Service or Labour, but shall be delivered up 
 on Claim of the Party to whom such Service or Labour 
 may be due. 246 (note 2). 
 
 SECTION 3. Kew States may be admitted by the Con- 
 gress into this Union; but no new State shall be formed 
 or erected within the Jurisdiction of any other State; nor 
 any State be formed by the Junction of two or more 
 States, or Parts of States, without the Consent of the 
 Legislatures of the States concerned as well as of the Con- 
 gress. 185. 
 
 The Congress shall have Power to dispose of and make 
 all needful Rules and Regulations respecting the Territory 
 or other Property belonging to the United States; and 
 nothing in this Constitution shall be so construed as to 
 Prejudice any Claims of the United States, or of any 
 particular State. 176. 
 
 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 
 Yiolence. 1G5, 171, 236. 
 
 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 Legisla- 
 tures of two thirds of the several States, shall call a 
 Convention for proposing Amendments, which, in either 
 case, shall be valid to all Intents and Purposes, as Part 
 of this Constitution, when ratified by the Legislatures of 
 three fourths of the several States, or by Conventions in 
 three fourths thereof, as the one or the other Mode of 
 Ratification may be proposed by the Congress; Provided
 
 CONSTITUTION OF THE UNITED STATES 1787. 351 
 
 that no Amendment which may be made prior to the 
 Year One thousand eight hundred and eight shall in any 
 Manner affect the first and fourth Clauses in the Ninth 
 Section of the first Article; and that no State, without 
 its Consent, shall be deprived of its equal Suffrage in the 
 Senate. 52. 52 (note), 262. 
 
 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. 122. 
 
 This Constitution, and the Laws of the United States 
 which shall be made in Pursuance thereof; and all Treat- 
 ies made, or which shall be made, under the Authority 
 of the United States, shall be the supreme Law of the 
 Land; and the Judges in every State shall be bound 
 thereby, anything in the Constitution or Laws of any 
 State to the Contrary notwithstanding. 43, 205. 
 
 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 relig- 
 ious Test shall ever be required as a Qualification to any 
 Office or public Trust under the United States. 225. 
 
 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. 23. 
 
 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
 
 352 CONSTITUTION OF THE UNITED STATES 1787. 
 
 Eighty seven, and of the Independence of the United 
 States of America the Twelfth. IN WITNESS whereof 
 We have hereunto subscribed our Names. 
 
 Go: WASHINGTON 
 Presidt. and Deputy from Virginia. 
 
 NEW HAMPSHIRE. 
 JOHN LANGDON, NICHOLAS GILMAN. 
 
 MASSACHUSETTS. 
 XATHANIEL GORHAM, RUFUS KING. 
 
 CONNECTICUT. 
 WM. SAM'L. JOHNSON, ROGER SHERMAN". 
 
 NEW YORK. 
 
 ALEXANDER HAMILTON. 
 
 NEW JERSEY. 
 
 WIL: LIVINGSTON, WM. PATERSON, 
 
 DAVID BREARLEY, JONA. DAYTON. 
 
 PENNSYLVANIA. 
 
 B. FRANKLIN, THOS. FITZSIMONS, 
 
 THOMAS MIFFLIN, JARED INGERSOLL, 
 
 ROBT. MORRIS, JAMES WILSON, 
 
 GEO. CLYMER, Gouv. MORRIS. 
 
 DELAWARE. 
 
 GEO. READ, RICHARD BASSETT, 
 
 (TUNNING BEDFORD, Jun., JACO: BROOM, 
 
 JOHN DICKINSON. 
 
 MARYLAND. 
 
 JAMES McHENRY, DAN. CARROLL, 
 
 DAN. JENIFER, of St. Thomas. 
 
 VIRGINIA. 
 JOHN BLAIR, JAMES MADISON, Jr.
 
 CONSTITUTION OF THE UNITED STATES 1787. 353 
 
 NORTH CAROLINA. 
 
 WM. BLOUNT, HUGH WILLIAMSON, 
 
 RICH'D DOBBS SPEIGHT. 
 
