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The   American   Plan 
of  Government 

The    Constitution    of    the    United    States    as 
Interpreted  by  Accepted  Authorities 

By 

Charles  W.  Bacon,  a.b.,  Harv. 

Assisted  by 

Franklyn  S.  Morse,  a.b.,  a.m.,  Harv. 

With  an  Introduction  by 

George  Gordon  Battle,  m.a.,  Univ.  ofVa. 


G.  P.  Putnam's  Sons 

New  York  and  London 

Ube    ttnlchcvbochct    f>xc66 

1916 


Copyright,  191 6 

BY 

CHARLES  W.  BACON 


Ube  ftn(ciierl)ocl!er  press,  new  J^ocli 


ISO 

THE  MEMORY  OF 

MY  FATHER 


INTRODUCTION 

There  come  crises  to  all  nations — times  when  actions 
taken  or  policies  adopted  will  vitally  affect  the  lives  of 
future  generations.  At  such  times  men  are  forced  to 
think — to  go  back  to  fundamentals — to  reexamine  the 
foundations  of  their  institutions.  For  the  United 
States  this  second  decade  of  the  twentieth  century  is  a 
period  of  crisis. 

The  United  States  Constitution  of  191 6  is  not  the 
Constitution  of  1789.  Outwardly,  indeed,  save  for 
seventeen  chronologically  appended  amendments,  it  is 
identical.  But  in  its  meaning,  in  its  breadth  of  applica- 
tion, its  power  of  adaptability  to  the  ever  increasing 
complexity  of  our  national  life,  it  is  very  different. 
A  set  of  rules  gains  in  meaning  and  in  usefulness  by 
being  put  into  practice.  A  statute  gains  its  fullest  legal 
value  only  when  the  history  of  its  enactment  is  known 
and  there  has  grown  up  around  it  a  body  of  precedent 
arising  out  of  cases  involving  its  use  and  out  of  decisions 
rendered  under  its  provisions  and  reflecting  somewhat 
of  the  personality  of  the  men  rendering  those  decisions. 
In  like  manner,  the  Constitution  of  the  United  States 
as  it  exists  today  demands  for  its  full  understanding, 
not  the  mere  reading  of  the  original  document,  but  a 
knowledge  of  the  circumstances  attending  its  adoption, 
a  familiarity  with  the  cases  that  led  to  its  interpretation 
and  with  the  circumstances  that  resulted  in  its  amend- 


vi  INTRODUCTION 

ment,  and  an  appreciation  of  the  political  atmosphere 
surrounding  those  interpretations  and  amendments. 

For  the  citizen  of  the  United  States,  loyalty  consists 
not  in  devotion  to  a  sovereign,  nor  to  a  "fatherland," 
but  to  an  ideal — an  abstraction — a  law.  That  ideal, 
first  stated  in  the  Massachusetts  Constitution  of  1780 
as  "a  government  of  laws  and  not  of  men, "  found  its 
supreme  expression  in  the  United  States  Constitution 
of  1787.  In  the  United  States,  therefore,  government 
depends  on  laws,  not  laws  on  government.  Both  the 
Federal  and  the  State  governments  are  merely  the 
agents  to  give  effect  to  the  laws;  all  laws,  whether 
Federal  or  State,  look  for  their  sanction  to  constitutions 
which  are  but  the  formulated  political  ideals  of  the 
sovereign  people. 

The  sovereignty  of  the  people  of  the  United  States 
dates  from  the  Declaration  of  Independence  of  1776. 
That  declaration  freed  the  English  colonists  from  all 
outside  restraint;  not  a  shred  of  governmental  power 
remained.  Each  individual  colonist  was  his  own 
master — an  actual  sovereign  in  possession  of  all  the 
natural  rights  of  man.  His  innate  respect  for  law  and 
order,  an  inherited  reflex  of  the  centuries  of  struggle  for 
constitutional  liberty  in  England,  alone  kept  him  from 
turning  that  liberty  into  license  and  anarchy. 

To  such  men  the  desire  for  an  organized  government 
was  instinctive.  They  promptly  exchanged  some  of 
their  natural  rights  for  political  rights  by  forming  State 
governments.  The  readiness  with  which  they  made 
the  exchange  and  the  obedience  they  voluntarily  gave  to 
the  governments  thus  established  provoked  the  wonder 
of  the  world.  Edmund  Burke,  speaking  in  1775  of  the 
provisional  government  set  up  in  Massachusetts  after 
the  suspension  of  the  Royal  Charter  of  that  colony 


INTRODUCTION  vH 

by  the  Massachusetts  Government  Act  of  1774, 
said: 

"Until  very  lately  all  authority  in  America  seemed  to 
be  nothing  but  an  emanation  from  yours  [that  of  the 
British  government].  .  .  .  We  thought  .  .  .  that  the 
utmost  which  the  discontented  colonists  could  do  was 
to  disturb  authority;  we  never  dreamt  they  could  of 
themselves  supply  it.  .  .  .  They  [the  people  of 
Massachusetts]  have  formed  a  government  sufficient  for 
its  purposes,  without  .  .  .  the  troublesome  formality  of 
an  election.  Evident  necessity  and  tacit  consent  have 
done  the  business  in  an  instant."^ 

The  thirteen  State  governments  thus  spontaneously 
formed  fought  out  and  won  the  War  for  Independ- 
ence. Evident  necessity  forced  them  to  act  together 
through  a  Continental  Congress,  the  authority  of  which 
rested  solely  on  tacit  consent.  Each  State,  however, 
claimed  full  independence  and  complete  sovereignty. 
The  fact  was  that  each  State  was  at  best  but  semi- 
independent,  since  the  separate  existence  of  each  had 
sprung  from,  and  continued  to  depend  on,  the  common 
action  of  all — a  mutual  interdependence  that  the 
exercise  of  complete  sovereignty  by  the  individual 
States  threatened  to  disrupt.  Accordingly,  the  States 
in  their  turn  voluntarily  delegated  part  of  their  sovereign 
power  to  a  central  authority,  the  United  States  of 
America.  Their  first  attempt  at  national  unity  was  pe- 
culiarly unhappy,  the  effort  having  been  embodied  in  the 
inadequate  Articles  of  Confederation.  Taught  by  experi- 
ence, however,  they  presently  achieved  the  Constitution 
of  1787,  which  Mr.  Gladstone  was  later  to  characterize 
as  "the  most  remarkable  document  ever  struck  forth 
at  one  time  by  the  brain  and  purpose  of  man."  " 

I  Speech  on  Conciliation,  §  45. 


viii  INTRODUCTION 

Mr.  Bryce  in  his  American  Commonwealth^  ascribes 
its  excellence  to  four  causes:  (i)  the  acquaintance  of 
the  members  of  the  Federal  Convention  with  the 
English  Constitution;  (2)  their  study  of  Montesquieu's 
treatise  on  the  Spirit  of  Laws;  (3)  their  familiarity  with 
the  preparation  and  operation  of  written  State  constitu- 
tions; and  (4)  their  knowledge  of  the  English  common 
law  principle  that  an  act  done  by  an  official  or  by  a  law- 
making body  without  legal  warrant  is  void.  To  these 
positive  sources  there  should  be  added  a  fifth — the  re- 
cent experience  of  the  Constitution  makers  with  the 
unworkable  Articles  of  Confederation.  They  knew  the 
physical  strain  of  being  legislators  by  day  and  members 
of  executive  committees  at  night.  Therefore,  in  the  new 
Constitution  they  made  separate  and  distinct  the  three 
departments  of  government :  the  legislature,  the  execu- 
tive, and  the  judiciary.  They  remembered  the  humilia- 
tion of  issuing  orders  and  making  requisitions  which 
they  were  powerless  to  enforce.  Therefore  they  caused 
the  new  Constitution  to  state  emphatically:  "The 
Congress  shall  have  power. "  They  had  seen  how  both 
State  and  national  interests  had  suffered  through  an 
illogical  system  of  representation  in  a  single  house  in 
which  each  State  had  but  one  vote  though  it  could  send 
to  Congress  as  many  delegates  as  it  chose  or  none  at  all 
if  it  so  wished.  Therefore  they  devised  a  legislature  of 
two  houses  with  a  definite,  though  different,  system  of 
representation  in  each. 

It  is  a  noteworthy  fact  that  in  the  struggles  attending 
the  framing  of  the  Constitution  in  the  Federal  Conven- 
tion no  vital  principle  was  sacrificed  in  the  compromises 
that  had  to  be  made.  Two  of  the  concessions  made 
were  trifling  and,  as  it  proved,  temporary,  while  the 
« Chapter  3. 


INTRODUCTION  ix 

gains  made  possible  by  them  were  valuable  and  lasting. 
By  agreeing  to  count  only  three-fifths  of  the  slaves,  the 
great  principle  of  representation  in  the  People's  House 
of  Congress  in  proportion  to  population  was  gained. 
By  allowing  the  importation  of  negroes  until  1808,  there 
accrued  to  Congress  the  control  of  commerce.  The 
third  compromise,  the  giving  of  aU  the  States  equal 
representation  in  the  States'  House  of  Congress, 
although  adopted  to  win  the  assent  of  the  smaller 
States,  is  one  of  the  great  distinctive  features  of  our 
plan  of  government. 

Since  1789,  the  United  States  Constitution  has  de- 
veloped in  two  ways :  by  addition  and  amendment  and 
by  judicial  interpretation  and  construction  of  law. 
Both  of  these  processes  have,  in  their  operation,  been 
subject  to  the  modifying  influence  of  changes  in  pre- 
vailing political  ideals. 

Of  such  var5ring  governmental  tendencies  three 
phases  have  been  distinguished.  The  first  has  been 
called  the  aristocratic  tendency,  which  prevailed  from 
1 789  to  1 857.  This  period  was  marked  by  distrust  of  the 
people,  who  could  not  vote  directly  for  President  or  for 
Senators.  It  was  typified  by  George  Washington,  an 
aristocrat.  Socially,  its  representatives  were  the 
Southern  planters  and  the  no  less  aristocratic  Northern 
merchants.  Economically,  it  emphasized  property 
rights.  The  second  tendency,  which  prevailed  from 
1857  to  the  latter  part  of  the  century,  for  want  of  a 
better  name  may  be  called  the  plutocratic  tendency. 
It  manifested  itself  in  great  industrial  development, 
in  the  formation  of  "trusts,"  in  the  building  up  of 
great  railroad  systems,  and  in  the  restraint  of  trade, 
with  attendant  financial  disturbances  and  contests  be- 
tween capital  and  labor.     Politically,  it  was  the  age 


X  INTRODUCTION 

of  the  "boss."  Govemmentally,  it  was  marked  by 
the  preponderance  of  Congress.  The  third  may  be 
called  the  democratic  tendency.  It  is  the  age  of  the 
Interstate  Commerce  Commission  and  the  Sherman 
"Anti-Trust"  law  for  economic  protection,  and  of 
Civil  Service  regulations  and  commission  plans  of  city 
government  for  administrative  betterment.  Increasing 
confidence  in  the  political  judgment  of  the  people  is 
shown  by  the  popular  election  of  Senators  and  by  such 
methods  of  direct  legislation  as  the  initiative  and  the 
referendum.  Govemmentally,  the  age  exalts  the  Ex- 
ecutive Department  of  the  Federal  Government,  for 
the  President  is  the  only  representative  of  all  the  people. 

The  development  of  the  Constitution  by  amendment 
shows  three  phases.  The  first  deals  with  the  rights  of 
citizens  of  States  as  against  the  United  States,  and 
includes  Amendments  i-ii.  The  second  deals  with 
the  citizens  of  the  United  States  and  their  rights  as 
against  the  States,  and  includes  Amendments  13,  14, 
and  15.  The  third  deals  with  administrative  changes 
and  includes  Amendments  12,  16,  and  17.  Viewed  as 
to  their  relation  to  the  original  Constitution  these 
seventeen  amendments  fall  into  two  classes — additions 
and  changes.  The  additions  include  Amendments  i-io, 
II,  13-15.  The  I2th,  i6th,  and  17th  Amendments, 
on  the  contrary,  are  changes,  dealing  respectively  with 
the  choosing  of  the  President  and  Vice-President,  the 
levying  of  Federal  taxes,  and  the  election  of  Senators. 

More  important  than  the  growth  of  the  Constitution 
by  amendment  has  been  its  development  through  its 
use  as  a  standard  of  legislative,  executive,  and  judicial 
action.  To  be  able  to  use  the  Constitution  as  such  a 
standard,  its  very  nature  as  well  as  the  meaning  of  its 
various  phrases  must  be  understood. 


INTRODUCTION  xi 

Almost  Immediately  after  the  adoption  of  the  Con- 
stitution a  controversy  arose  as  to  its  nature.  One 
party  held  that  it  had  created  an  indissoluble  union,  a 
nation;  the  other  that  it  was  only  a  compact  between 
sovereign  States,  As  time  went  on,  this  constitutional 
issue  became  complicated  by  the  economic  and  moral 
questions  involved  in  slavery.  The  Constitution 
tacitly  recognized  slavery  as  a  State  institution. 
In  1787,  slavery  existed,  but  was  dying  out  in  both 
the  North  and  the  South.  The  invention  of  the 
cotton  gin  in  1791,  however,  caused  the  revival  of 
slavery  and  made  the  South  ar  agricultural  section, 
opposed  to  a  protective  tariff.  The  strife  grew  in- 
creasingly bitter,  with  the  extension  of  slavery  as  the 
burning  question.  Did  the  United  States  have  the 
right  to  regulate  a  State  institution?  This  issue  of 
national  versus  State  sovereignty  came  finally  in  1861 
to  the  arbitrament  of  arms  on  the  question  of  secession. 
The  War  between  the  States,  which  settled  the  con- 
stitutional, economic,  and  moral  questions  involved  in 
slavery,  decided  that  the  Constitution  had  created  an 
indissoluble  union. 

The  meaning  of  the  Constitution  as  a  document  rests 
on  judicial  interpretation  and  construction  of  law. 
Acts  of  executive  officers,  laws  passed  by  Congress,  and 
many  of  those  passed  by  State  legislatures  are  likely, 
sooner  or  later,  to  be  challenged  as  to  their  constitu- 
tionality. When  such  a  case  arises,  the  justices  of  the 
Supreme  Court  are  given  an  opportunity  to  interpret 
some  part  of  the  Constitution.  Many  phrases  in  the 
Constitution  have  not  yet  been  thus  interpreted  because 
no  cases  have  arisen  involving  their  meaning. 

The  United  States  Government  has  frequently  had 
to  act  in  ways  that  would  not  seem  warranted  by  a 


xii  INTRODUCTION 

strict  interpretation  of  the  Constitution.  In  such  cases 
the  doctrine  of  impHed  powers  is  put  forward  in  justifi- 
cation. In  1 79 1,  Alexander  Hamilton  urged  Congress 
to  charter  a  Bank  of  the  United  States  to  handle  the 
funds  of  the  government.  His  friends  of  the  Federalist 
party  at  once  became  Uberal  constructionists  of  the 
Constitution,  holding  that  the  power  to  create  a  bank 
was  implied.  On  the  other  hand,  the  State  rights  party- 
became  literal  constructionists,  opposing  the  bank 
because  the  word  "bank"  did  not  appear  in  the  Con- 
stitution. The  latter  party  was  forced  to  abandon  its 
attitude  of  strict  interpretation  of  the  Constitution 
when,  in  1803,  its  leader,  Thomas  Jefferson,  purchased 
Louisiana  from  France.  Jefferson  personally  believed 
that  the  purchase  was  unconstitutional,  although  he 
acquiesced  in  Albert  Gallatin's  justification  of  it  as  an 
exercise  of  the  treaty-making  power,  which  also  serves 
as  the  justification  of  all  subsequent  additions  of 
territory  to  the  United  States.  There  are  other  in- 
stances of  the  extension  of  the  power  of  the  Federal 
Government  through  a  liberal  interpretation  of  the 
Constitution:  among  them,  the  control  of  navigable 
waters,  of  railroad  rates,  and  of  corporations  as  exten- 
sions of  the  power  to  control  commerce;  and  the  issue 
of  paper  money  during  the  War  between  the  States  as 
a  means  of  national  defence. 

The  story  of  the  origin  of  the  Constitution  and  of  its 
interpretation  by  the  courts  is  told  in  The  American 
Plan  of  Government.  This  book  shows  how  a  plan  of 
government  adopted  127  years  ago  to  give  the  people 
of  thirteen  little  republics  a  central  government  strong 
enough  to  protect  them  from  internal  dissension  and 
foreign  aggression  has  been  found  sufficient  for  the 
management  of  the  business  of  a  nation  which  uses 


INTRODUCTION  xiii 

commercial  and  industrial  machinery  not  dreamed  of 
in  the  constitution-making  era. 

No  similar  book  is  in  existence. 

Commentaries  upon  the  Constitution  are  either 
profound  studies  of  historical  development  or  un- 
wieldy compendiums  in  which  groups  of  legal  decisions 
are  summarized  for  the  use  of  lawyers  in  search 
of  precedents.  This  book  gives  the  reader  the 
real  meaning  of  the  Constitution,  a  meaning  which 
cannot  be  obtained  by  reading  the  original  document 
because  a  collection  of  rules  cannot  be  understood 
except  by  reference  to  cases  in  which  they  have  been 
enforced. 

The  two  great  popular  books  on  our  government  are 
De  Tocqueville's  Democracy  in  America  written  by  a 
Frenchman  in  1830  and  Bryce's  American  Common- 
wealth by  an  Englishman  in  1888.  The  one  is  a  glowing 
treatise  on  ideals  of  popular  government,  illustrated  by 
governmental  conditions  in  the  United  States.  The 
other  is  an  elaborate  comparison  of  American  institu- 
tions with  the  English  method  of  government.  The 
American  Plan  of  Government,  on  the  contrary,  shows 
what  our  plan  of  government  actually  is  by  quoting 
the  words  of  legal  decisions  which  are  precedents  for 
future  action  when  the  meaning  and  purpose  of  our 
political  institutions  shall  be  in  doubt. 

Geo.  Gordon  Battle. 

New  York,  May,  1916. 


PREFATORY  NOTE 

The  judicial  decisions  quoted  in  this  book  may  be 
found  in  the  published  reports  of  the  Federal  and  State 
Courts  of  appellate  jurisdiction.  These  reports  are  in 
all  well-equipped  law  libraries  and  in  many  public 
libraries. 

Court  decisions  were  originally  collected  and  pub- 
lished by  volunteer  reporters  as  a  business  enterprise. 
These  reporters  considered  themselves  authors  and 
therefore  put  forth  their  books  under  their  own  names. 
For  example,  A.  J.  Dallas  published  Dallas'  Reports, 
here  referred  to  as  "Dallas'  Rep.,"  which  include  the 
decisions  of  the  Pennsylvania  Courts  from  1754  to  1788 
and  the  first  adjudications  of  the  Supreme  Court  of  the 
United  States.  Again,  William  Johnson  published  as 
Johnson's  Reports,  here  called  "Johnson's  (N.  Y.)  Rep.," 
the  decisions  of  the  highest  New  York  Court  from  1799 
to  1823.  The  eariier  decisions  of  the  courts  of  Massa- 
chusetts were  reported  by  Ephraim  Williams,  "with 
references  and  notes  by  a  gentleman  of  the  bar." 
From  1822  to  1837,  however,  Octavius  Pickering 
published  Pickering's  Reports  of  cases  argued  in  the 
Massachusetts  courts. 

The  modem  practise  is  to  publish  the  reports  of  the 
Supreme  Court  of  the  United  States  in  the  United 
States  Reports,  and  those  of  the  Federal  Circuit  Court  of 
Appeals,  Circuit  Courts  and  District  Courts  in  the 
Federal  Reporter.  Likewise,  the  reports  of  the  courts 
of  each  State  are  published  under  the  name  of  the  State. 


xvi  PREFATORY  NOTE 

Thus  the  titles  Massachusetts  Reports  and  Pennsylvania 
State  Reports  signify  that  the  volumes  so  named  contain 
decisions  of  the  Supreme  Judicial  Court  of  Massa- 
chusetts and  of  the  Supreme  Court  of  Pennsylvania 
respectively ;  the  Illinois  Reports  record  the  proceedings 
of  the  Illinois  Supreme  Court,  and  the  Illinois  Appellate 
Reports,  those  of  the  Illinois  Appellate  Courts. 

In  The  American  Plan  of  Government  an  effort  has 
been  made  to  present  the  facts  in  the  more  important 
cases  in  which  our  courts  have  given  decisions  upon 
points  involving  the  interpretation  and  explanation  of 
the  provisions  of  the  Constitution  of  the  United  States. 
This  is  not  easy.  A  case  which  seems  most  significant  to 
one  person  may  not  carry  equal  importance  to  the  mind 
of  another.  Indeed,  it  has  been  said  that  while  the 
justices  of  our  highest  courts  usually  can  agree  upon 
principles  of  law,  they  often  differ  widely  in  their 
inferences  from  the  facts  presented  by  the  cases  upon 
appeal  before  them. 

I  have  not  attempted  to  state  the  outcome  of  all  the 
cases  which  are  cited  in  this  book.  For  the  most  part, 
the  statement  of  facts  has  been  followed  only  by  that 
part  of  the  decision  that  dealt  with  the  constitutional 
question  involved. 

Much  of  the  material  used  in  the  preparation  of  this 
book  was  gathered  for  use  in  a  series  of  lectures  upon 
the  Constitution  of  the  United  States,  delivered  in  the 
New  York  City  Public  Lecture  Courses  under  the 
superintendence  of  Dr.  Henry  M.  Leipziger.  I  take 
this  opporttmity  to  express  my  obligation  to  him  for 
suggestions  and  encouragement. 

I  wish  also  to  express  my  thanks  to  my  valued 
friend,  Mr.  George  Gordon  Battle,  who  has  contributed 
the  introduction  to  this  book.    I   have   been  helped 


PREFATORY  NOTE  xvii 

greatly  by  his   thoughtful   suggestions  upon  Federal 
questions. 

My  friend  and  collaborator,  Mr.  Franklyn  S.  Morse, 
has  contributed  much  toward  the  making  of  this  book. 
It  has  been  bettered  by  his  careful  and  painstaking 
literary  criticism  and  by  his  skilful  presentation  of 
American  history  from  the  angle  of  judicial  decision. 

Charles  W.  Bacon. 

New  York,  May,  1916. 


CONTENTS 

PART  I. 
THE  MAKING  OF  THE  CONSTITUTION. 

CHAPTER 

I. — Constitutional  Growth  in  the  Colo- 
nial Era 


II. — Constitutional  Growth  in  the  Revo- 
lutionary Era  .         .         .         .II 

PART  II. 
NATURE  OF  THE  PREAMBLE. 
III. — The  People  of  the  United  States      .       25 
IV. — Purposes  of  the  Constitution    .         .      29 

PART  III. 
ORGANIZATION  OF  THE  FEDERAL  CONGRESS. 

V. — The  Senate  and  House  of  Representa- 
tives        ......       39 

VI. — The  Senate  of  the  United  States      .       61 

VII. — The  Congress  as  a  Legislature         .      70 

PART  IV. 
LEGISLATIVE  GOVERNMENT  IN  THE  UNITED  STATES. 

VIII. — Powers  of  Congress  :  The  Money  Power      87 


XX  CONTENTS 

CHAPTBK  PAGB 

IX. — Powers  of  Congress:    The  Power  to 

Regulate  Commerce         .         .         .103 

X. — Powers  of  Congress:    Powers  to  Fos- 
ter Commerce  .         .         .         .         .124 

XI. — Powers  of  Congress:    Powers  to  Pro- 
tect Commerce  .         .         .         .146 

XII. — Powers  of  Congress:  Power  to  Con- 
trol THE  Instrumentalities  of  Gov- 
ernment   ......     162 

XIII. — Powers  of  Congress:    Power  to  En- 
force THE  Constitution   .         .         .166 


PART  V. 

LIMITATIONS  UPON  LEGISLATIVE  GOVERNMENT  IN  THE 
UNITED  STATES— RIGHTS  GUARANTEED  BY  THE  CON- 
STITUTION AND  ITS  AMENDMENTS. 

XIV. — Rights  of  the  States  and  their  Citizens 
against  the  United  States  as  Enumer- 
ated IN  THE  Original  Constitution   .     175 

XV. — Rights  of  the  United  States  and  its 

Citizens  against  the  States    .         .198 

XVI. — Rights  of  the  States  and  their  Citi- 
zens against  the  United  States  as 
Enumerated  in  Amendments  I-X      .     237 

XVII. — Rights  of  the  Citizens  of  the  United 
States  against  the  States  and  the 
Nation 289 


CONTENTS  xxi 

PART  VI. 
EXECUTIVE  GOVERNMENT  IN  THE  UNITED  STATES. 

CHAPTER  PACK 

XVIII. — The  Chief  Executive  Officer    .         ,    303 
XIX. — The  Chief  Executive  Office       .         .317 

PART  VII. 
JUDICIAL  GOVERNMENT  IN  THE  UNITED  STATES. 

XX. — The  Grant  of  Judicial  Power    .        .     349 

XXI. — ^Jurisdiction  of  Courts  of  the  United 

States 356 

XXII. — Criminal  Procedure   in   the  Federal 

Courts 393 

PART  VIII. 
THE  FEDERAL  COMPACT. 

XXIII. — Considerations  of  the  Agreement  of 

Union        ......     413 

XXIV. — Stipulations    of    the    Agreement    of 

Union 447 

Index 465 


PARTI 

The  Making  of  the  Constitution 


CHAPTER  I 

CONSTITUTIONAL    GROWTH   IN  THE   COLONIAL    ERA 

Colonial  Constitutions.  Virginia,  founded  in  1607, 
had,  under  the  provisions  of  its  charter  of  1609,  a  law- 
making body,  called  the  General  Assembly  or  House  of 
Burgesses.  The  "  Foure  Great  and  Generall  Courts  of 
the  Governor  and  Company  of  the  Mattachusetts  Bay 
in  New  England"  were  authorized  to  be  held  every 
year  imder  that  colony's  charter  of  1628.  Connecticut 
had  an  assembly  of  free  men  under  its  colonial  charter 
of  1662,  which  was  retained  as  the  State  constitution 
until  1 8 1 8.  North  Carolina  had  its  House  of  Commons. 
Rhode  Island  had  its  law-making  body  under  the  charter 
which  Charles  the  Second  had  granted  to  Roger  Williams 
and  others  in  1663,  and  which  also  served  as  a  State 
constitution  imtil  1843.  Each  of  the  other  colonies 
had  its  own  legislative  body.  Every  Englishman  in 
Colonial  America  held  stoutly  that  his  local  assembly 
stood  in  exactly  the  same  relation  to  the  King  of  Eng- 
land as  did  the  parliament  of  the  Kingdom.  This  claim 
was  set  forth  in  the  following  words  in  Resolution  IV 
of  the  Declaration  of  Rights  made  by  the  First  Conti- 
nental Congress  in  1774: 

That  the  foundation  of  English  liberty,  and  of  all  free  gov- 
ernment, is  a  right  in  the  people  to  participate  in  their 
legislative  council;  and  as  the  English  colonists  are  not 
represented,  and  from  their  local  and  other  circumstances, 

3   . 


4  AMERICAN  PLAN  OF  GOVERNMENT 

cannot  properly  be  represented  in  the  British  parliament, 
they  are  entitled  to  a  free  and  exclusive  power  of  legis- 
lation in  their  several  provincial  legislatures,  where  their 
right  of  representation  can  alone  be  preserved,  in  all  cases 
of  taxation  and  internal  polity,  subject  only  to  the  negative 
of  their  sovereign,  in  such  manner  as  has  been  heretofore 
used  and  accustomed. — Resolution  IV.  of  Bill  of  Rights  of 
the  First  Continental  Congress. 

The  United  Colonies  of  New  England.  The  colonists 
of  New  England  soon  discovered  the  need  of  united  ac- 
tion both  against  the  Indians,  and  more  importantly, 
against  the  Dutchmen  at  New  Amsterdam  and  Fort 
Orange  (New  York  and  Albany),  who  claimed  all  the  ter- 
ritory west  of  the  Connecticut  River  and  north  of  the 
Delaware.  A  league  of  mutual  protection,  therefore, 
was  made  in  1643  by  the  colonies  of  New  Plymouth, 
Massachusetts  Bay,  Connecticut,  and  New  Haven, 
under  the  name  of  "The  United  Colonies  of  New  Eng- 
land." This  confederation  had  many  of  the  functions 
of  a  nation.  It  had  a  general  council  of  two  commis- 
sioners from  each  colony,  which  met  once  every  year 
"to  hear,  examine,  weigh,  and  determine  all  affairs  of 
war,  or  peace,  leagues,  aydes,  charges,  and  numbers  of 
men  for  war,  division  of  spoyles,  or  whatsoever  is  gotten 
by  conquest,  receiving  of  more  confederates,  or  Planta- 
tions into  Combination  with  any  of  these  Confederates, 
and  all  things  of  like  nature,  which  are  the  proper  con- 
comitants, or  consequences  of  such  a  Confederation, 
for  amity,  offence,  and  defense,  not  intermeddling  with 
the  Government  of  any  of  the  Jurisdictions,  which,  by 
the  third  Article,  is  preserved  intirely  to  themselves." 
The  New  England  Confederation  exercised  these  na- 
tional functions  and  was  a  sovereign  nation  in  every- 
thing except  the  name  for  nearly  twenty  years.    After 


MAKING  OF  THE  CONSTITUTION  5 

the  English  conquest  of  New  Netherland,  in  1664,  it 
gradually  lost  its  importance.  The  organization  was 
kept  up,  however,  by  occasional  meetings  of  the  com- 
missioners until  1684. 

The  Albany  Conference  of  1754-  The  colonists  did 
not  again  feel  the  need  for  concerted  action  until  the 
middle  of  the  eighteenth  century,  when  it  became  un- 
certain whether  France  or  England  was  to  control 
America.  The  French  had  a  powerful  colony  in  Canada 
and  a  string  of  military  posts  from  Fort  Duquesne, 
where  Pittsbiu"gh  is  now  located,  along  the  Ohio  River 
and  down  the  Mississippi  to  its  mouth.  They  were 
allied  with  many  of  the  most  powerful  Indian  tribes  of 
the  great  hinterland  of  America.  The  contest  between 
France  and  Great  Britain  for  colonial  supremacy,  already 
begun  in  India,  soon  took  form  in  America  in  an  effort 
on  the  part  of  the  French  to  conquer  New  England  and 
New  York,  whose  harbors,  free  from  ice  all  the  year, 
were  of  immense  commercial  value.  In  1754,  during 
a  crisis  in  this  struggle  for  the  mastery  of  a  continent, 
a  conference  was  held  at  Albany,  at  which  delegates 
from  all  the  northern  colonies  deliberated  upon  the 
means  of  protection  against  their  enemies.  Benjamin 
Franklin,  a  delegate  from  Pennsylvania,  suggested  a 
general  union  of  all  the  colonies  of  English  America 
under  a  president  to  be  appointed  by  the  British  crown 
and  a  council  representing  the  different  provinces. 
The  plan  did  not  develop  into  a  national  reality  be- 
cause the  southern  colonies  were  not  willing  to  share 
the  expense  of  defending  the  northern  colonies.  Never- 
theless the  Albany  Conference  is  important  in  that  it 
produced  a  plan  for  the  establishment  of  an  American 
nation.  The  idea  of  American  nationality  had  been 
bom. 


6  AMERICAN  PLAN  OF  GOVERNMENT 

The  Stamp  Act  Congress.  When  the  French  had  been 
driven  out  of  Canada  at  the  end  of  the  French  and 
Indian  War,  it  seems  to  have  occurred  to  British  states- 
men that  the  American  colonies  might  property  be 
taxed  in  return  for  the  protection  they  had  received. 
The  colonists  believed  that  the  home  government  was 
really  under  an  obligation  to  them  for  services  rendered. 
There  was  riotous  indignation  when  parliament,  in 
March,  1765,  enacted  the  Stamp  Tax  law,  which  imposed 
taxes  upon  vellum,  parchment,  or  paper  used  for  licenses 
to  carry  on  special  businesses,  wills,  deeds  of  real  estate, 
pleadings  in  suits  at  law,  and  other  legal  documents. 
The  colonists  said  and  believed  that  the  preamble  or 
introductory  statement  in  the  act  to  the  effect  that  it 
was  necessary  to  raise  the  money  in  order  to  protect 
the  colonies,  was  a  mere  subterfuge.  They  saw  in 
this  tax  only  an  attempt  by  the  parliament  of  Great 
Britain  to  usurp  a  taxing  power  which  belonged 
solely  to  the  assemblies  of  the  different  colonies. 
Massachusetts,  Rhode  Island,  Connecticut,  New  York, 
New  Jersey,  Pennsylvania,  Delaware,  Maryland,  and 
South  Carolina  sent  delegations  to  the  Stamp  Act 
Congress,  which  met  at  New  York  in  October,  1765, 
to  protest  "that  the  people  oj  these  colonies  are  not,  and, 
from  their  local  circumstances,  cannot  be,  represented 
in  the  House  of  Commons  in  Great  Britain,"  and  "that 
the  only  representatives  of  the  people  of  these  colonies 
are  persons  chosen  therein  by  themselves,  and  that  no 
taxes  ever  have  been,  or  can  be,  constitutionally  im- 
posed on  them,  but  by  their  respective  legislatures." 
Thus  the  idea  of  a  possible  American  nation,  which 
may  have  been  in  the  minds  of  the  members  of  the 
Albany  Conference,  grew  rapidly  in  the  ten  following 
years  into  the  conception  of  an  American  political  body 


MAKING  OF  THE  CONSTITUTION  7 

— the  people  of  the  colonies — a  phrase  restated  nearly  a 
quarter  of  a  century  later,  possibly  by  accident,  in  the 
preamble  of  the  more  famous  document,  the  Constitu- 
tion: "We,  the  People  of  the  United  States." 

The  protest  of  the  Stamp  Act  Congress  was  followed 
by  the  repeal  of  the  obnoxious  measure;  and  for  a  time 
everything  was  peaceful  and  harmonious  between  the 
mother  country  and  the  colonies.  Unluckily,  however, 
the  British  parliament,  in  1767,  enacted  a  law  to  make 
"a  more  certain  and  adequate  provision  for  defraying 
the  charge  of  the  administration  of  justice,  and  the 
support  of  civil  government"  in  the  colonies,  by  levying 
taxes  on  glass,  lead,  painter's  colors,  tea,  and  paper, 
imported  from  Great  Britain  into  any  of  the  colonies. 
The  stamp  tax  had  been  opposed  by  the  colonists 
because  it  had  imposed  taxes  which,  like  the  internaf 
revenue  taxes  of  the  present  day,  were  to  be  collected 
directly  from  the  people.  The  British  statesmen  who 
proposed  the  new  measure,  thought  that  it  would  not 
be  objectionable  because  the  taxes  were  to  be  levied 
on  goods  brought  from  England,  which  the  colonists 
would  not  have  to  buy  if  they  did  not  wish.  The 
colonists  did  not  see  it  in  that  light.  They  objected 
very  generally  to  any  taxing  laws  enacted  by  parlia- 
ment, and  particularly  to  a  taxing  law,  which,  by  pro- 
viding royal  governors  and  judges  with  salaries  not 
granted  by  the  colonial  legislatures,  would  make  those 
officials  altogether  too  independent. 

Committees  of  Correspondence.  Colonial  opposition, 
centering  at  length  upon  the  tea  tax,  culminated  in  the 
Boston  "Tea  Party,"  at  which  cargoes  of  tea  were 
dumped  into  the  waters  of  Boston  harbor.  Parlia- 
ment, as  thoroughly  angry  as  a  body  corporate  ever 
can  be,  forthwith  punished  the  offending  New  England 


8  AMERICAN  PLAN  OF  GOVERNMENT 

metropolis  by  enacting  the  Boston  Port  BUI  which  pro- 
hibited vessels  from  discharging  or  taking  on  cargoes  at 
its  wharves.  Two  months  afterward,  parliament  made 
the  British  government  more  hated,  if  that  were  possi- 
ble, by  passing  the  Massachusetts  Government  Act, 
which  reduced  the  richest  and  most  populous  com- 
munity in  New  England  to  the  condition  of  a  conquered 
province.  On  the  same  day,  by  the  Administration  of 
Justice  Act,  the  same  body  revived  a  statute  which 
had  been  enacted  in  the  reign  of  Henry  the  Eighth 
for  the  trial  in  England  of  treasons  committed  abroad. 
This  statute  when  first  adopted  had  been  intended  to 
prevent  government  officers  from  abusing  their  powers 
in  distant  places.  It  was  now  revived  to  frighten 
Otis  and  Hancock,  Quincy  and  the  Adamses  into 
holding  their  tongues  from  protest  against  tyranny. 
The  only  effect  of  all  this  was  the  organization  in 
each  colony  of  a  Committee  of  Correspondence, 
which  made  a  special  business  of  keeping  alive  the 
agitation  against  the  measures  which  parliament  had 
adopted. 

The  First  Continental  Congress.  On  June  17,  1774, 
the  Massachusetts  House  of  Representatives  resolved 
that  a  meeting  of  these  Committees  of  Correspondence 
was  highly  expedient  and  necessary  "to  consult  upon 
the  present  state  of  the  colonies,  .  .  .  and  to  deliberate 
and  determine  upon  wise  and  proper  measures  .  .  . 
for  the  recovery  and  estabhshment  of  their  just  rights 
and  liberties,  civil  and  religious,  and  the  restora- 
tion of  union  and  harmony  between  Great  Britain 
and  the  colonies."  The  Committees  which  met  at 
Philadelphia  in  September,  1774,  in  pursuance  of  this 
call,  constituted  the  First  Continental  Congress.  Dele- 
gates   were    present    from    all    the   colonies   except 


MAKING  OF  THE  CONSTITUTION  9 

Georgia.  The  members  voted  that  "the  Congress 
do  confine  themselves,  at  present,  to  the  considera- 
tion of  such  rights  as  have  been  infringed  by  acts  of 
the  British  ParHament  since  the  year  1763,"  and  there- 
upon adopted  a  set  of  resolutions  commonly  called  the 
Bill  of  Rights.  In  this  docimient  they  denounced  as 
"impolitic,  unjust,  and  cruel,  as  well  as  unconstitutional, 
and  most  dangerous  and  destructive  of  American 
rights,"  the  following:  The  Boston  Port  Bill,  the 
Massachusetts  Government  Act,  the  Administration 
of  Justice  Act,  and  the  Quebec  Act,  which,  much  to 
the  indignation  of  all  the  colonies,  had  closed  the  Mis- 
sissippi valley  against  settlement.  Although  no  word 
indicating  a  desire  for  independent  existence  is  to  be 
found  in  the  whole  document,  it  was  evident  that 
there  was  an  American  nation  which  intended  to 
have  its  rights  or  know  the  reason  why. 

Provincial  Governments.  Events  moved  rapidly  from 
this  time.  Massachusetts  established  a  Provincial 
Congress  in  October,  1774.  The  battles  of  Lexington 
and  Bunker  Hill  were  fought  in  April  and  June,  1775. 
General  Washington  took  command  of  the  Continental 
army  at  Cambridge  and  began  the  siege  of  Boston, 
which  surrendered  to  his  masterly  strategy  in  March, 
1776.  In  August,  1775,  the  American  provinces  were 
declared  by  royal  proclamation  to  be  in  a  state  of 
rebellion.  Royal  governors  and  judges  everywhere 
took  to  their  heels,  and  in  the  twinkling  of  an  eye,  the 
authority  of  King  George  the  Third  vanished  from 
his  once  loyal  colonies.  Makeshift  governments  of  one 
kind  or  another  were  set  up  by  the  provincials  that 
had  been  deserted  by  royal  officials  who  were  bound 
by  oath  and  in  honor  to  uphold  the  law.  These 
governments,  if  they  may  be  so  called,  sent  delega- 


10        AMERICAN  PLAN  OF  GOVERNMENT 

tions  to  the  Second  Continental  Congress,  which  pub- 
lished to  the  world  the  Declaration  of  Independence 
by  "the  Representatives  of  the  united  States  of 
America,  in  General  Congress,  Assembled." 


CHAPTER  II 

CONSTITUTIONAL  GROWTH  IN  THE  REVOLUTIONARY  ERA 

Declaration  of  Independence.  The  announcement, 
published  to  the  world  by  the  founders  of  the  United 
States  of  America,  declares,  "That  these  United  Colo- 
nies are,  and  of  Right  ought  to  be.  Free  and  Inde- 
pendent States."  By  it,  the  United  Colonies  were 
transformed  from  dependencies  of  Great  Britain  into 
States.  A  new  nation  then  and  there  was  added  to  the 
world's  family  of  nations. 

A  State  of  the  United  States.  The  United  States  and 
the  States  of  which  it  is  composed,  were  created  at 
the  same  moment.  The  States  had  existed  as  colonies. 
The  United  States  had  existed  before  the  Declaration  of 
Independence  only  in  so  far  as  all  the  colonies  had  been 
bound  together  by  common  interests. 

The  thirteen  States,  which  were  established  before 
the  Constitution  was  adopted,  still  claim  the  rights 
which  they  gained  and  held  in  the  first  era  of  indepen- 
dence. Nevertheless,  each  of  them  owes  its  statehood 
to  the  joint  act  of  all.  What  this  statehood  is,  was 
explained  by  District  Judge  Parker  in  his  opinion  in  the 
case  of  Ex  Parte  Morgan,^  as  follows: 

Without  stopping  to  inquire  as  to  the  different  mean- 
ings of  the  word  "State,"  we  find  that  it  has  a  definite, 
fixed,  certain,  legal  meaning  in  this  country  and  under  our 

'  20  Federal  Rep.,  298. 

II 


12         AMERICAN  PLAN  OF  GOVERNMENT 

form  of  government.  It  had  acquired  this  meaning  when 
the  Constitution  was  adopted,  and  this  is  the  one  which 
must  be  attached  to  it  when  used  in  that  instrument  or  in 
laws  of  Congress.  What  is  that  meaning?  It  means  one 
of  the  commonwealths  or  political  bodies  of  the  American 
Union,  and  which,  under  the  Constitution,  stand  in  certain 
specified  relations  to  the  national  government,  and  are  in- 
vested as  commonwealths  with  full  power,  in  their  several 
spheres,  over  all  matters  not  expressly  inhibited. 

The  Nation  of  the  United  States.  The  United  States 
was  born  into  the  world  at  the  same  moment  as  its  com- 
ponent States.  The  united  action  of  the  States  in 
declaring  their  independence  created  the  United  States. 
No  one  knows  just  what  might  have  been  the  powers  of 
the  original  nation,  if  it  had  stayed  where  the  Declara- 
tion of  Independence  put  it.  We  do  know,  however, 
that  it  would  have  had  the  powers  of  a  nation.  The 
meaning  of  that  word  was  given  by  the  Supreme  Court 
of  the  United  States  in  the  opinion  of  Justice  Brown  in 
the  case  of  Montoya  vs.  United  States^  in  the  following 
words: 

The  word  "nation"  as  ordinarily  used  presupposes  or 
implies  an  independence  of  any  other  sovereign  power 
more  or  less  absolute,  an  organized  government,  recognized 
officials,  a  system  of  laws,  definite  boundaries  and  the 
power  to  enter  into  negotiations  with  other  nations. 

The  Continental  Congress.  The  United  States  is, 
perhaps,  the  only  nation  which  ever  fought  out  and  won 
a  great  war  without  any  government  worthy  of  the 
name.  The  Declaration  of  Independence  was  the  notice 
which  it  served  upon  other  nations  that  it  had  assumed 

*  i8o  U.  S.  Rep.,  261. 


MAKING  OF  THE  CONSTITUTION  13 

the  position  of  a  sovereign  power.  This  declaration  of 
sovereignty  was  made  good  in  the  campaigns  which, 
so  far  as  serious  fighting  was  concerned,  ended  with  the 
surrender  of  Yorktown  in  1 781,  though  the  final  treaty 
of  peace  was  not  signed  until  two  years  afterward. 
From  July  4, 1776,  until  May  2, 1781,  the  United  States, 
under  the  direction  of  a  Congress  composed  of  delegates 
from  as  many  of  the  thirteen  States  as  were  willing  to 
pay  their  expenses  and  salaries,  carried  on  a  continen- 
tal war,  established  a  navy,  negotiated  treaties  of  com- 
merce and  alliance,  borrowed  money,  issued  paper 
currency,  and  erected  coiurts  of  admiralty  which 
judged  conflicting  claims  to  prizes  made  by  American 
ships  of  war.  The  States  were  as  independent  of  each 
other  and  of  the  United  States  as  they  were  of  the 
rest  of  the  world.  Each  State  could  send  to  the  Con- 
gress as  many  delegates  as  it  chose ;  but  it  could  cast 
only  one  vote,  and  nothing  could  be  done  without  the 
unanimous  vote  of  all  the  States.  Even  the  unanimous 
vote  of  all  the  States  imposed  no  obligation  which  a 
State  government  could  be  forced  to  recognize. 
Everything  depended  upon  the  honor  and  good  will  of 
the  local  authorities,  on  which  little  reliance  could  be 
placed.  It  is  a  fact  that  the  Revolutionary  War  was 
fought  from  beginning  to  end  on  credit,  and  the  mys- 
tery of  it  is  that  credit  was  extended  to  a  nation  so 
loosely  organized. 