 SOUTH CAROLINA. 
 
 J. RUTLEDGE, CHARLES PINCKNEY, 
 
 CHARLES COTESWORTH PINCKNEY, PIERCE BUTLER. 
 
 GEORGIA. 
 WILLIAM FEW, ABR. BALDWIN. 
 
 Attest: WILLIAM JACKSON, Secreta/ry. 
 
 23
 
 354: CONSTITUTION OF THE UNITED STATES 1787. 
 
 ARTICLES IN ADDITION TO. AND AMENDMENT 
 OF, THE CONSTITUTION OF THE UNITED 
 STATES OF AMERICA, PROPOSED BY CON- 
 GRESS, AND RATIFIED BY THE LEGISLAT- 
 URES OF THE SEVERAL STATES PURSUANT 
 TO THE FIFTH ARTICLE OF THE ORIGINAL 
 CONSTITUTION. 28. 
 
 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. 29, 
 50 (note), 226, 228, 229. 
 
 ARTICLE II. 
 
 A well regulated Militia, being necessary to the secu- 
 rity of a free State, the right of the people to keep and 
 bear Arms, shall not be infringed. 29, 50 (note), 230. 
 
 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. 29, f>0 
 
 (note), 171. 
 
 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. 29, 50 
 (note). 251, 257.
 
 CONSTITUTION OF THE UNITED STATES 1787. 355 
 'ARTICLE V. 
 
 No person shall be held to answer for a capital, or 
 otherwise infamous crime, unless on a presentment or in- 
 dictment 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 offense 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 de- 
 prived of life, liberty, or property, without due process of 
 law; nor shall private property be taken for public use, 
 without just compensation. 29, 50 (note), 251, 258, 261 
 (note). 
 
 ARTICLE VI. 
 
 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 wit- 
 nesses against him; to have compulsory process for ob- 
 taining witnesses in his favor, and to have the Assistance 
 of Counsel for his defense. 29, 50 (note), 251, 258. 
 
 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. 29, 50 
 (note), 222, 251, 261.
 
 356 CONSTITUTION OF THE UNITED STATES 1787. 
 
 ARTICLE VIII. 
 
 Excessive bail shall not be required, nor excessive fines 
 imposed, nor cruel and unusual punishments inflicted. 29, 
 
 50 (note), 251, 258, 261. 
 
 ARTICLE IX. 
 The enumeration in the Constitution, of certain rights, 
 
 o ' . 
 
 shall not be construed to deny or disparage others re- 
 tained by the people. 29. 
 
 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. 29, 
 
 51 (and note), 53, 5tt, 55. 
 
 ARTICLE XI. 
 
 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. 30, 220. 
 
 ARTICLE XII. 
 
 The Electors shall meet in their respective states, and 
 vote by ballot for President and Vice-President, one of 
 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
 
 CONSTITUTION OF THE UNITED 8TATK8 1787. 357 
 
 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 for President, shall be the President, if such num- 
 ber be a majority of the whole number of Electors ap- 
 pointed ; and if no person have such majority, then from 
 the persons 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 neces- 
 sary 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 Yice-President shall act as Presi- 
 dent, as in the case of the death or other constitutional 
 disability of the President. The person having the great- 
 est 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 num- 
 ber of Senators, and a majority of the whole number shall 
 be necessary to a choice. But no person constitutionally 
 ineligible to the office of President shall be eligible to that 
 of Vice-President of the United States. 30, 84, 89.
 
 358 CONSTITUTION OF THE UNITED STATES 1787. 
 ARTICLE XIII. 
 
 SECTION 1. 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. 30, 31 
 (note), 230. 
 
 SECTION 2. Congress shall have power to enforce this 
 article by appropriate legislation. 
 
 ARTICLE XIV. 
 
 SECTION 1. 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 wherein 
 they reside. No State shall make or enforce any law 
 which shall abridge the privileges or immunities of citi- 
 zens of the United States; nor shall any State deprive 
 any person of life, liberty, or property, without due 
 process of law; nor deny to any person within its juris- 
 diction the equal protection of the laws. 30, 250, 251. 
 
 SECTION 2. Representatives shall be apportioned among 
 the several States according to their respective numbers, 
 counting the whole number of persons in each State, ex- 
 cluding 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, Eepresentatives 
 in Congress, the Executive and Judicial officers of a 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 number of such male 
 citizens shall bear to the whole number of male citizens 
 twenty-one years of age in such State. 30, 73.
 
 CONSTITUTION OF THE UNITED 8VATE8 1787. 359 
 
 SECTION 3. No person shall be a Senator or Repre- 
 sentative in Congress, or 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, as a member of Congress, or as an officer 
 of the United States, or as a member of any State Leg- 
 islature, 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. 30, 80, 100 (note 2). 
 
 SECTION 4. The validity of the public debt of the United 
 States, authorized by law, including debts incurred for 
 payment of pensions and bounties for services in suppress- 
 ing 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 insurrec- 
 tion or rebellion against the United States, or my claim 
 for the loss or emancipation of any slave; but all such 
 debts, obligations and claims shall be held illegal and 
 void. 30, 122 (note 1). 
 
 SECTION 5. The Congress shall have power to enforce, 
 by appropriate legislation, the provisions of this article. 
 
 ARTICLE XV. 
 
 SECTION 1. 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 pre- 
 vious condition of servitude. 30, 75. 
 
 SECTION 2. The Congress shall have power to enforce 
 |his article by appropriate legislation.
 
 INDEX. 
 
 Adams, John, sedition law passed during his presidency, 229. 
 Adams, J. Q., on adoption of constitution, 20; elected president by 
 
 house, 86, note 1. 
 
 Admission of new states, 33, 76, note 2, 185. 
 Albany congress of 1754. 4. 
 Alien and sedition laws, 40, note 2, 229. 
 Aliens, non-naturalized, may have franchise, 72. 
 Amendment of the constitution, 15, 28, 31 (note), 52, 262. 
 Amendment of state constitutions, 292. 
 Amendments, ratification of thirteenth, fourteenth and fifteenth, 81. 
 
 note. 
 
 Annapolis convention of 1786, 15. 
 Appropriations, 131, and note. 
 Appropriations, statistics of, 135. 
 Articles of confederation, 3, 8. 
 Arthur, Chester A., becomes president, 83; negotiates commercial 
 
 treaties, 204, note. 
 Arrests, 257. 
 Assembly, right of. 230. 
 Attainder, bills oJ, 223. 
 Attempts at federation, t. 
 Bank of the United States, 126, note 2. 
 Bearing arms, right of, 230. 
 Benevolent institutions (state), 284. 
 Bible in public schools, 309. 
 Bill of rights, 29, 50, 267. 
 Bills of attainder, 223. 
 Brevet rank, 197. 
 Cabinet, has no executive power, 83; no constitutional existence, 90; 
 
 no legal or political responsibility, 90 
 Cabinet in the states, 288. 
 Calhoun, John C., on nullification, 40. 
 Capitation taxes (state), 299.
 
 362 INDEX. 
 
 Charters, 233. 
 
 Checks and balances, system of, 60. 
 
 Church and state, 225, 314. 
 
 Citizens of the separate states, 248. 
 
 City government, 329. 
 
 Civil rights, 257. 
 
 Civil service reform, 106, note, 208, note, 256, 275, 290. 
 
 Cleveland, Grover, opposes coinage of silver, 124, note. 
 
 Clinton, George, opposes ratification of the constitution, 25. 
 
 Coins and coinage, 124, note. 
 
 Colleges and universities, 313. 
 
 Common law in America, 161. 
 
 Commerce, 136. 
 
 Comity between states, 242. 
 
 Committees of congress, 109. 
 
 Committees of the whole, 111, note 1. 
 
 Compulsory education, 306. 
 
 Concurrent jurisdiction of state and federal courts, 212. 
 