The  Articles  of  Confederation.  On  Jime  11,  1776, 
four  days  after  the  question  whether  the  colonies 
shoiild  declare  their  independence  was  first  taken  up, 
the  Continental  Congress  resolved  that  "a  committee 
be  appointed  to  prepare  and  digest  the  form  of  a  con- 
federation to  be  entered  into  between  these  colonies." 
This  committee  framed  the  scheme  of  government  called 


14    .  AMERICAN  PLAN  OF  GOVERNMENT 

the  "Articles  of  Confederation,"  which  was  ratified 
by  eleven  States  in  1778,  by  Delaware  in  1779,  and 
by  Maryland  in  1781,  thus  going  into  effect  five  years 
after  the  nation  had  been  founded.  The  Articles  of 
Confederation  created  a  league  of  States,  each  of  which 
retained  "its  sovereignty,  freedom  and  independence, 
and  every  power,  jurisdiction  and  right,  which  is  not 
.  .  .  expressly  delegated  to  the  United  States,  in  Con- 
gress assembled."  It  stated  a  number  of  rights  and 
powers  which  the  nation  was  to  have,  but  did  not  pro- 
vide any  means  of  making  those  rights  and  powers 
good  against  a  State  which  did  not  obey  its  orders. 
For  example,  all  expenses  "incurred  for  the  common 
defence  or  general  welfare"  were  to  be  defrayed  out 
of  a  common  treasury  which  was  to  be  supplied  by  the 
States  in  proportion  to  the  value  of  their  lands,  build- 
ings, and  improvements.  This  meant  that  Congress 
could  call  on  each  State  to  pay  its  fair  share  of  the 
cost  of  the  government.  Unluckily  it  did  not  mean 
that  Congress  could  send  a  tax  collector  into  a  default- 
ing State  and  collect  by  force  what  might  be  due  to 
the  national  government. 

Notwithstanding  the  adoption  of  the  articles  was  a 
great  step  in  the  direction  of  a  permanent  form  of  gov- 
ernment among  the  States,  experience  soon  developed  the 
fact  that  they  were  inadequate  for  the  purposes  of  the  Union 
and  failed  to  meet  the  requirements  of  the  times,  or  the 
necessities  of  the  government.  They  conferred  but  little 
power  upon  Congress.  A  general  listlessness  seemed  to 
pervade  that  body  for  a  number  of  years,  and  it  appears 
to  have  been  weak  and  ineffectual.^ 

As  each  State  paid  its  own  delegates  in  Congress,  the 
smaller  the  number  the  less  expense.     Oftentimes  a  State 

'  Watson,  On  the  Constitution,  vol.  i.,  p.  31. 


MAKING  OF  THE  CONSTITUTION  15 

would  have  no  representative.  The  Treaty  of  Peace 
between  the  Colonies  and  Great  Britain,  which  was 
signed  September  3,  1783,  and  which  marked  the  close 
of  the  Revolution,  could  not  be  ratified  until  January  14, 
1784,  because  of  the  absence  of  so  many  representatives, 
and  then  there  were  but  twenty-three  members  present. 
In  April,  1783,  there  were  present  twenty-five  members  from 
eleven  States,  nine  being  represented  by  two  each.  Three 
members — therefore  one-eighth  of  the  whole — could  nega- 
tive any  important  measure.* 

Edmund  Randolph,  afterward  President  Washing- 
ton's Attorney-General,  said  in  substance  in  one  of  his 
addresses  in  the  Constitutional  Convention: 

The  Confederation  was  made  in  the  infancy  of  the  science 
of  constituting,  when  the  inefficiency  of  requisition  was 
unknown;  when  no  commercial  discord  had  arisen  among 
the  States;  .  .  .  when  no  foreign  debts  were  urgent;  when 
the  havoc  of  paper  money  had  not  been  foreseen;  when 
treaties  had  not  been  violated;  and  when  nothing  better 
would  have  been  conceded  by  States  jealous  of  their 
sovereignty. 

But  it  offered  no  security  against  foreign  invasion,  for 
Congress  could  neither  prevent  nor  conduct  a  war;  nor 
punish  infractions  of  treaties  or  of  the  law  of  nations;  nor 
control  particular  States  from  provoking  war.  The  federal 
government  had  no  constitutional  power  to  check  a 
quarrel  between  separate  States;  nor  to  suppress  a  rebellion 
in  any  one  of  them;  nor  to  establish  a  productive  impost;  nor 
to  counteract  the  commercial  regulations  of  other  nations; 
nor  to  defend  itself  against  the  encroachments  of  the 
States.' 

'  Andrews,  Manual  of  the  Constitution,  p.  38. 

•Madison's  Journal,  Albert  Scott  &  Co.,  Chicago,  1893,  pp.  59,  60. 


i6        AMERICAN  PLAN  OF  GOVERNMENT 

Ordinance  of  lySy.  The  one  supreme  achievement 
of  the  Confederation  was  the  adoption  on  July  13, 
1787,  by  the  Confederate  Congress  of  "An  ordinance 
for  the  government  of  the  territory  northwest  of  the 
river  Ohio."  This  instrument  of  government  recog- 
nized the  supreme  power  of  the  United  States  over 
its  own  landed  property.  It  gave  the  territorial  legis- 
lature power  to  enact  laws  which  should  not  violate  a 
number  of  well-defined  political  principles  that  are  set 
forth  in  an  enumeration  of  the  rights  of  the  inhabitants 
of  the  territory.  It  is  the  first  American  national 
document  which  declared  unreservedly  that  neither 
slavery  nor  involuntary  servitude  should  exist,  other- 
wise than  in  the  punishment  of  crime.  ^ 

The  Constitution  of  the  United  States.  On  January  2 1 , 
1787,  the  Congress  of  the  Confederation  adopted  the 
following  resolution  which  had  been  introduced  by 
Rufus  King,  a  delegate  from  Massachusetts,  who  after- 
ward was  one  of  the  first  two  United  States  Senators 
from  New  York : 

Resolved:  That  it  is  expedient  that  on  the  second 
Monday  in  May  next,  a  convention  of  delegates,  who  shall 
have  been  appointed  by  the  several  States,  be  held  at 
Philadelphia,  for  the  sole  and  express  purpose  of  revising 
the  Articles  of  Confederation,  and  reporting  to  Congress 
and  the  several  legislatures  such  alterations  and  provisions 
therein,  as  shall,  when  agreed  to  in  Congress  and  con- 
firmed by  the  States,  render  the  Federal  Constitution 
adequate  to  the  exigencies  of  government  and  the  preserva- 
tion of  the  Union.  * 

The  different  State  legislatures  appointed  delegates, 
giving  them  authority  to  take  part  in  the  Convention, 

» Ordinance  of  1787,  Article  vi.  "4  Journals  of  Congress,  724. 


MAKING  OF  THE  CONSTITUTION  17 

which  began  its  sittings  on  May  25,  1787,  and  ad- 
journed on  September  17,  1787,  after  having  framed 
what  Mr.  Gladstone  once  called  "the  most  remarkable 
document  ever  struck  forth  at  a  given  time  by  the  brain 
and  ptu-pose  of  man." 

In  1793,  John  Jay,  the  first  Chief  Justice  of  the 
United  States,  in  the  opinion  which  he  rendered  in 
the  great  case  of  Chisholm  vs.  Georgia,  ^  explained  the 
position  which  this  instrument  of  government  occupies 
among  American  institutions.    He  said: 

All  the  country  now  possessed  by  the  United  States  was 
then  a  part  of  the  dominions  appertaining  to  the  crown  of 
Great  Britain.  Every  acre  of  land  in  this  country  was 
then  [prior  to  the  Revolution]  held  mediately  or  im- 
mediately by  grants  from  that  crown.  All  the  people  of 
this  country  were  then  subjects  of  the  King  of  Great  Bri- 
tain, and  owed  allegiance  to  him ;  and  all  the  civil  authority 
then  existing  or  exercised  here,  flowed  from  the  head  of  the 
British  empire.  They  were  in  a  strict  sense  fellow  sub- 
jects and  in  a  variety  of  respects  one  people.  .  .  .  The 
revolution,  or  rather  the  declaration  of  independence,  found 
the  people  already  united  for  general  purposes,  and  at  the 
same  time  providing  for  their  more  domestic  concerns 
by  State  conventions  and  other  temporary  arrangements. 
From  the  crown  of  Great  Britain,  the  .  sovereignty  of 
their  country  passed  to  the  people  of  it;  and  it  was  then 
not  an  uncommon  opinion  that  the  unappropriated  lands 
which  belonged  to  that  crown,  passed  not  to  the  peo- 
ple of  the  colony  or  State  within  whose  limits  they  were 
situated,  but  to  the  whole  people.  .  .  . 

The  people  nevertheless  continued  to  consider  them- 
selves, in  a  national  point  of  view,  as  one  people ;  and  they 
continued,  without  interruption,  to  manage  their  national 
concerns  accordingly ;  afterwards,  in  the  hurry  of  the  war 

» 2  Dallas'  Rep.,  470. 

a 


18         AMERICAN  PLAN  OF  GOVERNMENT 

and  in  the  warmth  of  mutual  confidence,  they  made  a 
confederation  of  the  States  the  basis  of  a  general  govern- 
ment. Experience  disappointed  the  expectations  they  had 
formed  from  it;  and  then  the  people,  in  their  collective 
and  national  capacity,  established  the  present  Constitution. 
It  is  remarkable  that  in  establishing  it,  the  people  exercised 
their  own  rights  and  their  own  proper  sovereignty,  and, 
conscious  of  the  plenitude  of  it,  they  declared  with  be- 
coming dignity,  "We,  the  people  of  the  United  States,  do 
ordain  and  establish  this  Constitution."  Here  we  see  the 
people  acting  as  sovereigns  of  the  whole  country,  and,  in 
the  language  of  sovereignty,  establishing  a  Constitution 
by  which  it  was  their  will  that  the  State  governments 
should  be  bound,  and  to  which  the  State  constitutions 
should   be  made  to  conform. 

Every  State  constitution  is  a  compact  made  by  and 
between  the  citizens  of  a  State  to  govern  themselves  in  a 
certain  manner;  and  the  Constitution  of  the  United  States 
is  likewise  a  compact,  made  by  the  people  of  the  United 
States  to  govern  themselves  as  to  general  objects,  in  a 
certain  manner. 

William  Paterson,  one  of  the  earlier  justices  of  the 
national  Supreme  Coiirt,  gave  in  the  case  of  Van 
Home  vs.  Dorrance,^  tried  in  1790,  a  definition  of  the 
word  "Constitution,"  which  is  particularly  important 
because  it  points  out  the  difference  between  the  People's 
Law  and  the  laws  of  legislatures.    He  said : 

What  is  a  Constitution?  It  is  a  form  of  government  de- 
lineated by  the  mighty  hand  of  the  people,  in  which  certain 
first  principles  of  fundamental  laws  are  established.  The 
Constitution  is  certain  and  fixed ;  it  contains  the  permanent 
will  of  the  people,  and  is  the  supreme  law  of  the  land ;  it  is 
paramount  to  the  power  of  the  legislatiure,  and  can  be  re- 

*  2  Dallas'  Rep.,  304. 


MAKING  OF  THE  CONSTITUTION  19 

voked  or  altered  only  by  the  authority  that  made  it.  The 
life-giving  principle  and  the  death-doing  stroke  must  pro- 
ceed from  the  same  hand.  What  are  the  legislatures? 
Creatures  of  the  Constitution ;  they  owe  their  existence  to 
the  Constitution;  they  derive  their  powers  from  the  Con- 
stitution. It  is  their  commission;  and,  therefore,  all  their 
acts  must  be  conformable  to  it,  or  else  they  will  be  void. 
The  Constitution  is  the  work  or  will  of  the  people  them- 
selves, in  their  original,  sovereign,  and  unlimited  capacity. 
Law  is  the  work  or  will  of  the  legislature  in  their  derivative 
or  subordinate  capacity.  The  one  is  the  work  of  the  Crea- 
tor, the  other  of  the  creature. 

The  Amended  Constitution  of  the  United  States.  The 
People's  Law  of  the  United  States  now  consists  of  the 
written  plan  of  government  prepared  by  the  Convention 
of  1787  and  seventeen  amendments  which  have  been 
added  under  the  provisions  of  the  amending  clause. 

The  first  ten  amendments,  usually  called  the  Bill 
of  Rights,  state  in  separate  articles  as  additions  to 
the  Constitution,  the  rights,  privileges,  and  immunities 
of  citizens  of  the  States. 

The  Eleventh  and  Twelfth  Amendments  limit  the 
power  of  the  Federal  courts  in  actions  against  States 
and  correct  the  defects  in  an  impossible  plan  of  choosing 
Presidents  and  Vice-Presidents  of  the  United  States. 

The  three  amendments  adopted  at  the  close  of  the 
Civil  War  are  additions  to  the  Constitution  rather 
than  alterations. 

The  Sixteenth  Amendment  permits  national  taxation 
of  incomes  derived  from  any  source,  including  real  estate. 

The  Seventeenth  Amendment  provides  for  the  elec- 
tion of  United  States  Senators  by  the  people  instead 
of  by  State  legislatiures. 


20         AMERICAN  PLAN  OF  GOVERNMENT 

This  book  deals  with  the  Constitution  and  its 
amendments  in  logical,  rather  than  in  chronological, 
order.  The  Constitution  has  been  changed  from  time 
to  time  as  needs  have  arisen,  but  the  order  in  which 
those  needs  have  arisen  has  been  purely  accidental. 
The  purpose  here  is  to  insert  these  amendments  in  the 
places  where  they  logically  belong  so  that  the  reader 
can  more  easily  gain  a  comprehensive  view  of  the 
Constitution  as  it  is. 

It  presents  the  Constitution  as  it  has  been  interpreted 
and  explained  by  the  courts  and  by  commentators  of 
established  reputation.  The  court  decisions  referred 
to  may  be  found  in  any  well-equipped  law  library. 
The  titles  of  such  decisions  mostly  explain  themselves. 
It  may  be  well,  however,  to  note  that  such  titles  as 
Johnson  vs.  Smith,  applied  to  a  lawsuit  tried  before  a 
jury,  inform  the  world  that  some  person  named 
Johnson  is  suing  some  other  person  named  Smith.  A 
similar  title  applied  to  a  decision  of  the  Supreme 
Court  of  the  United  States  would  mean  that  "Johnson," 
having  lost  his  case  in  the  coiirt  where  it  was  first  tried, 
has  asked  the  higher  court  to  examine  the  record  of 
that  trial  and  set  the  judgment  aside  because  wrong- 
fully rendered.  The  titles  Ex  Parte  Johnson,  In  re 
Johnson,  or  Matter  oj  Johnson,  indicate  that  somebody 
named  Johnson  has  asked  a  court  to  examine  into  pro- 
ceedings which  affect  his  personal  interests.  If,  for 
instance,  an  imprisoned  person  thinks  he  has  been 
wrongfully  put  in  jail,  his  proper  course  is  to  ask  the 
courts  to  order  him  released.  The  petition  to  the  judge 
in  such  a  case  is  entitled  ^^Ex  Parte,""  or  "/w  re,"  or 
*^ Matter  of.''  A  person  who  believes  that  he  has  lost 
some  of  his  rights  as  a  citizen  through  the  unlawful 
acts  of  a  pubHc  official  can  gain  the  attention   of  the 


_MAKING  OF  THE  CONSTITUTION  21 

courts  in  a  proceeding  in  the  name  of  the  State  or  of  the 
United  States  upon  a  statement  signed  by  him.  Such 
a  proceeding,  for  example,  might  be  entitled  The  Peo- 
ple oj  the  State  of  New  York,  Ex  rel.  (on  the  relation  of) 
Johnson,  against  John  Smith,  Police  Commissioner,  etc. 
In  a  Federal  case,  the  title  would  be  United  States  of 
America,  Ex  rel.  Johnson.  Cases  against  certain  things, 
such  as  ships,  or  articles  of  merchandise  forfeited  be- 
cause of  attempts  to  defraud  the  revenue,  are  known 
as  actions  in  rem,  which  means  "against  a  thing."  The 
owners  of  vessels  coming  to  our  harbors  are  unknown 
to  those  who  may  supply  them  with  provisions  and 
other  articles.  Hence  the  law  holds  the  ships  responsi- 
ble. The  owners  of  goods  which  have  been  smuggled 
through  the  custom-house  are  seldom  known.  Therefore 
the  action  of  forfeiture  is  brought  against  the  goods 
which  are  to  be  forfeited. 


PART  II 

Nature  of  the  Preamble 


23 


CHAPTER  III 

THE  PEOPLE  OF  THE  UNITED  STATES 

The  opening  paragraph  of  the  Constitution  is  usu- 
ally called  the  Preamble,  which  means  preface  or  in- 
troduction, because  it  states  the  purposes  for  which 
our  government  was  estabhshed.  It  does  not  give  the 
national  government  any  rights  or  powers  at  all.  The 
Supreme  Court  so  ruled  in  the  case  of  Jacohson  vs. 
Massachusetts,^  in  which  the  point  was  made  that  a 
State  law  compelling  people  to  be  vaccinated  as  a 
preventive  treatment  against  smallpox  was  unconstitu- 
tional because  it  tended  to  subvert  and  defeat  a  pur- 
pose of  the  Constitution  of  the  United  States.  Justice 
Harlan  said: 

Although  that  Preamble  [of  the  Constitution  of  the 
United  States]  indicates  the  general  purposes  for  which 
the  people  ordained  and  established  the  Constitution,  it 
has  never  been  regarded  as  the  source  of  any  substantive 
power  conferred  on  the  Government  of  the  United  States 
or  on  any  of  its  Departments.  Such  powers  embrace 
only  those  expressly  granted  in  the  body  of  the  Constitu- 
tion and  such  as  may  be  implied  from  those  so  granted. 
Although,  therefore,  one  of  the  declared  objects  of  the 
Constitution  was  to  secure  the  blessings  of  liberty  to  all 
under  the  sovereign  jurisdiction  and  authority  of  the 
United  States,  no  power  can  be  exerted  to  that  end  by 

'  197  U.  S.  Rep.,  II. 

25 


26        AMERICAN  PLAN  OF  GOVERNMENT 

the  United  States,  unless,  apart  from  the  Preamble,  it  be 
found  in  some  express  delegation  of  power  or  in  some  power 
to  be  properly  implied  therefrom. 

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. 

We,  the  People  of  the  United  States.  The  phrase,  ' '  We, 
the  People  of  the  United  States,"  has  made  the  United 
States  a  nation  instead  of  a  mere  league  of  friendship 
between  a  number  of  independent  States.  "With  the 
strictest  propriety,  .  .  .  classical  and  political,"  said 
Justice  James  Wilson  of  the  national  Supreme  Court 
in  his  opinion  in  the  great  case  of  Chisholm  vs.  Georgia,  * 
**our  national  scene  opens  with  the  most  magnificent 
object  which  the  nation  could  present.  *The  People 
of  the  United  States*  are  the  first  personages  intro- 
duced. Who  were  those  people?  They  were  the 
citizens  of  thirteen  States,  each  of  which  had  a 
separate  Constitution  and  government,  and  all  of 
which  were  connected  together  by  Articles  of  Con- 
federation." 

According  to  the  first  census,  the  free  popiilation  of 
the  States  of  the  United  States  in  1790,  just  after  the 
Constitution  went  into  effect,  was  about  3,250,000. 
Of  these,  2,345,844  were  of  English  origin.  There  were 
188,589  Scotch  people  and  44,273  Irish.  The  Dutch, 
most  of  whom  lived  in  New  York,  numbered  56,623. 

» 2_Dallas'  Rep.,  419. 


NATURE  OF  THE  PREAMBLE  27 

There  were  156,457  Germans,  13,384  French,  1,243 
Hebrews,  and  3,835  of  other  nationalities.* 

There  was  also  at  this  time  a  negro  population 
of  757,181,  the  great  majority  being  inhabitants  of 
Delaware  and  States  farther  south.  Slavery  had  nearly 
died  out  in  New  England  and  was  rapidly  disappearing 
in  the  Middle  States;  but  in  the  South  almost  all  the 
colored  people  were  slaves.*  Whether  or  not  these 
negroes  were  part  of  the  people  of  the  United  States 
was  an  open  question  which  was  not  judicially  answered 
until  1857. 

The  great  case  of  Dred  Scott  vs.  Sanford^  involved 
the  vaHdity  of  a  law  made  by  Congress  in  1820  and 
called  the  Missouri  Compromise  Act  because  it  settled 
in  part  the  dispute  over  the  admission  of  Missotui  to 
the  Union  as  a  slave  State.  This  act,  which  remained 
in  force  imtil  1854,  provided  that  after  the  admission 
of  Missouri,  slavery  should  be  excluded  from  all  States 
formed  out  of  the  rest  of  the  Louisiana  Purchase,  north 
of  the  parallel  of  36°  30'. 

In  1834,  Dred  Scott,  a  negro  slave  owned  by  an 
army  surgeon,  was  taken  by  his  master  to  a  miUtary 
post  in  the  State  of  IlHnois,  which  had  been  carved 
out  of  the  Northwest  Territory  and  admitted  to  the 
Union  as  a  free  State  in  18 18.  Two  years  later,  the 
negro  was  taken  to  a  place  on  the  west  bank  of  the  Mis- 
sissippi in  what  is  now  the  State  of  Iowa.  This  place 
was  north  of  36°  30' — the  dead  line  of  slavery.  A  few 
years  afterward,  having  been  brought  to  Missouri,  a 
slave  State,  he  brought  an  action  for  his  freedom 
against  his  master's  widow  in  the  courts  of  that  State, 

'  A  Century  of  Population  Growth  in   the  United  States,  1790-1900, 
p.  116.    Government  Printing  Office,  Washington,  D.  C,  1909. 
» Ibid.,  p.  83.  »  19  Howard's  Rep.,  393,  404. 


28        AMERICAN  PLAN  OF  GOVERNMENT 

claiming  that  his  residence  in  a  free  State  and  a  free 
Territory  had  given  him  his  Hberty.  This  case  was 
decided  against  him  in  the  highest  State  court. 
Meanwhile  he  had  been  purchased  by  a  New  York 
man  named  Sanf  ord.  This  gave  him  a  chance,  provided 
he  were  a  citizen,  to  bring  another  suit  for  his  freedom 
in  the  national  courts,  which,  imder  the  judiciary  clause 
of  the  Constitution,  have  power  to  decide  cases  between 
citizens  of  different  States.  In  1856,  the  case  reached 
the  national  Supreme  Cotirt,  which  decided  that 
negroes  never  had  been  and  never  could  be  citizens  of 
the  United  States;  that  they  were  not  among  those 
who  are  meant  by  the  phrase,  "The  People  of  the 
United  States,"  as  used  in  the  Preamble.  This  decision 
was  referred  four  years  later  to  the  battlefield,  where 
it  was  finally  determined  that  the  descendants  of  the 
colored  people  who  were  here  in  1790  and  all  others 
who  came  afterward  should  be  reckoned  as  people  of 
the  United  States. 

In  defining  the  phrase,  Chief  Justice  Taney,  who 
wrote  the  opinion  of  the  Court,  said: 

The  words ' '  people  of  the  United  States "  and  "Citizens " 
are  synonymous  terms  and  mean  the  same  thing.  They 
both  describe  the  political  body  who,  according  to  our 
republican  institutions,  form  the  sovereignty,  and  who 
hold  the  power  and  conduct  the  government  through  their 
representatives.  They  are  what  we  familiarly  call  the 
"Sovereign  people,"  and  every  citizen  is  one  of  this  peo- 
ple, and  a  constituent  member  of  this  sovereignty. 


CHAPTER  IV 

PURPOSES  OF  THE  CONSTITUTION 

In  Order  to  form  a  more  perfect  Union.  Under  the 
Confederation,  the  States  seem  to  have  done  what 
they  could  to  show  the  world  that  the  United  States  was 
lacking  in  everything  which  makes  nationality  worth 
while.  "Flushed  with  the  enjoyment  of  sovereign 
power  [the  States]  increased  instead  of  diminishing 
measures  incompatible  with  their  relations  to  the 
Federal  government."*  New  York  and  Pennsylvania, 
which  had  good,  deep-water  harbors,  levied  customs 
duties  on  merchandise  going  to  New  Jersey,  which  had 
none.  Virginia  and  South  Carolina  exploited  North 
Carolina  in  the  same  way.  There  was  every  chance 
that  the  young  nation  would  break  up  unless  a  more 
perfect  union  could  be  made. 

The  new  Constitution  established  that  more  perfect 
tmion.  The  Supreme  Court  so  declared  in  its  decision 
of  the  case  of  Teocas  vs.  White.' 

In  1 85 1,  the  United  States  had  paid  over  to  the 
State  of  Texas  five  million  dollars  in  United  States  five 
per  cent,  bonds  in  settlement  of  a  disputed  boundary 
claim.  A  few  of  these  bonds  were  in  the  treasury  of 
the  State  of  Texas  when  the  Civil  War  began  in  186 1. 

» Madison's  Journal,  Intro.,  p.  34.  Albert  Scott  &  Co.,  Chicago, 
1894. 

» 7  Wallace's  Rep.,  700. 

29 


30        AMERICAN  PLAN  OF  GOVERNMENT 

In  January,  1862,  after  Texas  had  seceded,  the  State 
legislature  authorized  the  sale  of  these  bonds  to  provide 
funds  for  the  military  purposes  of  the  Confederate 
States.  In  March,  1865,  after  the  collapse  of  the  Con- 
federacy, but  before  the  actual  close  of  the  Civil  War, 
one  hundred  and  thirty-five  of  these  bonds  of  a  par 
value  of  $135,000  were  delivered  to  Mr.  White,  one  of 
the  defendants  in  this  case,  pursuant  to  a  contract  of 
sale,  and  he  in  turn  sold  and  delivered  these  bonds  to 
other  persons.  In  1866,  a  Texas  State  Convention 
adopted  an  ordinance  authorizing  a  lawsuit  for  the 
recovery  of  these  bonds  or  their  value,  and  the  governor 
brought  action  against  Mr.  White  for  that  purpose. 
The  question  which  the  Supreme  Court  of  the  United 
States  had  to  decide  was  whether  the  State  of  Texas 
ever  had  authorized  the  sale  of  the  bonds.  The  Court 
sustained  the  demand  of  the  governor  on  the  ground 
that  the  Confederate  State  government  which  had 
authorized  the  sale  of  the  bonds,  had  had  no  valid  or 
legal  existence,  and  had  been  able  to  do  no  valid  or 
legal  act,  such  as  authorizing  a  sale  of  State  property, 
because  it  had  been  arrayed  in  arms  against  the  more 
perfect  Union  created  by  the  Constitution.  Chief 
Justice  Salmon  P.  Chase  said : 

The  Union  of  the  States  never  was  a  purely  artificial  and 
arbitrary  relation.  It  began  among  the  Colonies  and  grew 
out  of  common  origin,  mutual  sympathies,  kindred  princi- 
ples, similar  interests,  and  geographical  relations.  It  was 
confirmed  and  strengthened  by  the  necessities  of  war,  and 
received  definite  form,  and  character,  and  sanction  from 
the  Articles  of  Confederation.  By  these,  the  Union  was 
solemnly  declared  to  "be  perpetual."  And  when  these 
Articles  were  found  to  be  inadequate  to  the  exigencies  of 
the  country,  the  Constitution  was  ordained  "to  form  a 


NATURE  OF  THE  PREAMBLE  31 

more  perfect  Union."  It  is  difficult  to  convey  the  idea  of 
indissoluble  unity  more  clearly  than  by  these  words. 
What  can  be  indissoluble,  if  a  perpetual  Union,  made  more 
perfect,  is  not? 

In  order  to  ...  establish  Justice.  "Another  de- 
clared object  [of  the  Constitution],"  said  James  Wilson, 
a  justice  of  the  Supreme  Court,  in  the  case  of  Chisholm 
vs.  Georgia,^  "is  'to  establish  justice.*  This  points,  in 
a  particular  manner,  to  a  judicial  authority." 

In  order  to  .  .  .  insure  domestic  Tranquility.  The 
members  of  the  Constitutional  Convention  were  well 
aware  that  Massachusetts  had  been  obliged,  only  a 
few  months  before,  to  deal  single-handed  and  alone 
with  Shay's  Rebellion.  The  Confederation  had  not 
helped  or  offered  to  help,  because  it  had  no  power  to 
interfere  in  the  internal  troubles  of  any  State.  Hence 
the  Constitution  makers  were  under  a  boimden  duty 
to  give  to  the  new  government  power  to  keep  the 
peace  in  a  State.  It  was  lucky  they  included  this 
purpose,  because  the  Whiskey  Rebellion  in  Western 
Pennsylvania,  an  organized  protest  against  the  internal 
revenue  tax  on  whiskey,  which  broke  out  in  1794,  would 
have  spread  along  the  back  country  from  New  York 
to  Georgia  if  the  Federal  Government  had  not  had 
power  "to  insure  domestic  tranquility."  Also,  the 
clauses  of  the  Constitution  which  made  this  purpose  ef- 
fective, gave  President  Lincoln  and  Congress  power  to 
take  measures  to  restore  domestic  tranquillity  in  the 
Southern  States  which  attempted  to  secede  in  1861. 

In  order  to  .  .  .  provide  for  the  common  defence.  The 
old  plan  of  government  also  had  failed  in  this:  whereas 
the  Articles  of  Confederation  had  provided  only  that 

» 2  Dallas'  Rep.,  419. 


32        AMERICAN  PLAN  OF  GOVERNMENT 

each  of  the  States  should  pay  its  proportionate  share 
of  the  expenses  of  defense  against  foreign  attacks,  no 
method  of  compelling  a  State  to  pay  its  part  of  the 
cost  had  been  provided.  The  Constitution  makers 
knew  how  much  this  defect  had  meant.  Many  of  them 
had  served  in  the  Continental  Congress  during  the  Re- 
volution and  could  remember  that  the  States,  with  few 
exceptions,  either  had  been  slow  in  providing  their 
quotas  of  men  and  supplies,  or  had  failed  altogether 
to  obey  the  requisitions  made  upon  them. 

Our  government  really  was  on  trial  imtil  it  had 
survived  the  rude  test  of  the  Civil  War.  Other  nations 
were  not  sure  that  the  Federal  Union  which  had  been 
created  to  meet  the  emergencies  of  the  Httle  United 
States  of  1787,  would  stand  the  strain  when  nearly  a 
compact  half  of  the  States  of  the  greater  Union  of  1861 
wanted  to  break  it  up.  It  stood  the  test  mainly  because 
the  statesmen  of  that  era  found  in  the  Constitution 
some  national  powers  available  for  the  common  defense, 
which  the  framers  of  that  instrument  did  not  grant  in 
specific  words  to  the  central  government.  One  of  the 
most  important  of  these  discoveries  was  the  power  to 
issue  paper  money  in  order  to  meet  the  expense  of  the 
common  defense  of  the  nation. 

In  order  to  .  .  .  promote  the  general  Welfare.  There 
had  been  fairly  good  times  during  the  Revolution 
because  the  people  were  united  by  a  common  danger 
and  were  inclined  to  deal  fairly  with  one  another.  There 
had  been  little  or  no  competition  from  abroad  and  a 
few  simple  industries  had  been  established  and  were 
prosperous.  After  the  war  was  over,  things  were  dif- 
ferent. Each  of  the  States  asserted  its  rights  by  mak- 
ing it  almost  impossible  for  outsiders  to  trade  with  its 
citizens.    Foreign  governments  imposed  ruinous  port 


NATURE  OP  THE  PREAMBLE  33 

duties  upon  American  goods,  and  foreign  merchants 
flooded  our  markets  with  manufactures  at  prices  which 
American  producers  cotild  not  meet.  "While  London 
merchants  enjoyed  the  benefits  of  free  trade  with  the 
States,  American  oil  was  taxed  £18  per  ton  and  tobacco 
16  pence  a  pound  in  Liverpool."^  It  was  quite  gener- 
ally agreed  that  the  Confederation  had  been  a  failure, 
because  under  it  the  "united  States  in  Congress  as- 
sembled" had  had  no  control  over  the  States  in  com- 
mercial matters.  That  being  the  case,  the  natural  thing 
to  do  was  to  give  the  new  central  government  all  powers 
needful  for  the  regtilation  of  foreign  and  domestic 
commerce. 

Among  the  first  acts  of  the  first  administration  of 
President  Washington  was  the  negotiation  of  a  com- 
mercial treaty  with  Great  Britain,  which  seems  to  have 
been  a  little,  but  not  much,  better  than  nothing,  and 
a  customs  revenue  law  which  imposed  protective  duties 
on  goods  imported  from  foreign  countries.  The  treaty 
and  the  law  were  regulations  of  commerce  with  a 
foreign  country  and  were  consistent  with  the  Constitu- 
tion. Some  of  the  States,  however,  were  incHned  to 
try  out  conclusions  with  the  nation,  if  a  way  could  be 
found;  for  the  power  to  regulate  commerce  by  tariff 
legislation  cut  into  the  revenue-raising  powers  of  the 
local  governments.  Maryland,  for  example,  soon  after 
the  beginning  of  the  nineteenth  centiuy  enacted  a  law 
which  required  all  importers  of  foreign  articles  to  pay 
an  annual  license  fee.  A  Baltimore  merchant  who  had 
imported  merchandise  without  a  license  was  tried  and 
convicted  on  a  charge  of  misdemeanor.  He  took  his 
case  to  the  United  States  Supreme  Court  on  the  ground 

*  McMaster's  History  of  the  People  of  the  United  States,  vol.  i.,  pp. 
346,  248. 
3 


34         AMERICAN  PLAN  OF  GOVERNMENT 

that  the  Maryland  law  was  unconstitutional.  The 
Supreme  Court,  thereupon,  ruled  that  a  State  law  im- 
posing any  restriction  upon  dealing  in  imported  goods 
is  a  regulation  of  commerce  with  foreign  nations  which 
no  State  has  power  to  make,  that  power,  by  the  Con- 
stitution, being  vested  for  the  general  welfare  in  the 
United  States.  This  was  the  case  of  Brown  vs.  Mary- 
land. '     Chief  Justice  Marshall  said  in  part : 

The  oppressed  and  degraded  state  of  commerce  previ- 
ous to  the  adoption  of  the  Constitution  can  scarcely  be 
forgotten.  It  was  regulated  by  foreign  nations  with  a 
single  view  to  their  own  interests;  and  our  disunited 
efforts  to  counteract  their  restrictions  were  rendered  im- 
potent by  want  of  combination.  Congress,  indeed,  posses- 
sed the  power  of  making  treaties;  but  the  inability  of 
the  federal  government  to  enforce  them  had  become  so 
apparent  as  to  render  that  power  in  a  great  degree  useless. 
Those  who  felt  the  injury  arising  from  this  state  of  things, 
and  those  who  were  capable  of  estimating  the  influence  of 
commerce  on  the  prosperity  of  nations,  perceived  the 
necessity  of  giving  the  control  over  this  important  sub- 
ject to  a  single  government.  It  may  be  doubted  whether 
any  of  the  evils  proceeding  from  the  feebleness  of  the 
federal  government  contributed  more  to  that  great  revolu- 
tion which  introduced  the  present  system,  than  the  deep 
and  general  conviction  that  commerce  ought  to  be  regulated 
by  Congress. 

In  order  to  .  .  .  secure  the  Blessings  of  Liberty  to 
ourselves  and  our  Posterity.  The  right  to  life  has  been 
defined  as  the  right  to  live,  to  marry,  and  govern  the 
home,  without  interference;  the  right  to  liberty,  as 
the  right  to  do  and  believe  at  will;  and  the  right  to 
the  pursuit  of  happiness  as  the  right  to  earn  a  living 

'  12  Wheaton's  Rep.,  419. 


NATURE  OF  THE   PREAMBLE  35 

in  the  way  each  man  likes  best.  In  this  sentence  in 
the  Preamble,  the  Constitution  makers  announced  that 
the  instrument  of  government  they  were  creating  had 
for  one  of  its  objects  the  preservation  of  these  blessings 
of  liberty.  Elsewhere  in  the  Constitution,  they  made 
provision  for  a  few  of  the  rights  of  the  States  and  of  the 
citizens  of  the  States.  The  people  of  the  United  States 
added  to  the  Constitution  ten  amendments,  known  as 
the  Bill  of  Rights,  which  prohibit  the  national  govern- 
ment from  interfering  with  the  "blessings  of  liberty." 

The  "blessings  of  liberty"  thus  secured  to  the  peo- 
ple of  the  United  States  by  their  fundamental  law,  were 
explained  by  the  Supreme  Court  in  the  case  of  Allgeyer 
vs.  Louisiana.  ^  This  case  hinged  upon  the  constitution- 
ality of  a  Louisiana  statute  which  prohibited  all  persons 
from  doing  in  that  State  any  act  placing  insurance  on 
property  in  any  marine  insurance  company  which  had 
not  complied  with  certain  State  regulations  concerning 
such  companies.  Allgeyer  &  Co.  had  mailed  a  letter 
to  the  Atlantic  Insurance  Company  of  New  York, 
advising  them  that  a  shipment  of  cotton  had  been 
made  in  accordance  with  the  terms  of  an  open  marine 
policy  which  it  had  issued.  The  Supreme  Court  of 
Louisiana  said  that  this  was  a  violation  of  the  statute. 
The  jBrm  carried  the  case  to  the  Supreme  Court  at 
Washington  on  the  ground  that  the  State  law  was 
unconstitutional  in  that  it  deprived  them  of  their  liberty 
without  due  process  of  law.  And  the  Supreme  Court 
agreed  with  them.  Justice  Peckham,  in  giving  the 
decision,  defined  the  word  "liberty"  as  follows: 

The  Supreme  Court  of  Louisiana  says  that  the  act  of 
writing  within  that  State,  the  letter  of  notification,  was  an 

'  165  U.  S.  Rep.,  578. 


36        AMERICAN  PLAN  OF  GOVERNMENT 

act  therein  done  to  effect  an  insurance  on  property  then  in 
the  State,  in  a  marine  insurance  company  which  had  not 
complied  with  its  laws,  and  such  an  act  was,  therefore, 
prohibited  by  the  statute.  As  so  construed  we  think  the 
statute  is  a  violation  of  the  Fourteenth  Amendment  of  the 
Federal  Constitution,  in  that  it  deprives  the  defendants 
of  their  liberty  without  due  process  of  law.  The  statute 
which  forbids  such  an  act  does  not  become  due  process  of 
law,  because  it  is  inconsistent  with  the  provisions  of  the 
Constitution  of  the  Union.  The  liberty  mentioned  in 
that  amendment  means  not  only  the  right  of  the  citizen 
to  be  free  from  the  mere  physical  restraint  of  his  person, 
as  by  incarceration,  but  the  term  is  deemed  to  embrace  the 
right  of  the  citizen  to  be  free  in  the  enjoyment  of  all  his 
faculties;  to  be  free  to  use  them  in  all  lawful  ways;  to  live 
and  work  where  he  will ;  to  earn  his  livelihood  by  any  law- 
ful calling;  to  pursue  any  livelihood  or  avocation,  and  for 
that  purpose  to  enter  into  all  contracts  which  may  be  pro- 
per, necessary,  and  essential  to  his  carrying  out  to  a  suc- 
cessful conclusion  the  purposes  above  mentioned. 


PART  III 

Organization  of  the   Federal  Congress 


37 


CHAPTER  V 

THE  SENATE  AND  HOUSE  OF  REPRESENTATIVES 

Art.  I.,  Sec.  i.  All  legislative  Powers  herein  granted 
shall  be  vested  in  a  Congress  of  the  United  States, 
which  shall  consist  of  a  Senate  and  House  of  Represen- 
tatives. 

The  word  "Congress"  was  first  applied  to  the  meet- 
ing at  New  York,  in  1765,  of  representatives  from  the 
provinces  of  Massachusetts,  Rhode  Island,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  Delaware,  Mary- 
land, and  South  Carolina,  to  protest  against  the  Stamp 
Act.  The  First  Continental  Congress  began  its  ses- 
sions at  Philadelphia  on  September  5, 1774.  The  Second 
Continental  Congress  assembled  in  the  same  place  on 
May  10,  1775.  The  Declaration  of  Independence  re- 
fers to  the  "Representatives  of  the  united  States  of 
America  in  General  Congress  assembled"  and  the  Arti- 
cles of  Confederation  speaks  of  the  "United  States  of 
America  in  Congress  assembled."  It  was  natural,  there- 
fore, when  the  framers  of  the  Constitution  met  in  Con- 
vention that  the  term  "Congress"  should  be  inserted 
in  the  Constitution  as  representing  the  legislative  branch 
of  the  government  of  the  United  States;  but  prior  to 
that  time,  it  was  a  comparatively  new  term  in  the  his- 
tory of  legislation.  * 

'Summarized  from  Watson,  On  the  Constitution,  vol.  i.,  p.  122. 
Chicago,  Callaghan  &  Co.,  1910. 

39 


40        AMERICAN  PLAN  OP  GOVERNMENT 

"Free  government,"  said  Judge  Vann  of  the  New 
York  Court  of  Appeals  in  his  opinion  in  the  case  of 
Matter  of  Davies,^  "consists  of  three  departments,  each 
with  distinct  and  independent  powers,  designed  to 
operate  as  a  check  upon  those  of  the  other  two  co- 
ordinate branches.  The  legislative  department  makes 
the  laws,  while  the  executive  executes  and  the  judiciary 
construes  and  appUes  them.  Each  department  is  con- 
fined to  its  own  functions  and  can  neither  encroach 
upon  nor  be  made  subordinate  to  those  of  another 
without  violating  the  fundamental  principle  of  a  re- 
publican form  of  government." 

Congress  cannot  make  any  law  which  is  not  au- 
thorized by  some  clause  of  the  People's  Law.  In 
Hayburn*s  Case,'  a  woimded  Revolutionary  soldier 
asked  the  Federal  Circuit  Cotu-t  of  Pennsylvania  to 
examine  into  his  claims  to  a  pension  imder  the  pro- 
visions of  an  Act  of  Congress  which  declared  that  the 
circuit  courts  of  the  United  States  should  act  as 
pension  examining  boards.  The  court  to  which  this 
application  was  made  refused  to  perform  the  duties 
imposed  by  this  act  on  the  grotmd  that  Congress  had 
no  power  under  the  Constitution  to  make  a  law  re- 
quiring the  courts  to  perform  duties,  which  are  admini- 
strative, not  judicial,  in  character,  and  sent  a  letter  to 
President  Washington,  in  which  the  judges  explained 
that  the  Constitution  does  not  authorize  Congress  to 
pass  a  law  imder  which  a  judicial  body  is  to  perform 
an  executive  function.    They  said: 

Congress  have  lately  passed  an  act  to  regulate,  among 
other  things,  "the  claims  to  invalid  pensions."  Upon  due 
consideration,  we  have  been  unanimously  of  opinion,  that 

'  i68  New  York  Rep.,  89,  loi.  '  2  Dallas'  Rep.,  411. 


ORGANIZATION  OF  FEDERAL  CONGRESS    41 

under  this  act,  the  Circuit  Court  held  for  the  Pennsylvania 
District  could  not  proceed:  .  .  .  Because  the  business  di- 
rected by  this  act  is  not  of  a  judicial  nature.  It  forms  no 
part  of  the  power  vested  by  the  Constitution  in  the  courts 
of  the  United  States ;  the  Circuit  Court  must  consequently 
have  proceeded  without  constitutional  authority. 

Art.  I.,  Sec.  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. 

The  two-year  term  of  members  of  the  House  of  Re- 
presentatives was  the  result  of  a  compromise  in  the 
Constitutional  Convention.  The  delegates  who  thought 
members  ought  not  to  sit  more  than  one  year  had  to 
admit  that  such  a  term  would  be  too  short  in  the  case 
of  members  from  Georgia,  some  of  whom  would  not 
have  undertaken  the  six  weeks'  joimiey  from  Savannah 
to  Philadelphia  if  they  had  had  to  return  ten  months 
later  to  stand  for  reelection.  Those  who  thought  a 
longer  term  of  oflBce  desirable  had  to  agree  that  a  mem- 
ber wotild  be  less  likely  to  disregard  the  wishes  of  his 
constituents  if  he  knew  that  he  would  have  to  ask  for 
their  votes  within  two  years. 

By  the  People  of  the  several  States.  The  People  of 
the  United  States,  by  whom  members  of  the  House 
of  Representatives  are  chosen,  are  the  citizens  of  the 
States  of  the  United  States.  This  rule  was  established 
by  the  Supreme  Court,  in  1857,  in  the  case  of  Dred 
Scott  vs.  Sanford.  * 

'  19  Howard's  Rep.,  393.    See  above. 


42        AMERICAN  PLAN  OP  GOVERNMENT 

Fourteenth  Amendment.  Sec.  i.  (In  part.)  All 
persons  bom  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. 

The  Fotirteenth  Amendment,  adopted  in  1868,  in- 
creased the  number  of  the  "People  of  the  United  States " 
by  making  all  persons,  including  negroes,  born  or  na- 
turalized here  and  under  this  jurisdiction,  citizens  of 
the  United  States  and  of  the  States  in  which  they 
reside.  The  condition  of  colored  people  under  the  law 
had  been  imdefined.  In  some  States,  they  had  been 
citizens.  In  others,  where  slavery  had  prevailed,  they 
had  been  classed  with  domestic  animals. 

And  the  Electors  in  each  State  shall  have  the  Qualifica- 
tions requisite  for  Electors  of  the  most  numerous  Branch 
of  the  State  Legislature.  Each  State  fixes  the  qualifica- 
tions of  the  voters  who  choose  the  members  of  the  most 
numerous  branch  of  its  legislature  and  the  Constitution 
declares  that  those  voters  shall  be  electors  of  members 
of  the  National  House  of  Representatives.  The  Con- 
stitution does  not  give  the  States  any  right  or  power 
to  control  elections  of  members  of  Congress.  The  Su- 
preme Coiurt  passed  upon  this  very  question  in  the 
case  of  Ex  Parte  Yarbrough.^  Jasper  Yarbrough  and 
seven  others  had  been  found  guilty  in  the  United  States 
Court  of  Georgia  upon  indictments  which  charged  them 
with  having  intimidated  and  otherwise  prevented  one 
Berry  Saimders,  a  negro  citizen,  from  voting  at  an  elec- 
tion for  member  of  Congress.  They  immediately  pe- 
titioned the  Supreme  Court  to  order  their  release  under 
a  writ  of  habeas  corpus  on  the  groimd  that  Congress 

'no  U.S.  Rep.,  651. 


ORGANIZATION  OF  FEDERAL  CONGRESS    43 

had  no  power  to  enact  the  law  regiilating  State  elec- 
tions at  which  representatives  in  Congress  were  chosen. 
Their  contention  was  that  such  power  vested  exclusively 
in  the  States,  which,  under  this  clause,  fix  the  qualifica- 
tions of  electors  of  the  most  numerous  branch  of  the 
State  legislature,  who  were  thereby  qualified  for  voting 
at  elections  of  members  of  Congress.  Justice  Miller, 
who  delivered  the  opinion  of  the  Court,  said: 

The  States  in  prescribing  the  qualifications  of  voters 
for  the  most  numerous  branch  of  their  own  legislatures, 
do  not  do  this  with  reference  to  the  election  of  members  of 
Congress.  Nor  can  they  prescribe  the  qualification  for 
voters  for  those  eo  nomine.  They  define  who  are  to  vote 
for  the  popular  branch  of  their  own  legislature,  and  the 
Constitution  of  the  United  States  says  the  same  persons 
shall  vote  for  members  of  Congress  in  that  State.  It 
adopts  the  qualification  thus  furnished,  as  the  qualification 
of  its  own  electors  for  members  of  Congress. 

Art.  I.,  Sec.  2.  (Continued.)  No  Person  shall  be  a 
Representative  who  shall  not  have  attained  to  the 
Age  of  twenty-five  Years,  and  have  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. 

No  Person  shall  he  a  Representative.  In  the  case  of 
Minor  vs.  Happersett,^  the  Supreme  Court  decided 
that  no  woman  can  sit  in  the  House  of  Representatives. 
On  October  15,  1872,  Mrs.  Virginia  Minor,  a  native 
bom,  free,  white  citizen  of  Missouri,  over  twenty-one 
years  of  age,  applied  to  one  Happersett,  the  local  re- 
gistrar of  voters,  to  register  her  as  a  lawful  voter.    He 

'  21  Wallace's  Reo..  id't. 

ERRATUM 

Page  43,  6th  line  from  foot,  after  the  word  "decided"  add 

[in  effect]. 


44        AMERICAN  PLAN  OF  GOVERNMENT 

refused  on  the  ground  that  she  was  not  a  "male  citizen 
of  the  United  States."  She  sued  him  for  damages. 
The  State  court  gave  judgment  in  his  favor.  The  case 
then  was  taken  to  the  Supreme  Court  of  the  United 
States  on  the  ground  that  Mrs.  Minor,  as  a  native 
born  citizen  of  the  United  States,  had,  under  the  Con- 
stitution as  changed  by  the  Fourteenth  Amendment, 
the  privilege  of  voting,  which  the  State  of  Missouri  was 
forbidden  to  abridge.  Obviously,  if  a  female  person 
were  entitled  to  the  suffrage,  she  would  be  a  person 
who  could  be  a  representative  in  Congress.  Chief 
Justice  Waite  said: 

Being  unanimously  of  the  opinion  that  the  Constitution 
of  the  United  States  does  not  confer  the  right  of  suffrage 
upon  any  one,  and  that  the  constitutions  and  laws  of  the 
several  States  which  commit  that  trust  to  men  alone  are 
not  necessarily  void,  we  afl&rm  the  [State  court]  judgment. 

Who  shall  not  have  attained  to  the  Age  of  twenty-five 
Years.  No  person  can  sit  as  a  member  of  the  House 
of  Representatives  imtil  he  is  twenty-five  years  old. 
He  cannot  take  the  oath  of  office  while  imder  this  age 
limit. 

In  the  case  of  Smith  vs.  Brown,^  which  was  heard 
before  the  House  Committee  on  Elections  in  1868,  it 
appeared  that  Mr.  Brown  was  under  twenty-five  when 
elected.  He  did  not  take  his  seat,  however,  tmtil  the 
second  session  of  the  Congress  to  which  he  had  been 
elected.  He  was  then  over  the  constitutional  age  and 
his  right  to  membership  was  admitted. 

And  been  seven  Years  a  Citizen  of  the  United  States. 
Seven  years  probably  was  fixed  upon  as  the  period  of 

/  House  Election  Case,  2  Bart.,  403. 


ORGANIZATION  OF  FEDERAL  CONGRESS    45 

citizenship  qualification,  because  the  First  Congress 
under  the  Constitution  was  to  meet  in  December,  1790, 
just  seven  years  after  the  Peace  of  Paris  of  1783, 
which  had  ended  the  Revolutionary  War.  The  foreign 
soldiers  who  had  fought  in  the  War  for  Independence 
and  had  then  settled  here  and  become  citizens  of  States 
were  thus  made  eligible  for  this  high  national  office. 

"The  term  citizen,"  according  to  the  opinion  in  the 
case  of  ^m3'  vs.  Little,^  "is  derived  from  the  Latin  word, 
civis,  and  in  its  primary  sense  signifies  one  who  is  vested 
with  the  freedom  and  privileges  of  a  city.  .  .  .  When 
the  term  came  to  be  applied  to  the  inhabitants  of  a 
state,  it  necessarily  carried  with  it  the  same  signification 
with  reference  to  the  privileges  of  the  state,  which  had 
been  implied  by  it  with  reference  to  the  privileges  of  a 
city,  when  it  was  applied  to  the  inhabitants  of  the  city ; 
and  it  is  in  this  sense  that  the  term,  citizen,  is  be- 
lieved to  be  generally,  if  not  universally  understood  in 
the  United  States." 

Under  the  Fourteenth  Amendment  "all  persons  born 
or  naturalized  in  the  United  States  and  subject  to  the 
jurisdiction  thereof  are  citizens  of  the  United  States." 
A  person  of  the  Chinese  race  is  eligible  according  to 
the  decision  in  United  States  vs.  Wong  Kim  Ark,'  in 
which  a  Chinaman  bom  in  the  United  States  insisted 
that  he  was  a  citizen. 

In  1873,  Wong  Kim  Ark  was  bom  in  San  Francisco, 
where  his  mother  and  father  had  a  permanent  home 
and  were  in  business.  In  1890,  the  family  went  back 
to  China  on  a  visit,  and  on  July  26,  of  that  year,  the 
yoimg  man  came  back  to  San  Francisco,  where  he  was 
detained  and  ordered  deported,  under  the  Exclusion 
Act,  as  a  Chinese  laborer.     He  sued  out  a  writ   of 

*  II  Kentucky  Rep.,  326.  »  169  U.  S.  Rep.,  649. 


46        AMERICAN  PLAN  OF  GOVERNMENT 

habeas  corpus,  a  process  by  which  a  court  investigates 
the  legaHty  of  an  imprisonment.  The  case  went  on 
appeal  to  the  Supreme  Court,  where  a  majority  of  the 
justices  ruled  that  he  could  not  be  deported  because  he 
was  a  citizen.  Justice  Gray  stated  the  opinion  of  the 
Court  as  follows : 

The  evident  intention  and  the  necessary  effect  of  the 
submission  of  the  case  to  the  decision  of  the  Court  upon 
the  facts  agreed  upon  by  the  parties,  were  to  present  for 
determination  the  single  question,  stated  at  the  beginning 
of  the  opinion,  namely,  whether  a  child  born  in  the  United 
States  of  parents  of  Chinese  descent,  who  at  the  time  of  his 
birth,  are  subjects  of  the  Emperor  of  China,  but  have  a 
permanent  domicile  and  residence  in  the  United  States, 
and  are  there  carrying  on  business,  and  are  not  employed 
in  any  diplomatic  or  official  capacity  under  the  Emperor 
of  China,  becomes  at  the  time  of  his  birth  a  citizen  of  the 
United  States.  .  .  .  This  Court  is  of  opinion  that  the  ques- 
tion must  be  answered  in  the  affirmative. 

The  liberties,  rights,  privileges  and  immunities  which 
belong  to  each  citizen  of  the  United  States  quite  as 
much  as  the  coat  on  his  back  are  his  property  because 
it  is  his  law  that  he  shall  possess  them.  But  just  as  it 
is  true  that  he  may  have  them,  so  it  is  also  true  that 
he  may  lose  them  by  his  own  act.  He  holds  them  by 
keeping  within  his  law  which  gives  and  regulates  his 
possession.  He  may  lose  them  by  going  outside  of  his 
law  of  possession  and  becoming  an  outlaw. 

In  old  times,  the  felon  lost  his  life  and  forfeited  his 
goods;  that  is,  he  forfeited  the  law  or  right  by  which  he 
held  his  possessions.  When  punishments  became  more 
humane,  forfeiture  of  property  was  abolished  and  only 
a  few  of  the  rights  of  the  citizen,  chiefly  the  right  to 


ORGANIZATION  OF  FEDERAL  CONGRESS    47 

vote,  were  declared  forfeited.  Some  other  rights  (for 
example,  the  right  to  maintain  actions  in  courts  of  law) 
were  forfeited  by  the  man  who  broke  the  niles  of  the 
law;  for  the  law  never  shielded  those  who  defied  it. 
Nowadays,  the  right  of  the  convict  to  the  protection  of 
the  laws  is  suspended  so  long  as  he  is  in  prison.  When 
he  comes  out,  he  may  again  have  the  equal  protection 
of  the  laws,  guaranteed  by  the  Foiirteenth  Amendment. 
His  right  to  vote,  however,  is  forfeited  unless,  by  special 
clemency,  it  be  restored  by  the  power  which  took  it  away. 

The  citizen  who  voluntarily  goes  away  from  the 
United  States  and  stays  away,  abandons  his  right  to 
the  protection  of  his  own  nation.  At  the  time  of  the 
Franco-Prussian  War  of  1870,  and  for  some  time  after- 
ward, many  prosperous  Americans  who  had  made  their 
homes  in  France  for  years  and  a  number  of  French 
people  who  had  been  naturalized  in  the  United  States 
and  then  had  retiurned  to  their  native  places,  applied 
for  protection  to  our  minister  to  France. 

Minister  Washbiirne  applied  to  Hamilton  Fish,  then 
Secretary  of  State,  for  instructions  and  received  the 
following  reply  ^: 

The  Court  of  Claims,  adopting  the  language  of  one  of  my 
predecessors,  Mr.  Seward,  has  decided  it  to  be  the  law  and 
usage  of  nations  that  one  who  takes  up  his  residence  in  a 
foreign  place  and  there  suffers  an  injury  to  his  property 
by  reason  of  belligerent  acts  committed  against  that  place 
by  another  foreign  nation  must  abide  the  chances  of  the 
country  in  which  he  chooses  to  reside,  and  his  only  chance, 
if  any,  is  against  the  government  of  that  country  in  which 
his  own  sovereign  will  not  interest  himself. 

Two  years  later,  a  mmiber  of  Frenchmen  who  had 

» Diplomatic  Correspondence  of  the  United  States,  Secretary  Fish 
to  Minister  Washbume,  April  28,  1871. 


48        AMERICAN  PLAN  OF  GOVERNMENT 

been  naturalized  in  the  United  States  and  then  had  re- 
turned to  their  old  homes,  were  required  to  serve  in  the 
French  army.  They  asked  the  United  States  Minister 
to  interfere  on  the  ground  that,  as  citizens  of  the  Uni- 
ted States,  they  could  not  legally  be  compelled  to  per- 
form military  service  for  another  coimtry.  Incidentally, 
some  of  the  people  who  complained  were  .the  sons  of 
natiu-alized  Americans  who  had]  resided  in  France  with 
their  famiUes  for  nearly  forty  years.  This  time  Secre- 
tary Fish  went  more  deeply  into  the  question  as  follows  ^ : 

If,  on  the  one  hand,  the  government  assumes  the  duty 
of  protecting  his  rights  and  privileges,  on  the  other  hand, 
the  citizen  is  supposed  to  be  ever  ready  to  place  his  fortune 
and  even  his  life  at  its  service,  should  the  public  necessities 
demand  such  a  sacrifice.  If,  instead  of  doing  this,  he  per- 
manently withdraws  his  person  from  the  national  jurisdic- 
tion; if  he  places  his  property  where  it  cannot  be  made  to 
contribute  to  the  national  necessities;  if  his  children  are 
bom  or  reared  upon  a  foreign  soil,  with  no  ptupose  of 
returning  to  submit  to  the  jurisdiction  of  the  United 
States,  then,  in  accordance  with  the  principles  laid  down 
by  Chief  Justice  Marshall,  and  recognized  in  the  Fourteenth 
Amendment,  and  in  the  Act  of  1868,  he  has  so  far  expatriated 
himself  as  to  relieve  this  government  from  the  obligation 
of  interference  for  his  protection.  .  .  .  Each  case  as  it 
arises  must  be  decided  on  its  own  merits.  In  each,  the 
main  fact  to  be  determined  will  be  this, — has  there  been 
such  a  practical  expatriation  as  removes  the  individual  from 
the  jurisdiction  of  the  United  States?  If  there  has  not 
been  the  applicant  will  be  entitled  to  protection. 

The  United  States  always  has  recognized  the  right 
of  expatriation  as  "a  natural  and  inherent  right  of  all, 
indispensable  to  the  enjoyment  of  the  rights  of  life,  lib- 

*  Ibid.,  pp.  256,  259. 


ORGANIZATION  OF  FEDERAL  CONGRESS    49 

erty,  and  the  pursuit  of  happiness."  Chief  Justice 
Marshall  stated  the  law  on  this  point  in  the  case  of 
Murray  vs.  Schooner  'Charming  Betsey,'^  in  which  the 
facts  were  as  follows :  Jared  Shattuck,  bom  in  the  United 
States,  had,  while  a  child,  removed  with  his  parents  to 
St.  Thomas  in  the  Danish  West  Indies,  where  he  re- 
mained. He  traded  there  as  a  Danish  subject,  married 
and  bought  land  there,  and  took  an  oath  of  allegiance 
to  the  crown  of  Denmark.  In  1800,  he  bought  a 
schooner,  the  Jane  from  Baltimore,  at  St.  Thomas, 
loaded  her  with  American  produce  and  sent  her  out 
from  Guadeloupe  as  a  Danish  vessel.  She  was  captured 
on  the  high  seas  by  a  French  privateer  and  was  cap- 
tured again  by  Captain  Mtu-ray  of  the  frigate  Con- 
stellation, then  employed  in  enforcing  the  Act  of 
Congress  of  April  27,  1800,  which  suspended  com- 
mercial intercourse  between  the  United  States  and 
France,  and  declared  forfeited  all  vessels  employed  in 
illicit  commerce  owned  by  persons  residing  in  the 
United  States.  Captain  Murray  took  the  schooner  to 
Martinique  and  began  court  proceedings  to  have  her  con- 
demned and  sold  as  a  prize.  At  this  junctvue,  Mr. 
Shattuck  filed  in  court  a  claim  that  the  ship  and  cargo 
belonged  to  him  as  a  Danish  burgher,  and  so  were  not 
subject  to  seizure  imder  the  Non-Intercoiu:se  Act. 
This  claim  had  to  be  recognized,  if  under  all  the 
circumstances  he  had  ceased  to  be  a  citizen  of  the 
United  States  and  had  become  a  subject  of  the  King 
of  Denmark.  The  Cotut  decided  that  he  was  a  Danish 
subject.    Chief  Justice  Marshall  said: 

Jared  Shattuck  is  not  a  person  under  the  protection  of 
the  United  States.     The  American  citizen  who  goes  into  a 

» 2  Cranch  Rep.,  64. 

4  .     .  ,, 


50        AMERICAN  PLAN  OF  GOVERNMENT 

foreign  country,  although  he  owes  local  and  temporary 
allegiance  to  that  country,  is  yet,  if  he  performs  no  other 
act  changing  his  condition,  entitled  to  the  protection  of  his 
own  government ;  and  if,  without  any  violation  of  municipal 
law,  he  should  be  oppressed  unjustly,  he  would  have  a  right 
to  claim  that  protection,  and  the  interposition  of  the 
American  government  in  his  favor  would  be  considered  as 
a  justifiable  interposition.  But  his  situation  is  completely 
changed,  where  by  his  own  act  he  has  made  himself  the 
subject  of  a  foreign  power.  Although  this  act  may  not 
be  sufficient  to  rescue  him  from  punishments  for  any  crime 
committed  against  the  United  States,  a  point  not  intended 
to  be  decided,  yet  it  certainly  places  him  out  of  the  pro- 
tection of  the  United  States  while  within  the  territory  of  the 
sovereign  to  whom  he  has  sworn  allegiance. 

And  who  shall  not,  when  elected,  be  an  Inhabitant  of 
that  State  in  which  he  shall  be  chosen.  "An  'inhabitant' 
of  a  State  within  the  meaning  of  the  second  section  of 
the  First  Article  of  the  Constitution,"  it  is  said  in  the 
case  of  Electors  vs.  Bailey,^  "is  one  who  is  bona  fide  a 
member  of  the  State,  subject  to  all  the  requisitions  of 
its  laws  and  entitled  to  all  the  privileges  and  advan- 
tages which  they  confer." 

The  word  "State"  has  been  defined  to  mean  one  of 
the  component  parts  of  the  United  States,  one  of  the 
geographical  subdivisions  of  the  United  States.  In 
the  case  oi  Hepburn  vs.  Ellzey,'  which  was  decided  in  the 
Federal  Supreme  Court  in  1804,  the  question  at  issue  was 
whether  the  District  of  Columbia  was  a  "State"  within 
the  meaning  of  that  word  as  used  in  the  Constitution. 
Chief  Justice  Marshall  said: 

As  the  Act  of  Congress  [the  Judiciary  Act]  obviously  uses 
the  word  "State"  in  reference  to  that  term  as  used  in  the 

»  L.  and  H.  Reports,  683,  694.  '  2  Cranch  Rep.,  445. 


ORGANIZATION  OF  FEDERAL  CONGRESS    51 

Constitution,  it  becomes  necessary  to  inquire  whether  [the 
District  of]  Columbia  is  a  State  in  the  sense  of  that  instru- 
ment. The  result  of  that  examination  is  a  conviction  that 
the  members  of  the  American  confederacy  only  are  the 
States  contemplated  in  the  Constitution. 

Art.  I.,  Sec.  2.  (Continued.)  Representatives  and 
direct  Taxes  shall  be  apportioned  among  the  several 
States  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  Ntunbers,  which  shall  be 
determined  by  adding  to  the  whole  Number  of  free 
persons,  including  those  boimd  to  Service  for  a  Term 
of  Years,  and  excluding  Indians  not  taxed,  three  fifths 
of  all  other  Persons.  The  actual  Enumeration  shall  be 
made  within  three  Years  after  the  first  Meeting  of  the 
Congress  of  the  United  States,  and  within  every  sub- 
sequent Term  of  ten  Years,  in  such  Manner  as  they 
shall  by  Law  direct.  The  Number  of  Representatives 
shall  not  exceed  one  for  every  thirty  Thousand,  but 
each  State  shall  have  at  Least  one  Representative ;  and 
imtil  such  Enumeration  shall  be  made,  the  State  of  New 
Hampshire  shall  be  entitled  to  chuse  three,  Massachu- 
setts eight,  Rhode-Island  and  Providence  Plantations 
one,  Connecticut  five,  New-York  six,  New  Jersey  four, 
Pennsylvania  eight,  Delaware  one,  Maryland  six, 
Virginia  ten.  North  Carolina  five,  South  Carolina  five, 
and  Georgia  three. 

The  House  of  Representatives  in  the  First  Congress 
was  organized  according  to  the  program  prescribed  in 
this  clause.  The  qualified  electors  in  each  State,  except 
North  Carolina  and  Rhode  Island,  which  joined  the 
Union  afterward,  chose  the  number  of  members  allotted 
to  them.  This  First  Congress,  which  met  at  New  York 
in  April,  1789,  passed  the  Act  under  which  the  census 


52         AMERICAN  PLAN  OF  GOVERNMENT 

or  enumeration  of  1790  was  made.  This  census  was 
then  made  the  basis  of  a  computation  upon  which  the 
First  Congress  enacted  another  law  apportioning  the 
number  of  Representatives  to  each  State  in  the  Second 
Congress  and  other  Congresses  for  the  next  ten  years, 
giving  each  State  one  member  for  every  30,000  inhab- 
itants, excluding  Indians  not  taxed,  and  including  all 
free  persons,  all  indentured  servants,  and  three-fifths  of 
aU  other  persons. 

The  word  "census"  which  nowadays  is  commonly 
used  instead  of  "enumeration"  was  defined  by  the  Su- 
preme Court  of  Indiana  in  1898  in  the  case  of  City  of 
Huntington  vs.  Cast.^  Under  an  act  of  Assembly  then 
in  force  in  that  State,  the  police  departments  of  all  cities 
having  more  than  10,000  and  less  than  35,000  inhab- 
itants according  to  the  United  States  Census  of  1890  or 
a  census  taken  under  the  direction  of  a  mayor,  were  to 
be  managed  by  a  metropolitan  police  commission  ap- 
pointed by  the  governor.  The  mayor  of  Huntington 
took  a  census  which  he  said  showed  that  the  city  had 
more  than  10,000  inhabitants  and  therefore  that  its 
police  should  be  under  the  control  of  a  metropolitan 
commission.  An  action  was  brought  in  a  Circuit  Court 
of  Indiana  upon  a  complaint  which  charged  that  the 
mayor's  census  was  fraudulent  in  that  it  included  per- 
sons who  did  not  live  in  the  city,  and  because  it  had  not 
been  submitted  to  the  city  council  nor  filed  with  the 
public  records  of  the  city,  and  therefore  was  not  really 
a  census  at  all.  The  Circuit  Court  refused  to  interfere 
in  the  matter  on  the  ground  that,  even  if  all  the  city 
claimed  was  true,  there  was  no  remedy  because  a 
"census"  actually  had  been  taken.  The  city  then 
appealed  upon  the  groimd  that  no  real  "census"  had 

'  149  Indiana  Rep.,  255, 


ORGANIZATION  OF  FEDERAL  CONGRESS    53 

been  taken.  Chief  Justice  Howard  of  the  Supreme 
Court  of  Indiana  said  in  the  decision  of  this  case  that 
the  city  was  right,  basing  his  opinion  upon  the  follow- 
ing definition  of  the  word  "census." 

The  statute  mentions  the  census  to  be  taken  by  the 
mayor  in  connection  with  the  census  taken  by  the  United 
States.  Even  if  it  were  not  mentioned  in  such  connection, 
we  should  know  that  the  census  provided  for  in  the  statute, 
to  be  taken  by  the  mayor  of  the  city,  must  be  an  official 
enumeration  of  the  people,  and  as  such  a  public  record. 
The  standard  definitions  are  to  this  effect.  Webster  says 
that  a  census  is  "An  official  registration  of  the  number  of 
the  people."  The  Century  Dictionary:  "An  official  enu- 
meration of  the  inhabitants  of  a  State  or  country.  ..." 
The  Standard  Dictionary:  "An  official  numbering  of  the 
people  of  a  country  or  district."  Burrill,  Law  Diet. :  "In 
the  Roman  law,  a  numbering  or  enrollment  of  the  people, 
with  a  valuation  of  their  fortunes."  Black,  Law  Diet.: 
"The  official  counting  or  enumeration  of  the  people  of  a 
State  or  nation,  with  statistics."  Bouvier,  Law  Diet.: 
"An  official  reckoning  or  enumeration  of  the  inhabitants 
and  wealth  of  a  country." 

Representatives  and  direct  Taxes  shall  he  apportioned 
among  the  several  States  which  may  he  included  within 
this  Union,  according  to  their  respective  Numbers,  which 
shall  he  determined  hy  adding  to  the  whole  Number  oj  free 
persons,  including  those  hound  to  Service  for  a  Term  of 
Years,  and  excluding  Indians  not  taxed,  three  fifths  of  all 
other  Persons.  "Those  bound  to  service  for  a  term  of 
years"  were  indentured  servants,  who  had  been  brought 
to  the  colonies  in  large  numbers  under  contracts  to  labor 
for  a  term  of  years  to  repay  the  cost  of  their  passage. 
The  words  "three  fifths  of  all  other  persons"  refer  to 
slaves  then  held  in  large  numbers  in  the  South.    This 


54        AMERICAN  PLAN  OF  GOVERNMENT 

clause  was  the  resiilt  of  a  compromise  in  the  Federal 
Convention.  The  slaveholders  insisted  that  the  negroes 
were  inhabitants  who  ought  to  be  counted  in  the  census 
enumerations  which  were  to  be  made.  The  Northern 
men  would  not  consent  to  a  plan  which  would  have 
given  a  few  hundred  slave  owners  as  large  a  number  of 
Congressmen  as  many  thousand  farmers  and  merchants 
in  the  free  States.  They  were  able  to  agree  upon  a 
compromise  chiefly  because  the  Southern  delegates  felt 
safe  in  accepting  a  plan  limiting  the  amoimt  of  taxes 
which  could  be  assessed  upon  their  real  estate,  in  the 
same  proportion  as  it  diminished  the  representation  of 
their  States  in  the  House  of  Representatives.  Justice 
Paterson  said  in  his  opinion  in  the  case  of  Hylton  vs. 
United  States^ : 

This  provision  was  made  in  favor  of  the  southern  States. 
They  possessed  a  large  number  of  slaves ;  they  had  extensive 
tracts  of  territory,  thinly  settled,  and  not  very  productive. 
A  majority  of  the  States  had  but  few  slaves,  and  several 
of  them  a  limited  territory,  well  settled,  and  in  a  high  state 
of  cultivation.  The  southern  States,  if  no  provision  had 
been  introduced  in  the  Constitution,  would  have  been 
wholly  at  the  mercy  of  the  other  States.  Congress  in  such 
case  might  tax  slaves,  at  discretion  or  arbitrarily,  and  land 
in  every  part  of  the  Union  after  the  same  rate  or  measure; 
so  much  a  head  in  the  first  instance,  and  so  much  an  acre 
in  the  other.  To  guard  them  against  imposition  in  these 
particulars,  was  the  reason  of  introducing  the  clause  in  the 
Constitution,  which  directs  that  representatives  and  direct 
taxes  shall  be  apportioned  among  the  States  according  to 
their  respective  numbers. 

Fourteenth  Amendment.  Sec.  2.  Representatives 
shall  be  apportioned  among  the  several  States,  accord- 

^  3  Dallas  Rep.,  171."  "" 


ORGANIZATION  OF  FEDERAL  CONGRESS    55 

ing  to  their  respective  numbers,  counting  the  whole 
number  of  persons  in  each  State,  excluding  Indians 
not  taxed.  But  when  the  right  to  vote  at  any  election 
for  the  choice  of  electors  for  President  and  Vice  Presi- 
dent of  the  United  States,  Representatives  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  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. 

The  basis  of  apportionment  in  the  original  Constitu- 
tion went  to  the  scrap  heap  when  slavery  was  abolished 
as  a  part  of  the  outcome  of  the  Civil  War.  Therefore 
it  was  necessary  to  formulate  a  new  plan  of  computa- 
tion. This  was  accomplished  by  the  Fourteenth 
Amendment,  adopted  in  1868,  which  made  all  persons 
born  or  naturalized  in  the  United  States,  and  subject 
to  its  jurisdiction,  citizens  of  the  United  States,  and 
omitted  all  reference  to  "those  bound  to  service  for  a 
term  of  years "  and  to  "three-fifths  of  all  other  persons." 
There  could  be  no  indentured  servants  and  no  slaves, 
because  involuntary  servitude,  except  as  punishment 
for  crime,  and  slavery  had  been  prohibited  by  the 
Thirteenth  Amendment,  adopted  in  1865. 

Every  one  knows  that  there  are  restrictions  on  the 
rights  of  citizens  of  the  United  States  to  vote  at  State 
and  National  elections.  New  York  requires  the  citi- 
zen, before  voting,  to  register  and  sign  his  name. 
Massachusetts  and  some  other  States  have  educational 


56         AMERICAN  PLAN  OF  GOVERNMENT 

qualifications,  such  as  ability  to  read  any  section  of 
the  State  Constitution  or  understand  it  when  read  or 
give  a  reasonable  interpretation  of  it.  Such  restrictions 
do  not  deny  or  abridge  the  right  of  citizens  of  the  United 
States  to  vote  "on  account  of  race,  color,  or  previous 
condition  of  servitude."^  The  validity  of  an  educa- 
tional test  was  challenged  in  Mississippi,  in  the  case  of 
Dixon  vs.  State.*  In  this  case,  a  man  who  had  been 
convicted  of  murder  asked  the  Supreme  Court  to  set 
aside  the  verdict  on  the  ground  that  the  State  Con- 
stitution under  which  the  law  for  the  punishment  of 
murder  had  been  passed,  was  void  because  inconsistent 
with  the  provisions  of  the  Fourteenth  Amendment. 
Chief  Justice  Cooper  took  occasion  in  the  course  of  the 
decision  of  this  case  to  say  that  such  educational 
qualifications  are  proper: 

All  these  provisions,  if  fairly  and  impartially  adminis- 
tered, apply  with  equal  force  to  the  individual  white  and 
negro  citizen.  It  may  be,  and  unquestionably  is,  true  that, 
so  administered,  their  operation  will  be  to  exclude  from  the 
exercise  of  the  elective  franchise  a  greater  proportionate 
number  of  colored  than  of  white  persons.  But  this  is  not 
because  one  is  white  and  the  other  colored,  but,  because 
of  superior  advantages  and  circumstances  possessed  by  the 
one  race  over  the  other,  a  greater  number  of  the  more  for- 
tunate race  is  found  to  possess  the  qualifications  which  the 
framers  of  the  Constitution  deemed  essential  for  the 
exercise  of  the  elective  franchise. 

Direct  Taxes  shall  be  apportioned  among  the  several 
States  which  may  he  included  within  this  Union,  accord- 
ing to  their  respective  Numbers.  In  the  days  of  the 
Constitution  makers,  there  was   a  reason  why  direct 

'  Fifteenth  Amendment.  »  74  Miss.  Rep.,  271. 


ORGANIZATION  OF  FEDERAL  CONGRESS    57 

taxes,  which  are  taxes  on  real  estate,  could  not  be 
levied  with  any  kind  of  fairness,  unless  according  to 
population.  Such  taxes  would  not  have  been  burden- 
some at  all  to  Massachusetts  where  there  was  a  large 
population  and  very  little  land.  They  would  have  been 
confiscatory  if  levied  upon  South  Carolina,  where  there 
was  a  large  amount  of  land  and  very  few  people.  The 
fair  thing  then  was  to  charge  up  such  taxes,  if  needed, 
against  each  of  the  States,  making  the  thickly  settled 
communities  carry  the  heavier  part  of  the  burden  and 
putting  the  lighter  share  on  those  which  were  sparsely 
inhabited. 

There  has  been  Httle  direct  taxation  in  our  national 
history.  The  first  direct  tax,  authorized  in  1798  in 
anticipation  of  a  war  with  France,  apportioned  to  the 
States  a  tax  of  two  million  dollars  assessed  upon 
"dwelling  houses,  lands,  and  slaves,"^  which  in  some 
States  were  classed  by  law  as  real  estate.  A  second 
national  direct  tax  of  three  million  dollars  was  levied 
in  1813,  and  apportioned  to  the  States.^  The  third 
direct  tax^  of  six  million  dollars,  apportioned  in  18 15 
among  the  States  on  "  all  lands,  lots  of  grounds  with  their 
improvements,  dwelling  houses  and  slaves,"  grew  out 
of  the  War  of  1812.  There  was  no  further  need  of 
direct  taxes  until  the  beginning  of  the  Civil  War. 
Sales  of  public  lands  and  low  customs  and  internal 
revenue  duties  produced  a  national  income  so  large 
that  the  government  once  divided  a  surplus  among  the 
States.  In  1861,  however,  Congress  voted  to  raise 
twenty  million  dollars  by  a  direct  tax  on  real  estate,  ^ 
apportioned  to  the  States.  Since  the  Civil  War,  Con- 
gress has  not  enacted  any  laws  taxing  real  estate  and 

M  U.  S.  Stats.,  597.  » 3  U.  S.  Stats.,  33. 

»3  U.  S.  Stats.,  164.  *  12  U.  S.  Stats.,  294. 


58        AMERICAN  PLAN  OF  GOVERNMENT 

apportioning  the  amount  among  the  States.  The  reason 
is  that,  as  wealth  is  distributed  in  modern  times,  the 
commercial  States  of  the  North,  in  proportion  to  popu- 
lation, are  more  prosperous  in  money  values  than  the 
great  agricultural  States  of  the  South,  although  the 
people  on  an  average  may  be  as  comfortable  in  one 
section  as  in  the  other. 

Soon  after  the  Constitution  went  into  operation  the 
courts  were  called  upon  to  explain  just  what  a  direct  tax 
is.  On  Jtme  5,  1794,  Congress  enacted  a  law  taxing 
"carriages  for  the  conveyance  of  persons,  which  shall 
be  kept  by  or  for  any  person  for  his  or  her  own  use,  or 
to  be  let  out  for  hire  or  for  the  conveyance  of  passen- 
gers." Daniel  Lawrence  Hylton,  who  owned  and  kept 
for  hire  one  hundred  and  twenty-five  chariots,  refused 
to  pay  the  tax,  on  the  ground  that,  as  it  was  assessed 
directly  on  carriages,  it  was  a  direct  tax  and  unconstitu- 
tional because  not  apportioned  among  the  States  ac- 
cording to  popiilation.  The  proceedings  which  followed 
constitute  the  case  of  Hylton  vs.  The  United  States,^ 
which  is  one  of  the  montiments  of  American  law. 
Justice  Samuel  Chase  said  in  this  case : 

It  appears  to  me  that  a  tax  on  carriages  cannot  be  laid 
by  the  rule  of  apportionment,  without  very  great  inequality 
and  injustice.  For  example,  suppose  two  States  equal  in 
census,  to  pay  eighty  thousand  dollars  each,  by  a  tax  on 
carriages  of  eight  dollars  on  every  carriage,  and  in  one 
State  there  are  one  hundred  carriages,  and  in  the  other  one 
thousand.  The  owners  of  carriages  in  one  State  would  pay 
ten  times  the  tax  of  owners  in  the  other.  A,  in  one  State, 
would  pay  for  his  carriage  eight  dollars;  but  B,  in  the  other 
State,  wotdd  pay  for  his  carriage  eighty  dollars.  ...  I  am 
inclined  to  think,  but  of  this  I  do  not  give  a  judicial 

'  3  Dallas  Rep.,  171. 


ORGANIZATION  OF  FEDERAL  CONGRESS    59 

opinion,  that  the  direct  taxes  contemplated  by  the  Con- 
stitution are  only  two,  to  wit,  a  capitation  or  poll  tax,  simply, 
without  regard  to  property,  profession,  or  any  other  cir- 
cumstance, and  a  tax  on  land.  I  doubt  whether  a  tax 
by  a  general  assessment  of  personal  property,  within  the 
United  States,  is  included  within  the  term  direct  tax. 

Justice  Paterson,  in  his  opinion  in  the  same  case,  said 
more  distinctly: 

I  never  entertained  a  doubt  that  the  principal,  I  will 
not  say,  the  only  objects,  that  the  framers  of  the  Con- 
stitution contemplated  as  falling  within  the  rule  of  appor- 
tionment, were  a  capitation  tax  and  a  tax  on  land. 

Art.  I.,  Sec.  2.  (Continued.)  When  vacancies  happen 
in  the  Representation  from  any  State,  the  Executive 
Authority  thereof  shall  issue  Writs  of  Election  to  fill 
such  Vacancies. 

All  vacancies  which  result  from  the  death,  resignation, 
or  removal  of  a  representative,  or  from  his  acceptance  of 
an  office  incompatible  with  that  of  representative,  may 
be  filled  on  this  plan. 

Art.  I.,  Sec.  2.  (Continued.)  The  House  of  Re- 
presentatives shall  chuse  their  Speaker  and  other 
Officers,  and  shall  have  the  sole  Power  of  Impeachment. 

"In  designating  the  presiding  officer  of  the  House, 
'the  Speaker,*  the  Convention,"  says  Watson,  On  the 
Constitution,  "follows  the  rule  which  prevailed  in  the 
[British]  House  of  Commons.  The  presiding  officer  of 
the  Colonial  Congress  was  called '  The  President.  *  Each 
political  party  in  the  House  nominates  its  candidates 
for  Speaker,  Clerk,  Sergeant-at-Arms,  Door  Keeper, 


60        AMERICAN  PLAN  OF  GOVERNMENT 

Postmaster,  and  Chaplain,  in  caucus.  The  successful 
candidates  of  the  caucus  are  then  nominated  by  their 
respective  parties  at  a  meeting  of  the  members  of  the 
House  and  the  candidates  of  the  dominant  party  are 
elected  to  their  respective  offices."^ 

The  sole  Power  of  Impeachment.  "Impeachment,  in 
the  United  States,"  according  to  Watson,  "is  an  accusa- 
tion in  writing,  by  the  House  of  Representatives,  pre- 
sented to  the  United  States  Senate,  against  a  civil 
officer  of  the  government.  .  .  .  The  power  of  impeach- 
ment is  of  great  importance.  It  is  intended  to  reach 
civil  officers  occupying  influential  positions  in  the  gov- 
ernment and  who  are  not  punishable  under  ordinary 
statutes,  because  general  legislation  does  not  reach 
such  cases."* 

The  House  of  Representatives  has  arbitrary  power 
to  impeach  government  officials.  A  grand  jtuy  cannot 
find  a  valid  indictment  except  upon  some  evidence  that 
the  accused  person  has  committed  a  crime.  But  the 
national  House  of  Representatives  can  file  charges 
against  any  Federal  officer  without  any  evidence  at  all; 
and,  even  in  that  case,  the  Senate  must  receive  the 
articles  of  impeachment  and  sit  in  judgment  upon  the 
accused. 

^  Watson,  On  the  Constitution,  i.,  203. 
•  Jbid.,  207. 


CHAPTER  VI 

THE  SENATE  OF  THE  UNITED  STATES 

Art.  I.,  Sec.  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. 

This  section  was  superseded  in  1913  by  the  Seven- 
teenth Amendment. 

Seventeenth  Amendment.  The  Senate  of  the 
United  States  shall  be  composed  of  two  Senators 
from  each  State,  elected  by  the  people  thereof,  for  six 
years;  and  each  Senator  shall  have  one  vote.  The 
electors  in  each  State  shall  have  the  qualifications 
requisite  for  electors  of  the  most  numerous  branch  of 
the  State  legislatures. 

The  Senate  is  a  sort  of  diplomatic  body,  whose  mem- 
bers represent  their  States  near  the  seat  of  the  Federal 
Government.  It  always  has  been  in  a  special  way  the 
guardian  of  the  rights  of  the  States  rather  than  of  the 
rights  of  the  people,  who  have  their  own  representatives 
in  their  own  legislative  body. 

The  Senate  .  .  .  shall  be  composed  of  two  Senators  from 
each  State,  chosen  by  the  Legislature  thereof,  for  six  years. 
(Art.  I.,  Sec.  3.) 

61 


62         AMERICAN  PLAN  OF  GOVERNMENT 

The  Senate  .  .  .  shall  he  composed  of  two  Senators 
Jrom  each  State,  elected  by  the  people  thereof,  for  six  years. 
(Seventeenth  Amendment).  The  makers  of  the  Con- 
stitution seem  to  have  thought  that  the  Senators  were 
to  be  diplomatic  officers  of  the  States,  who  ought  not  to 
be  responsible  to  many  masters  because  they  were  to  be 
entrusted  with  diplomatic  secrets  of  great  importance. 
They  were  quite  sure  that  the  people  were  not  to  be 
trusted.  They  felt  that  the  lives  and  property  of  those 
who  had  something  to  lose  would  be  a  deal  safer  if 
the  many  did  not  have  too  much  to  say  in  the  public 
business.  Twentieth-century  Americans  have  learned 
to  trust  to  the  wisdom  and  prudence  of  the  people. 

The  longer  term  of  office  gave  the  Senate  an  advan- 
tage over  the  other  branch  of  Congress.  For  example, 
on  March  3,  1903,  Congressman  Cannon,  afterward 
Speaker  of  the  House,  reported  as  one  of  a  Committee 
of  Conference  that  an  appropriation  bill  would  have  to 
be  so  amended  as  to  pay  to  one  of  the  States  a  siim  of 
money  to  which,  in  the  opinion  of  the  House  of  Repre- 
sentatives, it  had  no  honest  claim.  The  reason  was 
that  the  Congress  was  to  come  to  an  end  at  midnight 
of  that  day  and  one  of  the  Senators  had  said  that,  if 
the  appropriation  amendment  was  not  agreed  to,  he 
would  keep  on  talking  until  the  Congress  and  the 
appropriation  bill  died  together.  The  Senator  could 
talk  as  long  as  he  chose,  because  there  is  no  time  limit 
set  upon  senatorial  speakers;  and  by  talking,  he  could 
prevent  the  passage  of  a  law  which  had  to  be  enacted  in 
order  to  enable  the  nation  to  keep  faith  with  its  credi- 
tors. The  Senator  might  not  have  been  so  aggressive 
if  he  had  had  to  look  forward  to  popular  election  as  each 
member  of  the  House  always  must  do.  Mr.  Cannon's 
protest  on  this  occasion  is  worth  remembering.     He 


ORGANIZATION  OF  FEDERAL  CONGRESS    63 

declared  with  emphasis  that  the  Senate  should  change 
its  procedure,  or  that  another  body,  "backed  up  by  the 
people,  will  compel  that  change;  else  this  body,  close  to 
the  people,  shall  become  a  mere  tender,  a  bender  of 
the  pregnant  hinges  of  the  knee  to  submit  to  what  any 
one  member  of  another  body  may  demand  of  this  body 
as  a  price  for  legislation."^ 

Each  Senator  shall  have  one  vote.  James  Madison  com- 
mented as  follows  on  this  clause  of  the  Constitution : 

It  is  well  known  that  the  equality  of  the  States  in  the 
Federal  Senate  was  a  compromise  between  the  larger  and 
the  smaller  States,  the  former  claiming  a  proportional  re- 
presentation in  both  branches  of  the  Legislature,  as  due 
to  their  superior  population;  the  latter,  an  equality  in 
both,  as  a  safeguard  to  the  reserved  sovereignty  of  the 
States,  an  object  which  obtained  the  concurrence  of  mem- 
bers from  the  larger  States.^ 

The  electors  [of  Senators]  in  each  State  shall  have  the 
qualifications  requisite  for  electors  of  the  most  numerous 
branch  of  the  State  legislatures  (Seventeenth  Amend- 
ment). This  part  of  the  amendment,  made  necessary 
by  the  changed  method  of  election,  repeats  word  for 
word  the  clause  which  prescribes  the  qualification  of 
electors  of  members  of  the  House  of  Representatives. 