 Concurrent powers in general, 56 ; as to taxation, 120 ; as to trade and 
 commerce, 142, 147. 
 
 Condemnation, 253, 261, note 1. 
 
 Confederation, articles of, 3, 8. 
 
 Conflicts of authority, in general, 58. 
 
 Congress (Albany) of 1754, 4; (New York) of 1765, 5; (Philadelphia) 
 of 1774, 5; (do.) of 1775, 6. 
 
 Congress, election of its members, 71 ; its sessions, 81 ; organization, 
 81; powers over its own members, 103; judicial functions, 103; 
 privileges and immunities of members, lOi; their salaries, 105 ; 
 procedure, 108; committees, 109, note; general powers, 116; finan- 
 cial tasks, 130; regulates immigration, 148; naturalization, 149; 
 postoffices, 150; its power to build post-roads, 150, note 3; regu- 
 lates weights and measures, 150; patents and copyrights, 151 ; its 
 criminal jurisdiction, 153; treason, 154; impeachment, 158; pow- 
 ers as to foreign relations, 163, 199, note 1 ; war powers, 164, 194; 
 militia, 171; District of Columbia. 172; national property, 174; 
 territories, 175; admission of new states, 185; controls suspen- 
 sion of habeas corpus, 196; decides whether state government is 
 republican in form, 238. 
 
 Congressional elections, 71. 
 
 Conscription, 167. 
 
 Constitution, ratification of, 24 ; amendment of, 52, 262 ; rules for its 
 interpretation and construction, 55, 116.
 
 INDEX. 363 
 
 Constitutions (state), in general, 2G6 : their constituent parts, 267. 
 
 Constitutional conventions (state), 264. 
 
 Contracts, 231. 
 
 Controversies between states, 219. 
 
 Conventions, constitutional (state), 264. 
 
 Conventions, national, 87. 
 
 Conventions of 1780 (Hartford), 13; of 1786 (Annapolis), 15; of 1787 
 (Philadelphia), 16, 43. 
 
 Copyrights, 152. 
 
 Copyrights, international, 153. 
 
 Criminal law, congressional powers concerning, 154. 
 
 Criminal procedure, 258. 
 
 Corporations, municipal, 324. 
 
 Court-martials, 197, note 3. 
 
 Courts, federal, jurisdiction of, 211 ; practice and pleading in, 221. 
 
 Courts, state, 291. 
 
 Courts, territorial, 98, note. 
 
 Counties, 325. 
 
 County officers, 326. 
 
 Dartmouth College case, 235. 
 
 Debt, public, 117; statistics of, 126, note 2. 
 
 Debts of states, 279. 
 
 Declaration of Independence, 7. 
 
 Demonetization of silver, 124, note. 
 
 Department of justice, organization and work of, 95, note. 
 
 Departments, the executive, 95, and note. 
 
 Direct taxes, 73, note 2. 
 
 District of Columbia, 172. 
 
 Division of powers, 67. 
 
 Divorce, national law of, suggested, 243. 
 
 Due process of law, 252. 
 
 Duties on exports, 118, and note. 
 
 Duties on imports, statistics of , 121, note 2. 
 
 Education, compulsory, 306. 
 
 Election of president and vice-president, 85. 
 
 Election, presidential, of 1876, 88. 
 
 Elections, congressional, 71, 77. 
 
 Elective judiciary (state), 292. 
 
 Electoral college, 87. 
 
 Electoral commission of 1876, 88. 
 
 Electoral votes disputed, Missouri in 1821 ; Michigan in 1827 ; Wis- 
 consin in 1857; Louisiana in 1873; Florida, South Carolina and 
 Louisiana in 1877, 81.
 
 INDEX. 
 
 Electors, presidential, how chosen, 85. 
 
 Emancipation proclamation. 115, note 2: 195, note 1. 
 
 Eminent domain, 253, 261, note 1. 
 
 Enabling acts, 187. 
 
 Executive departments, 95, and note. 
 
 Executive power, belongs wholly to president, 82. 
 
 Executive power in the states, 285. 
 