Art.  I.,  Sec.  3.  (Continued.)  Immediately  after 
they  [the  senators]  shall  be  assembled  in  Consequence 
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  Expiration  of 

'  Ex-Q)ngressman  McCall,  on  "The  Power  of  the  Senate,"  Atlantic 
Monthly,  October,  1903. 

'Madison's   Works,  iv.,  429,  430. 


64        AMERICAN  PLAN  OF  GOVERNMENT 

the  second  Year,  of  the  second  Class  at  the  Expiration 
of  the  fourth  Year,  and  of  the  third  Class  at  the  Expira- 
tion of  the  sixth  Year,  so  that  one-third  may  be  chosen 
every  second  Year. 

This  plan,  taken  from  the  first  constitution  of  the 
State  of  Pennsylvania,  is  a  method  of  keeping  the  Senate 
supplied  with  new  blood  at  regular  intervals.  It  pre- 
vents inconsistent  and  irregular  law-making,  which 
would  be  quite  possible  if  the  whole  personnel  of  the 
Senate,  like  that  of  the  House  of  Representatives, 
could  be  changed  at  each  election. 

Art.  I.,  Sec.  3.  (Continued.)  And  if  Vacancies 
happen  by  Resignation,  or  otherwise,  during  the  Re- 
cess of  the  Legislature  of  any  State,  the  Executive 
thereof  may  make  temporary  Appointments  until  the 
next  Meeting  of  the  Legislature,  which  shall  then  fill 
such  Vacancies. 

Seventeenth  Amendment.  (Continued.)  When 
vacancies  happen  in  the  representation  of  any  State  in 
the  Senate,  the  executive  authority  of  such  State  shall 
issue  writs  of  election  to  fill  such  vacancies :  Provided, 
That  the  legislature  of  any  State  may  empower  the 
executive  thereof  to  make  temporary  appointment  until 
the  people  fill  the  vacancies  by  elections  as  the  legisla- 
ture may  direct. 

Under  the  Seventeenth  Amendment,  the  plan  of 
filling  vacancies  in  the  Senate  is  the  same  as  in  the  case 
of  vacancies  in  the  House  of  Representatives,  except 
that  the  legislature  of  any  State  may  give  the  governor 
»power  to  make  temporary  appointments  so  that  the  of- 
fice may  not  be  vacant  while  the  people  are  taking  time 


ORGANIZATION  OF  FEDERAL  CONGRESS    65 

to  decide  who  is  to  serve  them  in  this  vastly  important 
position. 

Seventeenth  Amendment.  (Continued.)  This 
amendment  shall  not  be  so  construed  as  to  affect  the 
election  or  term  of  any  Senator  chosen  before  it  be- 
comes valid  as  part  of  the  Constitution. 

The  Senators,  when  voting  upon  the  proposed 
amendment,  insisted  that  all  of  their  number  duly 
elected  in  the  old  way,  should  be  allowed  to  finish  their 
terms  of  office. 

Art.  I.,  Sec.  3.  (Continued.)  No  person  shall  be  a 
Senator  who  shall  not  have  attained  to  the  Age  of  thirty 
Years,  and  been  nine  Years  a  Citizen  of  the  United 
States,  and  who  shall  not,  when  elected,  be  an  In- 
habitant of  that  State  for  which  he  shall  be  chosen. 

The  age  limit  of  Senators  was  fixed  at  thirty  years 
in  order  to  insure  the  decorum  of  the  more  select  branch 
of  Congress.  Henry  Clay,  however,  was  appointed  to 
the  Senate  when  under  thirty,  and  did  not  reach  the 
required  age  until  after  he  had  served  the  term  for 
which  he  had  been  appointed. 

A  Senator  must  have  been  a  citizen  nine  years  before 
he  takes  the  office.  Albert  Gallatin,  one  of  the  ablest  of 
our  Secretaries  of  the  Treasury,  who  came  here  from 
Switzerland  in  1780,  and  moved  to  Pennsylvania  in  1785, 
was  chosen  a  United  States  Senator  in  1793,  and  served 
in  the  Senate  until  February  28,  1794,  when  it  was 
decided  that  he  was  not  qualified  because  he  had  not 
been  a  citizen  nine  years. ' 

'  Watson,  On  the  Constiiution,  i.,  248. 
5 


66        AMERICAN  PLAN  OF  GOVERNMENT 

General  Ames,  who  was  bom  in  Maine,  was  elected 
to  the  Senate  from  Mississippi  in  1870,  by  the  "carpet- 
bagger" government  then  in  control  of  that  State. 
He  had  gone  to  that  State  in  1868  to  fill  the  position 
of  provisional  governor  under  the  Reconstruction  Act, 
and  in  1869  had  been  appointed  by  the  President 
military  commander  of  the  District  of  Mississippi.  He 
was  holding  these  offices  when  elected.  His  right  to 
sit  in  the  Senate  was  challenged  on  the  ground  that, 
when  chosen  to  office,  he  still  was  an  inhabitant  of 
Maine  where  he  always  had  kept  his  residence.  The 
case  was  referred  to  a  committee  which  reported  against 
him,  but  the  Senate  overruled  the  Committee  and  he 
served  his  term.  ^ 

Art.  I.,  Sec.  3.  (Continued.)  The  Vice  President  of 
the  United  States  shall  be  President  of  the  Senate,  but 
shall  have  no  Vote,  unless  they  be  equally  divided. 

■  Alexander  Hamilton  said  in  The  Federalist'' : 

Two  considerations  seem  to  justify  the  ideas  of  the  Con- 
vention in  this  respect.  One  is,  that  to  secure  at  all  times 
the  possibility  of  a  definite  resolution  of  the  body,  it  is  neces- 
sary that  the  President  should  have  only  a  casting  vote. 
And  to  take  the  senator  of  any  State  from  his  seat  as 
senator,  to  place  him  in  that  of  President  of  the  Senate, 
would  be  to  exchange,  in  regard  to  the  State  from  which 
he  came,  a  constant  for  a  contingent  vote. 

Art.  I.,  Sec.  3.  (Continued.)  The  Senate  shall  chuse 
their  other  Officers,  and  also  a  President  pro  tempore, 
in  the  Absence  of  the  Vice  President,  or  when  he  shall 
exercise  the  Office  of  President  of  the  United  States. 

*  Watson,  On  the  Constitution,  i.,  249.  *  No.  68. 


ORGANIZATION  OF  FEDERAL  CONGRESS    67 

The  other  officers  of  the  Senate  are  the  Secretary, 
Chief  Clerk,  Executive  Clerk,  Sergeant-at-Arms,  Door 
Keeper,  and  Chaplain.  They  are  elected  Hke  the  of- 
ficers of  the  House  of  Representatives. 

It  has  grown  into  a  general  practice  for  the  Vice  Presi- 
dent to  vacate  the  senatorial  chair  a  short  time  before  the 
termination  of  each  session  in  order  to  enable  the  Senate 
to  choose  a  president  pro  tempore,  who  might  already  be  in 
office  if  the  Vice  President  in  the  recess  should  be  called 
to  the  chair  of  state.  The  practice  is  founded  in  wisdom 
and  sound  policy,  as  it  immediately  provides  for  an  exigency 
which  may  well  be  expected  to  occur  at  any  time,  and  pre- 
vents the  choice  from  being  influenced  by  temporary  excite- 
ments or  intrigues  arising  from  the  actual  existence  of  the 
exigency.* 

Art.  I.,  Sec.  3.  (Continued.)  The  Senate  shall  have 
the  sole  Power  to  try  all  Impeachments.  When  sitting 
for  that  Purpose,  they  shall  be  on  Oath  or  Affirmation. 
When  the  President  of  the  United  States  is  tried,  the 
Chief  Justice  shall  preside:  And  no  Person  shall  be 
convicted  without  the  Concurrence  of  two  thirds  of  the 
Members  present.  Judgment  in  Cases  of  Impeach- 
ment 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. 

This  clause  gives  the  Senate  power  to  hear  and  decide 
impeachment  cases.  The  Chief  Justice  presides  when 
the  President  is  on  trial,  because  it  would  be  improper 

*  Story,  On  the  Constitution,  Sec.  741. 


68         AMERICAN  PLAN  OF  GOVERNMENT 

on  its  face  to  let  the  Vice  President  take  part  as  a 
judge  in  a  trial  which  might  end  in  promoting  him  to 
the  place  of  the  person  impeached. 

An  impeachment  case  begins  with  the  presenting  of 
charges  in  the  House  of  Representatives.  This  body 
then  adopts  a  resolution  to  impeach,  and  prepares  the 
articles  of  impeachment,  which  set  forth  in  form  the 
charges  against  the  accused  person.  These  are  presented 
to  the  Senate,  which  summons  the  person  against  whom 
the  proceedings  are  brought  to  appear  before  it  on  a 
certain  day.  The  Senate  hears  the  evidence  against 
the  defendant  and  his  defense.  The  Senators  then 
decide  by  vote  whether  the  accused  person  is  guilty  or 
not  guilty. 

The  punishment  of  impeached  officials  is  both  severe 
and  merciful.  The  stigma  of  removal  from  office  and 
disqualification  to  hold  any  position  of  honor  is  about 
as  much  as  a  person  with  any  sense  of  self-respect  can 
possibly  endure.  At  the  same  time,  his  life  or  liberty 
is  not  put  at  the  mercy  of  a  political  body. 

Robert  W.  Archbald,  a  Federal  Circuit  Court  Judge 
serving  as  a  judge  in  the  United  States  Commerce 
Court,  was  impeached  in  19 12.  He  was  charged  with 
having  used  his  official  power  and  position  to  obtain 
business  favors  and  concessions  from  companies  which 
had  litigation  before  the  Commerce  Court.  The  judg- 
ment of  the  Senate  was  that  he  was  guilty  of  this  mis- 
conduct; and  he  was  removed  from  office  and  forever 
disqualified  to  hold  any  office  of  honor,  trust,  or  profit 
under  the  United  States. 

An  excellent  monograph  upon  "Impeachment,"  by 
Wrisley  Brown,  Esq.,  an  Assistant  Attorney  General  of 
the  United  States,  has  this  to  say  of  the  efficacy  of  this 
method  in  assuring  the  good  conduct  of  pubUc  officials: 


ORGANIZATION  OF  FEDERAL  CONGRESS    69 

The  impeachment  prescribed  by  our  Constitution 
weighs  well  the  evil  to  be  redressed  and  adjusts  the  or- 
dained relief  to  the  occasion.  It  is  the  expression  of  the 
sober  will  rather  than  the  restive  whim  of  the  people.  It 
restrains  judicial  tyranny  without  overawing  the  authority 
of  the  courts.  It  regulates  the  conduct  of  the  judges  with- 
out disturbing  the  poise  and  balance  of  their  judgments. 
It  strikes  directly  at  the  judicial  fault  without  destroying 
the  judicial  independence  that  is  essential  to  the  preserva- 
tion of  our  constitutional  jurisprudence.  This  great  body 
of  fundamental  law  must  be  maintained  intact.  It  absorbs 
the  changing  needs  of  changing  times,  yet  does  not  change. 
Upon  it,  the  stability  and  the  integrity  of  our  institutions 
rest.  Upon  it  our  civil  liberties  depend.  And  without  it, 
our  republican  government  could  not  long  endure. 


CHAPTER  VII 

THE  CONGRESS  AS  A  LEGISLATURE 

Art.  I.,  Sec.  4.  The  Times,  Places  and  Manner  of 
holding  Elections  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  chusing  Senators. 

Americans  of  the  first  days  of  independence  were 
quite  touchy  on  the  subject  of  the  right  of  each  of  the 
States  to  manage  its  own  afifairs  without  any  meddling 
by  any  general  government  which  might  be  created. 
Their  representatives  in  the  Federal  Convention  knew 
as  well  as  they  could  know  anything  that  the  proposed 
Constitution  could  not  have  the  ghost  of  a  chance  for 
acceptance,  if  the  States  were  not  allowed  to  say  how, 
when,  and  where  elections  should  be  held.  On  the 
other  hand,  they  saw  clearly  that  the  new  government 
would  have  to  have  some  control  over  elections  of 
Federal  law-makers  so  as  to  be  sure  that  Senators 
and  Representatives  should  be  elected  in  case  the 
States  failed  to  call  elections  to  fill  those  offices. 
Therefore  they  gave  Congress  the  power  mentioned 
in  this  section.  Justice  Miller  said  in  Ex  Parte 
Yarbrough^: 

'  no  U.  S.  Rep.,  651, 

70 


ORGANIZATION  OF  FEDERAL  CONGRESS    71 

Congress  [has]  been  slow  to  exercise  the  powers  expressly 
conferred  upon  it  in  relation  to  elections  by  the  fourth 
section  of  the  first  article  of  the  Constitution.  ...  It  was 
not  until  1842  that  Congress  took  any  action  under  the 
power  here  conferred,  when,  conceiving  that  the  system  of 
electing  all  the  members  of  the  House  of  Representatives 
from  a  State  by  general  ticket,  as  it  was  called,  that  is, 
every  elector  voting  for  as  many  names  as  the  State  was 
entitled  to  representatives  in  that  House,  worked  injustice 
to  other  States  which  did  not  adopt  that  system,  and 
gave  an  undue  preponderance  of  power  to  the  political 
party  which  had  a  majority  of  votes  in  the  State,  however 
small,  [it]  enacted  that  each  member  should  be  elected  by 
a  separate  district,  composed  of  contiguous  territory.  .  .  . 
And  to  remedy  more  than  one  evil  arising  from  the  election 
of  members  of  Congress  occurring  at  different  times  in  the 
different  States,  Congress,  by  the  Act  of  February  2,  1872, 
thirty  years  later,  required  all  the  elections  for  such  mem- 
bers to  be  held  on  the  Tuesday  after  the  first  Monday  in 
November,  in  1876,  and  on  the  same  day  of  every  second 
year  thereafter. 

The  frequent  failures  of  the  legislatures  of  the  States  to 
elect  Senators  at  the  proper  time,  by  one  branch  of  the 
legislature  voting  for  one  person  and  the  other  branch  for 
another  person,  and  refusing  in  any  manner  to  reconcile 
their  differences,  led  Congress  to  pass  an  Act  which  com- 
pelled the  two  bodies  to  meet  in  joint  convention,  and 
fixing  the  day  when  this  should  be  done,  and  requiring  them 
so  to  meet  on  every  day  thereafter  and  vote  for  a  Senator 
until  one  was  elected.  .  .  . 

Now  the  day  fixed  for  electing  members  of  Congress  has 
been  established  by  Congress  without  regard  to  the  time 
set  for  election  of  State  officers  in  each  State,  and  but  for 
the  fact  that  the  State  legislatures  have,  for  their  own 
accommodation,  required  State  elections  to  be  held  at  the 
same  time,  these  elections  would  be  held  for  Congressmen 
alone  at  the  time  fixed  by  the  act  of  Congress. 


72         AMERICAN  PLAN  OF  GOVERNMENT 

Art.  I.,  Sec.  4.  (Continued.)  The  Congress  shall 
assemble  at  least  once  in  every  Year,  and  such  Meet- 
ing shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  law  appoint  a  different  Day. 

The  politicians  of  the  constitutional  era  were  mostly 
farmers,  who  had  plenty  of  time  to  spare  in  winter, 
but  were  busy  from  planting  time  to  harvest.  It  suited 
them  exactly  to  leave  home  in  October,  serve  in  Con- 
gress until  the  following  March,  and  then  go  back  to 
their  fields  and  meadows.  That  is  the  way  Congressmen 
and  Senators  usually  spent  their  time.  When  there 
was  a  war  on  hand  or  some  great  emergency  had  to 
be  provided  for,  an  extra  session  was  called;  but  this 
did  not  happen  very  often. 

Art.  I.,  Sec.  5.  Each  House  shall  be  the  Judge  of  the 
Elections,  Returns  and  Qualifications  of  its  own  Mem- 
bers, and  a  Majority  of  each  shall  constitute  a  Quorum 
to  do  Business;  but  a  smaller  Nimiber  may  adjourn 
from  day  to  day,  and  may  be  authorized  to  compel  the 
Attendance  of  absent  Members,  in  such  Manner,  and 
under  such  Penalties  as  each  House  may  provide. 

Otu"  people  have  put  down  in  black  and  white  many 
things  which  the  older  nations  maintain  by  custom. 
This  section,  for  example,  is  a  very  exact  statement 
of  the  corporate  privileges  which  each  House  of  the 
British  Parliament  enjoys  by  the  imwritten  Constitution 
of  the  United  Kingdom. 

A  Majority  of  each  [House\  shall  constitute  a  Quorum  to 
do  Business.  A  "quonun,"  as  the  word  is  commonly 
used,  means  the  niunber  of  members  of  a  body  or  cor- 
poration competent  to  transact  business  by  its  law  or 


ORGANIZATION  OF  FEDERAL  CONGRESS    73 

constitution.  Hence  an  Act  of  Congress,  in  order  to 
be  valid,  must  be  passed  at  a  meeting  at  which  a 
majority  of  the  members  are  present.  In  the  case  of 
United  States  vs.  Ballin,  ^  the  vaHdity  of  the  McKinley 
Tariff  Act  of  1890  was  challenged  by  a  New  York  im- 
porting firm  on  the  ground  that  no  quorum  was  present 
in  the  House  of  Representatives  when  it  was  voted  on. 
It  was  shown  to  the  Court  that,  when  the  roll  was  called 
on  the  question,  the  Clerk  of  the  House  reported  to  the 
Speaker:  yeas,  138;  nays,  o;  not  voting,  189.  There- 
upon the  Speaker  read  from  a  list,  noted  by  the  Clerk 
at  his  suggestion,  the  names  of  seventy-four  members 
who  were  present  in  the  Hall  of  Representatives  when 
their  names  were  called.  The  Speaker  then  stated  that 
such  members  present  and  refusing  to  vote,  together 
with  those  recorded  as  voting,  showed  a  total  of  212 
members  present,  constituting  a  quonmi  to  do  business. 
He  then  declared  that  the  bill  had  passed  the  House. 
The  importing  firm  contended  that  the  Speaker  had 
no  right  to  declare  present  members  who  had  not  voted 
at  the  calling  of  the  roll;  that  those  only  were  legally 
present  who  had  answered  when  their  names  were 
called;  that  there  was  no  quorum  present  when  the  vote 
was  taken ;  that,  therefore,  the  McKinley  bill  never  had 
been  passed.  They  urged  that  a  consignment  of  worsted 
goods  upon  which  duties  had  been  levied  under  the 
McKinley  bill  should  have  been  assessed  at  lower  rates 
of  duty  under  the  Wilson  Tariff  Act  of  1883.  The  case 
was  heard  first  in  the  Circuit  Court  at  New  York  City, 
which  decided  against  the  government  and  in  favor  of 
the  importers.  On  appeal  to  the  Supreme  Court,  how- 
ever, the  judgment  of  the  Circuit  Court  was  reversed 
in  a  decision,  in  which  Justice  Brewer  said  in  part : 
» 144  U.  S.  Rep.,  5. 


74         AMERICAN  PLAN  OP  GOVERNMENT 

The  Constitution  provides  that  "a  majority  of  each 
[House]  shall  constitute  a  quorum  to  do  business."  In 
other  words,  when  a  majority  are  present  the  House  is  in  a 
position  to  do  business.  Its  capacity  to  transact  business 
is  then  established,  created  by  the  mere  presence  of  a 
majority,  and  does  not  depend  upon  the  disposition  or  as- 
sent or  action  of  any  single  number,  or  fraction  of  the 
majority  present.  .  .  .  But  how  shall  the  presence  of  a 
majority  be  determined?  The  Constitution  has  prescribed 
no  method  of  making  this  determination,  and  it  is  therefore 
within  the  competency  of  the  House  to  prescribe  any  method 
which  shall  be  reasonably  certain  to  ascertain  the  fact.  It 
may  prescribe  answer  to  roll-call  as  the  only  method  of  de- 
termination; or  require  the  passage  of  members  between 
tellers,  and  their  count  as  the  sole  test ;  or  the  count  of  the 
Speaker  or  the  clerk,  and  an  announcement  from  the  desk  of 
the  names  of  those  who  are  present.  Any  one  of  these 
methods,  it  must  be  conceded,  is  reasonably  certain  of 
ascertaining  the  fact,  and  as  there  is  no  constitutional 
method  prescribed,  and  no  constitutional  inhibition  of  any 
of  those,  and  no  violation  of  fundamental  rights  in  any,  it 
follows  that  the  House  may  adopt  either  or  all,  or  it  may 
provide  for  a  combination  of  any  two  of  the  methods. 
This  was  done  by  the  rule  in  question;  and  all  that  that 
rule  attempts  to  do  is  to  prescribe  a  method  for  ascertain- 
ing the  presence  of  a  majority,  and  thus  establishing  the 
fact  that  the  House  is  in  a  condition  to  transact  business. 
As  appears  from  the  Journal,  at  the  time  this  bill  passed  the 
House  there  was  present  a  majority,  a  quorum,  and  the 
House  was  authorized  to  transact  any  and  all  business. 
It  was  in  a  condition  to  act  on  the  bill  if  it  desired. 


Art.  I.,  Sec.  5.  (Continued.)  Each  House  may  de- 
termine the  Rules  of  its  Proceedings,  punish  its 
Members  for  disorderly  Behaviour,  and,  with  the  Con- 
currence of  two  thirds,  expel  a  Member. 


ORGANIZATION  OF  FEDERAL  CONGRESS    75 

The  supreme  law-making  body  of  the  nation  is,  of 
cotirse,  beyond  the  reach  of  any  law  except  the  People's 
Law,  the  Constitution  itself,  to  which  the  Houses  owe 
their  existence.  The  People's  Law  authorizes  each 
House  to  decide  how  its  business  is  to  be  done  and  to 
regulate  the  behavior  of  its  members. 

Each  House  may  determine  the  Rules  of  its  Proceedings. 
The  House  of  Representatives,  with  more  than  four 
hundred  members,  has  been  forced  to  adopt  rules  to 
prevent  discussion.  More  than  30,000  bills  and  resolu- 
tions are  offered  at  each  Congress.  Most  of  these  are 
killed  in  the  committee  rooms.  A  few  hundred  which 
must  be  passed  to  keep  the  government  going,  are  re- 
ported for  the  consideration  of  the  assembled  members, 
and  are  put  through  practically  without  debate  be- 
cause the  Speaker  will  recognize  only  those  members 
who  are  scheduled  to  address  the  House  for  or  against 
the  bills  before  it.  These  autocratic  rules  were  intro- 
duced in  1889,  when  Thomas  B.  Reed  of  Maine  was 
the  Speaker  of  the  House.  His  rules  have  been  criti- 
cized as  arbitrary  and  tyrannical,  but  are  still  in  force. 
"How  absolutely  necessary  his  code  was,"  said  A. 
Maurice  Low  in  the  North  American  Review  of  February, 
1902,  "is  shown  from  the  fact  that  his  Democratic 
successor  substantially  made  the  Reed  rules  his  own; 
and  still  later,  when  the  swing  of  the  pendulum  once 
more  placed  the  House  in  control  of  the  Republicans, 
the  Republican  majority  saw  no  good  reason  why  any 
change  should  be  made  in  the  rules."  The  Senate  has 
its  own  rules,  which  are  based  upon  a  manual  pre- 
pared by  Thomas  Jefferson  for  his  own  use  dxiring  his 
Vice  Presidency  from  1797  to  1801.  These  niles 
permit  unlimited  debate  upon  any  subject  under  con- 
sideration— a  method  which  works  fairly  well  in  a  de- 


76         AMERICAN  PLAN  OF  GOVERNMENT 

liberative  assembly  of  less  than  one  hundred  members. 
Each  House  may  .  .  .  punish  its  Members  for  dis- 
orderly Behaviour,  and,  with  the  Concurrence  of  two  thirdSf 
expel  a  Member.  This  clause  of  the  Constitution  gives 
a  limited  judicial  power  to  each  of  the  Houses  of  Con- 
gress. They  are  constitutional  courts  to  the  extent  that 
they  can  punish  their  own  members  for  disorderly 
behavior  and  can  expel  a  member.  This  provision 
counterbalances  the  exemption  of  Representatives  and 
Senators  from  arrest  by  order  of  the  courts  during  their 
attendance  in  Congress.  ^ 

Art.  I.,  Sec.  5.  (Continued.)  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  ques- 
tion shall,  at  the  Desire  of  one  fifth  of  those  Present, 
be  entered  on  the  Journal. 

These  are  commands  which  the  Constitution  ex- 
pressly lays  upon  the  law-making  departments  of  the 
national  government.  Mr.  Justice  Miller,  in  his  book 
On  the  Constitution^  says  of  this  provision: 

Whether  wise  or  unwise,  [it]  is  a  fruitful  source  of  a 
great  waste  of  time.  It  may  be  very  well  doubted  whether 
the  call  of  the  yeas  and  nays  in  the  House  of  Representatives, 
which  necessarily  consimies  a  great  deal  of  time,  is  not 
resorted  to  more  for  that  purpose  than  any  other,  thereby 
frequently  defeating  a  measure  which  a  majority  of  the 
House  is  prepared  to  pass.  It  may  be  of  some  advantage  in 
the  way  of  compelling  members  to  spread  their  names  upon 

*  See  Art.  I.,  Sec.  6,  Subd.  i. 

■  Miller,  On  the  Constitution,  p.  197. 


ORGANIZATION  OF  FEDERAL  CONGRESS  ^^ 

the  record  as  having  voted  for  or  against  any  particular  pro- 
position, and  thereby  holding  them  responsible  to  the  public 
sentiment  of  their  constituents.  Wliere  this  is  the  con- 
scientious object  and  motive  in  calling  for  the  yeas  and 
nays,  it  is  probably  unobjectionable,  and  in  the  enact- 
ment of  laws  of  great  public  importance  it  is  desirable  for 
many  reasons  that  the  votes  of  members  should  be  re- 
corded. No  doubt  this  was  the  object  of  the  Constitution 
in  authorizing  a  call  of  the  yeas  and  nays  upon  the  re- 
quest of  one  fifth  of  the  members  present,  and  this  require- 
ment of  one  fifth  seems  to  be  a  necessity  to  prevent  the 
frittering  away  of  the  time  of  the  legislative  body  at  the 
request  of  a  single  number. 

Art.  I.,  Sec.  5.  (Continued.)  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. 

But  for  this  clause,  either  House,  in  case  of  a  dis- 
pute with  the  other,  could  break  up  the  session  by  ad- 
journing for  a  long  period  or  to  some  place  other  than 
the  Hall  of  Congress.  "If  the  House  could  adjourn 
of  its  own  motion,  without  the  other,  for  two  or  three 
weeks  at  a  time,"  says  Miller,  On  the  Constitution,  "the 
obstruction  of  the  public  business  would  be  very  great, 
and  there  would  be  an  impossibility  of  the  cooperative 
action  contemplated  by  the  Constitution.  In  practice, 
the  three  days'  limit  is  reached  by  one  or  both  branches 
of  Congress  very  frequently  during  a  long  session,  when 
an  adjournment  is  had  over  from  Thursday  imtil 
Monday.*" 

'  Miller,  On  the  Constitution,  p.  197. 


78         AMERICAN  PLAN  OF  GOVERNMENT 

Art.  I.,  Sec.  6.  The  Senators  and  Representatives 
shall  receive  a  Compensation  for  their  Services,  to  be 
ascertained  by  Law,  and  paid  out  of  the  Treasury  of 
the  United  States.  They  shall  in  all  Cases,  except 
Treason,  Felony,  and  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. 

The  Senators  and  Representatives  shall  receive  a  Com- 
pensation for  their  Services,  to  he  ascertained  hy  Law,  and 
paid  out  of  the  Treasury  of  the  United  States.  The 
members  of  the  Continental  Congress  had  had  to  travel 
hundreds  of  miles  over  the  wretched  roads  of  those  days 
or  take  the  chances  of  a  sea  voyage  in  war  time,  in 
order  to  spend  months  on  end  in  the  boarding  houses 
of  Philadelphia  while  attending  to  their  public  duties. 
Fairly  good  pay  at  regular  intervals  would  have  made 
these  conditions  endiurable.  But  that  is  what  they  did 
not  get.  Some  States  had  been  so  thrifty  and  so  irregu- 
lar in  the  payment  of  salaries  that  their  representa- 
tives often  had  a  very  unpleasant  time  of  it.  Other 
States  had  carried  financial  prudence  to  the  extremity 
of  remaining  unrepresented  dining  long  periods.  Ex- 
perience had  shown  that  Representatives  and  Senators 
ought  to  be  paid  by  the  Nation.  More  than  this,  since, 
under  the  proposed  government,  each  House  was  to  have 
a  right  to  compel  the  attendance  of  absent  members, 
it  was  no  more  than  just  to  provide  that  those  who 
might  be  compelled  to  appear  in  their  places  should 
be  paid  what  it  would  cost  to  come  and  go  and  live 
while  at  their  work. 

The  only  doubtful  thing  here  was  that  Congress  was 


ORGANIZATION  OF  FEDERAL  CONGRESS    79 

the  only  body  which  could  "ascertain"  the  compensa- 
tion its  own  members  should  receive.  James  Madison 
said  in  the  Federal  Convention  that  "to  leave  them 
[Senators  and  Representatives]  to  regulate  their  own 
wages  was  an  indecent  thing."  ^ 

The  scheme  made  trouble  in  18 16,  when  the  com- 
pensation was  raised  from  six  dollars  per  day  of  actual 
attendance  to  $1,500  per  year.  The  change  was  so 
unpopular  that  most  of  the  members  that  voted  for  the 
bill  were  defeated  at  the  next  election.  This  was  no- 
thing to  what  happened  in  1871,  when  Congress  on  the 
last  day  of  its  session  raised  the  salary  of  members  from 
$5,000  to  $7,500  and  made  it  payable  from  the  begin- 
ning of  the  session  two  years  before.  The  "salary 
grab  "  was  responsible  for  the  downfall  of  many  hopeful 
politicians  of  that  day. 

The  Senators  and  Representatives  .  .  .  shall  in  all 
Cases,  except  Treason,  Felony,  and  Breach  of  the  Peace^ 
be  privileged  from  Arrest  during  their  Attendance  at  the 
Session  of  their  respective  Houses,  and  in  going  to  and 
returning  from  the  same.  If  this  personal  privilege  had 
not  been  granted  to  members  of  the  new  Congress, 
there  might  have  been  endless  trouble  in  those  days 
when  arrest  and  imprisonment  for  small  debts  and 
upon  the  slightest  and  most  insignificant  criminal 
charges  was  the  usual  procedure. 

The  House  of  Commons  of  the  British  Parliament 
had  contended  for  this  privilege,  because  British  Kings 
had  used  the  power  of  arrest  as  a  means  of  forcing 
members  to  vote  for  measures  which  the  Crown  wished 
to  carry  through.  The  makers  of  the  Constitution 
gave  it  to  Senators  and  Representatives  in  Congress  in 
order  to  preserve  the  independence  of  the  law-making 

'  Madison's  Journal,  p.  152. 


8o        AMERICAN  PLAN  OF  GOVERNMENT 

department.  They  had  planned  a  government  which 
was  to  be  managed  by  three  independent,  coordinate 
departments.  If  any  one  of  these  had  been  able  to 
coerce  any  other,  the  fundamental  principle  of  the  whole 
system  would  have  been  wrecked.  If  the  President  or 
the  judges  had  been  given  power  to  arrest  Senators 
and  Representatives  for  petty  offenses,  Congress  would 
have  been  at  the  mercy  of  the  executive  or  the  judiciary. 
And  for  any  Speech  or  Debate  in  either  House,  they 
[Senators  and  Representatives]  shall  not  he  questioned 
in  any  other  place.  "According  to  Elsynge,"  says 
May  in  his  Law  and  Usage  of  Parliament,  "the  Com- 
mons did  oftentimes,  under  Edward  III.,  discuss  and 
debate  amongst  themselves  many  things  concerning  the 
King's  prerogative,  and  agreed  upon  petitions  for  laws 
to  be  made  directly  against  his  prerogative,  as  may 
appear  by  divers  of  the  said  petitions;  yet  they  were 
never  interrupted  in  their  consultations,  nor  yet  received 
check  for  the  same,  as  may  appear  also  by  the  answer  to 
the  said  petitions.  In  the  twentieth  year  of  the  reign 
of  Richard  IL,  however,  a  case  occurred  in  which  this 
ancient  privilege  was  first  violated,  and.  afterward 
signally  confirmed.  Haxey,  a  member  of  the  Commons, 
having  displeased  the  King  by  offering  a  bill  for  reduc- 
ing the  excessive  charge  of  the  royal  household,  was 
condemned  in  Parliament  as  a  traitor.  But  on  the 
accession  of  Henry  IV.,  Haxey  exhibited  a  petition  to 
the  King  in  Parliament,  to  reverse  that  judgment  as 
being  against  the  law  and  custom  which  had  been 
before  in  Parliament;  and  the  judgment  was  reversed 
and  annulled  accordingly  by  the  King,  with  the  advice 
and  assent  of  all  the  lords,  spiritual  and  temporal."^ 

'May's  Law  and  Usage  of  Parliament,  pp.  ii8,  119,  as  quoted  in 
Watson,  On  the  Constitution,  i.,  322. 


ORGANIZATION  OF  FEDERAL  CONGRESS    8i 

Art.  I.,  Sec.  6.  (Continued.)  No  Senator  or  Re- 
presentative shall,  during  the  Time  for  which  he  was 
elected,  be  appointed  to  any  Civil  Office  under  the 
Authority  of  the  United  States,  which  shall  have  been 
created,  or  the  Emoluments  whereof  shaU  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. 

The  Constitution  declares  that  Senators  and  Re- 
presentatives shall  not  use  their  power  as  law-makers 
to  provide  fat  jobs  for  themselves,  and  it  prohibits 
Federal  officials  from  sitting  in  Congress.  The  Con- 
stitution makers  were  creating  a  government  which 
was  to  be  managed  by  makers  of  laws,  administrators 
of  laws,  and  judges  of  laws.  In  Great  Britain  supreme 
power,  then  as  now,  was  vested  in  parliament.  If  a 
member  of  parliament  also  held  office  in  a  subordinate 
branch  of  the  government,  there  was  no  great  harm 
done  so  long  as  his  constituents  were  satisfied.  But 
our  Constitution  vests  governmental  power  in  three 
theoretically  equal  and  coordinate  bodies:  makers  of 
laws,  administrators  of  laws,  and  judges  of  laws.  Under 
our  system,  therefore,  any  such  overlapping  of  official 
authority  is  unthinkable;  with  us,  no  man  may  use 
power  in  one  capacity  and  in  another  capacity  have  a 
right  to  check  that  use  of  power. 

Art.  I.,  Sec.  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. 

Section  7,  as  a  whole,  was  an  attempt  to  adopt  the 
order  of  law-making  procedure  which  had  been  followed 


82         AMERICAN  PLAN  OF  GOVERNMENT 

in  England  for  at  least  three  hundred  years  before  the 
United  States  became  independent.  The  English  im- 
print is  especially  plain  in  this  clause  which  says  that 
taxing  bills  shall  begin  in  the  House  of  Representatives, 
just  as  in  England  all  money  bills  begin  in  the  House 
of  Commons.  Here  the  similarity  ends.  The  Senate, 
under  its  right  of  amendment,  often  cuts  out  of  a  House 
revenue  bill  all  except  the  enacting  clause,  and  sub- 
stitutes a  measure  of  its  own.  This  is  what  is  called 
a  Senate  amendment  of  a  House  revenue  bill. 

Art.  I.,  Sec.  7.  (Continued.)  Every  Bill  which  shall 
have  passed  the  House  of  Representatives  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  origi- 
nated, 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  Ob- 
jections, 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  House  respectively.  If  any  Bill  shall  not  be  re- 
turned 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,  imless  the  Congress  by  their  Adjournment 
prevent  its  Return,  in  which  Case  it  shall  not  be  a 
Law. 


ORGANIZATION  OF  FEDERAL  CONGRESS    83 

It  was  generally  taken  for  granted  that  the  sentiment 
and  opinion  of  the  people  would  be  reflected  in  the 
House  of  Representatives  and  that  the  Senate  would 
in  general  be  dominated  by  the  larger  House.  The 
men  who  framed  the  Constitution,  however,  were  men 
of  means  who  intended  to  safeguard  property  rights  by 
preventing  irresponsible  legislation.  They  were  sure 
there  ought  to  be  some  plan  whereby  the  power  of  the 
people  through  their  representatives  to  make  such  laws 
as  they  chose,  should  be  limited  or  balanced  by  some 
other  department  of  authority.  That  is  why  they 
put  into  the  hands  of  the  President  of  the  United 
States  a  right  to  prevent  the  taking  effect  of  any  law 
which  should  not  have  back  of  it  the  recorded  votes  of 
two-thirds  of  the  members  of  the  Congress. 

"It  is  to  be  hoped,"  wrote  Alexander  Hamilton  in 
The  Federalist,  No.  73,  "that  it  will  not  often  happen 
that  improper  views  wiU  govern  so  large  a  proportion 
as  two-thirds  of  both  branches  of  the  Legislature  at 
the  same  time;  and  this,  too,  in  spite  of  the  counter- 
poising weight  of  the  Executive.  It  is  at  any  rate  far 
less  probable  that  this  should  be  the  case,  than  that 
such  views  should  taint  the  resolutions  and  conduct 
of  a  bare  majority.  A  power  of  this  nature  in  the 
Executive,  will  often  have  a  silent  and  unperceived, 
though  forcible,  operation.  When  men,  engaged  in 
unjustifiable  pursuits,  are  aware  that  obstructions  may 
come  from  a  quarter  which  they  cannot  control,  they 
will  often  be  restrained  by  the  bare  apprehension  of 
opposition  from  doing  what  they  would  with  eagerness 
rush  into,  if  no  such  external  impediments  were  to  be 
feared." 

//  any  Bill  shall  not  he  returned  by  the  President 
within  ten  Days  {Sundays  excepted)  after  it  shall  have 


84         AMERICAN  PLAN  OF  GOVERNMENT 

been  presented  to  him,  the  Same  shall  he  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.  The  President  is  not  obliged  to  veto  or 
return  with  objections  any  bill  sent  to  him  by  Congress 
during  the  ten  days  before  the  foiirth  day  of  March  of 
every  other  year.  A  President  who  has  before  him  any 
bills  presented  less  than  ten  days  before  that  date, 
can  stuff  them  into  the  handiest  wastebasket,  if  he 
does  not  wish  to  send  in  a  veto  with  his  reasons.  This 
is  what  is  called  the  "pocket  veto,"  because  the  Presi- 
dent "pockets"  the  bill  and  carries  it  away  with  him. 

Art.  I.,  Sec.  7.  (Continued.)  Every  Order,  Re- 
solution, or  Vote  to  which  the  Concurrence  of  the 
Senate  and  House  of  Representatives  may  be  necessary 
(except  on  a  question  of  Adjournment)  shall  be  pre- 
sented to  the  President  of  the  United  States;  and 
before  the  Same  shall  take  Effect,  shall  be  approved 
by  him,  or  being  disapproved  by  him,  shall  be  re- 
passed by  two  thirds  of  the  Senate  and  House  of  Re- 
presentatives, according  to  the  Rules  and  Limitations 
prescribed  in  the  Case  of  a  Bill. 

This  clause  puts  the  same  limitations  and  conditions 
upon  the  enactment  of  orders,  resolutions,  and  votes  as 
the  preceding  clause  does  upon  the  enactment  of  laws. 
It  was  suggested  in  the  Constitutional  Convention  by 
James  Madison  as  a  means  of  preventing  Congress 
from  enacting  bills  into  laws  and  dodging  the  presiden- 
tial veto  by  calling  them  orders  or  resolutions  or  votes. 


PART  IV 

Legislative  Government  in  the  United 

States 


85 


CHAPTER  VIII 

POWERS  OF  CONGRESS — ^THE  MONEY  POWER 

Art.  I.,  Sec.  8,  Subd.  i.  The  Congress  shall  have 
Power. 

The  Constitution  of  the  United  States  is  not  an 
instrument  which  executes  itself,  but  a  plan  of  govern- 
ment which  must  be  executed  by  the  departments 
which  it  establishes.  In  the  case  of  United  States  vs. 
Hudson  and  Goodwin,  ^  the  publishers  of  a  Connecticut 
newspaper  were  charged  with  libel  for  having  on  May 
7,  1806,  pubUshed  a  statement  that  President  Jeff  erson 
and  Congress  had  secretly  made  a  present  of  $2,000,000 
to  Napoleon  Bonaparte  to  induce  him  to  make  peace. 
In  the  United  States  Circuit  Court,  where  the  case  first 
came  up,  the  defendants  urged  that  they  could  not 
lawfully  be  punished  for  criminal  libel  under  the  laws 
of  the  United  States,  because  the  United  States  had 
no  law  punishing  that  offence.  Hence  the  Supreme 
Court,  in  deciding  the  case,  had  to  determine  whether 
the  Constitution  gave  the  United  States  power  to  punish 
attacks  upon  its  sovereignty  in  the  absence  of  a  Federal 
statute.    Justice  Johnson  said: 

The  only  question  which  this  case  presents,  is,  whether 
the  Circuit  Courts  of  the  United  States  can  exercise  a 
common   law   jurisdiction   in   criminal   cases.  .  .  .     The 

'  7  Cranch's  Rep.,  34. 

87 


88         AMERICAN  PLAN  OF  GOVERNMENT 

legislative  power  of  the  Union  must  first  make  an  act  a 
crime,  affix  a  punishment  to  it,  and  declare  the  court  which 
shall  have  jurisdiction  of  the  offence. 

Art.  I.,  Sec.  8,  Subd.  i.  (Continued.)  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. 

Art.  I.,  Sec.  8,  Subd.  2.  To  borrow  Money  on  the 
credit  of  the  United  States. 

The  impotent  League  of  Friendship  created  by  the 
Articles  of  Confederation  had  had  no  power  to  compel 
the  payment  of  taxes.  The  old  Congress  had  never 
been  able,  even  in  the  most  strenuous  crises  of  the  War 
for  Independence,  to  induce  the  States  to  supply  their 
quotas  of  men  and  munitions  of  war.  The  delegates 
who  met  to  suggest  improvements  in  the  Articles  of 
Confederation  knew  that  the  thing  most  needed  was 
this  power  of  taxation. 

The  Congress  shall  have  Power  To  lay  and  collect  Taxes. 
The  Supreme  Court,  in  the  case  of  State  Freight  Tax,^ 
explained  what  taxes  are.  In  1864  Pennsylvania  passed 
a  law  which  required  all  transportation  companies  do- 
ing business  within  the  State  to  pay  a  tax  upon  every 
ton  of  freight  taken  up  in  the  State  and  carried  out  of  it, 
or  taken  up  outside  of  the  State  and  brought  within  it. 
The  Reading  Railroad  Company,  which  had  been 
granted  an  exclusive  right  to  charge  tolls  upon  freight 
carried  by  it,  refused  to  pay  this  tax  on  coal  carried  from 
Pennsylvania  to  points  outside  the  State  on  the  ground 
that  this  was  commerce  among  the  States  of  the  United 

*  15  Wallace's  Rep.,  232. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.       89 

States,  the  regulation  of  which  is  exclusively  under  the 
control  of  the  national  government.  The  Supreme 
Court  of  Pennsylvania  decided  that,  because  the  rail- 
roads had  been  built  on  lands  which  the  State  had 
permitted  the  companies  to  take  from  the  owners  for 
use  as  highways,  the  State  had  a  right  to  collect  tolls 
or  taxes  for  the  use  of  those  highways.  The  question 
for  the  Court  to  decide  was  whether  the  State  could, 
by  imposing  tolls,  tax  freight  carried  in  interstate 
commerce.  Thus  the  Supreme  Court  had  to  say  what 
a  ' '  tax  "is.    Justice  Strong  said : 

Tolls  and  freights  are  a  compensation  for  services  ren- 
dered, or  facilities  furnished  to  a  passenger  or  transporter. 
They  are  not  rendered  or  furnished  by  the  State.  A  tax  is  a 
demand  of  sovereignty :  a  toll  is  a  demand  of  proprietorship. 

The  Congress  shall  have  Power  To  lay  and  collect  .  .  . 
Duties.  This  word  "duties"  has  been  accurately 
defined  by  the  Supreme  Court  in  the  case  of  Pacific 
Insurance  Co.  vs.  Soule.  ^  Soon  after  the  Civil  War,  the 
Pacific  Insurance  Company,  doing  business  in  CaUfor- 
nia,  was  compelled  to  pay  internal  revenue  duties 
amounting  to  $7,365  upon  its  dividends,  undistributed 
cash,  and  income.  The  duties  were  paid  under  protest, 
and  an  action  was  brought  by  the  company  against  the 
Federal  collector  upon  the  ground  that  the  duties  im- 
posed by  the  statute  were  in  fact  direct  taxes  which, 
not  being  apportioned  to  each  of  the  States  according 
to  population  as  required  by  another  part  of  the  Con- 
stitution, could  not  lawfully  be  exacted.  The  case  was 
taken  to  the  Supreme  Court  at  Washington  upon  the 
question  whether  duties  levied  upon  the  income  of 
corporations  were  taxes  on  property  or  were  excise 

»  7  Wallace's  Reports,  433. 


90         AMERICAN  PLAN  OF  GOVERNMENT 

duties  upon  the  privilege  of  doing  business.  If  they  were 
taxes,  they  were  unlawful  as  direct  taxes  not  appor- 
tioned; if  they  were  excise  duties,  they  were  lawful. 
Justice  Swayne,  in  deciding  that  these  were  "duties," 

said: 

< 

Duties  are  defined  .  .  .  to  be  things  due  and  recoverable 
by  law.  The  term,  in  its  widest  signification,  is  hardly  less 
comprehensive  than  "  taxes. "  .  .  .  If  a  tax  upon  carriages 
kept  for  his  own  use  by  the  owner  [as  had  long  before  been 
decided  by  the  Supreme  Court  in  the  case  of  Hylton  vs. 
United  States^,  is  not  a  direct  tax,  we  can  see  no  ground  upon 
which  a  tax  upon  the  business  of  an  insurance  company  can 
be  held  to  belong  to  that  class  of  revenue  charges. 

The  Congress  shall  have  Power  To  lay  and  collect  .  .  . 
Imposts.  This  word  "imposts"  is  used  in  connection 
with  the  inexact  word  "duties"  to  denote  a  charge  spe- 
cially imposed  upon  goods  and  merchandise,  exported 
or  imported.  In  the  case  of  Woodruff  vs.  Parham,  *  de- 
cided by  the  Supreme  Court  of  the  United  States  in 
1868,  it  was  shown  that  the  City  of  Mobile,  Alabama, 
was  collecting  sums  of  money  from  auctioneers  by 
compeUing  them  to  pay  a  percentage  of  the  value  of 
merchandise  which  they  imported  from  other  States 
and  sold  at  auction.  A  Mr.  Woodruff,  an  auctioneer, 
contended  that  a  tax  on  the  sale  of  goods  imported 
from  other  States  was  an  impost  on  goods  imported 
from  those  States,  and  as  such  forbidden  by  the  Con- 
stitution. When  this  case  came  before  the  Federal 
Supreme  Court,  Justice  Miller  wrote  a  decision  in 
which  he  said  that  a  State  may  tax  any  property  which  is 
within  its  borders,  no  matter  where  it  came  from.  He 
said: 

*  3  Dallas'  Rep.,  178.  '8  Wallace's  Rep.,  123. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.       91 

In  the  case  of  Brown  vs.  Maryland,  the  word  imports, 
as  used  in  the  clause  now  under  consideration,  is  defined, 
both  on  the  authority  of  the  lexicons  and  of  usage,  to  be 
articles  brought  into  a  country;  an  impost  is  there  said  to 
be  a  duty,  custom,  or  tax  levied  on  articles  brought  into  the 
country.  In  the  ordinary  use  of  the  terms  at  this  day,  no 
one  would,  for  a  moment,  think  of  them  as  having  relation 
to  any  other  articles  than  those  brought  from  a  country 
foreign  to  the  United  States. 


The  Congress  shall  have  Power  To  lay  and  collect  .  .  . 
Excises,  The  word  "excise  "  grated  on  the  ears  of  our 
great-great-grandfathers,  who  remembered  that  the 
Stamp  tax  was  an  excise.  Even  now,  when  the  events 
which  made  an  excise  "a  hateful  tax"  are  buried  under 
the  dust  of  a  century  of  history,  American  statesmen 
like  better  to  talk  about  "internal  revenue,"  which 
means  exactly  the  same  thing. 

The  first  Federal  excise  law,  passed  by  Congress  in 
1 79 1,  stirred  up  the  Whiskey  RebelHon  in  Western 
Pennsylvania.  This  act,  which  imposed  excise  taxes 
upon  spirits  distilled  within  the  United  States,  was 
denounced  as  unnecessary  and  tyrannical  by  the  legis- 
latures of  Maryland,  Pennsylvania,  Virginia,  and  North 
Carolina.  The  farmers  in  the  frontier  settlements 
near  the  Alleghany  Mountains  raised  great  quantities  of 
com  and  rye,  which  could  not  be  shipped  to  the  East  at 
a  profit  except  in  the  form  of  whiskey.  Like  the  makers 
of  "moonshine"  whiskey  of  the  present  day,  these  men 
could  not  or  would  not  see  any  reason  why  they  should 
pay  a  tax  on  the  product  which  they  distilled  from  grain 
harvested  on  their  farms.  One  unlucky  deputy  collec- 
tor was  seized  by  a  body  of  armed  men  who  stripped 
him,  cut  off  his  hair,  tarred  and  feathered  him.    The 


92         AMERICAN  PLAN  OF  GOVERNMENT 

United  States  courts  issued  warrants  for  the  arrest  of 
those  who  had  committed  this  outrage;  but  all  the 
authorities  got  for  their  pains  was  news  that  the 
private  messenger  who  carried  the  process  papers  had 
also  been  tarred  and  feathered,  had  lost  his  watch  and 
horse,  and  had  been  left  tied  to  a  tree  in  the  woods  for 
five  hours.  The  disorders  continued  until  1794,  when 
the  national  government  intervened.  President  Wash- 
ington issued  proclamations  commanding  the  rioters  to 
disperse,  and  warning  all  persons  against  abetting  them. 
He  made  requisitions  upon  the  governors  of  Pennsyl- 
vania, New  Jersey,  Virginia,  and  Maryland  for  15,000 
troops  and  got  ready  to  lead  this  little  army  in  person. 
The  bottom  then  fell  out  of  the  whole  movement. 
David  Bradford,  its  leader,  fled  to  New  Orleans. 
Several  insurgents  were  arrested  and  bound  over  for 
trial,  and  two  of  them  were  convicted  of  treason. 
These,  however,  were  afterward  pardoned  by  President 
Washington.  * 

Internal  revenue  taxes  upon  cigars,  cigarettes,  and 
tobacco  in  various  forms,  wines,  malted  and  distilled 
liquors,  and  other  articles,  have  been  levied  so  regularly 
by  the  national  government  that  everybody  nowadays 
accepts  them  as  part  of  the  daily  business  of  life. 

It  is  more  difficult  to  understand  the  reasoning  by 
which  excise  taxation  has  been  extended  to  include 
duties  on  the  privileges  which  corporations  have  to 
engage  in  business,  especially  when  the  amount  of  the 
duties  is  reckoned  on  the  basis  of  income  and  not  upon 
the  value  of  property  they  own.  The  national  corpora- 
tion income  tax  law,  superseded  by  the  general  income 
tax  law  of  1 9 13,  was  really  an  expansion  of  the  old  prin- 
ciple of  excise  duties.  In  the  case  of  Portland  Bank  vs. 
'  *  26  Federal  Cases,  499,  No.  15, 443;  2  Dallas'  Rep.,  335. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.       93 

Apthorp,  *  it  appeared  that  the  State  of  Massachusetts, 
in  1 8 12,  had  enacted  a  law  which  required  every  bank 
in  the  State  to  pay  to  the  State  Treasurer  within  ten 
days  after  declaring  a  semi-annual  dividend  an  excise 
tax  of  one  half  of  one  per  cent  of  the  par  value  of  its 
capital  stock.  The  Portland  Bank  neglected  to  pay 
this  tax  after  declaring  a  dividend  on  January  i,  1813. 
Thereupon  the  sheriff  of  Cumberland  County,  in  the 
District  of  Maine,  then  a  part  of  Massachusetts,  seized 
property  of  the  bank  to  the  amount  of  the  tax.  The 
bank  brought  an  action  against  him.  Chief  Justice 
Parker  declared  that  this  tax  was  an  excise  duty  which 
the  State  had  a  right  to  levy,  saying: 

There  are  other  sources  of  emolument  and  profit,  not 
strictly  called  property,  but  which  are  rather  to  be  con- 
sidered as  the  means  of  acquiring  property,  from  which  a 
reasonable  revenue  may  be  exacted  by  the  legislature.  .  .  . 
The  term  excise  ...  is  limited,  in  our  Constitution 
[Massachusetts]  as  to  its  operation,  to  produce,  goods, 
wares,  merchandise,  and  commodities.  This  last  word  will 
perhaps  embrace  .  .  .  the  privilege  of  using  particular 
branches  of  business  or  employment,  as,  the  business  of  an 
auctioneer,  of  an  attorney,  of  a  tavern  keeper,  of  a  retailer 
of  spirituous  liquors,  etc. 

The  Congress  shall  have  Power  To  lay  and  collect 
Taxes  [etc.]  to  pay  the  Debts  .  .  .  of  the  United  States. 
The  Supreme  Court  at  Washington  frequently  has  been 
called  upon  to  decide  whether  the  United  States  can 
collect  money  by  taxation  for  any  purpose  except  to 
pay  the  debts  it  is  legally  boimd  to  pay.  In  the  case  of 
United  States  vs.  Realty  Co.,'  the  question  was  upon  the 
constitutionality  of  the  Act  of  Congress  of  1895  which 

*  7  Massachusetts  Rep.,  252.  >  163  U.  S.  Rep.,  427. 


94        AMERICAN  PLAN  OF  GOVERNMENT 

appropriated  money  for  bounties  to  encourage  the  pro- 
duction of  high  grade  sugars.  Could  Congress  lawfully- 
collect  money  by  imposing  customs  duties  on  imported 
merchandise  and  then  make  a  free  gift  of  a  part  of  the 
proceeds  to  sugar  manufacturers?  Justice  Peckham 
said: 

What  are  the  debts  of  the  United  States  within  the  mean- 
ing of  this  constitutional  provision?  It  is  conceded  and 
indeed  it  cannot  be  questioned  that  the  debts  are  not 
limited  to  those  which  are  evidenced  by  some  written  obliga- 
tion or  to  those  which  are  otherwise  of  a  strictly  legal 
character.  The  term ' '  debts ' '  includes  those  debts  or  claims 
which  rest  upon  a  merely  equitable  or  honorary  obligation 
and  which  would  not  be  recoverable  in  a  court  of  law  if 
existing  against  an  individual.  The  nation,  speaking 
broadly,  owes  a  "debt"  to  an  individual  when  his  claim 
grows  out  of  general  principles  of  right  and  justice;  when, 
in  other  words,  it  is  based  upon  considerations  of  a  moral  or 
mere  honorary  nature,  such  as  are  binding  on  the  conscience 
or  the  honor  of  an  individual,  although  the  debt  could  ob- 
tain no  recognition  in  a  court  of  law.  The  power  of  Congress 
extends  at  least  as  far  as  recognition  and  payment  of  claims 
against  the  government  which  are  thus  founded.  .  .  .  Their 
recognition  depends  solely  upon  Congress,  and  whether 
it  will  recognize  claims  thus  founded  must  be  left  to  the 
discretion  of  that  body.  Payments  to  individuals,  not  of 
right  or  of  a  merely  legal  claim,  but  payments  in  the  nature 
of  a  gratuity,  yet  having  some  feature  of  moral  obligation 
to  support  them,  have  been  made  by  the  government  by 
virtue  of  acts  of  Congress,  appropriating  the  public  money, 
ever  since  its  foundation. 

The  Congress  shall  have  Power  To  lay  and  colled  Taxes 
[etc.]  to  .  .  .  provide  for  the  common  Defence  and  general 
Welfare  of  the  United  States.    The  taxing  power  for 


LEGISLATIVE  GOVERNMENT  IN  U.  S.       95 

these  purposes  has  never  been  exercised  so  unreason- 
ably as  to  compel  an  appeal  to  the  Federal  Supreme 
Court  for  a  decision  upon  the  meaning  of  the  phrase. 
Justice  Story,  in  his  Commentary  on  the  Constitution, 
says^: 

The  reading  .  .  .  which  will  be  maintained  in  these 
commentaries  is  that  which  makes  the  latter  words  a  quali- 
fication of  the  former,  and  this  will  be  best  illustrated  by 
supplying  the  words  which  are  necessarily  to  be  understood 
in  this  interpretation.     They  will  then  stand  thus: 

"The  Congress  shall  have  power  to  lay  and  collect  taxes, 
duties,  imposts,  and  excises,  in  order  to  pay  the  debts,  and 
to  provide  for  the  common  defence  and  general  welfare  of 
the  United  States";  that  is,  for  the  purpose  of  paying  the 
public  debts,  and  providing  for  the  common  defense  and 
general  welfare  of  the  United  States.  In  this  sense.  Con- 
gress has  not  an  unlimited  power  of  taxation;  but  it  is 
limited  to  specific  objects, — the  payment  of  the  public 
debts,  and  providing  for  the  common  defense  and  general 
welfare. 

Protective  tariff  laws,  enacted  "to  provide  revenue 
for  the  government  and  to  encourage  the  industries  of 
the  United  States,"^  have  been  criticised  upon  the 
ground  that  the  Constitution  does  not  authorize  Con- 
gress to  impose  customs  duties  upon  foreign  made 
goods  for  the  purpose  of  giving  our  manufacturers  a 
better  chance  in  competing  in  our  home  markets.  On 
the  other  hand,  many  eminent  statesmen  have  urged 
that  it  is  the  bounden  duty  of  Congress  "to  provide  for 
.  .  .  the  general  Welfare  of  the  United  States"  by  ad- 
justing the  tax  burden  in  such  a  way  as  to  compel 

»  5th  ed.,  Sect.  908. 

» Enacting  Clause  of  Dingley  Tariff  Bill,  Act  of  July  4, 1897. 


96        AMERICAN  PLAN  OF  GOVERNMENT 

importers  of  foreign  manufactures  to  pay  charges  not 
levied  upon  American  made  goods  so  that  American 
industrial  enterprise  shall  be  fostered  and  protected. 
In  1 79 1,  Alexander  Hamilton,  Secretary  of  the  Treasury, 
in  his  celebrated  Report  on  Manufactures,  advocated 
protective  tariff  legislation  in  these  words : 

The  terms  "general  welfare,"  were  doubtless  intended  to 
signify  more  than  was  expressed  or  imported  in  those  which 
preceded;  otherwise  numerous  exigencies  incident  to  the 
affairs  of  a  nation  would  have  been  left  without  a  provision. 
The  phrase  is  as  comprehensive  as  any  that  could  have  been 
used;  because  it  was  not  fit  that  the  constitutional  authority 
of  the  Union  to  appropriate  its  revenues,  should  have  been 
restricted  within  narrower  limits  than  the  "  general  welfare  " ; 
and  because  this  necessarily  embraces  a  vast  variety  of 
particulars,  which  are  susceptible  neither  of  specification 
nor  of  definition. 

On  the  other  hand,  on  February  15,  1 791,  Thomas 
Jefferson,  Secretary  of  State,  said  in  his  opinion  upon 
the  power  of  Congress  to  establish  the  Bank  of  the 

United  States: 

Congress  are  not  to  lay  taxes  ad  libitum,  for  any  purpose 
they  please;  but  only  to  pay  the  debts,  or  provide  for  the  welfare 
of  the  Union.  In  like  manner  they  are  not  to  do  anything 
they  please,  to  provide  for  the  general  welfare,  but  only  to 
lay  taxes  for  that  purpose.  To  consider  the  latter  phrase, 
not  as  describing  the  purpose  of  the  first,  but  as  giving  a 
distinct  and  independent  power  to  do  any  act  they  please, 
which  might  be  for  the  good  of  the  Union,  would  render  all 
the  preceding  and  subsequent  enumerations  of  power 
completely  useless.  It  would  reduce  the  whole  instrument 
to  a  single  phrase,  that  of  instituting  a  Congress  with  power 
to  do  whatever  would  be  for  the  good  of  the  United  States; 
and,  as  they  would  be  the  sole  judges  of  the  good  or  evil,  it 


LEGISLATIVE  GOVERNMENT  IN  U.  S.       97 

would  also  be  a  power  to  do  whatever  evil  they  pleased.  It 
is  an  established  rule  of  construction,  where  a  phrase  will 
bear  either  of  two  meanings,  to  give  it  that  which  will  allow 
some  meaning  to  the  other  parts  of  the  instrimient,  and  not 
that  which  will  render  all  the  others  useless.  Certainly,  no 
such  universal  power  was  meant  to  be  given  them.  It  was 
intended  to  lace  them  up  strictly  within  the  enumerated 
powers,  and  those  without  which,  as  means,  these  powers 
could  not  be  carried  into  effect.  It  is  known  that  the  very 
power  now  proposed  as  a  means,  was  rejected  as  an  end  by 
the  Convention  which  formed  the  Constitution. 

All  Duties,  Imposts  and  Excises  shall  he  uniform 
throughout  the  United  States.  The  meaning  of  the  word 
"uniform"  as  used  in  this  phrase  was  explained  by  the 
Supreme  Court  in  the  Head  Money  Cases.  ^ 

In  1882,  Congress  enacted  the  Head  Money  Tax  Act 
under  which  transportation  companies  were  required 
to  pay  the  government  a  tax  of  fifty  cents  for  each  alien 
passenger  brought  to  this  country.  A  number  of  steam- 
ship agents  and  companies  paid  these  taxes  under 
protest  and  brought  suit  against  the  Collector  of  the 
Port  of  New  York  to  recover  the  amounts.  They 
argued  that  the  tax  was  void  because  not  uniform  in 
that  it  was  collected  only  in  the  few  States  where 
"immigrants"  enter  the  country  and  was  not  collected 
in  the  interior  States,  In  deciding  this  case,  Justice 
Miller  said: 

It  is  objected  that  the  tax  is  not  .  .  .  uniform  through- 
out the  United  States.  The  uniformity  here  prescribed  has 
reference  to  the  various  localities  in  which  the  tax  is  in- 
tended to  operate.  .  .  .  The  tax  is  uniform  when  it 
operates  with  the  same  force  and  effect  in  every  place  where 
the  subject  of  it  is  found.    The  tax  in  this  case,  which,  as 

» 112  U.S.  Rep.,  581. 
f 


98         AMERICAN  PLAN  OF  GOVERNMENT 

far  as  it  can  be  called  a  tax,  is  an  excise  duty  on  the  business 
of  bringing  passengers  from  foreign  countries  into  this,  by 
ocean  navigation,  is  uniform  and  operates  precisely  alike  in 
every  port  of  the  United  States  where  such  passengers  can 
belauded. 


The  Congress  shall  have  Power  To  .  .  .  borrow  Money 
on  the  credit  of  the  United  States.  During  the  Revolu- 
tion, the  power  to  borrow  money  was  grossly  misused  by 
the  Continental  Congress  and  by  each  of  the  States  in 
issuing  floods  of  continental  and  state  paper  money 
which  never  was  redeemed.  At  the  very  time  the  Con- 
vention was  laboring  over  the  work  of  Constitution 
making,  there  spread  over  Massachusetts  a  hot  flame  of 
rebelUon  caused  by  efforts  to  get  worthless  paper  money 
out  of  the  way.  Hence,  the  original  draft  of  this  clause 
that  Congress  should  have  power  "to  borrow  money 
and  emit  hills  oj  credit  on  the  credit  of  the  United  States  " 
found  so  little  favor  with  the  delegates  that,  by  unani- 
mous consent,  the  words  "emit  bills  of  credit"  were 
cut  out. 

James  Madison,  the  real  leader  of  the  Constitutional 
Convention,  said  then  and  afterward  that  this  omission 
would  prevent  the  United  States  from  issuing  legal 
tender  paper  money.  Indeed,  until  1863,  our  govern- 
ment when  in  need  of  money  had  issued  bonds  or  its 
promissory  notes  at  7  30/100  per  cent — a  rate  fixed  to 
net  the  holder  two  cents  per  day  on  each  $100.  In  1863, 
however,  Congress  authorized  an  issue  of  paper  money 
to  pay  off  the  army  in  the  field  and  to  meet  the  expense 
of  the  Civil  War. 

The  question  of  validity  was  not  raised  at  once, 
because  the  North  needed  the  relief  which  the  paper 
money  gave.    In  1869,  however,  when  there  were  only 


LEGISLATIVE  GOVERNMENT  IN  U.  S.       99 

seven  Supreme  Court  justices,  a  majority  of  the  Court 
held,  in  the  case  of  Hepburn  vs.  Griswold,  ^  that  the  act 
of  1863  was  void  for  unconstitutionality.  Chief  Justice 
Chase,  in  giving  the  opinion  of  the  Court,  said: 

No  one  questions  the  general  constitutionality,  and  not 
very  many,  perhaps,  the  general  expediency  of  the  legisla- 
tion by  which  a  note  currency  has  been  authorized  in  recent 
years.  The  doubt  is  as  to  the  power  to  declare  a  particular 
class  of  these  notes  to  be  a  legal  tender  in  pa3mient  of  pre- 
existing debts.  ... 

There  is  another  provision  in  the  .  .  .  [fifth]  amendment, 
which,  in  our  judgment,  cannot  have  its  full  and  intended 
effect  unless  construed  as  a  direct  prohibition  of  the  legisla- 
tion which  we  have  been  considering.  It  is  that  which 
declares  that  "no  person  shall  be  deprived  of  life,  liberty, 
or  property,  without  due  process  of  law.".  .  .  The  .  .  . 
question  is,  whether  an  act  which  compels  all  those  who  hold 
contracts  for  the  payment  of  gold  and  silver  money  to 
accept  in  payment  a  currency  of  inferior  value  deprives 
such  persons  of  property  without  due  process  of  law. 

...  A  very  large  proportion  of  the  property  of  civilized 
men  exists  in  the  form  of  contracts.  These  contracts  almost 
invariably  stipulate  for  the  payment  of  money.  And  we 
have  already  seen  that  contracts  in  the  United  States,  prior 
to  the  act  under  consideration,  for  the  payment  of  money, 
were  contracts  to  pay  the  svuns  specified  in  gold  and  silver 
coin.  And  it  is  beyond  a  doubt  that  the  holders  of  these 
contracts  were  and  are  as  fully  entitled  to  the  protection  of 
this  constitutional  provision  as  the  holders  of  any  other 
description  of  property.  .  .  . 

We  confess  ourselves  unable  to  perceive  any  solid  dis- 
tinction between  such  an  act  and  an  act  compelling  all 
citizens  to  accept,  in  satisfaction  of  all  contracts  for  money, 
half  or  three-quarters  or  any  other  proportion  less  than  the 

'  8  Wallace's  Rep.,  603,  619,  624. 


loo       AMERICAN  PLAN  OF  GOVERNMENT 

whole  of  the  value  actually  due,  according  to  their  terms. 
It  is  difficult  to  conceive  what  act  would  take  private  prop- 
erty without  due  process  of  law,  if  such  an  act  would  not. 

We  are  obliged  to  conclude  that  an  act  making  mere 
promises  to  pay  dollars  a  legal  tender  in  payment  of  debts 
previously  contracted,  ...  is  inconsistent  with  the  spirit 
of  the  Constitution ;  and  that  it  is  prohibited  by  the  Con- 
stitution. 

In  1869,  soon  after  taking  office,  President  Grant  ap- 
pointed two  more  Supreme  Court  justices.  Two  cases 
involving  the  constitutionality  of  the  Legal  Tender 
Act  of  1863  were  advanced  for  hearing;  and  this  time, 
in  the  Legal  Tender  Cases,  ^  the  Court,  by  a  vote  of  five 
justices  to  four,  reversed  its  previous  decision.  The 
justices  said  in  these  cases  that  Congress  had  power 
under  the  Constitution  to  enact  any  law  it  considered 
necessary  to  execute  the  Constitution.  The  opinion, 
written  by  Justice  Strong,  says  in  part : 

Closely  allied  ...  is  the  argument  pressed  upon  us  that 
the  legal  tender  acts  were  prohibited  by  the  spirit  of  the 
fifth  amendment,  which  forbids  taking  private  property  for 
public  use  without  just  compensation  or  due  process  of  law. 
That  provision  has  always  been  understood  as  referring 
only  to  a  direct  appropriation,  and  not  to  consequential 
injuries  resulting  from  the  exercise  of  lawful  power.  It  has 
never  been  supposed  to  have  any  bearing  upon,  or  to  inhibit 
laws  that  indirectly  work  harm  and  loss  to  individuals.  A 
new  tariff,  an  embargo,  a  draft,  or  a  war  may  inevitably 
bring  upon  individuals  great  losses;  may,  indeed,  render 
valuable  property  almost  valueless.  They  may  destroy  the 
worth  of  contracts.  But  who  ever  supposed  that,  because 
of  this,  a  tariff  could  not  be  changed,  or  a  non-intercourse 
act  or  an  embargo  be  enacted,  or  a  war  be  declared?  .... 

» 12  Wallace's  Rep.,  457,  551. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      lOi 

Without  extending  our  remarks  further,  it  will  be  seen 
that  we  hold  the  acts  of  Congress  constitutional  as  applied 
to  contracts  made  either  before  or  after  their  passage.  In  so 
holding,  we  overrule  so  much  of  what  was  decided  in  Hep- 
burn vs.  Griswold,  as  ruled  the  acts  unwarranted  by  the 
Constitution  so  far  as  they  apply  to  contracts  made  before 
their  enactment.  That  case  was  decided  by  a  divided  court, 
and  by  a  court  having  a  less  number  of  judges  than  the  law 
then  in  existence  provided  this  court  shall  have.  .  .  .  We 
are  not  accustomed  to  hear  them  [cases  involving  constitu- 
tional powers]  in  the  absence  of  a  full  court,  if  it  can  be 
avoided.  .  .  .  And  it  is  no  unprecedented  thing  in  coiirts 
of  last  resort,  both  in  this  country  and  in  England,  to  over- 
rule decisions  previously  made. 

It  was  generally  thought  at  that  time  that  the  deci- 
sions sustaining  the  Legal  Tender  acts  went  no  further 
than  to  declare  that  the  nation  in  time  of  war  may  meet 
its  needs  by  using  its  notes  and  giving  them  value  by 
making  them  a  legal  tender  for  the  payment  of  debts. 
But,  in  1878,  in  a  time  of  profound  peace.  Congress 
passed  another  legal  tender  paper  money  law.  This 
brought  forward  the  old  question  in  a  new  form;  for, 
if  this  law  were  valid,  there  could  be  no  doubt  that  the 
government  at  Washington  had  full  power  to  issue 
paper  money  at  any  time.  The  question  came  before 
the  Supreme  Court  in  the  great  case  of  Juilliard  vs. 
Greenman,  ^  in  which  a  New  York  man  sued  a  citizen  of 
Connecticut  for  the  price  and  value  of  one  hundred 
bales  of  cotton  billed  at  $5, 122.90.  The  buyer  admitted 
that  he  had  bought  and  received  the  cotton  and  said  he 
had  paid  $22.90  of  this  sum  in  coin,  and  had  offered 
the  seller  two  United  States  legal  tender  notes,  one  for 
$5,000  and  one  for  $100  in  payment  of  the  balance,  and 

»  no  U.  S.  Rep.,  421. 


102       AMERICAN  PLAN  OF  GOVERNMENT 

that  this  tender  had  been  refused.  The  seller  insisted 
that  the  notes  offered  to  him  and  refused  by  him  were 
not  lawful  money.    Justice  Gray  upheld  the  law,  saying : 

The  question  whether  at  any  particular  time,  in  war  or  in 
peace,  the  exigency  is  such,  by  reason  of  unusual  and  press- 
ing demands  on  the  resources  of  the  government,  or  of  the 
inadequacy  of  the  supply  of  gold  and  silver  coin  to  furnish 
the  currency  needed  for  the  uses  of  the  government  and  of 
the  people,  that  it  is,  as  a  matter  of  fact,  wise  and  expedient 
to  resort  to  these  means,  is  a  political  question,  to  be  deter- 
mined by  Congress  when  the  exigency  arises,  and  not  a 
judicial  question  to  be  afterwards  passed  upon  by  the  courts. 


CHAPTER  IX 

POWERS  OF  CONGRESS — THE  POWER  TO  REGULATE 
COMMERCE 

Art.  I.,  Sec.  8,  Subd.  3.  To  regulate  Commerce 
with  foreign  Nations,  and  among  the  several  States, 
and  with  the  Indian  Tribes. 

All  governments  exist  chiefly  for  the  safety  and  pros- 
perity of  business  in  the  broadest  sense  of  the  word. 
The  United  States  as  constituted  in  1783  was  composed 
of  thirteen  States,  each  of  which  claimed  to  be  indepen- 
dent and  sovereign.  These  States  were  neither  con- 
siderate nor  reasonable  in  their  conduct  toward  the 
central  government  or  toward  one  another.  "The 
States  flushed  with  the  enjoyment  of  power,  increased, 
instead  of  diminishing,  measures  incompatible  with 
their  relations  to  the  federal  government."*  John 
Adams,  our  first  minister  to  England,  was  an  able  and 
skilful  diplomatist;  but  he  had  to  confess  that  it  was 
not  easy  to  make  a  treaty  which  could  not  be  carried 
out  on  the  part  of  the  United  States  unless  each  of  the 
thirteen  States  was  willing  to  observe  its  provisions. 
The  new  State  governments  enacted  local  laws  bearing 
hard  upon  all  outsiders.  Certain  States  which  had  good 
harbors  imposed  customs  duties  on  goods  imported  by 
their  less  fortunate  neighbors.  "New  Jersey,  placed 
between  Philadelphia  and  New  York,  was  Hkened  to  a 

'  Madison's  Journal,  p.  29. 

103 


I04       AMERICAN  PLAN  OF  GOVERNMENT 

cask  tapped  at  both  ends;  North  Carolina,  between 
Virginia  and  South  Carolina,  to  a  patient  bleeding  at 
both  arms."*  None  of  the  States  would  have  given  a 
second  thought  to  a  Constitution  which  put  all  the 
control  of  commerce  into  the  hands  of  a  national 
government.  The  statesmen  of  that  era  were  agreed 
that  some  plan  which  would  give  the  central  govern- 
ment power  to  regulate  all  commerce  abroad  and  some 
commerce  at  home  would  have  to  Se  devised  in  order  to 
make  the  United  States  a  prosperous  nation.  So  they 
compromised  by  giving  the  national  government  power 
to  regulate  matters  of  commerce  in  which  all  the  States 
are  interested,  leaving  with  the  States  themselves  the 
regulation  of  that  part  of  commerce  which  is  of  local 
importance  and  interest  only.  The  United  States  was 
made  a  nation  so  far  as  business  of  national  scope  is 
concerned;  it  was  left  a  league  of  States  as  to  all  local 
business  matters. 

The  Congress  shall  have  Power  To  .  .  .  regulate  Com- 
merce with  foreign  Nations.  Some  of  the  authoritative 
cases  in  which  the  phrase  "foreign  commerce"  has  been 
defined  originated  in  attempts  to  infringe  the  right  of 
each  State  to  regulate  its  own  internal  commerce.  In 
the  case  of  Veazie  vs.  Moor,  ^  for  example,  the  plaintiff 
challenged  the  constitutionality  of  a  law  made  by  the 
legislature  of  Maine  in  1864,  granting  to  William  Moor 
and  his  associates  a  franchise  permitting  them  to  im- 
prove the  navigation  of  the  Penobscot  River  and  to 
charge  tolls  for  the  use  of  the  improvements  when  made. 
After  dredging  channels,  erecting  dams  and  locks, 
putting  up  piers  and  digging  canals  where  needed,  they 
started  a  steamboat  line  up  the  river.  They  did  not 
long  enjoy  their  monopoly,  because  Samuel  Veazie  and 

»  Madison's  Journal,  p.  29.  '  14  Howard's  U.  S.  Rep.,  568. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      105 

some  other  steamboat  men  could  not  see  why  they  also 
did  not  have  as  much  right  as  anybody  else  to  do  busi- 
ness on  the  waters  of  a  river.  Wherefore  they  took  out 
a  Federal  license  for  the  coasting  trade  and  went  into 
the  steamboat  business  in  opposition  to  the  monopoly, 
claiming  that  their  coasting  trade  license  gave  them  a 
right  to  use  free  of  tolls,  improvements  in  local  naviga- 
tion made  by  private  persons  under  State  Hcense. 
Veazie  and  his  associates  urged  the  Supreme  Court  to 
protect  them  in  their  infringement  of  Moor's  monopoly, 
on  the  ground  that  the  local  products  carried  by  their 
boats  might  ultimately  become  the  subjects  of  foreign 
commerce,  which  should  be  regulated  by  the  national 
government.  Justice  Daniel  refuted  this  argument  as 
follows: 

Commerce  with  foreign  nations  must  signify  commerce 
which  in  some  sense  is  necessarily  connected  with  those 
nations,  transactions  which  either  immediately,  or  at  some 
stage  of  their  progress,  must  be  extra-territorial.  The 
phrase  can  never  be  applied  to  transactions  wholly  internal 
between  citizens  of  the  same  community,  or  to  a  polity  and 
laws  whose  ends  and  purposes  and  operations  are  restricted 
to  the  territory  and  soil  and  jurisdiction  of  such  community. 
Nor  can  it  be  properly  concluded,  that  because  the  products 
of  domestic  enterprise  in  agriculture  or  manufactures,  or  in 
the  arts,  may  ultimately  become  the  subjects  of  foreign 
commerce,  that  the  control  of  the  means  or  the  encourage- 
ments by  which  enterprise  is  fostered  and  protected,  is 
legitimately  within  the  import  of  the  phrase  foreign  com- 
merce, or  fairly  implied  in  any  investiture  of  the  power  to 
regulate  such  commerce. 

The  Congress  shall  have  Power  To  .  .  .  regulate  Com- 
merce  .  .  .  among  the  several  States.  Without  freedom 
of  commerce  among  the  States,  the  winning  of  political 


io6    -  AMERICAN  PLAN  OP  GOVERNMENT 

independence  would  have  been  in  vain.  The  existence 
of  the  national  right  to  manage  domestic  commerce 
became  immensely  important  when  Robert  Fulton,  by- 
applying  steam  power  to  navigation,  revolutionized 
transportation  methods.  When  Fulton  and  Livingston 
ran  steamboats  in  New  York  waters  under  State  grants 
of  exclusive  privilege,  the  United  States  Supreme  Court 
had  to  decide  whether  Congress  or  the  States  were  to 
regulate  domestic  commerce. 

This  question  first  came  to  an  issue  in  the  New  York 
courts  in  an  action  brought  by  Robert  R.  Livingston  to 
assert  his  and  Fulton's  joint  rights  under  the  act  of  the 
New  York  legislature  giving  to  them  alone  the  privilege 
of  running  steamboats.  This  is  the  case  of  Livingston  vs. 
Van  Ingen,  ^  in  which  Chancellor  Kent  asserted : 

Congress,  indeed,  has  not  any  direct  jurisdiction  over  our 
interior  commerce  or  waters.  Hudson  River  is  the  property 
of  the  people  of  this  State,  and  the  legislature  have  the  same 
jurisdiction  over  it  that  they  have  over  the  land,  or  over 
any  of  our  public  highways,  or  over  the  waters  of  any  of  our 
rivers  or  lakes.  They  may,  in  their  sound  discretion,  regu- 
late and  control,  enlarge  or  abridge  the  use  of  its  waters, 
and  they  are  in  the  habitual  exercise  of  that  sovereign  right. 
If  the  Constitution  had  given  to  Congress  exclusive  juris- 
diction over  oiu"  navigable  waters,  then  the  argument  of 
the  respondents  would  have  applied;  but  the  people  never 
did,  nor^ever  intended  to  grant  such  a  power;  and  Congress 
have  concurrent  jurisdiction  over  the  navigable  waters  no 
further  than  may  be  incidental  and  requisite  to  the  due 
regulation  of  commerce  between  the  States  and  with  foreign 
nations. 

This  assertion  of  States  rights  against  the  rights  of  the 
United  States  was  promptly  challenged  in  the  United 

*  9  Johnson's  Rep.,  589. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      107 

States  Supreme  Court  in  the  case  of  Gibbons  vs.  Ogden. ' 
Fulton  and  Livingston  had  assigned  to  Aaron  Ogden  a 
part  of  their  rights  covering  the  privilege  of  conducting 
a  steamboat  line  between  Elizabethtown,  New  Jersey, 
and  New  York  City.  Thomas  Gibbons  started  an 
opposition  line  with  two  steamboats  called  The  Stou- 
dinger  and  The  Bellona.  Ogden  brought  an  action  in 
equity  and  obtained  a  temporary  injunction.  Gibbons 
answered  the  bill  in  equity  by  urging  that  his  boats  were 
duly  enrolled  and  licensed  to  engage  in  the  coastwise 
trade  under  the  laws  of  the  United  States;  and  this  he 
claimed  gave  him  a  right  superior  to  Ogden's  right  under 
a  State  law.  The  New  York  courts  ruled  in  Ogden's 
favor.  Gibbons  then  took  the  case  to  the  Federal 
Supreme  Court,  where  the  New  York  injunction  was 
annulled  on  the  ground  that  the  Act  of  Congress  under 
which  Gibbons'  steamboats  had  been  enrolled  and 
licensed  to  be  employed  in  the  coastMdse  trade,  gave 
those  vessels  full  authority  to  navigate  the  waters  of  the 
United  States  by  steam  or  otherwise,  "any  laws  of  the 
State  of  New  York  to  the  contrary  notwithstanding." 
This  decision,  rendered  by  Chief  Justice  Marshall  in 
February,  1824,  is  the  basis  of  that  long  series  of  decrees 
which  have  given  Congress  absolute  power  to  regulate 
the  business  of  the  United  States.  The  significant  parts 
of  the  decision  are: 

We  are  now  arrived  at  the  inquiry — what  is  this  power? 
It  is  the  power  to  regulate;  that  is,  to  prescribe  the  rule  by 
which  commerce  is  to  be  governed.  This  power,  like  all 
others  vested  in  Congress,  is  complete  in  itself,  may  be 
exercised  to  its  utmost  extent,  and  acknowledges  no  limi- 
tations other  than  are  prescribed  in  the  Constitution.  .  .  . 
I 

» 9  Wheaton's  Rep.,  1. 


I08       AMERICAN  PLAN  OF  GOVERNMENT 

If,  as  has  always  been  understood,  the  sovereignty  of  Con- 
gress, though  limited  to  specified  objects,  is  plenary  as  to 
those  objects,  the  power  over  commerce  .  .  .  among  the 
several  States  is  vested  in  Congress  as  absolutely  as  it  would 
be  in  a  single  government,  having  in  its  constitution  the 
same  restrictions  on  the  exercise  of  the  power  as  are  found 
in  the  Constitution  of  the  United  States.  The  wisdom  and 
the  discretion  of  Congress,  their  identity  with  the  people, 
and  the  influence  which  their  constituents  possess  at  elec- 
tions, are,  in  this,  as  in  many  other  instances,  as  that,  for 
example,  of  declaring  war,  the  sole  restraints  on  which  they 
have  relied  to  secure  them  from  its  abuse.  They  are  the 
restraints  on  which  the  people  must  often  rely  solely  in  all 
representative  governments. 

The  unlimited  power  of  Congress  over  all  business 
which  crosses  State  lines  extends  even  to  the  reversing 
of  decisions  of  the  Supreme  Court  of  the  United  States. 

In  1849,  the  State  of  Pennsylvania  brought  the  action 
of  Pennsylvania  vs.  Wheeling  and  Belmont  Bridge 
Company,^  in  which  it  asked  the  Supreme  Court  to 
order  the  destruction  of  a  bridge  across  the  Ohio  River 
from  Wheeling,  Virginia  (now  West  Virginia),  on  the 
ground  that  it  was  an  obstruction  to  commerce.  Justice 
McLean,  in  giving  the  judgment  of  the  Court  that  the 
bridge  was  an  unlawful  structure,  said : 

The  Ohio  being  a  navigable  stream,  subject  to  the  com- 
mercial power  of  Congress,  and  over  which  that  power  has 
been  exerted ;  if  the  river  be  within  the  State  of  Virginia, 
the  commerce  upon  it,  which  extends  to  other  States,  is 
not  within  its  jurisdiction;  consequently  if  the  act  of  Vir- 
ginia authorized  the  structure  of  the  bridge,  so  as  to  ob- 
struct navigation,  it  could  afford  no  justification  to  the 
bridge  company. 

'  13  Howard's  Rep.,  518. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      109 

The  bridge  company  paid  no  attention  either  to  this 
decision  or  to  an  injunction  which  was  issued  by  Justice 
Grier  of  the  Supreme  Court.  It  went  to  Congress, 
which,  in  August,  1852,  enacted  "that  the  bridges 
across  the  Ohio  River  at  Wheeling,  in  the  State  of 
Virginia,  and  at  Bridgeport  in  the  State  of  Ohio, 
abutting  on  Zane's  Island  in  said  River,  are  hereby 
declared  lawful  structures,  in  their  present  positions 
and  elevations,  and  shall  be  so  held  and  taken  to  be, 
anything  in  the  law  or  laws  of  the  United  States  to  the 
contrary  notwithstanding. "  This  law  ftirther  declared 
the  bridges  to  be  post  roads,  authorized  the  company 
to  maintain  them  in  that  position,  and  commanded 
that  all  persons  navigating  the  river  should  so  regulate 
the  use  of  their  vessels  and  boats,  and  the  pipes  and 
chimneys  belonging  to  them,  as  not  to  interfere  with  the 
elevation  and  construction  of  the  bridge.  This  was 
plainly  a  reversal  of  the  decision  which  the  Supreme 
Court  had  rendered  only  a  few  months  before.  The 
State  of  Pennsylvania,  apparently  thinking  the  Court 
would  insist  upon  its  rights  in  the  matter,  asked  the 
justices  to  punish  the  bridge  company  for  disobeying 
the  Court's  original  decree.  At  this  second  hearing  of 
the  case,  ^  the  Court  had  to  consider  whether  Congress 
had  power  to  overrule  a  decision  of  the  judicial  depart- 
ment of  government.  The  Supreme  Court  said  it  had 
that  power.    Justice  Nelson  said: 

The  defendants  rely  upon  this  act  of  Congress  as  furnish- 
ing authority  for  the  continuance  of  the  bridge  as  con- 
structed, and  as  superseding  the  effect  and  operation  of  the 
decree  of  the  court  previously  rendered,  declaring  it  an 
obstruction  to  navigation.  .  .  .     Since,  however,  the  rendi- 

*  18  Howard's  Rep.,  421. 


no       AMERICAN  PLAN  OF  GOVERNMENT 

tion  of  this  decree,  the  acts  of  Congress  already  referred  to, 
have  been  passed,  by  which  the  bridge  is  made  a  post-road 
for  the  passage  of  the  mails  of  the  United  States,  and  the 
defendants  are  authorized  to  have  and  maintain  it  at  its 
present  site  and  elevation,  and  requiring  all  persons  navi- 
gating the  river  to  regulate  such  navigation  so  as  not  to 
interfere  with  it.  So  far,  therefore,  as  this  bridge  created  an 
obstruction  to  the  free  navigation  of  the  river,  in  view  of  the 
previous  acts  of  Congress,  they  are  to  be  regarded  as  modi- 
fied by  this  subsequent  legislation;  and  although  it  may  still 
be  an  obstruction  in  fact,  it  is  not  so  in  the  contemplation  of 
law. 