 Export duties, 118 and note. 
 
 Extradition, in general, 245 ; cannot be compelled, 246. 
 
 Ex post facto laws, 223. 
 
 Factory laws, 283. 
 
 Federal and state authority, limits of, 56. 
 
 Federal courts, jurisdiction of, 211 ; practice and pleading in, 221. 
 
 Federal government, powers of, 53 ; organization of, 66. 
 
 Federal judges, salaries of. 106. 
 
 Federation, early attempts at, 4. 
 
 Fillmore, Millard, 83. 
 
 Finance, 117. 
 
 Forestry, 282. 
 
 Foreign relations, 163, 198. 
 
 Franchise may be given non-naturalized aliens, 72. 
 
 Freedom of conscience, 223. 
 
 Freedom of the press, 228. 
 
 Freedom of speech, 228. 
 
 Governor of a state, his functions, 286. 
 
 Granger cases, 235. 
 
 Grant, U. S., seeks third term nomination, 69, note; recommends 
 purchase of telegraph lines by government, 145, note 2 ; proposes 
 constitutional amendment providing for non-sectarian public 
 schools, 310, note 2. 
 
 Habeas corpus, suspension of, 196. 
 
 Hamilton, Alexander, writes the Federalist, 24; recommends a na- 
 tional bank, 126, note 2. 
 
 Hartford convention of 1780, 13. 
 
 Hayes, R. B., how he became president, 90; vetoes law remonetizing 
 silver, 124, note. 
 
 Henry, Patrick, opposes unconditional ratification of the constitu- 
 tion, 24. 
 
 Historical method, 2. 
 
 Homestead exemption, 298, note 2. 
 
 Houston, Samuel, 103, note 2. 
 
 Illinois, minority representation in, 269, note. 
 
 Immigration, 148.
 
 INDEX. 365 
 
 Impeachment, 158. 
 
 Implied powers, 54, 116. 
 
 Implied restrictions on state action, 271. 
 
 Import duties, statistics of, 121, note 2. 
 
 Imports, statistics of, 121, note 2. 
 
 Income taxes (state), 301. 
 
 Independence, declaration of, 7. 
 
 Indians, 136, notes 2, 3 ; 248, note 4. 
 
 Individual rights, 251. 
 
 Instruction, right of, 78. 
 
 Internal improvements, 150, note 3 ; 276, 280. 
 
 Interior department, organization and work of, 95, note. 
 
 International copyright, 153. 
 
 Interpretation of constitution, rules for, 55, 116. 
 
 Jackson, Andrew, his farewell address, 115, note 1; his views on in- 
 ternal improvements, 150, note 3; demoralizes the civil service, 
 208. 
 
 Jefferson, Thomas, opposes the two-chamber system, 20. 
 
 Johnson, Andrew, becomes president, 83 ; his conflict with congress, 
 93, note. 
 
 Johnston, R. N., elected vice-president by senate, 86, note 2. 
 
 Judges, federal, hold office during good behavior, 98 ; their salaries, 
 106. 
 
 Judicial powers of United States, 60. 
 
 Jurisdiction, concurrent, of state and federal courts, 212. 
 
 Jury, in criminal cases, 259; in civil cases, 261. 
 
 Kentucky and Virginia resolutions, 40, note 2. 
 
 Laisser faire theory, 280. 
 
 Land grants, 178, 276, note, 305. 
 
 Land?, national, survey and sale of, 179, note. 
 
 Law, due process of, 252. 
 
 League (New England) of 1643, 4. 
 
 Lee, Robert E., opposes secession, 157. 
 
 Legal tender cases, 62, note. 
 
 Legal tenders, 122, 125, note 3. 
 
 Legislative methods (state), 272. 
 
 Legislatures (state), in general, 268 ; cannot instruct senators, 80. 
 
 License and business taxes (state), 302. 
 
 Lincoln, Abraham, his emancipation proclamation, 115, note 2; 195, 
 note 1. 
 