No  one  nowadays  disputes  the  authority  of  the 
law-making  department  to  enact  the  Sherman  "Anti- 
Trust"  Law  and  other  statutes  forbidding  combinations 
and  monopolies,  rebatings,  and  contracts  in  restraint  of 
trade.  Each  of  these  laws  in  turn  has  been  challenged  in 
the  courts,  but  the  power  of  Congress  to  pass  these  laws 
has  gone  unchallenged,  except  in  a  very  perfunctory 
way.  The  questions  raised  under  the  trade-regulating 
laws  have  been  largely  concerned  with  the  meaning 
and  application  of  the  laws  rather  than  with  their 
validity.  For  example,  in  1896,  in  the  case  of  United 
States  vs.  Trans-Missouri  Freight  Association,^  the 
point  in  dispute  was  the  meaning  of  the  phrase  "con- 
tract in  restraint  of  trade."  This  Association  was  a 
combination  of  railroad  companies  which  had  been 
formed,  before  the  Sherman  law  was  enacted,  "for  the 
purpose  of  mutual  protection,  by  establishing  and 
maintaining  reasonable  rates,  rules,  and  regulations  on 
all  freight  traffic,  both  through  and  local"  in  certain 
parts  of  the  United  States.  The  Court  had  to  decide 
first  of  all  whether  a  law  which  prohibited  such  con- 

» 166  U.  S.  Rep.,  290. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      in 

tracts  could  be  applied  to  contracts  made  before  it  was 
adopted.    Justice  Peckham  said: 

The  language  of  the  act  includes  every  contract,  combina- 
tion in  the  form  of  trust  or  otherwise,  or  conspiracy,  in 
restraint  of  trade  or  commerce  among  the  several  States  or 
with  foreign  nations.  So  far  as  the  very  terms  of  the  statute 
go,  they  apply  to  any  contract  of  the  nature  described.  A 
contract  therefore  that  is  in  restraint  of  trade  or  commerce  is 
by  the  strict  language  of  the  act  prohibited  even  though 
such  contract  is  entered  into  between  competing  common 
carriers  by  railroad,  and  only  for  the  purpose  of  thereby 
affecting  traffic  rates  for  the  transportation  of  persons  and 
property.  If  such  an  agreement  restrain  trade  or  commerce, 
it  is  prohibited  by  the  statute,  unless  it  can  be  said  that  an 
agreement,  no  matter  what  its  terms,  relating  only  to  trans- 
portation cannot  restrain  trade  or  commerce.  We  see  no 
escape  from  the  conclusion  that  if  any  agreement  of  such 
a  nattue  does  restrain  it,  the  agreement  is  condemned  by 
this  act. 

This  decision  was  rendered  by  a  majority  of  the 
Court.  Four  justices,  including  Justice  White,  later 
Chief  Justice  of  the  United  States,  thought  the  other 
five  were  wrong  in  their  idea  of  the  meaning  and  appli- 
cation of  this  important  statute.  A  divided  court 
cannot  render  a  final  decision  on  any  point.  Therefore, 
two  years  later  (1898),  the  validity  of  the  Sherman  Law 
was  again  challenged  in  the  case  of  United  States  vs. 
Joint  Traffic  Association.  ^  In  this  case,  it  was  urged 
that  Congress  has  no  power  to  punish  all  contracts  in 
restraint  of  trade,  but  only  such  contracts  as  are  pre- 
judicial to  society.  The  railroad  companies  belonging 
to  the  Joint  Traffic  Association  insisted  that  their 

'  171  U.  S.  Rep.,  505. 


112       AMERICAN  PLAN  OF  GOVERNMENT 

combination  was  intended  to  secure  tmifomaity  and 
stability  of  rates.  Their  lawyers  urged  that  the  Asso- 
ciation had  been  formed  merely  for  the  reasonable  regu- 
lation of  charges.  The  judges  declared  that  any 
agreement  to  maintain  railroad  rates  was  one  of  the  con- 
tracts prohibited  by  the  statute.  Justice  Peckham,  who 
again  delivered  the  decision  of  the  Court,  said: 

The  question  really  before  us  is  whether  Congress,  in  the 
exercise  of  its  right  to  regulate  commerce  among  the  several 
States,  or  otherwise,  has  power  to  prohibit,  as  in  restraint 
of  interstate  commerce,  a  contract  or  combination  between 
competing  railroad  corporations  entered  into  and  formed 
for  the  purpose  of  establishing  and  maintaining  interstate 
rates  and  fares  for  the  transportation  of  freight  and  passen- 
gers on  any  of  the  railroads,  parties  to  the  contract  or  com- 
bination, even  though  the  rates  and  fares  thus  established 
are  reasonable.  Such  an  agreement  directly  affects  and  of 
course  is  intended  to  affect  the  cost  of  transportation  of 
commodities.  .  .  .  The  agreement  affects  interstate 
commerce  by  destroying  competition  and  by  maintaining 
rates  above  what  competition  might  produce.  .  .  .  Has  not 
Congress  with  regard  to  interstate  commerce  and  in  the 
coiu-se  of  regulating  it,  in  the  case  of  railroad  corporations, 
the  power  to  say  that  no  contract  or  combination  shall  be 
legal  which  shall  restrain  trade  and  commerce  by  shutting 
out  the  operation  of  the  general  law  of  competition?  We 
think  it  has. 

The  Hepburn  Law,  enacted  in  1906,  prohibited  any 
railroad  company  from  transporting  in  interstate 
commerce  any  "article  or  commodity,  other  than  timber 
and  the  manufactured  products  thereof,  manufactured, 
mined,  or  produced  by  it,  or  imder  its  authority,  or 
which  it  may  own  in  whole  or  in  part,  or  in  which  it 
may  have  any  interest,  direct  or  indirect,"  etc.    The 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      113 

Delaware  and  Hudson  Railroad  Company,  the  Erie 
Railroad,  the  Central  Railroad  of  New  Jersey,  the 
Delaware,  Lackawanna  and  Western  Railroad,  the 
Pennsylvania  R9,ilroad,  and  the  Lehigh  Valley  Railroad, 
all  of  which  had  after  the  enactment  of  the  law  trans- 
ported in  interstate  commerce  coal  produced  by  coal 
mining  companies  in  which  they  were  interested  as 
stockholders,  were  called  upon  in  1908  to  answer  in  the 
United  States  Courts  indictments  charging  violation  of 
this  "commodities"  clause.*  Each  of  the  railroad 
companies  interposed  by  way  of  defense  the  contention 
that  the  interest  which  they  as  stockholders  had  in  the 
coal  companies  was  not  an  "interest,  direct  or  indirect" 
in  its  products  within  the  meaning  of  those  words  as 
used  in  the  Hepburn  Act.  Justice  White,  who  had 
dissented  from  the  decision  in  the  Trans-Missouri  case, 
now  announced  a  new  interpretation  of  the  Sherman 
Law  as  follows : 

It  remains  to  determine  the  nature  and  character  of  the 
interest  embraced  in  the  words  "in  which  it  is  interested 
directly  or  indirectly."  ...  If  it  be  true  that  the  mind 
of  Congress  was  fixed  on  the  transportation  by  a  car- 
rier of  any  commodity  produced  by  a  corporation  in 
which  the  carrier  held  stock,  then  we  think  the  failure 
to  provide  for  such  a  contingency  in  express  language 
gives  rise  to  the  implication  that  it  was  not  the  purpose 
to  include  it.  At  all  events  in  view  of  the  far-reaching 
consequences  of  giving  the  statute  such  a  construction 
as  that  contended  for,  as  indicated  by  the  statement  taken 
from  the  answers  and  returns  which  we  have  previously 
inserted  in  the  margin  [notes  annexed  to  the  opinion],  and 
of  the  questions  of  constitutional  power  which  would  arise 


« U.  S.  vs.  D.  and  H.  R.  R.  Co.,  213  U.  S.  Rep.,  366. 
8 


114       AMERICAN  PLAN  OP  GOVERNMENT 

if  that  construction  was  adopted,  we  hold  the  contention  of 
the  government  not  well  founded. 

We  then  construe  the  statute  as  prohibiting  a  railroad 
company  engaged  in  interstate  commerce  from  transporting 
in  such  commerce  articles  or  commodities  under  the  follow- 
ing circumstances  and  conditions :  (a)  When  the  article  or 
commodity  has  been  manufactured,  mined,  or  produced  by 
a  carrier  or  under  its  authority,  and  at  the  time  of  trans- 
portation the  carrier  has  not  in  good  faith  before  the  act 
of  transportation  dissociated  itself  from  such  article  or 
commodity;  (b)  When  the  carrier  owns  the  article  or  com- 
modity to  be  transported  in  whole  or  in  part;  (c)  When  the 
carrier  at  the  time  of  transportation  has  an  interest,  direct 
or  indirect,  in  a  legal  or  equitable  sense  in  the  article  or 
commodity,  not  including,  therefore,  articles  or  commodi- 
ties manufactured,  mined,  produced,  or  owned,  etc.,  by  a 
bona  fide  corporation  in  which  the  railroad  company  is  a 
stockholder.  The  question  then  arises  whether,  as  thus 
construed,  the  statute  was  inherently  without  the  power  of 
Congress  to  enact  as  a  regulation  of  commerce.  That  it 
was,  we  think  is  apparent. 

Having  decided  that  the  Hepburn  Act  meant  less 
than  it  said,  the  Supreme  Court  was  bound  to  say  sooner 
or  later  that  the  Sherman  Law  did  not  mean  all  it  said. 
When  the  Standard  Oil  Company  and  the  Tobacco 
"Trust"  were  called  to  the  bar  of  justice,  a  ruling  that 
the  "light  of  reason"  must  be  used  in  the  interpreta- 
tion of  the  Sherman  Law  did  not  save  them  from  being 
condemned  to  dissolution.  Chief  Justice  White  did 
not  find  it  easy  to  reconcile  the  old  rulings  with  the  new 
theory.  In  the  Trans-Missouri  and  Joint-Traffic  cases, 
the  Court  had  decided  only  that  certain  contracts 
complained  of  had  restrained  trade  and  had  produced 
the  injuries  which  the  statute  was  intended  to  prevent, 
and  had  not,  in  those  cases,  committed  itself  to  any 


i  LEGISLATIVE  GOVERNMENT  IN  U.  S.      115 

hard  and  fast  rule  of  interpretation.  On  this  ground, 
he  said  that  those  decisions  did  not  control  the  Court. 
In  the  case  of  Standard  Oil  Co.  vs.  United  States, ""  he 
said: 

'  In  substance,  the  propositions  urged  by  the  government 
are  reducible  to  this:  That  the  language  of  the  statute 
embraces  every  contract,  combination,  etc.,  in  restraint  of 
trade,  and  hence  its  text  leaves  no  room  for  the  exercise  of 
judgment,  but  simply  imposes  the  plain  duty  of  applying 
its  prohibitions  to  every  case  within  its  literal  language. 
The  error  involved  lies  in  assuming  the  matter  to  be  decided. 
This  is  true  because  as  the  acts  which  may  come  under  the 
classes  stated  In  the  first  section  and  the  restraint  of  trade  to 
which  that  section  applies  are  not  specifically  enumerated 
or  defined,  it  is  obvious  that  judgment  must  in  every  case 
be  called  into  play  in  order  to  determine  whether  a  particu- 
lar act  is  embraced  within  the  statutory  classes,  and  whether 
if  the  act  is  within  such  classes  its  nature  or  effect  causes  it 
to  be  a  restraint  of  trade  within  the  intendment  of  the  act. 
To  hold  to  the  contrary  would  require  the  conclusion  either 
that  every  contract,  act,  or  combination  of  any  kind  or 
nature,  whether  it  operated  a  restraint  on  trade  or  not,  was 
within  the  statute,  and  thus  the  statute  would  be  destruc- 
tive of  all  right  to  contract  or  agree  or  combine  in  any  re- 
spect whatever  as  to  subjects  embraced  in  interstate  trade  or 
commerce,  or  if  this  conclusion  were  not  reached,  then  the 
contention  would  require  it  to  be  held  that  as  the  statute  did 
not  define  the  things  to  which  it  related  and  excluded  resort 
to  the  only  means  by  which  the  acts  to  which  it  relates  could 
be  ascertained — the  light  of  reason — the  enforcement  of 
the  statute  was  impossible  because  of  its  uncertainty.  The 
merely  generic  enumeration  which  the  statute  makes  of  the 
acts  to  which  it  refers  and  the  absence  of  any  definition  of 
restraint  of  trade  as  used  in  the  statute  leaves  room  for  but 

» 221  U.  S.  Rep.,  I. 


ii6       AMERICAN  PLAN  OF  GOVERNMENT 

one  conclusion,  which  is,  that  it  was  expressly  designed  not 
to  unduly  limit  the  application  of  the  act  by  precise  defini- 
tion, but  while  clearly  fixing  a  standard,  that  is,  by  defining 
the  ulterior  boundaries  which  could  not  be  transgressed 
with  impunity,  to  leave  it  to  be  determined  by  the  light  of 
reason,  guided  by  the  principles  of  law  and  the  duty  to 
apply  and  enforce  the  public  policy  embodied  in  the  statute 
in  every  given  case  whether  any  particular  act  or  contract 
was  within  the  contemplation  of  the  statute. 

■  The  Clayton  "Anti-Trust "  Law,  enacted  by  Congress 
in  1 9 14,  is  an  attempt  to  remedy  some  of  the  abuses  of 
centralized  financial  management  which  were  disclosed 
by  the  investigations  of  the  so-called  Pujo  Committee 
of  the  House  of  Representatives.  This  Act  provides 
that  corporations  engaged  in  commerce  shall  not  hold 
enough  stock  in  other  corporations  to  lessen  substan- 
tially competition  between  them.  It  says  that,  after 
two  years,  no  one  person  shall  under  certain  stated 
circumstances  serve  as  director  in  more  than  one  bank 
or  other  corporation,  this  provision  being  aimed 
against  "interlocking"  directorates,  which  were 
assumed  to  be  instruments  of  monopoly.  It  makes  a 
number  of  changes  in  the  Federal  criminal  law  by 
providing  for  the  punishment  of  officers  of  commercial 
companies,  who  embezzle,  steal,  or  misapply  the  funds 
of  their  firm,  association,  or  corporation.  This  law 
has  not  yet  been  interpreted. 

The  Federal  Trade  Commission  Law  "of  19 14  is  still 
on  trial.  Just  how  far  it  will  avail  in  giving  the  people 
of  the  United  States  a  "square  deal"  in  their  business 
relations  with  one  another  cannot  now  be  determined. 

The  makers  of  the  Constitution  probably  did  not 
suppose  that  the  absolute  power  of  Congress  to  regulate 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      117 

interstate  commerce  ever  could  be  used  to  regulate 
the  conduct  of  individuals.  Immorality,  dishonesty, 
violence,  murder,  and  other  crimes  were  offences  against 
the  sovereignty  of  each  State,  which  imposed  such 
punishments  as  its  citizens  thought  proper.  Such  local 
regulation,  in  the  absence  of  any  national  control, 
enabled  many  persons  to  avoid  punishment  for  offences 
which  began  in  one  State  and  ended  in  another. 

This  unsatisfactory  method  of  control  lasted  until  the 
abolition  of  slavery  removed  one  of  the  reasons  for 
exclusive  local  regulation  of  safety,  health,  and  morals. 
Then  it  began  to  be  seen  that  standards  of  conduct 
ought  not  to  follow  State  lines. 

In  1895,  Congress  enacted  a  law  which  prohibited 
under  severe  penalties  the  transportation  of  lottery 
tickets  from  one  State  to  another.  In  February,  1899, 
three  persons  were  indicted  in  the  United  States  Court 
for  sending  lottery  tickets  by  Wells-Fargo  Express  from 
Dallas,  Texas,  to  Fresno,  California.  Out  of  their 
arrest  grew  the  celebrated  Lottery  Case. '  The  accused 
persons  petitioned  the  Supreme  Court  for  release  by 
writ  of  habeas  corpus,  upon  the  groimd  that  the  Lottery 
Act  was  repugnant  to  and  inconsistent  with  the  Con- 
stitution of  the  United  States  in  that  it  was  an  exercise 
of  the  police  power  which  had  not  been  delegated  to  the 
United  States,  but  had  been  reserved  to  the  States  or 
the  people.    Justice  Harlan,  in  sustaining  the  law,  said : 

We  cannot  think  of  any  clause  of  that  instrument  [the 
Constitution]  that  could  possibly  be  invoked  by  those  who 
assert  their  right  to  send  lottery  tickets  from  State  to  State 
except  the  one  providing  that  no  person  shall  be  deprived  of 
liberty  without  due  process  of  law.    We  have  said  that  the 

» 188  U.  S.  Rep.,  356. 


ii8       AMERICAN  PLAN  OF  GOVERNMENT 

liberty  protected  by  the  Constitution  embraces  the  right  to 
be  free  in  the  enjoyment  of  one's  faculties;  "to  be  free  to 
use  them  in  all  lawful  ways;  to  live  and  work  where  he  will; 
to  earn  his  livelihood  by  any  lawful  calling,  to  pursue  any 
livelihood  or  avocation,  and  for  that  purpose,  to  enter  into 
all  contracts  that  may  be  proper."  ...  But  surely  it  will 
not  be  said  to  be  a  part  of  any  one's  liberty,  as  recognized 
by  the  supreme  law  of  the  land,  that  he  shall  be  allowed  to 
introduce  into  commerce  among  the  States  an  element  that 
will  be  confessedly  injurious  to  the  public  morals.  .  .  . 
We  decide  nothing  more  in  the  present  case  than  that  lottery 
tickets  are  subjects  of  traffic  among  those  who  choose  to 
buy  or  sell  them;  that  the  carriage  of  such  tickets  by  in- 
dependent carriers  from  one  State  to  another  is  therefore 
interstate  commerce;  that  under  its  power  to  regulate 
commerce  among  the  several  States,  Congress — subject  to 
the  limitations  imposed  by  the  Constitution  upon  the  exer- 
cise of  the  powers  granted — has  plenary  authority  over 
such  commerce,  and  may  prohibit  the  carriage  of  such 
tickets  from  State  to  State. 

The  Pure  Food  and  Drug  Act  of  1906  was  contested 
in  the  case  of  HipoUte  Egg  Co.  vs.  United  States,^  in 
which  the  government  brought  an  action  to  condemn 
fifty  cans  of  whole  preserved  eggs  said  to  have  been 
kept  in  storage  for  five  months.  The  eggs  had  been 
shipped  from  one  State  to  another  and  sold  to  be  used 
in  baking;  and  it  was  charged  that  they  had  been 
adulterated  by  the  addition  of  boric  acid,  a  substance 
injurious  to  health.  The  HipoHte  Egg  Company 
defended  the  case  on  the  ground  that  the  cans  could  not 
be  seized  by  the  government  after  delivery  to  the  con- 
signee when  they  were  no  longer  under  the  control  of 
the  packer.    The  Supreme  Court  brushed  this  argu- 

» 220  U.  S.  Rep.,  45. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      119 

ment  aside  in  an  opinion  delivered  by  Justice  McKenna, 
in  which  the  absolute  power  of  Congress  in  these  cases 
was  described  as  follows : 

The  question  here  is  whether  articles  which  are  outlaws 
of  commerce  may  be  seized  wherever  found,  and  it  certainly 
will  not  be  contended  that  they  are  outside  of  the  jurisdic- 
tion of  the  National  Government  when  they  are  within  the 
borders  of  a  State.  The  question  in  the  case,  therefore,  is, 
What  power  has  Congress  over  such  articles?  Can  they 
escape  the  consequences  of  their  illegal  transportation  by 
being  mingled  at  the  place  of  destination  with  other  prop- 
erty? To  give  them  such  immunity  would  defeat,  in  many 
cases,  the  provision  for  their  confiscation,  and  their  confisca- 
tion or  destruction  is  the  especial  concern  of  the  law.  The 
power  to  do  so  is  certainly  appropriate  to  the  right  to  bar 
them  from  interstate  commerce,  and  completes  its  purpose, 
which  is  not  to  prevent  merely  the  physical  movement  of 
adulterated  articles,  but  the  use  of  them,  or  rather  to  pre- 
vent trade  in  them  between  the  States  by  denying  to  them 
the  facilities  of  interstate  commerce.  And  appropriate 
means  to  that  end,  which  we  have  seen  is  legitimate,  are  the 
seizure  and  condemnation  of  the  articles  at  their  point  of 
destination  in  the  original,  unbroken  packages.  The  selec- 
tion of  such  means  is  certainly  within  that  breadth  of 
discretion  which  we  have  said  Congress  possesses  in  the  ex- 
ecution of  the  powers  conferred  upon  it  by  the  Constitution. 

The  power  of  Congress  to  suppress  the  "white  slave" 
traffic  under  the  interstate  commerce  clause  is  stated 
in  the  case  of  Hoke  and  Economides  vs.  United  States.  * 
In  this  case,  one  Effie  Hoke,  who  had  been  convicted 
in  a  United  States  district  court  under  the  Federal  law 
forbidding  the  transporting  of  women  and  girls  from 
one  State  to  another  for  immoral  purposes,  and  a  man 

« 227  u.  S.  Rep.,  308. 


120       AMERICAN  PLAN  OF  GOVERNMENT 

named  Economides,  who  was  charged  with  assisting 
in  this  wickedness,  appealed  to  the  Supreme  Court  at 
Washington  asking  that  the  verdicts  against  them  be 
set  aside  on  the  ground  that,  under  the  Constitution, 
the  United  States  has  no  power  to  regulate  the  morals  of 
the  people.  Justice  McKenna,  in  delivering  the  opinion 
of  the  Court,  said : 

Our  dual  form  of  government  has  its  perplexities,  State 
and  Nation  having  different  spheres  of  jurisdiction,  as  we 
have  said,  but  it  must  be  kept  in  mind  that  we  are  one 
people;  and  the  powers  reserved  to  the  States  and  those 
conferred  on  the  Nation  are  adapted  to  be  exercised,  whether 
independently  or  concurrently,  to  promote  the  general 
welfare,  material  and  moral.  This  is  the  effect  of  the 
decisions,  and  surely  if  the  facility  of  interstate  transporta- 
tion can  be  taken  away  from  the  demoralization  of  lotteries, 
the  debasement  of  obscene  literature,  the  contagion  of 
diseased  cattle  or  persons,  the  impurity  of  food  and  drugs, 
the  like  facility  can  be  taken  away  from  the  systematic 
enticement  to  and  the  enslavement  in  prostitution  and 
debauchery  of  women,  and,  more  insistently,  of  girls.  .  .  . 

The  principle  established  by  the  cases  is  a  simple  one, 
when  rid  of  confusing  and  distracting  considerations,  that 
Congress  has  power  over  transportation  "among  the  several 
States";  that  the  power  is  complete  in  itself,  and  that  Con- 
gress, as  an  incident  to  it,  may  adopt  not  only  means 
necessary  but  convenient  to  its  exercise,  and  the  means  may 
have  the  quality  of  police  regulations.  .  .  .  We  have  no  hesi- 
tation, therefore,  in  pronouncing  the  Act  of  June  25,  1910, 
["white  slave"  act],  a  legal  exercise  of  the  power  of  Con- 
gress. 

The  Congress  shall  have  Power  To  .  .  .  regulate  Com- 
merce .  .  .  with  the  Indian  Tribes.  The  colonial  govern- 
ments   had    made    treaties    of   peace,    alliance,    and 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      121 

commerce  with  the  Indians.  The  Continental  Congress 
had  made  similar  Indian  treaties  under  an  authority 
contained  in  the  Articles  of  Confederation.  Hence  the 
power  over  commerce  with  the  Indian  tribes  meant  no 
more  and  no  less  than  the  power  over  commerce  with 
foreign  nations.  Nevertheless,  "commencing  with  the 
act  of  1790,  through  more  than  a  century,  Congress  has 
legislated  on  the  rights  of  the  Indians  on  the  theory  that 
they  were  dependent  and  helpless  to  such  an  extent  that 
the  nation  had  a  right  to  assume  unlimited  control 
over  them.  "^ 

This  right  of  unlimited  control  has  been  translated 
into  a  moral  duty  of  guardianship  in  the  interest  of  the 
Indians,  especially  for  their  protection  against  unscru- 
pulous individuals  and  even  against  unscrupulous 
States.  For  there  always  has  been  a  general  feeling  in 
the  newer  States  that  the  natives  of  the  soil  ought  to  be 
made  to  give  place  to  white  men.  This  sentiment  was 
strong  in  Georgia,  in  1832,  when  the  case  of  Worcester 
vs.  Georgia'  was  decided  by  the  Supreme  Court  of  the 
United  States.  The  Rev.  Samuel  A,  Worcester,  one 
of  the  first  of  our  missionaries  to  the  Indians,  who  had 
been  preaching  the  gospel  and  translating  the  scriptures 
into  the  Cherokee  language  at  New  Echota  in  the 
Cherokee  reservation  in  the  western  part  of  Georgia, 
was  arrested  and  convicted  in  the  Superior  Court  of 
Gwinnett  County,  Georgia,  under  a  State  law  which 
declared  that  no  persons  should  live  with  the  Indians 
except  such  as  had  taken  an  oath  of  allegiance  to  the 
State,  and  had  been  duly  licensed  by  the  governor.  Mr. 
Worcester  defended  himself  by  proving  that  he  had  been 
licensed  to  go  to  the  Cherokee  reservation  by  the 

'  Jaeger  vs.  U.  S.,  27  Court  of  Claims  Rep.,  278,  285. 
»6  Peters' Rep.,  515. 


122       AMERICAN  PLAN  OF  GOVERNMENT 

President  of  the  United  States.  He  showed  that  our 
treaties  with  that  nation  expressly  stipulated  that 
citizens  of  the  United  States  should  not  enter  the 
Cherokee  territory  without  passports  from  the  Presi- 
dent of  the  United  States  or  the  governor  of  the  State. 
He  then  asserted  that  the  laws  of  Georgia  under  which 
he  had  been  convicted  were  unconstitutional  and  void 
because  they  were  an  attempt  to  regulate  and  control 
the  intercourse  with  the  said  Cherokee  nation,  which  by 
the  said  Constitution  belongs  exclusively  to  the  Congress 
of  the  United  States.  In  other  words,  Mr.  Worcester 
said  that  the  Georgia  law  under  which  he  had  been  tried 
was  unconstitutional  because  it  was  repugnant  to  the 
clause  in  the  Constitution  which  gives  Congress  power 
to  regulate  commerce  with  the  Indian  tribes. 

He  was  convicted  in  the  Georgia  court,  which  sen- 
tenced him  to  four  years'  imprisonment  at  hard  labor. 
He  appealed  to  the  Supreme  Court  of  the  United  States, 
which  set  aside  the  judgment  of  the  State  court  in  an 
opinion  which  does  not  conceal  the  indignation  of  the 
great  Chief  Justice  who  pronounced  it. 

The  governor  of  Georgia  disregarded  the  mandate 
of  the  Supreme  Court  ordering  the  release  of  the 
missionary,  and  President  Jackson,  who  hated  the 
Chief  Justice  cordially,  refused  to  take  any  action. 
The  missionary  was  left  to  the  tender  mercies  of  the 
State  authorities,  which  however  pardoned  him  as  soon 
as  their  political  point  had  been  made.  The  State  of 
Georgia  was  satisfied  when  President  Jackson  said: 
"John  Marshall  has  made  his  decision.  Now  let  him 
enforce  it. "  The  opinion  of  the  Court  was  in  part  as 
follows : 

The  Cherokee  Nation  ,.  .  .  is  a  distinct  community, 
occupying  its  own  territory,  with  boundaries  accurately 


LEGISLATIVE  GOVERNMENT  IN  U.  S.     123 

described,  in  which  the  laws  of  Georgia  can  have  no  force, 
and  which  the  citizens  of  Georgia  have  no  right  to  enter, 
but  with  the  assent  of  the  Cherokees  themselves,  or  in 
conformity  with  treaties  and  with  the  acts  of  Congress. 
The  whole  intercourse  between  the  United  States  and  this 
nation  is,  by  our  Constitution  and  laws,  vested  in  the  gov- 
ernment of  the  United  States.  The  act  of  the  State  of 
Georgia,  under  which  the  plaintiff  .  .  .  was  prosecuted,  is 
consequently  void,  and  the  judgment  is  a  nullity.  .  .  . 

He  [Mr.  Worcester]  was  seized  and  forcibly  carried  away 
while  under  the  guardianship  of  treaties  guaranteeing  the 
country  in  which  he  resided,  and  taking  it  under  the  pro- 
tection of  the  United  States.  He  was  seized  while  per- 
forming, under  the  sanction  of  the  chief  magistrate  of  the 
Union,  those  duties  which  the  humane  policy  adopted  by 
Congress  had  recommended.  He  was  apprehended,  tried, 
and  condemned  under  color  of  a  law  which  has  been  shown 
to  be  repugnant  to  the  Constitution,  laws,  and  treaties  of 
the  United  States.  .  .  . 

It  is  the  opinion  of  this  court  that  the  judgment  of  the 
Superior  Court  for  the  County  of  Gwinnett,  in  the  State  of 
Georgia,  condemning  Samuel  A.  Worcester  to  hard  labor,  in 
the  penitentiary  of  the  State  of  Georgia  for  four  years,  was 
pronounced  by  that  court  under  color  of  a  law  which  is  void, 
as  being  repugnant  to  the  Constitution,  treaties,  and  laws 
of  the  United  States,  and  ought,  therefore,  to  be  reversed 
and  annulled. 


CHAPTER  X 

POWERS  OF  CONGRESS — POWERS  TO  FOSTER  COMMERCE 

Art.  I.,  Sec.  8,  Subd.  4.  To  establish  an  uniform 
Rule  of  Naturalization,  and  uniform  Laws  on  the 
subject  of  Bankruptcies  throughout  the  United  States ; 

Art.  I.,  Sec.  8,  Subd.  5.  To  coin  Money,  regulate 
the  Value  thereof,  and  of  foreign  Coin,  and  fix  the 
Standard  of  Weights  and  Measures; 

Art.  I.,  Sec.  8,  Subd.  6.  To  provide  for  the  Punish- 
ment of  counterfeiting  the  Securities  and  current  Coin 
of  the  United  States; 

Art.  I.,  Sec.  8,  Subd.  7.  To  establish  Post  Offices 
and  post  Roads; 

Art.  I.,  Sec.  8,  Subd.  8.  To  promote  the  Progress 
of  Science  and  the  useful  Arts,  by  securing  for  limited 
Times  to  Authors  and  Inventors  the  exclusive  Right 
to  their  respective  WritiDgs  and  Discoveries. 

The  American  colonists  knew  that  their  vast  territory 
would  become  immensely  valuable  as  soon  as  it  was 
well  peopled.  They  resented  the  check  upon  immigra- 
tion caused  by  the  refusal  of  Great  Britain  to  naturalize 
the  immigrants,  and  said  so  with  blunt  directness  in 
the  Declaration  of  Independence.  The  Continental 
Congress  very  early  in  its  history  declared  that  all 
persons  who  lived  in  any  of  the  colonies  were  members 
of  the  local  body  politic. '   The  Articles  of  Confederation 

"  Andrews,  On  the  Constitution,  p.  88. 

"4 


LEGISLATIVE  GOVERNMENT  IN  U.  S.     125 

contained  a  clause  which  gave  all  the  free  inhabitants 
of  each  of  the  States,  "paupers,  vagabonds,  and  fugi- 
tives from  justice  excepted,"  the  status  of  citizens  of 
the  United  States. '  The  bankruptcy  clause,  by  afford- 
ing legal  relief  for  alien  debtors,  was  a  further  incentive 
to  immigration.  Primarily,  however.  Federal  control 
over  bankruptcy  is  logically  a  part  of  the  power  of 
Congress  to  regtdate  commerce. 

The  Congress  shall  have  Power  To  .  .  .  establish  an 
uniform  Rule  of  Naturalization.  The  naturalization 
which  this  clause  provides  for  is  "the  act  of  adopting  a 
foreigner  and  clothing  him  with  the  privileges  of  a  native 
citizen."'  It  gives  him  all  the  privileges  of  one  who  is 
native  bom,  except  that  he  cannot  be  President  or  Vice- 
President.  Of  the  naturalized  citizen  Chief  Justice 
Marshall,  in  the  case  of  Osborn  vs.  United  States  Bank,  ^ 
said: 

He  [the  naturalized  citizen]  becomes  a  member  of  the 
society,  possessing  all  the  rights  of  a  native  citizen,  and 
standing  in  the  view  of  the  Constitution  on  the  footing  of  a 
native. 

This  rule  was  applied  by  President  Buchanan  in  a 
famous  diplomatic  incident  just  before  the  Civil  War, 
the  story  of  which  is  thus  told  in  John  Bassett  Moore's 
Digest  of  International  Law'^:  "Christian  Ernst,  a  native 
of  Hanover,  emigrated  to  the  United  States  in  1851, 
when  nineteen  years  of  age.    In  February,  1859,  he  was 

*  Articles  of  Confederation,  Art.  IV. 

*  Boyd  vs.  Nebraska,  143  U.  S.  Rep.,  162. 
»  9  Wheaton's  Rep.,  739. 

*  John  Bassett  Moore's  Digest  oj  International  Law,  vol.  iii.,  pp. 
573-578. 


126       AMERICAN  PLAN  OF  GOVERNMENT 

naturalized,  and  in  the  following  month  procured  a 
passport  and  went  back  to  Hanover  on  a  visit.  On 
arriving  in  his  native  village  he  was  arrested  and  forced 
into  the  Hanoverian  army.  President  Buchanan  sub- 
mitted the  case  to  Attorney-General  Black  for  an  opin- 
ion. Attorney-General  Black  advised  .  .  .  that  it  was 
the  'natural  right  of  every  free  person,  who  owes  no 
debts  and  is  not  guilty  of  any  crime,  to  leave  the  country 
of  his  birth  in  good  faith  and  for  an  honest  purpose,* 
and  to  throw  off  his  natural  allegiance  and  substitute 
another  in  its  place;  .  .  .  that  'natural  reason  and 
justice,'  'writers  of  known  wisdom,'  and  'the  practice 
of  civilized  nations'  were  all  'opposed  to  the  doctrine 
of  perpetual  allegiance, '  and  that  the  United  States  was 
pledged  to  the  right  of  expatriation  and  could  not  with- 
out perfidy  repudiate  it ;  that  expatriation  '  includes  not 
only  emigration  out  of  one's  native  country,  but  naturali- 
zation in  the  country  adopted  as  a  future  residence'; 
that  'naturalization  does  ipso  facto  [by  the  fact  itself] 
place  the  native  and  adopted  citizen  in  precisely  the 
same  relations  with  the  government  under  which  they 
live,  except  in  so  far  as  the  express  and  positive  law  of 
the  country  has  made  a  distinction  in  favor  of  one  or 
the  other' ;  that,  with  regard  to  the  protection  of  Ameri- 
can citizens  in  their  rights  at  home  and  abroad,  there 
was  no  law  that  divided  them  into  classes  or  made  any 
difference  whatever  between  them;  that  the  opinion 
held  by  'persons  of  very  high  reputation '  that  a  natural- 
ized citizen  ought  to  be  protected  everywhere  except  in 
the  country  of  his  birth  had  'no  foundation  to  rest 
upon  .  .  .  except  the  dogma  which  denies  altogether 
the  right  of  expatriation  without  the  consent  of  his 
native  country,'  .  .  .  that  the  Hanoverian  government 
could  justify  the  arrest  of  Mr.  Ernst  only  by  proving 


LEGISLATIVE  GOVERNMENT  IN  U.  S.     127 

that  the  original  right  of  expatriation  depended  on  the 
consent  of  the  natural  sovereign — a  proposition,  which, 
said  Mr.  Black,  'I  am  sure  no  man  can  establish.* 

"The  views  of  the  President  in  relation  to  the  case  of 
Christian  Ernst  and  analogous  cases  were  communicated 
to  the  American  minister  at  Berlin,  July  8,  1859.  I^ 
this  communication  the  position  was  maintained  that 
...  by  the  treaty  with  Hanover,  which  provided  that 
the  'inhabitants'  of  each  country  should  be  permitted 
to  sojourn  in  all  parts  of  the  other,  submitting  to  the 
laws,  every  inhabitant  of  the  United  States  had  a  right 
to  visit  that  country  and  sojourn  there  in  the  prosecu- 
tion of  his  business,  and  that  no  distinction  could  be 
made  in  this  regard  between  a  native  and  a  naturalized 
citizen  of  the  United  States.  .  .  . 

"On  August  20,  1859,  the  Hanoverian  government 
stated  that  a  'full  pardon'  had  been  granted  to  Ernst 
and  that  he  had  been  'dismissed'  from  the  military 
service." 

The  Congress  shall  have  Power  To  .  .  .  establish  .  .  . 
uniform  Laws  on  the  subject  of  Bankruptcies  throughout 
the  United  States.  Congress  has  not  enacted  many 
bankruptcy  laws.  The  law  of  1800,  repealed  in  1803, 
gave  relief  only  to  certain  classes  of  men  who  actually 
were  engaged  in  business,  and  not  even  then  unless 
the  creditors  asked  the  courts  to  divide  the  debtor's 
property  among  them.  The  debtor  could  not  himself 
invoke  the  help  of  the  law.  The  next  bankruptcy  law 
was  passed  in  1841,  and  repealed  in  1843.  Another, 
adopted  in  1867,  remained  in  force  until  1878.  The 
present  law  was  enacted  in  1898. 

The  Constitution  calls  for  "uniform"  naturaliza- 
tion rules  and  "uniform"  bankruptcy  laws.  Chief 
Justice  Waite,  sitting  as  a  Circuit  Court  judge,  in  the 


128       AMERICAN  PLAN  OP  GOVERNMENT 

case  of  In  re  Deckert^  defined  the  word  "uniform"  as 
follows : 

One  of  the  effects  of  a  bankrupt  law  is  that  of  a  general 
execution  issued  in  favor  of  all  the  creditors  of  the  bank- 
rupt, reaching  all  his  property  subject  to  levy,  and  applying 
it  to  the  payment  of  all  his  debts  according  to  their  respec- 
tive priorities.  It  is  quite  proper,  therefore,  to  confine  its 
operation  to  such  property  as  other  legal  process  could  reach. 
A  rule  which  operates  to  this  effect  throughout  the  United 
States  is  uniform  within  the  meaning  of  that  term  as  used 
in  the  Constitution. 

The  Congress  shall  have  Power  To  .  .  .  coin  Money. 
The  reason  why  Congress  has  power  to  coin  money  was 
explained  by  the  Supreme  Court  in  the  case  of  United 
States  vs.  Marigold.'^  In  October,  1848,  one  Peter 
Marigold  was  indicted  at  Albany,  New  York,  for  having 
brought  into  the  United  States  a  number  of  counterfeits 
of  the  gold  and  silver  coins  of  the  United  States  which  he 
intended  to  pass  as  genuine.  In  the  trial  of  the  case  in 
the  United  States  Circuit  Court,  the  defendant  claimed 
that  the  power  of  Congress  to  coin  money  could  not  be 
expanded  into  a  power  to  make  a  law  against  bringing 
counterfeits  into  the  country  from  abroad.  Justice 
Daniel,  in  the  course  of  the  decision,  said : 

The  power  of  coining  money  and  of  regulating  its  value 
was  delegated  to  Congress  by  the  Constitution  for  the  very 
purpose,  as  assigned  by  the  framers  of  that  instrument,  of 
creating  and  preserving  the  uniformity  and  purity  of  such 
a  standard  of  value;  and  on  account  of  the  impossibility 
which  was  foreseen  of  otherwise  preventing  the  inequalities 
and  the  confusion  necessarily  incident  to  different  views 

» 2  Hughes'  Rep.,  183.  •  9  Howard's  Rep.,  560. 


LEGISLATIVE  GO\^RNMENT  IN  U.  S.     129 

of  policy,  which  in  different  communities  would  be  brought 
to  bear  on  this  subject. 

The  Congress  shall  have  Power  To  .  . .  regulate  the  Value 
thereof  [of  Money].  Congress  has  absolute  power  to 
decide  what  metal  may  be  coined  into  money  and  what 
proportion  the  coined  money  shall  bear  to  the  value  of 
the  bullion  out  of  which  it  is  made.  In  the  Legal  Tender 
Cases, '  Justice  Strong  said : 

The  Constitution  does  not  ordain  what  metals  may  be 
coined,  or  prescribe  that  the  legal  value  of  the  metals,  when 
coined,  shall  correspond  at  all  with  their  intrinsic  value  in 
the  market.  .  .  .  Confessedly  the  power  to  regulate  the 
value  of  money  coined,  and  of  foreign  coins,  is  not  exhausted 
by  the  first  regulation.  More  than  once  in  our  history  has 
the  regulation  been  changed  without  any  denial  of  the 
power  of  Congress  to  change  it,  and  it  seems  to  have  been 
left  to  Congress  to  determine  alike  what  metal  shall  be 
coined,  its  purity,  and  how  far  its  statutory  value,  as  money, 
shall  correspond,  from  time  to  time,  with  the  market  value 
of  the  same  metal  as  bullion.  How  then  can  a  grant  of  a 
power  to  coin  money  "and  regulate  its  value,  made  in  terms 
so  liberal  and  unrestrained,  coupled  also  with  a  denial  to 
the  States  of  all  power  over  the  currency,  be  regarded  as  an 
implied  prohibition  to  Congress  against  declaring  treasury 
notes  a  legal  tender,  if  such  declaration  is  appropriate,  and 
adapted  to  carrying  into  execution  the  admitted  powers  of 
the  government? 

The  Congress  shall  have  Power  To  .  .  .  fix  the  Standard 
of  Weights  and  Measures.  About  1 834,  the  Pennsylvania 
assembly  enacted  a  law  which  made  2,000  lbs.  a  legal 
ton.  A  man  named  Holt  delivered  several  hundred  tons 
of  coal  under  a  contract  with  a  ship-owning  firm,  and, 

'  12  Wallace's  Rep.,  457,  546. 


130      AMERICAN  PLAN  OF  GOVERNMENT 

taking  advantage  of  this  act,  gave  only  2,000  lbs.  to 
each  ton  called  for.  The  ship-owners  refused  to  pay; 
and  Holt  brought  action  against  their  ship.  The  Mian- 
tonomi, '  for  his  bill.  The  defense  was  that,  as  Holt  had 
given  short  weight  by  240  lbs.  to  each  ton,  the  owners 
were  entitled  to  a  credit  for  the  total  shortage.  The  case 
came  up  before  Justice  Grier  in  the  United  States 
Circuit  Court  at  Pittsburgh  upon  the  question  whether 
the  State  of  Pennsylvania  had  any  right  to  compel 
business  men  to  use  business  words  in  one  particular 
sense.    Justice  Grier  said: 

The  Congress  of  the  United  States  having  the  power  to 
regulate  commerce  between  the  several  States,  it  was  of 
great  importance  that  the  value  of  money  and  the  standard 
of  weights  and  measures  should  be  uniform.  Accordingly 
their  regulation  is  entrusted  to  Congress.  ...  I  find  no 
legislation  on  the  subject  except  in  the  Act  of  May  19,  1828, 
c.  67,  where  it  is  enacted  that  "the  brass  troy  pound  weight 
proctired  by  the  Minister  of  the  United  States  at  London 
in  the  year  1827  for  the  use  of  the  mint,  and  now  in  the 
custody  of  the  director  thereof,  shall  be  the  standard  troy 
pound  of  the  mint  of  the  United  States."  As  the  English 
standard  of  weights  and  measures  had  been  adopted  by  long 
custom  in  every  State,  it  was,  perhaps,  unnecessary  for 
Congress  to  interfere  further  than  it  has  done.  For  as  the 
standard  of  the  London  Tower  weights,  and  the  English 
terms  or  denominations  used  to  represent  their  fractions 
and  multiples,  were  universally  adopted  in  the  United 
States,  and  of  course  uniform,  nothing  was  required  of 
Congress,  unless  it  entirely  changed  its  standard  and  in- 
troduced decimal  fractions  and  multiples  for  greater  facility 
of  calculation  as  it  has  done  in  our  coin. 