 Madison, James, aids in writing the Federalist and carries ratifica- 
 tion in Virginia, 25; his views on conditional ratification, 26;
 
 306 INDEX. 
 
 favors use of general expressions in constitution, 53; champions 
 state rights, 61, note: declares legal tender notes unconstitu- 
 tional, 123, note 3. 
 
 Military academy, West Point, 168, note. 
 
 Military affairs, 164, 192. 
 
 Militia, 169, 230, 287, note 2. 
 
 Minority representation (in Illinois), 269, note. 
 
 Monroe, James, on internal improvements, 150, note 3. 
 
 Morrnonism, 226, note 2. 
 
 Morris, Gouveraieur, favors ratification of constitution, 27. 
 
 Municipal corporations, 324. 
 
 National debt, statistics of, 126, note 2. 
 
 Naturalization, 149. 
 
 National banks, 122. 
 
 National sovereignty, 50. 
 
 National lands, survey and sale of, 179, note. 
 
 National conventions, 87. 
 
 Navigation laws-, 231. 
 
 Naval academy, Annapolis, 1CS, note. 
 
 Navy department, organization and work of, 95, note. 
 
 New England league of 1G43, 4. 
 
 New states, admission of, 33, 76, note 2. 
 
 New York and Virginia delay ratifying constitution, 24. 
 
 New York congress of 1765, 5. 
 
 Nobility, titles of, 225, note 4. 
 
 Nomination of candidates for president, 87. 
 
 Non-coercion theory, 41. 
 
 Non-interference theory, 280. 
 
 Normal schools, 310. 
 
 Office, tenure of, 61. 
 
 Organization of federal government, 66. 
 
 Paper money in the United States, history of, 126, note 2, 
 
 Parliamentary government, 92, 191, note. 
 
 Parliamentary government in the states, 289. 
 
 Pardons, 210. 
 
 Patents, 151. 
 
 People vs. population, 47. 
 
 Petition, right of, 230. 
 
 Philadelphia congress of 1774, 5. 
 
 Philadelphia congress of 1775, 6. 
 
 Philadelphia convention of 1787, 16, 43. 
 
 Police powers of the states, 142.
 
 INDEX. 367 
 
 Polk, J. K., consults senate before making treaty, 201, note. 
 
 Population and area, statistics of, 34. 
 
 Population vs. people, 47. 
 
 Powers of federal government, 53. 
 
 Postoffice department, organization and work of, 95, note. 
 
 Practice and pleading in federal courts. 221. 
 
 Preamble to the constitution, 37. 
 
 President, bas all tbe executive power, 82; election of, 83; his salary, 
 106; his inaugural address, 115; his general powers, 190; military 
 powers, 192; war-powers, 194; cannot suspend habeas corpus, 
 196 ; powers as to foreign relations, 199 ; treaty -power, 200 ; ap- 
 pointment of officials, 206 ; pardoning power, 210. 
 
 Presidential election of 1876, 86. 
 " electors, 85. 
 " messages, 114. 
 " proclamations, 115. 
 
 Private property, taking for public use, 253; dedication to public- 
 uses, 254. 
 
 Public debt, 117. 
 
 Public use of private property, 254. 
 
 Public works (state), 284. 
 
 Railroads, 145, note 2, 255. 
 
 Ratification of constitution. 24. 
 
 Re-admission of states, 31, note, 47, 188, note. 
 
 Real estate owned by United States, 174. 
 
 Reconstruction, 47, 240. 
 
 Reform, civil service, 106, note, 208, 256, 275, 290. 
 
 Regulation of commerce, 136. 
 
 Religious liberty, 225. 
 
 Removal of causes, 216, note 2. 
 
 Republican form of government, guarantee of, 236. 
 
 Resulting powers, 116. 
 
 Revenue, federal, statistics of, 121, note 2, 135. 
 
 Searches, 257. 
 
 Schools, normal, 310. 
 
 Schools, public, 304. 
 
 Schurz, Carl, his Indian policy, 136, note 8. 
 
 Secession, duty of preventing it by force, 45. 
 " ordinances of, null and void, 46. 
 " theory of, 41. 
 