The  Congress  shall  have  Power  To  .  .  .  provide  for 
the  Punishment  of  counterfeiting.    In  passing  upon  a 
'  3  Wallace,  Jr.  Rep.,  40. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.     131 

motion  of  a  convicted  counterfeiter  that  the  verdict 
of  the  jury  be  annulled  because  the  indictment  for 
counterfeiting  did  not  charge  an  intent  to  pass  the 
bogus  money,  District  Judge  Deady  of  Oregon  explained 
as  follows  the  kind  of  law  he  thought  should  be  meted 
out  to  a  counterfeiter*: 

In  the  case  of  the  actual  forger  or  counterfeiter,  knowledge 
of  the  character  of  the  coin,  and  the  fraudulent  intent  to 
put  it  into  circulation,  in  some  way,  as  genuine,  are  implied 
from  the  fact  of  the  false  making,  and  need  not  be  specially 
averred.  .  .  .  And,  if  this  is  not  the  law,  Congress  ought 
to  make  it  so.  No  one  ought  to  be  allowed  to  trifle  with  the 
integrity  of  the  coin  of  the  realm.  The  circulating  medium 
of  a  people  is  the  life  to  its  trade  and  commerce  and  ought 
not  to  be  exposed  to  the  danger  of  corruption  from  contact 
or  commingling  with  the  spiuious  coinage  of  amateur  forgers 
and  counterfeiters. 

The  Congress  shall  have  Power  To  .  .  .  establish  Post 
Offices  and  post  Roads.  Justice  Clifford  of  the  Supreme 
Court  traced  the  origin  of  the  United  States  post  office 
in  his  opinion  in  the  case  of  Ware  vs.  United  States'': 

A  general  post  office  "was  established  on  the  twenty-sixth 
day  of  July,  1775,  the  year  before  the  Declaration  of  In- 
dependence. By  that  ordinance  it  was  directed  that  a  line 
of  posts  be  appointed  under  the  direction  of  the  Postmaster 
General  from  Falmouth  [now  Portland,  Maine]  to  Savannah, 
with  as  many  dross-posts  as  he  shall  think  fit;  and  he  was 
authorized  to  appoint  as  many  deputies  as  to  him  might 
seem  proper  and  necessary.  Amendments  were  made  to 
that  ordinance  from  time  to  time  to  the  twenty-eighth  day 
of  October,  1782,  when  it  was  repealed,  and  a  supplemental 
ordinance  was  adopted  in  its  place,  conferring  substantially 

»  U.  S.  vs.  Otey,  31  Federal  Rep.,  68.  *  4  Wallace's  Rep.,  630. 


132       AMERICAN  PLAN  OF  GOVERNMENT 

the  same  powers  upon  the  Postmastfer  General.  These 
powers  were  continued  with  certain  alterations  and  addi- 
tions, until  the  Constitution  of  the  United  States  was 
adopted.' 

The  post  offices  and  post  roads  which  Congress 
establishes  constitute  a  government  monopoly,  always 
jealously  guarded.  At  one  time,  express  carriers  would 
receive  and  deliver  mailable  matter  as  a  part  of  their 
business,  and  many  persons  thought  they  had  a  right 
to  get  a  living  that  way.  But  in  i860.  Judge  Cadwal- 
lader,  in  the  case  of  United  States  vs.  Kochsperger,^ 
ruled  that  such  a  business  was  unlawful.    He  said : 

The  post  office  law  authorizes  the  Postmaster  General  to 
"direct  the  route  or  road,  where  there  are  more  than  one, 
between  places  designated  by  law  for  a  post  road,"  and 
enacts  that  the  road  thus  designated  "shall  be  considered 
the  post  road."  .  .  .  But  the  highways  of  a  State,  so 
long  as  open  to  the  common  public  use  of  her  own  citizens, 
may  be  used  unobstructedly  by  carriers  of  the  mail,  and 
cannot  be  used  by  private  carriers  of  mailable  matter  in 
any  manner  which  has  been  prohibited  by  Congress. 

The  power  of  Congress  to  regulate  the  use  of  the  mails 
is  unlimited.  Congress  has  enacted  laws  punishing 
those  who  use  the  mails  either  for  the  sale  of  lottery 
tickets  or  for  the  transportation  of  indecent  written  or 
printed  matter  or  for  many  other  purposes  hostile  to 
the  public  welfare. 

A  man  named  Jackson  was  prosecuted  in  the  United 
States  Court  at  New  York  City  in  1877  for  mailing  a 
circular  which  advertised  a  lottery.  He  was  convicted 
and  fined  $100.  He  did  not  pay  and  was  committed  to 
prison.     A  petition  for  his  release  under  a  writ  of 

^  Federal  Cases,  No.  15,541. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      133 

habeas  corpus  was  then  filed  with  the  Supreme  Court 
of  the  United  States.  This  case  of  Ex  Parte  Jackson^ 
brought  squarely  before  the  Court  the  question  whether, 
under  the  power  "to  establish  post  offices  and  post 
roads,"  Congress  can  order  excluded  from  the  mails 
any  letter  or  packet  upon  which  the  postage  has  been 
paid.    Justice  Field,  in  the  decision  of  this  case,  said : 

The  validity  of  legislation  prescribing  what  should  be 
carried  [by  the  mails]  and  its  weight  and  form,  and  the 
charges  to  which  it  should  be  subjected,  has  never  been 
questioned.  What  should  be  mailable  has  varied  at  different 
times,  changing  with  the  facility  of  transportation  over  the 
post  roads.  At  one  time,  only  letters,  newspapers,  maga- 
zines, pamphlets,  and  other  printed  matter,  not  exceeding 
eight  ounces  in  weight  were  carried;  afterwards  books  were 
added  to  the  list;  and  now  small  packages  of  merchandise, 
not  exceeding  a  prescribed  weight,  as  well  as  books  and 
printed  matter  of  all  kinds  are  transported  in  the  mail. 
The  power  possessed  by  Congress  embraces  the  regulation 
of  the  entire  postal  system  of  the  Country.  The  right  to 
designate  what  shall  be  carried  necessarily  involves  the 
right  to  determine  what  shall  be  excluded.  .  .  . 

In  excluding  various  articles  from  the  mail,  the  object  of 
Congress  has  not  been  to  interfere  with  the  freedom  of  the 
press,  or  with  any  other  rights  of  the  people ;  but  to  refuse 
its  facilities  for  the  distribution  of  matter  deemed  injurious 
to  the  public  morals.  Thus  by  Act  of  March  3,  1873, 
Congress  declared  that  no  obscene,  lewd,  or  lascivious  book, 
pamphlet,  picture,  paper,  print,  or  other  publication  of 
an  indecent  character,  or  any  article  or  thing  designed  or 
intended  for  the  prevention  of  conception  or  procuring  of 
abortion,  nor  any  article  or  thing  intended  or  adapted  for 
any  indecent  or  immoral  use  or  nature,  nor  any  written  or 
printed  card,  circular,  book,  pamphlet,  advertisement,  or 

«96U.  S.  Rep.,  727. 


134       AMERICAN  PLAN  OP  GOVERNMENT 

notice  of  any  kind,  giving  information,  directly  or  indirectly, 
where,  or  how,  or  of  whom,  or  by  what  means,  either  of  the 
things  before  mentioned  may  be  obtained  or  made,  nor  any 
letter  upon  the  envelope  of  which,  or  postal  card  upon  which 
indecent  or  scurrilous  epithets  may  be  written  or  printed, 
shall  be  carried  in  the  mail;  and  any  person  who  shall 
knowingly  deposit,  or  cause  to  be  deposited,  for  mailing  or 
delivery,  any  of  the  hereinbefore  mentioned  articles  or 
things  .  .  .  shall  be  deemed  guilty  of  a  misdemeanor,  and 
on  conviction  thereof,  shall,  for  every  offence,  be  fined  not 
less  than  $ioo,  nor  more  than  $5,000,  or  imprisonment  at 
hard  labor  not  less  than  one  year  nor  more  than  ten  years, 
or  both,  in  the  discretion  of  the  judge. 

All  that  Congress  meant  by  this  act  was,  that  the  mail 
should  not  be  used  to  transport  such  corrupting  publica- 
tions and  articles,  and  that  any  one  who  attempted  to  use 
it  for  that  purpose  should  be  punished.  The  same  inhibi- 
tion has  been  extended  to  lotteries — institutions  which  are 
supposed  to  have  a  demoralizing  influence  upon  the  people. 
.  .  .  The  only  question  for  our  determination  relates  to 
the  constitutionality  of  the  act;  and  of  that  we  have  no 
doubt. 

The  Postmaster  General  issues  what  are  called  * '  fraud 
orders,"  whenever  it  is  called  to  his  attention  that 
schemes  to  cheat  and  defraud  are  being  carried  on  by 
means  of  the  postal  facilities  of  the  United  States.  In 
the  case  of  American  School  oj  Magnetic  Healing  vs. 
Mc Annuity,  "^  the  petitioner  was  the  proprietor  of  an 
institution,  founded  almost  exclusively  on  the  theory 
that  the  mind  of  the  human  race  is  largely  responsible 
for  its  ills,  and  is  a  perceptible  factor  in  the  treating, 
curing,  benefiting,  and  remedying  thereof,  and  that  the 
human  race  does  possess  the  innate  power,  through 

» 187  U.  S.  Rep.,  94. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      135 

proper  exercise  of  the  faculty  of  the  brain  and  mind,  to 
largely  control  and  remedy  the  ills  that  humanity  is 
heir  to.  On  May  15,  1900,  the  Postmaster  General 
issued  a  fraud  order  directing  the  postmaster  at  Nevada, 
Mo.,  where  the  School  of  Magnetic  Healing  was  located, 
to  "return  all  letters,  whether  registered  or  not,  and 
other  mail  matter  which  shall  arrive  at  your  office, 
directed  to  said  concern  [American  School  of  Magnetic 
Healing]  and  persons  [officers  of  that  institution]  to  the 
postmasters  at  the  offices  at  which  they  were  originally 
mailed,  to  be  delivered  to  the  senders  thereof,  with  the 
word  'fraudulent'  plainly  written  or  stamped  upon  the 
outside, "  and  forbidding  him  to  pay  any  postal  money 
order  to  said  concern  and  persons.  The  officers  of  the 
School  of  Magnetic  Healing  brought  an  action  in  the 
United  States  Court  of  Missouri  against  the  postmaster 
at  Nevada,  asking  that  he  be  restrained  from  carrying 
out  the  "fraud  order"  of  the  Postmaster  General.  The 
case  went  on  appeal  to  the  Supreme  Court  at  Washing- 
ton, which  decided  that,  as  the  scheme  was  not  neces- 
sarily fraudulent,  the  School  of  Magnetic  Healing  should 
have  its  letters. 

In  the  case  of  Public  Clearing  House  vs.  Coyne,^  in 
which  the  Supreme  Court  sustained  the  validity  of  a 
"fraud  order"  issued  by  the  Postmaster  General  in 
November,  1 902,  it  appeared  that  an  Illinois  corpora- 
tion had  used  the  mails  in  the  course  of  a  scheme  to 
induce  people  to  become  members  and  co-operators  in 
what  was  called  a  "League  of  Equity."  The  member 
who  paid  three  dollars  as  an  enrollment  fee  and  agreed 
to  pay  one  dollar  a  month  for  five  years,  was  to  receive 
a  proportionate  share  of  the  total  paid  in  during  five 
years  by  all  the  members;  if  he  secured  three  new 

•  194  U.  S.  Rep.,  497. 


136       AMERICAN  PLAN  OF  GOVERNMENT 

members  in  any  one  year,  he  might  receive  at  the  end 
of  that  year  one  fifth  of  the  amount  which  he  would  be 
entitled  to  at  the  end  of  five  years,  assuming  that  the 
growth  of  the  concern  continued.  The  Public  Clearing 
House,  upon  learning  that  its  mail  was  to  be  detained, 
filed  a  petition  for  an  injimction  in  the  Federal  District 
Court  at  Chicago,  The  postmaster  of  Chicago  inter- 
posed the  defense  that  the  fraud  order  had  been  properly 
issued  to  suppress  a  lottery.  The  case  was  referred  to  a 
master  in  chancery  (an  officer  of  the  Court,  who  hears 
testimony  and  reports  to  the  Court  the  facts  of  a  case), 
who  reported  that  the  petition  ought  to  be  denied. 
The  case  was  taken  to  the  Supreme  Court  by  an  appeal 
where  it  was  decided  in  favor  of  the  postmaster.  Justice 
Brown,  who  prepared  the  opinion,  said: 

We  do  not  consider  it  necessary  to  enter  into  the  details 
of  the  plan,  which  is  a  somewhat  complicated  one,  and  the 
success  of  which  obviously  depended  upon  constantly  and 
rapidly  increasing  the  number  of  subscribers  or  co-operators. 
The  only  money  paid  in  was  a  small  enrollment  fee  of  three 
dollars  and  a  monthly  payment  of  one  dollar  for  five  years. 
The  return  to  the  subscribing  member,  which  is  called  a 
realization,  is  not  only  uncertain  in  its  amount,  but  depends 
largely  upon  the  number  of  new  members  each  subscriber 
is  able  to  secure,  as  well  as  the  number  of  new  members 
which  his  co-operators  are  able  to  secure.  The  return  to 
members  who  have  been  able  to  secure  a  large  number  of 
other  members,  and  to  pay  their  own  monthly  dues,  may  be 
very  large  in  comparison  with  the  amount  paid  in,  but  the 
amount  of  such  return  depends  so  largely,  and  indeed  almost 
wholly,  upon  conditions  which  the  member  is  unable  to 
control  that  we  think  it  fulfils  all  the  conditions  of  a  dis- 
tribution of  money  by  chance.  .  .  . 

In  the  careful  and  satisfactory  report  of  the  master  the 
plan  of  the  complainant  is  briefly  described  "as  a  plan  for 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      137 

securing  money  from  a  constantly  increasing  large  number 
for  the  benefit  of  a  constantly  increasing  smaller  nimiber, 
with  an  absolute  certainty  that  when  the  enterprise  reaches 
an  end  for  any  reason  the  larger  number  will  lose  every 
dollar  they  have  put  into  it,  and  in  the  meantime  the 
smaller  number  will  have  realized  such  amounts  as  may 
have  resulted  from  the  growth  of  the  larger  number;  but  no 
one  can  predict  what  that  growth  will  be."  .  .  . 

The  master  found  that  there  had  been  no  false  represen- 
tations of  existing  facts  and  no  unfair  dealing  with  the  co- 
operators;  yet,  as  we  held  in  Durland  vs.  United  States,  161 
U.  ,S.  206,  the  misrepresentation  of  existing  facts  is  not 
necessary  to  a  conviction  under  a  statute  applying  to  "any 
scheme  or  artifice  to  defraud,"  as  was  observed  by  Mr. 
Justice  Brewer  (p.  313),  "Some  schemes  may  be  promoted 
through  mere  representations  and  promises  as  to  the  future, 
yet  are  none  the  less  schemes  and  artifices  to  defraud.  .  .  . 
In  the  light  of  this  the  statute  must  be  read,  and  so  read  it 
includes  everything  designed  to  defraud  by  representations 
as  to  the  past  or  present,  or  suggestions  and  promises  as  to 
the  future.   The  significant  fact  is  the  intent  and  purpose. " 

Congress  makes  regular  appropriations  for  all  sorts 
of  public  improvements  under  its  authority  to  lay  and 
collect  taxes  for  the  public  welfare,  to  regulate  interstate 
commerce,  to  establish  post  offices  and  post  roads,  and 
to  do  what  is  necessary  and  proper  to  execute  the  judi- 
cial power  of  the  nation.  This  group  of  appropriations 
constitutes  the  "Pork  Barrel,"  so  called  because  it  is 
as  helpful  in  winning  votes  as  was  the  old-time  free 
barrel  of  pork  which  candidates  for  office  used  to  open 
for  voters  on  election  day.  Nowadays,  the  Congress- 
man who  fails  to  obtain  an  appropriation  of  public 
money  to  be  spent  in  his  district,  lessens  by  so  much  his 
chance  of  re-election.  The  constituencies  seem  to 
think  it  the  official  duty  of  their  representative  to 


138       AMERICAN  PLAN  OF  GOVERNMENT 

engineer  a  vote  of  public  money  which  will  be  spent 
mostly  in  wages  of  those  who  are  employed  on  local 
improvements  for  national  purposes. 

"Probably  out  of  this  provision  [giving  Congress 
power  to  establish  post  offices  and  post  roads],  more  than 
any  other,"  says  Watson  On  the  Constitution,^  "there 
grew  one  of  the  most  important  questions  ever  pre- 
sented for  discussion  under  the  Constitution.  It  is  the 
great  question  of  internal  improvements;  that  is, 
whether  there  is  authority  to  carry  them  on  under  the 
express  or  implied  powers  of  the  Constitution.  Judge 
Story  states  the  beginning  of  this  controversy  as 
follows:  'Upon  the  construction  of  this  clause  of  the 
Constitution,  two  opposite  opinions  have  been  expressed. 
One  maintains  that  the  power  to  establish  postoffices 
and  post  roads  can  intend  no  more  than  the  power  to 
direct  where  postoffices  shall  be  kept,  and  on  what  roads 
the  mails  shall  be  carried.  Or,  as  it  has  been  on  other 
occasions  expressed,  the  power  to  establish  post  roads 
is  a  power  to  designate  or  point  out  what  roads  shall  be 
mail  roads,  and  the  right  of  passage  of  way  along  them, 
when  so  designated.  The  other  maintains  that,  al- 
though these  methods  of  exercising  the  power  are 
perfectly  constitutional,  yet  they  are  not  the  whole  of 
the  power,  and  do  not  exhaust  it.  On  the  contrary, 
the  power  comprehends  the  right  to  make  or  construct 
any  roads  which  Congress  may  deem  proper  for  the 
convenience  of  the  mail,  and  to  keep  them  in  due  repair 
for  such  purposes.' " 

The  power  of  the  nation  to  spend  money  on  public 

improvements  was  a  debatable  question  during  the 

years  before  the  Civil  War  when  the  Constitution  was 

finding  itself.    That  time  has  long  gone  by.    A  genera- 

'  Vol.  i.,  643. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      139 

tion  which  has  spent  nearly  half  a  billion  dollars  upon  the 
waterway  between  the  oceans  at  Panama  will  not  waste 
its  time  discussing  the  power  of  the  United  States 
to  put  its  money  into  national  improvements.  "The 
trend  of  national  sentiment  for  many  years,"  Mr. 
Watson  adds,  "has  been  in  favor  of  appropriations  for 
such  improvements,  and  perhaps  no  President  for  fifty 
years  has  vetoed  a  bill  because  it  carried  appropriations 
which  provided  for  the  construction  of  public  works 
coming  within  the  jurisdiction  of  the  general  govern- 
ment and  possessing  national  characteristics.  The 
improvement  of  lakes,  rivers,  and  harbors  by  deepen- 
ing their  channels,  removing  obstructions  to  navigation, 
constructing  dams  and  docks,  as  well  as  the  construc- 
tion of  lines  of  railway  crossing  the  continent  have 
called  for  appropriations  from  the  national  treasury 
aggregating  fabulous  sums,  and  have  all  met  with  the 
approval  of  a  great  majority  of  the  American  people  and 
been  sustained  by  the  courts."^ 

The  Congress  shall  have  Power  To  .  .  .  promote  the 
Progress  of  Science  .  .  .  by  securing  for  limited  Times  to 
Authors  .  .  .  the  exclusive  Right  to  their  .  .  .  Writings. 
The  history  of  protection  by  copyright  was  reviewed  in 
1834,  in  the  case  of  Wheaton  vs.  Peters,' in  which  Henry 
Wheaton,  one  of  the  early  reporters  of  the  decisions 
of  the  Supreme  Court,  tried  to  enforce  his  copyright 
on  the  twelve  volumes  of  decisions  which  bear  his  name. 
Richard  Peters,  who,  in  1827,  succeeded  Mr.  Wheaton 
as  court  reporter,  published  a  book  called  Condensed 
Reports  of  Cases  in  the  Supreme  Court  of  the  United  States^ 
containing  all  the  decisions  of  the  court  since  its  or- 
ganization and  including  those  which  had  appeared  in 
the  first  volume  of  Wheaton's  Reports.     Mr.  Wheaton 

'  VoL  I,  648.  '  8  Peters'  Rep.,  593. 


I40       AMERICAN  PLAN  OF  GOVERNMENT 

and  his  associates  in  the  ownership  of  the  copyright 
brought  an  action  in  the  United  States  Court  at  Phila- 
delphia in  which  they  asked  that  Mr.  Peters  be  for- 
bidden to  infringe  the  copyrighted  matter  contained  in 
that  volume.  The  defense  was  that  Mr.  Wheaton  had 
not  complied  with  all  the  provisions  of  the  United 
States  copyright  law  enacted  by  Congress  in  1790,  and 
so  was  not  entitled  to  the  protection  of  the  courts.  Mr. 
Wheaton  and  his  associates  replied  that  this  was  not  a 
good  defense  to  his  action  because  even  if  his  copyright 
claim  under  the  statute  was  not  good,  he  was  the  true 
owner  of  the  copyrighted  matter  by  the  ancient  law  of 
the  land,  because  it  was  his  property.  This  controversy, 
therefore,  presented  all  sorts  of  close  questions  concern- 
ing the  rights  of  those  who  make  books,  and  more 
especially  the  question  whether  any  person  could,  by 
printing  and  publishing  them,  acquire  a  copyright  upon 
decisions  which  the  justices  of  the  Supreme  Court  had 
prepared  and  written,  and  which  Mr.  Wheaton  had 
only  transcribed.  The  Supreme  Court  was  "unani- 
mously of  opinion  that  no  reporter  has  or  can  have  any 
copyright  in  the  written  opinions  delivered  by  this 
Court  and  that  the  judges  thereof  cannot  confer  on  any 
reporter  any  such  right. "  Justice  McLean,  who  de- 
livered the  decision  of  the  Court,  explained  the  broad 
phases  of  the  copyright  clause  as  follows : 

The  complainants  assert  their  right  on  two  grounds. 
First,  under  the  common  law.  Secondly,  under  the  acts 
of  Congress.  And  they  insist,  in  the  first  place,  that  an 
author  was  entitled  at  common  law,  to  a  perpetual  property 
in  the  copy  of  his  works,  and  in  the  profits  of  their  publica- 
tion; .  .  .  The  question  whether  the  copy  of  a  book  or 
literary  composition  belongs  to  the  author  at  common  law, 
was  brought  before  the  Court  of  King's  bench  in  the  great 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      141 

case  of  Miller  vs.  Taylor,  reported  in  4  Burr.  2303.  This 
was  a  case  of  great  expectation,  and  the  four  judges,  in 
giving  their  opinions,  seriatim,  exhausted  the  argument  on 
both  sides.  Two  of  the  judges,  and  Lord  Mansfield,  held 
that,  by  the  common  law,  an  author  had  a  literary  property 
in  his  works;  .  .  .  Mr.  Justice  Yeates  .  .  .  maintained  the 
opposite  ground.  .  .  . 

The  question  was  brought  before  the  House  of  Lords,  in 
the  case  of  Donaldson  vs.  Beckett  and  others,  reported  in  4 
Burr.  2408.  The  eleven  judges  gave  their  opinions  on  the 
following  points: 

1.  Whether  at  common  law  an  author  of  any  book  or 
literary  composition,  had  the  sole  right  of  first  printing,  and 
publishing  the  same  for  sale;  and  might  bring  an  action 
against  any  person  who  printed,  published,  and  sold  the 
same  without  his  consent.  On  this  question  there  were 
eight  judges  in  the  affirmative,  and  three  in  the  negative. 

2.  If  the  author  had  such  right  originally,  did  the  law 
take  it  away,  upon  his  printing  and  publishing  such  book 
or  literary  composition;  and  might  any  person  afterward, 
reprint  and  sell,  for  his  own  benefit,  such  book  or  literary 
composition,  against  the  will  of  the  author?  This  question 
was  answered  in  the  affirmative  by  four  judges  and  in  the 
negative  by  seven.  .  .  . 

4.  Whether  the  author  of  any  literary  composition,  and 
his  assigns,  had  the  sole  right  of  printing  and  publishing  the 
same  in  perpetuity,  by  the  common  law.  Which  question 
was  decided  in  favor  of  the  author  by  seven  judges  to  four. 

5.  Whether  this  right  is  in  any  way  impeached,  re- 
strained, or  taken  away  by  the  statute  8  Anne.  Six  to 
five  judges  decided  that  the  right  is  taken  away  by  the 
statute.  .  .  . 

It  would  appear  from  the  points  decided  that  a  majority 
of  the  judges  were  in  favor  of  the  common  law  rights  of 
authors,  but  that  the  same  had  been  taken  away  by  the 
statute.  .  .  . 

From  the  above  authorities,  and  others  which  might  be 


142       AMERICAN  PLAN  OF  GOVERNMENT 

referred  to  if  time  permitted,  the  law  appears  to  be  well 
settled  in  England,  that,  since  the  statute  of  8  Anne,  the 
literary  property  of  an  author  in  his  works  can  only  be 
asserted  under  the  statute.  .  .  . 

That  an  author,  at  common  law,  has  a  property  in  his 
manuscript,  and  may  obtain  redress  against  any  one  who 
deprives  him  of  it,  or  by  improperly  obtaining  a  copy, 
endeavors  to  realize  a  profit  by  its  publication,  cannot  be 
doubted;  but  this  is  a  very  different  right  from  that  which 
asserts  a  perpetual  and  exclusive  property  in  the  future 
publication  of  the  work,  after  the  author  shall  have  pub- 
lished it  to  the  world.  .  .  . 

It  is  insisted  that  our  ancestors,  when  they  migrated  to 
this  country  brought  with  them  the  English  common  law 
as  a  part  of  their  heritage.  ...  It  was  adopted,  so  far 
only  as  its  principles  were  suited  to  the  condition  of  the 
colonies;  and  from  this  circumstance  we  see,  what  is  com- 
mon law  in  one  State  is  not  so  considered  in  another.  .  .  . 
If  the  common  law,  in  all  its  provisions,  has  not  been  in- 
troduced into  Pennsylvania,  to  what  extent  has  it  been 
adopted?  Must  not  this  cotut  have  some  evidence  on  this 
subject?  If  no  right,  such  as  is  set  up  by  the  complainants, 
has  heretofore  been  asserted,  no  custom  or  usage  established, 
no  judicial  decision  been  given,  can  the  conclusion  be  justi- 
fied that,  by  the  common  law  of  Pennsylvania,  an  author 
has  a  perpetual  property  in  the  copyright  of  his  works  ? 

These  considerations  might  well  lead  the  court  to  doubt 
the  existence  of  this  law  in  Pennsylvania;  but  there  are 
others  of  a  more  conclusive  character. 

The  question  respecting  the  literary  property  of  authors 
was  not  made  a  subject  of  judicial  investigation  in  England 
until  1760;  and  no  decision  was  given  until  the  case  of  Miller 
vs.  Taylor  .  .  .  was  decided  in  1769.  Long  before  this 
time  the  colony  of  Pennsylvania  was  settled.  What  part 
of  the  common  law  did  Penn  and  his  associates  bring  with 
them  from  England?  The  literary  property  of  authors,  as 
now  asserted,  was  then  unknown  in  that  country.  .  .  . 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      143 

No  such  right  at  the  common  law  had  been  recognized  in 
England  when  the  colony  of  Penn  was  organized.  Long 
afterwards,  literary  property  became  a  subject  of  contro- 
versy, but  the  question  was  involved  in  great  doubt  and 
perplexity;  and  a  little  more  than  a  century  ago  [i.e.,  prior 
to  1834],  it  was  decided  by  the  highest  judicial  court  in 
England,  that  the  right  of  authors  could  not  be  asserted 
at  common  law,  but  under  the  statute.  .  .  .  Can  it  be 
contended  that  this  common  law  right,  so  involved  in  doubt 
as  to  divide  the  most  learned  jurists  of  England,  at  a  period 
in  her  history  as  much  distinguished  by  learning  and 
talents  as  any  other,  was  brought  into  the  wilds  of  Pennsyl- 
vania by  its  first  adventurers?  Was  it  suited  to  their  condi- 
tion? But  there  is  another  view  still  more  conclusive.  In 
the  eighth  section  of  the  first  article  of  the  Constitution  of 
the  United  States  it  is  declared,  that  Congress  shall  have 
power  "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  discoveries. " 
And  in  pursuance  of  this  power  thus  delegated,  Congress 
passed  the  act  of  the  31st  of  May,  1790.  This  is  entitled 
"An  Act  for  the  encouragement  of  learning,  by  securing 
the  copies  of  maps,  charts,  and  books,  to  the  authors 
and  proprietors  of  such  copies,  during  the  times  therein 
mentioned."  .  .  . 

That  Congress,  in  passing  the  Act  of  1790,  did  not  legis- 
late in  reference  to  existing  rights,  appears  clear  from  the 
provision  that  the  author,  etc.,  "shall  have  the  sole  right 
and  liberty  of  printing,"  etc.  Now  if  this  exclusive  right 
existed  at  common  law,  and  Congress  were  about  to  adopt 
legislative  provisions  for  its  protection,  would  they  have 
used  this  language?  Could  they  have  deemed  it  necessary 
{Q  vest  a  right  already  vested?  Such  a  presumption  is 
refuted  by  the  words  above  quoted,  and  their  force  is  not 
lessened  by  any  other  part  of  the  act.  Congress,  then,  by 
this  act,  instead  of  sanctioning  an  existing  right,  as  con- 
tended for,'created  it. 


144       AMERICAN  PLAN  OF  GOVERNMENT 

The  Congress  shall  have  Power  To  .  .  .  promote  the  Pro- 
gress of  Science  and  useful  Arts,  by  securing  for  limited 
Times  to  .  .  .  Inventors  the  exclusive  Right  to  their  .  .  . 
Discoveries.  We  know  what  a  patent  is,  because  the 
term  has  been  defined  many  times  by  the  courts.  For 
example,  Chief  Justice  Marshall  in  the  case  of  Grant  vs. 
Raymond,^  defined  a  patent  as  "the  reward  stipulated 
for  the  advantages  derived  by  the  public  from  the 
exertion  of  the  individual  and  is  intended  as  a  stimulus 
to  those  exertions.  .  .  .  The  public  yields  nothing 
which  it  has  not  agreed  to  yield;  it  receives  all  which 
it  has  contracted  to  receive.  The  full  benefit  of  the 
discovery,  after  its  enjoyment  by  the  discoverer  for 
fourteen  years,  is  preserved,  and  for  his  exclusive  enjoy- 
ment of  it  during  that  time  the  public  faith  is  pledged." 
In  the  case  of  National  Hollow  Brake  Beam  Co.  vs. 
Interchangeable  Brake  Beam  Co.''  in  which  Mr.  George 
Westinghouse  had  to  defend  his  title  to  a  valuable  part 
of  the  railway  air  brake  which  goes  by  his  name,  Judge 
Sanborn  said: 

A  patent  is  a  contract  by  which  the  government  secures 
to  the  patentee  the  exclusive  right  to  vend  and  use  his  in- 
vention for  a  few  years,  in  consideration  of  the  fact  that  he 
has  perfected  and  described  it  and  has  granted  its  use  to  the 
public  forever  after. 

Trade-marks  cannot  be  copyrighted.  In  the  Trade- 
Mark  Cases,  3  the  Supreme  Court  withheld  its  counte- 
nance from  a  law  which  made  it  a  crime  to  use  imitated 
or  counterfeited  trade-marks.  In  these  cases,  three  men 
were  before  the  Court  charged  with  having  in  their 
possession   counterfeited   trade-marks.     One,   a   man 

*  6  Peters'  Rep.,  242.  "  106  Federal  Rep.,  693,  701. 

» 100  U.  S.  Rep.,  82,  94. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      145 

named  Staffens,  had  imitations  of  labels  owned  and 
used  by  G.  H.  Mumm  &  Company  of  Rheims,  France, 
on  their  champagne;  another,  named  Witteman, 
counterfeits  of  trade-marks  of  the  Piper  Heidsieck 
brand  of  champagne;  a  third,  copies  of  the  trade-marks 
of  a  firm  which  manufactured  a  special  brand  of  whiskey. 
These  defendants  challenged  the  law  under  which  they 
had  been  indicted  on  the  ground  that  the  copyright 
clause  of  the  Constitution  did  not  include  trade-marks. 
Mr.  Justice  Miller  said  in  the  decision : 

The  trade-mark  may  be,  and  generally  is,  the  adoption 
of  something  already  in  existence  as  the  distinctive  symbol 
of  the  party  using  it.  At  common  law  the  exclusive  right 
to  it  grows  out  of  its  use,  and  not  its  mere  adoption.  By  the 
act  of  Congress  this  exclusive  right  attaches  upon  registra- 
tion. But  in  neither  case  does  it  depend  upon  novelty, 
invention,  discovery,  or  any  work  of  the  brains.  ...  If 
the  symbol,  however  plain,  simple,  old,  or  well  known,  has 
been  first  appropriated  by  the  claimant  as  his  distinctive 
trade-mark,  he  may  by  registration  secure  the  right  to  its 
exclusive  use.  While  such  legislation  may  be  a  judicious 
aid  to  the  common  law  on  the  subject  of  trade-marks,  and 
may  be  within  the  competency  of  legislatures  whose  general 
powers  embrace  that  class  of  subjects,  we  are  unable  to  see 
any  such  power  in  the  constitutional  provision  concerning 
authors  and  inventors,  and  their  writings  and  discoveries. 


CHAPTER  XI 

POWERS  OF  CONGRESS — POWERS  TO  PROTECT  COMMERCE 

Art.  I.,  Sec.  8,  Subd.  9.  To  constitute  Tribunals 
inferior  to  the  supreme  Court; 

Art.  I.,  Sec.  8,  Subd.  10.  To  define  and  punish 
Piracies  and  Felonies  committed  on  the  high  Seas,  and 
Offences  against  the  Law  of  Nations ; 

Art.  I.,  Sec.  8,  Subd.  11  to  16.  To  declare  War, 
grant  Letters  of  Marque  and  Reprisal,  and  make  Rules 
concerning  Captures  on  Land  and  Water;  To  raise 
and  support  Armies,  but  no  Appropriation  of  Money  to 
that  Use  shall  be  for  a  longer  Term  than  two  Years; 
To  provide  and  maintain  a  Navy;  To  make  Rules  for 
the  Government  and  Regulation  of  the  land  and  naval 
Forces;  To  provide  for  calling  forth  the  Militia  to 
execute  the  Laws  of  the  Union,  suppress  Insurrections 
and  repel  Invasions;  To  provide  for  organizing,  arm- 
ing, 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  respec- 
tively, the  Appointment  of  the  Officers,  and  the  Author- 
ity of  training  the  Militia  according  to  the  discipline 
prescribed  by  Congress. 

"By  the  [Judiciary]  Act  of  1789,"  according  to  the 
International  Encyclopedia,  "the  States  were  divided 
into  thirteen  districts,  which  have  increased  to  seventy- 
six  (1906),  each  district  usually  having  a  judge,  a  clerk, 
a  marshal,  and  an  attorney,  appointed  by  the  Federal 

146 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      147 

government.  The  district  courts  have  an  extensive 
jurisdiction  embracing  jurisdiction  over  admiralty  and 
maritime  causes;  suits  arising  under  the  revenue  laws, 
the  civil  rights  statutes,  and  various  other  legislation; 
prosecutions  for  crimes  against  the  United  States 
or  for  the  recovery  of  penalties  under  Federal  laws; 
proceedings  in  bankruptcy." 

The  Circuit  Courts  of  the  United  States,  originally 
six  in  number,  later  nine,  were  at  first  held  by  justices 
of  the  Supreme  Court  and  district  judges.  At  a  later 
date,  twenty-nine  circuit  judges  were  appointed.  These 
courts  had  power  to  decide  civil  cases  in  which  more 
than  $2,000  was  involved,  and  appeals  from  the  District 
Courts. 

Circuit  Courts  of  Appeals  were  established  in  1891  in 
order  to  relieve  the  Supreme  Court  of  a  part  of  its  work. 

The  Federal  Court  system  was  revised  by  the  Judi- 
ciary Act  that  went  into  effect  on  January  i,  1912. 
This  statute  abolished  the  old  Circuit  Courts  of  the 
United  States  and  gave  the  District  Courts  power  to 
hear  and  decide  all  suits  to  which  the  judicial  power  of 
the  United  States  extends.  This  act  also  created  a  new 
Circuit  Court  of  Appeals  in  which  district  judges  may 
sit.  The  Court  of  Claims,  which  had  been  established 
in  1855,  "^^  continued.  The  Court  of  Customs  Ap- 
peals and  the  Commerce  Court  (since  abolished)  were 
constituted  by  the  same  law. 

The  Congress  shall  have  Power  To  .  .  .  define  and 
punish  Piracies.  Piracy  had  not  been  an  unpardonable 
sin  in  colonial  times.  The  high  seas  had  not  been  policed 
in  those  days.  Illicit  trade  with  the  Spanish  West 
Indies  always  had  been  profitable.  Between  this  traffic 
and  outright  piracy,  the  line  had  not  been  clearly  drawn. 
By  1787,  things  had  changed  for  the  better,  but  no  one 


148       AMERICAN  PLAN  OF  GOVERNMENT 

supposed  that  seafaring  men  had  improved  enough  to 
be  trusted  on  distant  oceans  unless  there  was  at  home 
a  law  with  teeth  of  steel  to  induce  them  to  resist  tempta- 
tion. A  little  later,  when  the  Spanish  provinces  of 
South  America  had  declared  for  independence  on  the 
American  plan,  many  sturdy  rogues,  some  of  them 
citizens  of  the  United  States,  went  privateering  on  the 
open  seas  under  letters  of  marque  granted  by  the  new 
Latin- American  republics.  Their  activities,  which  did 
not  fall  far  short  of  piracy,  soon  gave  our  courts  oppor- 
tunities to  define  the  words  and  phrases  of  this  division 
of  the  Constitution. 

One  infamous  villain,  for  example,  gave  the  Supreme 
Court,  in  the  case  of  United  States  vs.  Smith,  ^  a  chance 
to  decide,  not  only  that  he  ought  to  suffer  as  a  pirate, 
but  also  that  piracy  is  nothing  more  nor  less  than 
robbery  on  the  high  seas.  The  privateer  Creollo  had 
been  given  letters  of  marque  by  the  government  of 
Buenos  Aires  to  fight  against  Spain.  In  March,  1819, 
Smith,  the  defendant  in  this  case,  and  others  of  her 
crew  had  mutinied  at  Margaritta,  and  seized  an  armed 
vessel  called  the  Irresistible,  belonging  to  the  govern- 
ment of  Artigas  which  also  was  at  war  with  Spain. 
The  rogues  at  once  had  put  to  sea,  where  they  had 
captured  and  robbed  a  Spanish  vessel.  The  judges  of 
the  United  States  Circuit  Court  of  Virginia,  being 
doubtful  whether  robbery  on  the  high  seas  was  piracy 
within  the  meaning  of  this  clause  of  the  Constitution, 
had  submitted  the  case  to  the  Supreme  Court.  In 
deciding  the  case.  Justice  Story  said : 

Whether  we  advert  to  writers  on  the  common  law,  or  the 
maritime  law,  or  the  law  of  nations,  we  shall  find  that  they 

*  5  Wheaton's  Rep.,  162. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      149 

universally  treat  of  piracy  as  an  offence  against  the  law  of 
nations,  and  that  its  true  definition  by  that  law  is  robbery 
upon  the  sea. 

The  Congress  shall  have  Power  To  ,  .  .  define  and 
punish  .  .  .  Felonies  on  the  high  Seas.  This  power  was 
given  to  the  national  government  for  the  sake  of  uni- 
formity. "If  the  laws  of  the  States  are  to  prevail  on 
this  subject, "  said  Mr.  Madison  in  the  Constitutional 
Convention,  "the  citizens  of  different  States  will  be 
subject  to  different  punishments  for  the  same  offence 
at  sea.  There  will  be  neither  uniformity  nor  stability 
in  the  law."* 

A  vessel  is  a  little  kingdom  in  which  the  captain  is  a 
despot,  having  unlimited  authority  so  long  as  his  ship 
is  on  the  ocean.  Seafaring  men  are  a  rough  lot  at 
best;  sometimes  they  are  desperate  and  unscrupulous. 
Even  now,  passengers  need  sharp  laws  to  protect  them 
against  crimes  which  may  be  committed  ten  thousand 
miles  away  from  a  police  court.  In  an  era  when  out- 
rages committed  in  the  Indian  Ocean  might  not  be 
known  in  New  York  or  Boston  for  six  months  or  a  year 
or  perhaps  never,  the  need  of  such  protection  was  much 
greater. 

The  case  of  United  States  vs.  Holmes,*  which  was 
tried  out  in  the  United  States  Circuit  Court  of  Massa- 
chusetts in  1 81 8,  ga,ve  Justice  Bushrod  Washington  of 
the  Supreme  Court  an  opportunity  to  let  the  world 
know  that  the  United  States  would  do  its  full  duty  in 
punishing  criminal  acts  of  all  sorts,  committed  on  the 
ocean.  Two  privateers,  sailing  under  letters  of  marque 
from  Buenos  Aires,  had  captured  a  Spanish  ship  and 

■  Madison's  Journal,  vol.  ii.,  p.  186,  New  York,  G.  P.  Putnam's  Sons, 
1908.  'S  Wheaton'sRep.,  12. 


150       AMERICAN  PLAN  OF  GOVERNMENT 

had  put  a  prize  crew  aboard.  A  man  named  Holmes 
and  two  others  of  the  crew  of  the  captured  vessel  had 
stabbed  the  prize-master  and  thrown  him  overboard. 
The  question  in  this  case  was  whether  an  inferior  court 
of  the  United  States  had  a  right  or  power  under  the 
Constitution  to  sit  in  judgment  upon  a  citizen  of  the 
United  States  charged  with  having  murdered  a  foreigner 
in  a  foreign  vessel  on  the  high  seas.  Justice  Washington 
said: 

If  it  [the  crime]  be  committed  on  board  of  a  foreign  vessel 
by  a  citizen  of  the  United  States  or  on  board  of  a  vessel 
of  the  United  States  by  a  foreigner,  the  offender  is  to  be 
considered  ...  as  belonging  to  the  nation  under  whose 
flag  he  sails.  If  it  be  committed  either  by  a  citizen  or  a 
foreigner,  on  board  of  a  piratical  vessel,  the  offence  is 
equally  cognizable  by  the  courts  of  the  United  States. 

Under  this  clause,  the  power  of  the  United  States 
reaches  only  felonies  committed  "on  the  high  seas." 
The  exact  meaning  of  this  phrase  is  given  in  the  case  of 
United  States  vs.  Ross.  ^ 

On  June  5,  1812,  at  about  midnight,  William  Ross, 
accompanied  by  nine  Portuguese  convicts,  boarded  the 
American  schooner  Pocahontas,  lying  at  anchor  in  a 
roadstead  within  the  jurisdiction  of  St.  Jago,  one  of  the 
Cape  Verde  Islands,  and  took  armed  possession  of  the 
ship,  wounding  several  of  the  passengers  and  crew. 
One  of  the  passengers,  a  colored  man,  was  wounded  so 
seriously  that  he  died  while  the  ship  was  at  sea.  The 
question  which  puzzled  the  United  States  judges  who 
presided  when  Ross  was  tried  for  murder,  was  whether 
the  Federal  courts  had  a  right  to  judge  a  murder  case 
in  which  the  victim  had  been  wounded  within    the 

» I  Gallison's  Cir.  Ct.  Rep.,  624. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      151 

waters  of  another  country  and  had  died  before  the  ship 
reached  a  port  of  the  United  States.  Justice  Story  of 
the  Supreme  Court,  sitting  at  the  trial  as  a  Circuit 
Judge,  said: 

I  am  of  opinion  that  the  words  "high  seas"  mean  any 
waters  on  the  sea  coast,  which  are  without  the  boundaries 
of  low  water  mark;  although^such  waters  may  be  in  a  road- 
stead or  bay,  within  the  jurisdictional  limits  of  a  foreign 
government.  ...  In  the  present  case,  the  crime  was  not 
completed  until  the  vessel  was  standing  out  at  sea  under 
sail.  The  mortal  stabs  were  given  when  the  vessel  was 
about  a  half  mile  from  the  shore;  but  the  death  did  not 
happen  until  the  vessel  had  drifted  or  sailed  a  considerable 
distance.  I  do  not,  however,  deem  the  difference  material. 
Had  the  death  occurred  instanter,  I  think  it  would  have 
been  a  homicide  on  the  high  seas. 