 Seizures, 257. 
 
 Senators, election of, 77; legislatures cannot instruct them, 78.
 
 368 INDEX. 
 
 Seward, W. H., his views on initiative of the house in making ap- 
 propriations, 132; denies congressional jurisdiction of foreign 
 affairs, 199; as governor of New York refuses request for extra- 
 dition, 245. 
 
 Silver demonetized, 124, note. 
 
 Slavery, 18, 19, 175, 230. 
 
 Social-political legislation, 283. 
 
 Sovereignty of United States, 50. 
 
 Special legislation (state), 275. 
 
 State department, organization and work of, 95, note. 
 
 State courts, 291. 
 " debts, 279. 
 " sovereignty, 39, 157. 
 
 States, the, readmission of, 31, note, 47, 188, note; their police 
 powers, 142 ; admisssion to the Union, 185 ; controversies be- 
 tween them, 219; cannot be sued, 220; their citizenship, 248; 
 constituent parts of their constitutions, 267 ; their legislative pow- 
 ers, 268 ; implied restrictions upon them, 271 ; their legislative 
 methods, 272 ; special legislation. 275 ; social-political legislation, 
 283 ; impeachment, 285 ; the executive power, 285 ; the governor, 
 286; the cabinet, 288; parliamentary government, 289; courts, 
 291 ; amendment of constitutions, 292 ; taxes in general, 296 ; 
 capitation tax, 299 ; income tax, 301 : license and business taxes, 
 302. 
 
 Statistics of population and area, 34; of imports, 121, note 2; of fed- 
 eral revenue, 121, note 2, 135; of the national debt, 126, note 2; 
 of appropriations, 135; of land-grants, 276, note. 
 
 Stephens, A. H., opposes secession, 157. 
 
 Supreme court, packed to reverse legal tender cases, 62, note ; its de- 
 cisions on constitutional questions, 63 ; limits of its jurisdiction, 
 66, note ; its stability, 69 ; cannot compel extradition, 246. 
 
 System of checks and balances, 60. 
 
 Taxation, 117. 
 
 " direct, 73, note 2. 
 
 " (state), 296, 299, 301, 302. 
 
 Territories, 175. 
 
 Territorial courts, 98, note. 
 
 " government, 184, note. 
 
 Test-oath cases, 224, note. 
 
 Texas, 190. 
 
 Telegraphs, 145, note 2. 
 
 Tenure of office, 69.
 
 INDEX. 369 
 
 Tenure of office act, 93, note. 
 
 Titles of nobility, 225, note 4. 
 
 Tilden, S. J., his claims to the presidency, 90. 
 
 Town officers, 328. 
 
 Townships, 327. 
 
 Trade, regulation of, 136. 
 
 Trade-marks, 153. 
 
 Treason, 154. 
 
 Treasury department, organization and work of, 95, note. 
 
 Treaty-power, 200. 
 
 Tyler, John, 83. 
 
 Universities and colleges, 312. 
 
 Vacancies in presidential office, 83, note. 
 
 Veto, 113. 
 
 Vice-president, his functions, 82 ; election of, 85. 
 
 Virginia and Kentucky resolutions, 40, note 2. 
 
 Virginia and New York delay ratifying constitution, 24. 
 
 War department, organization and work of, 95, note. 
 
 War powers, 194. 
 
 Warrants, 258. 
 
 Washington, George, on convention of 1787, 16; on ratification of the 
 
 constitution, 27: his farewell address, 115, note 1; consults senate 
 
 before making treaty, 201, note 1. 
 
 Webster, Daniel, on the territories, 183 ; on commercial treaties, 204. 
 Weights and measures, 150. 
 West Point military academy, 168, note. 
 24
 
 Date Due 
 
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 Library Bureau Cat. No. 1137
 
 DC SOUTHERN REGIONAL LIBRARY FACILITY 
 
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 liolst, Hermann Eduard von. 
 
 The constitutional law of the 
 United States of America.
 
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