The  Congress  shall  have  Power  To  .  .  .  define  and 
punish  .  .  .  Offences  against  the  Law  of  Nations.  One 
of  the  accepted  principles  of  international  law  is  that 
one  country  must  not  allow  its  laws  to  be  used  to  shield 
those  who  commit  crimes  against  another  country. 
For  example,  in  the  case  of  United  States  vs.  Arjona,  ^  a 
man  named  Ramon  Arjona  was  charged  in  the  United 
States  Court  in  New  York  City  with  counterfeiting  and 
having  in  his  possession  counterfeited  bank  notes  of  a 
bank  in  Bolivar,  one  of  the  States  of  the  United  States 
of  Colombia.  Arjona's  defense  was  that  the  statute  of 
1884  for  the  suppression  of  the  counterfeiting  in  the 
United  States  of  foreign  bank  notes  was  unconstitu- 
tional in  that  Congress  had  no  power  to  enact  such  a 
law.  Chief  Justice  Waite,  in  the  course  of  the  decision, 
said: 

'  120  U.  S.  Rep.,  479. 


152       AMERICAN  PLAN  OF  GOVERNMENT 

The  law  of  nations  requires  every  national  government 
to  use  "due  diligence "  to  prevent  a  wrong  being  done  within 
its  own  dominion  to  another  nation  with  which  it  is  at 
peace  or  to  the  people  thereof;  and  because  of  this  the  obli- 
gation of  one  nation  to  punish  those  who  within  its  own 
jurisdiction  counterfeit  the  money  of  another  nation  has 
long  been  recognized.  ...  It  was  inctunbent  on  the 
United  States  as  a  nation  to  use  due  diligence  to  prevent 
any  injury  to  another  nation  or  its  people  by  counterfeiting 
its  money  or  its  public  or  quasi  public  securities.  This 
statute  was  enacted  as  a  means  to  that  end,  that  is  to  say, 
as  a  means  of  performing  a  duty  which  had  been  cast  on  the 
United  States  by  the  law  of  nations,  and  it  was  clearly 
appropriate  legislation  for  that  purpose.  Upon  its  face, 
therefore,  it  defines  an  offense  against  the  law  of  nations  as 
clearly  as  if  Congress  had  in  express  terms  so  declared. 

The  Congress  shall  have  Power  To  .  .  .  declare  War. 
The  framers  of  the  Constitution  turned  over  an  ample 
measure  of  the  powers  of  war  to  Congress  because 
Representatives  and  Senators  are  delegates  of  the 
People  and  States  of  the  United  States  whose  commer- 
cial interests  must  be  staked  upon  the  issues  of  every 
conflict.  The  People  pay  the  bill.  Therefore,  their 
representatives  in  Congress  are  of  right  the  proper 
persons  to  control  military  affairs. 

"The  war  making  power, "  according  to  the  decision 
in  the  case  of  Perkins  vs.  Rogers,^  "is,  by  the  Constitu- 
tion, vested  in  Congress  and  .  .  .  the  President  has 
no  power  to  declare  war  or  conclude  peace  except  as  he 
may  be  empowered  by  Congress.  .  .  .  The  existence 
of  war,  and  the  restoration  of  peace  are  to  be  deter- 
mined by  the  political  department  of  the  government, 
and  such  determination  is  binding  and  conclusive  upon 

*  35  Indiana  Rep.,  167. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      153 

the  courts,  and  deprives  the  courts  of  the  power  of 
hearing  proof  and  determining  as  a  question  of  fact 
either  that  war  exists  or  has  ceased  to  exist. " 

In  the  course  of  the  decision  of  the  case  of  Brown  vs. 
United  States, '  which  grew  out  of  one  of  the  incidents  of 
the  War  of  18 12  with  Great  Britain,  Chief  Justice 
Marshall  took  pains  to  explain  just  what  happens  to 
commerce  when  war  is  declared.  A  ship  owned  in 
Massachusetts,  chartered  to  a  British  company  and 
loaded  with  British  goods,  had  put  in  at  New  Bedford, 
where,  at  the  instance  of  the  Federal  authorities,  the 
cargo  had  been  claimed  as  enemy  property.  An  action 
for  forfeiture  had  been  instituted  upon  the  claim  that 
the  goods  seized  were  the  property  of  an  alien  enemy. 
The  case  finally  reached  the  Supreme  Court  of  the 
United  States,  where  Chief  Justice  Marshall  ruled  that  a 
declaration  of  war  does  not  of  itself  authorize  the  seizure 
and  condemnation  of  property  of  the  enemy,  but  that  a 
special  act  of  Congress  must  be  passed  for  that  purpose. 
He  said : 

The  declaration  of  war  has  only  the  effect  of  placing  the 
two  nations  in  a  state  of  hostility,  of  producing  a  state  of 
war,  of  giving  those  rights  which  war  confers;  but  not  of 
operating,  by  its  own  force,  any  of  those  results,  such  as  a 
transfer  of  property,  which  are  usually  produced  by  ulterior 
measures  of  government. 

The  Congress  shall  have  Power  To  .  .  .  grant  Letters  of 
Marque  and  Reprisal.  In  Revolutionary  days,  owners 
of  small  ships  found  profitable  employment  as  priva- 
teers. A  smart  sailing  master  with  a  good  reputation  as 
a  fighting  man,  could  get  any  number  of  stout  fellows 
to  take  the  chances  of  the  sea  against  the  merchant 

» 8  Cranch's  Rep.,  120. 


154       AMERICAN  PLAN  OF  GOVERNMENT 

ships  of  the  enemy.  The  Continental  Congress  issued 
many  letters  of  marque  in  order  to  harass  the  enemy  and 
retaliate  for  injuries  already  suffered.  Many  an  honest 
Yankee  sailor  was  able  to  put  by  prize  money  during 
the  Revolutionary  War,  and  was  sorry  when  it  was  over. 
Incidentally,  the  privateersmen  did  their  share  for  the 
American  cause.  Their  captures  of  muskets,  gun- 
powder, and  military  supplies  often  came  in  the  nick 
of  time,  when  Washington  had  more  soldiers  than  he 
could  supply  with  arms.  Privateering  now  being  out  of 
date,  this  clause  of  the  Constitution  is  obsolete. 

The  Congress  shall  have  Power  To  .  .  .  make  Rules 
concerning  Captures  on  Land  and  Water.  This  clause 
gives  Congress  a  right  to  prescribe  what  disposition 
shall  be  made  of  property  captured  in  time  of  war; 
and  the  President,  as  commander-in-chief  of  the  Army 
and  Navy  carries  out  its  directions.  The  case  of  The 
Thomas  Gibbons^  turned  upon  President  Madison's 
instructions  of  August  28,  1812,  that  privateers  should 
not  interrupt  any  vessels  belonging  to  citizens  of  the 
United  States,  coming  from  British  ports  to  the  United 
States  laden  with  British  merchandise,  in  consequence 
of  the  repeal  of  the  British  Orders  in  Council. 

The  Thomas  Gibbons,  one  of  those  very  ships,  had 
been  brought  into  the  harbor  of  Savannah  by  a  priva- 
teer which  claimed  her  as  a  prize.  The  Federal  District 
Court  sustained  the  protest  of  the  owners  that  the  ship 
and  cargo  were  protected  from  seizure  by  the  terms  of 
the  President's  proclamation.  The  appeal  of  this  case 
to  the  Supreme  Court  resulted  in  a  declaration  that  it  is 
for  Congress  to  lay  down,  and  for  the  President  to 
enforce,  rules  concerning  "captures  on  land  and  water." 
Justice  Story  said: 
» 8  Cranch's  Rep.,  421. 


LEGISLATIVE  GOVERNMENT  IN,U.  S.     155 

It  is  very  clear  that  the  President  has,  under  the  Prize 
Act,  power  to  grant,  annul,  and  revoke  at  his  pleasure,  the 
commissions  of  privateers;  and  by  the  act  declaring  war,  he 
is  authorized  to  issue  the  commission  in  such  form  as  he 
shall  deem  fit.  .  .  .  In  this  view,  the  commission  is  quali- 
fied and  restrained  by  the  power  of  the  President  to  issue 
instructions.  The  privateer  takes  it  subject  to  such  power, 
and  contracts  to  act  in  obedience  to  all  the  instructions 
which  the  President  may  lawfully  promulgate.     ., 

The  Congress  shall  have  Power  To  .  .  .  raise  and 
support  Armies,  but  no  Appropriation  of  Money  to  that 
Use  shall  be  for  a  longer  Term  than  two  Years.  The 
Supreme  Court  has  said  that  in  this  particular  the 
power  of  Congress  is  "plenary  and  exclusive."  This 
statement  was  made  in  Tarble's  Case,^  in  which  the 
main  question  was  whether  a  State  court  has  any  right 
to  discharge  a  soldier  from  military  service  by  writ  of 
habeas  corpus.  One  Edward  Tarble  had  enlisted  in  the 
United  States  army  in  July,  1869.  Soon  afterward,  his 
father  had  petitioned  a  Wisconsin  court  to  issue  a  writ 
of  habeas  corpus  on  the  ground  that,  as  the  boy  was 
under  eighteen,  he  could  not  legally  be  enlisted.  The 
writ  was  issued  and  served  on  his  commanding  officer, 
who  protested  that  the  State  court  had  no  power  to 
release  a  Federal  soldier  by  this  means.  When,  in 
spite  of  this  objection,  the  release  was  ordered  the  case 
was  taken  to  the  Supreme  Court  of  Wisconsin,  which 
ruled  that  a  State  court  might  lawfully  decide  whether 
a  Federal  court  had  jurisdiction  in  a  case  involving  the 
rights  and  liberties  of  a  citizen  of  a  State.  The  military 
authorities  now  took  the  case  to  the  Supreme  Court  at 
Washington,  and  asked  that  tribimal  to  decide  whether 

'  13  Wallace's  Rep.,  397. 


156       AMERICAN  PLAN  OF  GOVERNMENT 

Congress  and  the  Federal  Courts  were  to  be  dealt  with 
in  such  cavalier  fashion.   Justice  Field  said : 

Among  the  powers  assigned  to  the  National  government 
is  the  power  "to  raise  and  support  armies, "  and  the  power 
"to  provide  for  the  government  and  regulation  of  the  land 
and  naval  forces."  The  execution  of  these  powers  falls 
within  the  line  of  its  duties;  and  its  control  over  the  subject 
is  plenary  and  exclusive.  It  can  determine,  without  ques- 
tion from  any  State  authority,  how  the  armies  shall  be 
raised,  whether  by  voluntary  enlistment  or  forced  draft, 
the  age  at  which  the  soldier  shall  be  received,  and  the  period 
for  which  he  shall  be  taken,  the  compensation  he  shall  be 
allowed,  and  the  service  to  which  he  shall  be  assigned.  .  .  . 
No  interference  with  the  execution  of  this  power  of  the 
National  government  in  the  formation,  organization,  and 
government  of  its  armies  by  any  State  officials  could  be 
permitted  without  greatly  impairing  the  efficiency,  if  it  did 
not  utterly  destroy,  this  branch  of  the  public  service. 

The  two-year  period  for  which  Congress  may  make 
appropriations  for  the  support  of  an  army,  was  estab- 
lished probably  because  the  members  of  the  House 
of  Representatives  are  elected  every  two  years.  The 
People's  House  of  each  Congress  must  assume  respon- 
sibility for  the  size  of  the  army,  since  it  has  to  take 
the  first  step  toward  making  the  biennial  appropriation 
for  its  support.  Alexander  Hamilton  is  said  to  have 
written  the  number  of  The  Federalist^  which  says: 

The  legislature  of  the  United  States  will  be  obliged,  by 
this  provision,  once  at  least  in  every  two  years,  to  deliberate 
upon  the  propriety  of  keeping  a  military  force  on  foot;  to 
come  to  a  new  resolution  on  the  point;  and  to  declare  their 
sense  of  the  matter  by  a  formal  vote  in  the  face  of  their 

*  No.  26. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      157 

constituents.  They  are  not  at  liberty  to  vest  in  the  executive 
department  permanent  funds  for  the  support  of  an  army,  if 
they  were  even  incautious  enough  to  be  willing  to  repose  in 
it  so  improper  a  confidence. 

The  Congress  shall  have  Power  .  .  .  To  provide  and 
maintain  a  Navy.  Congress  can  appropriate  money  to 
be  used  in  building  and  equipping  battleships  and  in 
providing  all  appliances  for  the  navy,  which  when  thus 
established  is  under  the  control  of  the  President. 

The  Congress  shall  have  Power  .  .  .  To  make  Rules 
for  the  Government  and  Regulation  of  the  land  and  naval 
Forces.  This  clause  gives  Congress  power  to  formulate 
military  codes  and  institute  courts-martial  by  which  the 
President  maintains  discipline  in  the  army  and  navy.     \ 

Courts  of  law  may  not  interfere  with  courts-martial. 
In  the  case  of  Dynes  vs.  Hoover,  ^  an  attempt  was  made 
to  induce  the  Supreme  Court  to  prevent  the  execution 
of  the  sentence  of  a  naval  court-martial  on  the  ground 
that  the  Supreme  Court  has  power  over  all  cases  arising 
under  the  Constitution.  Frank  Dynes  had  been  con- 
victed at  New  York  under  the  Act  of  April  23,  1800,  of 
having  attempted  to  desert  from  the  U.  S.  Ship  Inde- 
pendence on  September  12,  1854,  and  sentenced  to  six 
months'  imprisonment  in  the  penitentiary  of  the  District 
of  Columbia.  The  President  ordered  the  United  States 
marshal  to  receive  Dynes  from  a  vessel  which  had 
brought  him  from  New  York  to  Washington,  and 
commit  him  to  the  penitentiary  of  the  District  of 
Columbia.  The  prisoner  tried  to  regain  his  liberty  by 
suing  the  marshal  for  false  imprisonment  upon  the 
ground  that  the  President  had  no  constitutional  au- 
thority to  issue  such  an  order.   The  defendant  answered 

*  20  Howard's  Rep.,  65. 


158       AMERICAN  PLAN  OF  GOVERNMENT 

that,  as  marshal  of  the  District  of  Columbia,  he  had 
imprisoned  the  plaintiff  under  the  authority  of  the 
President  and  in  execution  of  the  sentence  of  a  naval 
court-martial.  Justice  Wayne,  in  the  course  of  the 
decision  of  the  Supreme  Court,  took  occasion  to  say 
that  the  judiciary  has  no  power  to  control  the  action  of 
military  and  naval  courts  established  by  Congress  under 
this  constitutional  clause.    He  said  in  part : 

Among  the  powers  conferred  upon  Congress  by  the 
8th  section  of  the  first  article  of  the  Constitution,  are  the 
following:  "to  provide  and  maintain  a  navy";  "to  make 
rules  for  the  government  of  the  land  and  naval  forces."  .  .  . 
Congress  passed  the  Act  of  23d  April,  1800,  providing  rules 
for  the  government  of  the  navy.  .  .  .  The  35th  article 
provides  for  the  appointment  of  courts  martial  to  try  all 
offences  which  may  arise  in  the  naval  service.  ...  In  this 
case,  all  of  us  think  that  the  court  which  tried  Dynes  had 
jurisdiction  over  the  subject  matter  of  the  charge  against 
him. 


The  Congress  shall  have  Power  .  .  .  To  provide  for 
calling  forth  the  Militia  to  execute  the  Laws  of  the  Union, 
suppress  Insurrections  and  repel  Invasions.  The  fram- 
ers  of  the  Constitution  gave  Congress,  instead  of  the 
President,  power  to  summon  the  militia  for  active 
service,  because  the  law-making  bodies  were  under  the 
control  of  the  People  and  the  States.  They  limited  the 
power  of  Congress  over  the  militia  by  providing  that 
the  citizen  soldiery  should  not  be  called  into  active 
service  except  for  three  specified  objects. 

No  serious  question  arose  under  this  clause  until,  in 
1 86 1,  it  became  necessary  to  use  the  militia  of  the  loyal 
States  against  the  States  which  had  attempted  to 
secede  from  the  Union.    At  the  beginning  of  the  Civil 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      159 

War,  President  Lincoln,  under  the  authority  of  certain 
acts  of  Congress  which  dated  back  to  1795  and  1807, 
called  out  the  militia,  so  that  the  laws  should  be 
faithfully  executed^  in  those  States  where  the  Federal 
Courts  had  become  ineffective.  His  proclamation 
putting  the  ports  of  the  Confederacy  under  blockade 
was  challenged  in  the  Supreme  Court  in  The  Prize 
Cases,  ^  in  which  the  question  was  whether  the  citizen 
soldiers  of  some  States  could  be  used  under  the  authority 
of  acts  of  Congress  to  obstruct  access  to  the  harbors  of 
other  States.  Proceedings  were  brought  in  the  Federal 
Courts  against  a  number  of  vessels  which  had  been  cap- 
tured as  blockade  runners.  Some  of  these  were  con- 
demned and  others  released,  according  to  the  merits 
of  each  case.  Justice  Grier  sustained  the  war  powers 
of  Congress  in  these  words : 

By  the  Constitution,  Congress  alone  has  power  to  declare 
a  national  or  foreign  war.  It  cannot  declare  war  against  a 
State,  or  any  number  of  States,  by  virtue  of  any  clause  in 
the  Constitution.  The  Constitution  confers  on  the  Presi- 
dent the  whole  Executive  power.  He  is  bound  to  take  care 
that  the  laws  be  faithfully  executed.  He  is  Commander-in- 
chief  of  the  Army  and  Navy  of  the  United  States,  and  of  the 
militia  of  the  several  States  when  called  into  the  actual 
service  of  the  United  States.  He  has  no  power  to  initiate  or 
declare  a  war  either  against  a  foreign  nation  or  a  domestic 
State.  But  by  the  Acts  of  Congress  of  February  28,  1795, 
and  3d  of  March,  1807,  he  is  authorized  to  call  out  the 
militia  and  use  the  military  and  naval  forces  of  the  United 
States  in  case  of  invasion  by  foreign  nations,  and  to  suppress 
insurrection  against  the  government  of  a  State  or  of  the 
United  States.  .  .  .  He  does  not  initiate  the  war,  but  is 
bound  to  accept  the  challenge  without  waiting  for  any 

» U.  S.  Const.,  Art.  11.,  Sec.  3.  •  2  Black's  Rep.,  635. 


i6o       AMERICAN  PLAN  OP  GOVERNMENT 

special  legislative  authority.  And  whether  the  hostile 
party  be  a  foreign  invader,  or  States  organized  in  rebellion, 
it  is  none  the  less  a  war,  although  the  declaration  of  it  be 
"unilateral." 

The  Congress  shall  have  Power  .  ,  .  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  respec- 
tively, the-  Appointment  of  the  Officers,  and  the  Authority 
of  training  the  Militia  according  to  the  discipline  pre- 
scribed by  Congress.  The  Supreme  Court  explained  the 
meaning  of  this  clause  in  the  case  of  Houston  vs.  Moore.  ^ 
A  Pennsylvania  militiaman  named  Houston  had  refused 
to  march  with  his  detachment  when  called  into  actual 
service  by  the  governor  in  pursuance  of  an  order  or 
requisition  made  by  the  President  of  the  United  States 
on  July  4,  1814.  Houston  was  tried  by  court-martial 
under  a  Pennsylvania  law,  which  provided  that  any 
person  who  refused  to  obey  when  so  ordered  out  should 
be  liable  to  the  penalties  prescribed  by  the  Act  of 
Congress  of  February  28,1 795.  A  fine  was  imposed  and 
collected  out  of  his  property.  He  thereupon  brought  a 
lawsuit  against  the  deputy  marshal  who  had  collected 
the  fine  upon  the  claim  that  the  Pennsylvania  law  was 
null  and  void  because  the  United  States  alone  had 
power  to  punish  him  for  disobedience  of  its  orders. 
Justice  Washington  said: 

Upon  the  whole,  I  am  of  opinion,  after  the  most  laborious 
examination  of  this  delicate  question,  that  the  State  court- 
martial  had  a  concurrent  jurisdiction  with  the  tribunal 
pointed  out  by  the  acts  of  Congress  to  try  a  militia-man  who 

*  5  Wheaton's  Rep.,  i. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      i6i 

had  disobeyed  the  call  of  the  President,  and  to  enforce  the 
laws  of  Congress  against  such  delinquent;  and  that  this 
authority  will  remain  to  be  so  exercised  until  it  shall  please 
Congress  to  rest  it  exclusively  elsewhere,  or  until  the  State 
of  Pennsylvania  shall  withdraw  from  their  court-martial  the 
authority  to  take  such  jurisdiction. 


CHAPTER  XII 

POWERS    OF    CONGRESS — POWER   TO    CONTROL    THE    IN- 
STRUMENTALITIES  OF   GOVERNMENT 

Art.  I.,  Sec.  8,  Subd.  17.  To  exercise  exclusive 
Legislation  in  all  Cases  whatsoever,  over  such  District 
(not  exceeding  ten  Miles  square)  as  may,  by  Cession 
of  particular  States,  and  the  Acceptance  of  Congress, 
become  the  Seat  of  the  Government  of  the  United 
States,  and  to  exercise  Hke  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,  and  Arsenals,  dock-Yards,  and 
other  needful  Buildings ; — ^And 

The  delegates  at  Philadelphia  made  provision  for  a 
capital  city  of  the  United  States  outside  of  the  bounda- 
ries of  any  of  the  States  because  they  remembered 
that,  just  at  the  close  of  the  Revolution,  a  mutiny  of 
two  companies  of  Continental  soldiers  had  scared  the 
old  Congress  away  from  Philadelphia.  This  unpleasant 
and  disgraceful  event  showed  the  necessity  of  having  a 
place  of  national  business  which  should  not  be  depen- 
dent for  protection  from  disorder  or  violence  upon  the 
good  will  of  the  authorities  of  any  State. 

It  was  also  necessary  to  have  reservations  for  forts, 
arsenals,  navy-yards,  customs  houses,  and  the  other 
buildings  which  every  government  must  have  for  the 
transaction  of  its  business. 

163 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      163 

The  Supreme  Court,  in  the  case  of  Fort  Leavenworth 
Railroad  Co.  vs.  Lowe,^  passed  upon  the  constitution- 
ality of  laws  adopted  by  Congress  for  (i)  the  govern- 
ment of  the  District  of  Columbia  and  other  places  under 
national  jurisdiction,  (2)  the  acquisition  of  real  estate 
for  public  uses  by  the  national  government  with  the 
consent  of  the  States,  and  (3)  the  taking  by  the  United 
States  of  land  for  public  uses  without  the  consent  of  the 
State  in  which  it  is  located. 

The  plaintiff  in  this  case  challenged  the  right  of  the 
State  authorities  to  tax  a  part  of  its  right  of  way  within 
the  national  reservation  of  Fort  Leavenworth,  Kansas. 
The  government  had  occupied  the  reservation  before 
the  admission  of  Kansas  to  the  Union.  The  Act  of  186 1 
for  the  admission  of  that  State  did  not  contain  any 
clause  giving  the  United  States  jurisdiction  over  the 
military  post.  Hence  the  rights  of  the  United  States 
over  the  reservation  were  only  those  of  any  land  owner. 
In  1875,  however,  the  State  legislature  passed  an  act 
giving  the  Federal  Government  exclusive  jurisdiction 
over  all  territory  within  the  military  reservation,  saving 
to  the  State  its  right  "to  tax  railroad,  bridge,  or  other 
corporations,  their  franchises  or  property,  on  said 
Reservation."  In  1880,  the  State  levied  a  tax  of 
$394.40  on  the  right  of  way  and  other  property  of  the 
Fort  Leavenworth  Railroad  Company,  situated  within 
the  military  post.  The  railroad  paid  the  tax  under 
protest,  and  at  once  brought  this  action  to  recover  the 
money,  upon  the  ground  that  a  State  tax  could  not 
lawfully  be  levied  upon  property  over  which  the 
United  States  had  exclusive  jurisdiction.  The  defense 
was  that  the  tax  was  lawful  because  the  State  of  Kansas 
had  expressly  reserved  its  right  to  assess  this  particular 

» 114  U.  S.  Rep.,  525. 


l64       AMERICAN  PLAN  OF  GOVERNMENT 

property  within  the  military  post.  Justice  Field,  who 
delivered  the  decision  of  the  Supreme  Court,  took  pains 
to  explain  the  rights  which  the  general  government  may 
have  in  property  which  is  within  the  borders  of  a  State. 
He  said: 

(i)  The  necessity  of  complete  jurisdiction  over  the  place 
which  should  be  selected  as  the  seat  of  government  was 
obvious  to  the  framers  of  the  Constitution.  Unless  it  were 
conferred  the  deliberations  of  Congress  might  in  times  of 
excitement  be  exposed  to  interruptions  without  adequate 
means  of  protection;  its  members,  and  the  officers  of  the 
government,  be  subjected  to  insult  and  intimidation,  and 
the  public  archives  be  in  danger  of  destruction.  .  .  . 

(2)  Upon  the  second  part  of  the  clause  in  question, 
giving  power  to  "exercise  like  authority,"  that  is,  of  ex- 
clusive legislation,  "over  all  places  purchased  by  the  con- 
sent of  the  Legislature  of  the  State  in  which  the  same  shall 
be,  for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards," The  Federalist  observes  that  the  necessity  of  this 
authority  is  not  less  evident.  "The  public  money  expended 
on  such  places, "  it  adds,  "and  the  public  property  deposited 
in  them,  require  that  they  should  be  exempt  from  the 
authority  of  the  particular  State.  Nor  would  it  be  proper 
for  the  places  on  which  the  security  of  the  entire  Union 
may  depend  to  be  in  any  degree  dependent  on  a  particular 
member  of  it.  All  objections  and  scruples  are  here  also 
obviated  by  requiring  the  concurrence  of  the  States  con- 
cerned in  every  such  establishment."  .  .  . 

(3)  It  would  seem  to  have  been  the  opinion  of  the 
framers  of  the  Constitution  that,  without  the  consent  of 
the  States,  the  new  government  would  not  be  able  to  acquire 
lands  within  them;  and  therefore  it  was  provided  that  , 
when  it  might  require  such  lands  for  the  erection  of  forts 
and  other  buildings  for  the  defence  of  the  country,  or  the 
discharge  of  other  duties  devolving  upon  it,  and  the  consent  i 
of  the  States  in  which  they  were  situated  was  obtained  for       j 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      165 

their  acquisition,  such  consent  should  carry  with  it  political 
dominion  and  legislative  authority  over  them.  Purchase 
with  such  consent  was  the  only  mode  then  thought  of  for 
the  acquisition  by  the  general  government  of  title  to  lands 
in  the  States.  Since  the  adoption  of  the  Constitution,  this 
view  has  not  generally  prevailed.  Such  consent  has  not 
always  been  obtained,  nor  supposed  necessary,  for  the 
purchase  by  the  general  government  of  lands  within  the 
States.  .  .  .  The  consent  of  the  States  to  the  purchase  of 
lands  within  them  for  the  special  purposes  named  is,  how- 
ever, essential  under  the  Constitution  to  the  transfer  to  the 
general  government,  with  the  title,  of  political  jurisdiction 
and  dominion.  Where  lands  are  acquired  without  such 
consent,  the  possession  of  the  United  States,  unless  some 
political  jurisdiction  be  ceded  to  them  in  some  other  way,  is 
simply  that  of  an  ordinary  proprietor. 


CHAPTER  XIII 

POWERS  OF  CONGRESS — POWER  TO  ENFORCE  THE  CON- 
STITUTION 

Art.  I.,  Sec.  8,  Subd.  i8.  To  make  all  Laws  which 
shall  be  necessary  and  proper  for  carrying  into  Execu- 
tion the  foregoing  Powers,  and  all  other  Powers  vested 
by  this  Constitution  in  the  Government  of  the  United 
States,  or  in  any  Department  or  Officer  thereof. 

According  to  Judge  Blatchford's  opinion  in  the  case 
of  In  re  Jackson,^  this  clause  gives  Congress  power  "to 
use  any  means  which  are  in  fact  conducive  to  the 
exercise  of  the  power  granted  by  the  Constitution.  .  .  . 
The  necessity  spoken  of  in  this  clause  is  not  to  be  under- 
stood as  an  absolute  one,  but  Congress  is  to  be  allowed 
that  discretion  with  respect  to  the  means  by  which  the 
powers  conferred  on  it  are  to  be  carried  into  execution, 
which  will  enable  it  to  discharge  the  high  duties  assigned 
to  it  in  the  manner  most  beneficial  to  the  people.  If 
the  end  is  legitimate  and  within  the  scope  of  the  Con- 
stitution, then  all  means  which  are  appropriate,  and  are 
plainly  adapted  to  that  end,  and  are  not  prohibited, 
but  consist  with  the  letter  and  spirit  of  the  Constitution, 
are  constitutional." 

Since  1789,  there  has  been  a  great  expansion  of  con- 
gressional power.  This  expansion  has  been  gained  by 
the  use  of  certain  implied  powers.    These  powers  have 

» 14  Blatchford's  Rep.,  245. 

166 


LEGISLATIVE  GOVERNMENT  IN  U.  S.     167 

been  found  in  this  clause  of  the  Constitution.  Under 
this  clause,  for  example,  Congress  has  power  to  grant 
corporation  charters  to  national  banks,  although  the 
Constitution  does  not  say  anything  at  all  about  cor- 
porations and  does  not  mention  banks;  and  it  is  fully 
authorized  to  regulate  and  limit  immigration,  although 
the  Constitution  makers  took  it  for  granted  that  immi- 
grants had  a  right  to  come  to  the  United  States. 

National  banks  were  not  well  liked  during  the  first 
constitutional  era.  The  Act  of  Congress  incorporating 
the  first  Bank  of  the  United  States  was  passed  in  179 1, 
and  was  signed  by  President  Washington,  who  was  not 
at  all  sure  that  the  Constitution  gave  Congress  power 
to  establish  such  an  institution.  Alexander  Hamilton, 
the  Secretary  of  the  Treasury,  overcame  the  President's 
scruples  by  insisting  that  a  law  creating  a  bank  was 
"necessary  and  proper  for  carrying  into  execution  the 
powers  .  .  .  vested  by  the  Constitution  in  the  govern- 
ment of  the  United  States. " 

The  second  Bank  of  the  United  States  was  chartered 
in  1816.  The  act  of  incorporation  was  adopted  in 
spite  of  much  opposition;  and  the  bank,  though  highly 
successful,  was  under  fire  throughout  the  twenty  years 
of  its  existence.  For  example,  in  1818,  the  legislature  of 
Maryland  passed  a  law  imposing  stamp  taxes  upon  bank 
notes  issued  in  that  State  by  banking  corporations, 
elsewhere  chartered,  thereby  furnishing  cause  for  the 
great  action  of  McCuUoch  vs.  Maryland.  *  This  law  was 
aimed  at  the  Bank  of  the  United  States,  which  was  the 
only  bank  doing  business  in  all  the  States.  The  bank 
refused  to  pay  the  tax.  McCulloch,  its  cashier,  was 
sued  for  the  tax  on  one  of  its  notes,  which  had  been 
issued  at  Baltimore.    The  bank  lost  in  the  State  courts, 

*  4  Wheaton's  Rep.,  316. 


i68       AMERICAN  PLAN  OF  GOVERNMENT 

but  won  in  the  Supreme  Court.  Chief  Justice  Marshall's 
decision,  by  its  interpretation  of  the  phrase  "necessary 
and  proper,"  justified  the  use  by  Congress  of  powers 
implied,  but  not  stated,  in  the  Constitution.    He  said: 

The  Constitution  of  the  United  States  has  not  left  the 
right  of  Congress  to  employ  the  necessary  means,  for  the 
execution  of  the  powers  conferred  on  the  government,  to 
general  reasoning.  To  its  enumeration  of  powers  is  added 
that  of  making  "all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  powers 
and  all  other  powers  vested  by  the  Constitution,  in  the 
government  of  the  United  States,  or  in  any  department 
thereof."  .  .  .  We  admit,  as  all  must  admit,  that  the 
powers  of  the  government  are  limited,  and  that  its  limits 
are  not  to  be  transcended.  But  we  think  the  sound  con- 
struction of  the  Constitution  must  allow  to  the  national 
legislature  that  discretion,  with  respect  to  the  means  by 
which  the  powers  it  confers  are  to  be  carried  into  execution, 
which  will  enable  that  body  to  perform  the  high  duties 
assigned  to  it,  in  the  manner  most  beneficial  to  the  people. 
Let  the  end  be  legitimate,  let  it  be  within  the  scope  of  the 
Constitution,  and  all  means  which  are  appropriate,  which 
are  plainly  adapted  to  that  end,  which  are  not  prohibited, 
but  consist  with  the  letter  and  spirit  of  the  Constitution  are 
constitutional. 

That  a  corporation  must  be  considered  as  a  means  not 
less  usual,  not  of  higher  dignity,  not  more  requiring  a  parti- 
cular specification  than  other  means,  has  been  sufficiently 
proved.  If  we  look  to  the  origin  of  corporations,  to  the 
manner  in  which  they  have  been  framed  in  that  govern- 
ment, from  which  we  have  derived  most  of  our  legal  prin- 
ciples and  ideas,  or  to  the  uses  to  which  they  have  been 
applied,  we  find  no  reason  to  suppose  that  a  Constitution, 
omitting,  and  wisely  omitting,  to  enumerate  all  the  means 
for  carrying  into  execution  the  great  powers  vested  in 
government,  ought  to  have  specified  this.     Had  it  been 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      169 

intended  to  grant  this  power  as  one  which  should  be  dis- 
tinct and  independent,  to  be  exercised  in  any  case  whatever, 
it  would  have  found  a  place  among  the  enumerated  powers 
of  the  government.  But  being  considered  merely  as  a 
means  to  be  employed  only  for  the  purpose  of  carrying  into 
execution  the  given  powers,  there  could  be  no  motive  for 
particularly  mentioning  it.  .  .  .  If  a  corporation  may  be 
employed  indiscriminately  with  other  means  to  carry  into 
execution  the  powers  of  the  government,  no  particular 
reason  can  be  assigned  for  excluding  the  use  of  a  bank,  if 
required  for  its  fiscal  operations,  j  To  use  one,  must  be  within 
the  discretion  of  Congress,  if  it  be  an  appropriate  mode  of 
executing  the  powers  of  government.  ...  It  is  the  unani- 
mous and  decided  opinion  of  this  Court,  that  the  act  to 
incorporate  the  Bank  of  the  United  States  is  a  law  made  in 
pursuance  of  the  Constitution  and  is  a  part  of  the  supreme 
law  of  the  land." 

Justice  McLean  of  the  Supreme  Court,  who,  bom  in 
1785,  must  have  known  personally  many  of  the  mem- 
bers of  the  Constitutional  Convention,  could  speak 
with  authority  on  the  attitude  of  the  Constitution 
makers  toward  the  subject  of  immigration.  He  said 
in  his  opinion  in  the  Passenger  Cases, ^  that  "to  en- 
courage foreign  emigration  was  a  cherished  policy 
of  this  country  at  the  time  the  Constitution  was 
adopted. " 

That  "cherished  policy"  certainly  did  not  prevail  in 
1 89 1,  when  the  Japanese  Immigrant  Case'  {Nashimura 
Ekiu  vs.  United  States)  was  decided  by  the  Supreme 
Court.  In  May,  1891,  a  Japanese  woman  who  had 
come  to  San  Francisco,  was  excluded  and  ordered  to  be 
deported  by  the  immigration  officer  at  that  port  on 
the  ground  that  she  was  of  a  class  which  is  prohibited 

'  7  Howard's  Rep.,  i.  *  142  U.  S.  Rep.,  651. 


170      AMERICAN  PLAN  OF  GOVERNMENT 

from  admission  by  the  immigration  laws.  She  peti- 
tioned the  United  States  Circuit  Court  for  release  on 
the  ground  that  she  had  been  unlawfully  deprived  of 
her  liberty  by  an  administrative  decision  made  under 
the  Immigration  Act  of  1891,  which  she  claimed  was 
unconstitutional.  A  hearing  was  had  before  a  com- 
missioner, who  decided  that  her  right  to  be  admitted 
to  the  United  States  had  been  fully  adjudicated  by  an 
executive  officer  whose  decision  could  not  be  reviewed 
by  the  courts.  The  Circuit  Court  confirmed  this  ruling 
and  the  case  then  went  to  the  Supreme  Court,  where 
Justice  Gray  confirmed  the  ruling  of  the  lower  court  in 
these  decisive  words: 

'  It  is  an  accepted  maxim  of  international  law,  that  every 
sovereign  nation  has  the  power,  as  inherent  in  sovereignty, 
and  essential  to  self-preservation,  to  forbid  the  entrance  of 
foreigners  within  its  dominions,  or  to  admit  them  only  in 
such  cases  and  upon  such  conditions  as  it  may  see  fit  to 
prescribe.  ...  In  the  United  States  this  power  is  vested 
in  the  national  government,  to  which  the  Constitution  has 
committed  the  entire  control  of  international  relations,  in 
peace  as  well  as  in  war.  It  belongs  to  the  political  depart- 
ment of  the  government,  and  may  be  exercised  either 
through  treaties  made  by  the  President  and  Senate,  or 
through  statutes  enacted  by  Congress,  upon  whom  the 
Constitution  has  conferred  power  ...  to  make  all  laws 
which  may  be  necessary  and  proper  for  carrying  into  effect 
...  all  powers  .  .  .  vested  by  the  Constitution  in  the 
government  of  the  United  States  or  in  any  department  or 
officer  thereof.  .  .  . 

Thirteenth  Amendment.  Section  3.  Congress  shall 
have  power  to  enforce  this  article  by  appropriate 
legislation. 


LEGISLATIVE  GOVERNMENT  IN  U.  S.      171 

Fourteenth  Amendment.  Section  5.  The  Congress 
shall  have  power  to  enforce,  by  appropriate  legislation, 
the  provisions  of  this  article. 

Fifteenth  Amendment.  Section  2.  The  Congress 
shall  have  power  to  enforce  this  article  by  appropriate 
legislation. 

These  three  clauses  give  Congress  power  to  provide 
all  the  legal  machinery  which  may  be  needed  for  the 
enforcement  of  the  anti-slavery  amendments.  In  the 
case  of  Clyatt  vs.  United  States^  the  defendant  was 
charged  with  having  unlawfully  returned  two  persons 
to  a  condition  of  peonage,  a  system  of  servitude  under 
which  persons  were  compelled  to  pay  their  debts  in 
labor.  The  testimony  showed  that  the  defendant  had 
caused  the  arrest  of  two  persons  in  Florida,  probably  in 
order  to  take  them  back  to  Georgia  and  make  them 
work  out  a  debt.  The  Supreme  Court  let  them  go 
because  the  government  had  failed  to  prove  a  case. 
Nevertheless,  Justice  Brewer  took  advantage  of  the 
opportunity  to  declare  the  constitutionality  of  a  law 
which  Congress  had  enacted  to  enforce  the  Thir- 
teenth Amendment.    Justice  Brewer  said  in  part: 

This  Amendment  ...  is  undoubtedly  self-executing 
without  ancillary  legislation,  so  far  as  its  terms  are  applica- 
ble to  any  existing  state  of  circumstances.  By  its  own 
unaided  force  and  effect  it  abolished  slavery,  and  established 
universal  freedom.  Still,  legislation  may  be  necessary  and 
proper  to  meet  all  the  various  cases  and  circumstances  to  be 
affected  by  it,  and  to  prescribe  proper  modes  of  redress  for 
its  violation  in  letter  or  spirit.  And  such  legislation  may  be 
primary  and  direct  in  its  character;  for  the  amendment  is 

•  197  U.  S.  Rep.,  207. 


172       AMERICAN  PLAN  OF  GOVERNMENT 

not  a  mere  prohibition  of  State  laws  establishing  or  uphold- 
ing slavery,  but  an  absolute  declaration  that  slavery  and 
involuntary  servitude  shall  not  exist  in  any  part  of  the 
United  States. 


PART  V 


Limitations  upon  Legislative  Govern- 
ment in  the  United  States — Rights 
Guaranteed  by  the  Constitution 
and  its  Amendments 


173 


CHAPTER  XIV 

RIGHTS  OF  THE   STATES  AND  THEIR  CITIZENS  AGAINST 

THE  UNITED  STATES  AS  ENUMERATED  IN  THE 

ORIGINAL  CONSTITUTION 

Chief  Justice  Marshall,  in  his  opinion  in  the  case 
of  Barron  vs.  Baltimore,^  said: 

The  9th  section  [of  the  first  Article  of  the  Constitu- 
tion] .  .  .  [enumerates]  in  the  nature  of  a  bill  of  rights, 
the  limitations  intended  to  be  imposed  on  the  powers  of 
the  general  government.   .    .    . 

Art.  I.)  Sec.  9.  The  Migration  or  Importation  of  such 
Persons  as  any  of  the  States  now  existing  shall  think 
proper  to  admit,  shall  not  be  prohibited  by  the  Congress 
prior  to  the  Year  one  thousand  eight  hundred  and  eight, 
but  a  Tax  or  duty  may  be  imposed  for  such  Importation, 
not  exceeding  ten  dollars  for  each  Person. 

The  Constitution  makers  seem  to  have  believed  that 
the  new  plan  of  government  would  be  rejected  by  the 
States  if  it  did  not  contain  a  compromise  concerning  the 
slave  trade.  Hence  they  made  this  provision  which, 
in  effect,  is  a  declaration  of  the  right  of  citizens  of  the 
States  to  import  negro  slaves  only  until  1808.  The 
words  "slave  trade"  were  not  used  for  the  sake  of 
appearances. 

» 7  Peters'  Rep.,  243. 

175 


176       AMERICAN  PLAN  OF  GOVERNMENT 

In  1846,  Cyrus  Libby,  captain  of  the  brig  For  poises 
was  tried  for  his  life  in  the  United  States  Circuit  Court 
at  Portland,  Maine,  under  an  indictment  which  charged 
that  he  had  taken  a  negro  named  Luez  on  board  a  ship 
owned  by  citizens  of  the  United  States  for  the  purpose  of 
making  him  a  slave.  In  this  case,  United  States  vs, 
Libby,  ^  Judge  Woodbury  explained  the  meaning  of  the 
paragraph  under  discussion : 

The  whole  Union,  even  before  the  adoption  of  the  Con- 
stitution, had  gradually  become  convinced  that  the  only 
mode  effectually  to  extirpate  what  the  northern  States 
considered  the  curse  of  slavery,  was  at  an  early  day  to 
stop  the  addition  to  the  nimiber  here  from  abroad ;  not  only 
thus  cutting  off  a  large  and  constant  reinforcement,  but 
putting  an  end  to  the  introduction  of  new  ignorance,  new 
superstition,  new  Paganism,  and  allowing  the  arts  of  civiliza- 
tion gradually  to  elevate  and  make  more  safe  the  liberation 
of  slaves,  long  remaining  here;  and  by  returning  them  more 
civilized,  to  enlighten  and  reform  slavery  at  home  in  Africa; 
or  by  releasing  them  here,  when  fit  subjects  for  emancipa- 
tion; thus,  in  time,  to  terminate  the  evil  throughout  and 
forever.  Seeing  and  feeling  all  this,  and  that  slavery  might 
thus  in  time  safely  cease,  the  prudent  framers  of  the  Con- 
stitution secured  a  right  in  it  to  prohibit  the  slave  trade 
into  the  United  States  after  1808,  with  an  implied  power  to 
prohibit  it  at  once  from  being  carried  on  abroad  by  Amer- 
ican citizens,  and  left  slavery  to  be  abolished  here  entirely, 
and  as  fast  as  each  State  should  find  it  expedient  and 
sectue  to  itself. 

The  Migration  or  Importation  of  such  Persons  as  any 
of  the  States  now  existing  shall  think  proper  to  admit. 
Justice  Miller  interpreted  this  phrase  in  his  opinion  in 
the  case  of  People  vs.  Compagnie  GSn.  Transatlantique, ' 

» Woodbury  &  Minot's  Rep.,  221.  •  107  U.  S.  Rep.,  59. 


LIMITATIONS  UPON  LEGISLATION        177 

in  which  the  Supreme  Court  decided  that  a  State  has 
no  right  to  impose  head  money  taxes  on  immigrants. 
He  said : 

There  has  never  been  any  doubt  that  this  clause  had 
exclusive  reference  to  persons  of  the  African  race.  The 
two  words  "migration"  and  "importation"  refer  to  the 
different  conditions  of  this  race  as  regard  freedom  and 
slavery.  When  the  free  black  man  came  here,  he  migrated; 
when  the  slave  came,  he  was  imported.  The  latter  was 
property,  and  was  imported  by  his  owner  as  other  property, 
and  a  duty  could  be  imposed  on  him  as  an  import.  We 
conclude  that  free  human  beings  are  not  imports  or  ex- 
ports, within  the  meaning  of  the  Constitution. 

Art.  L,  Sec.  9  (continued).  The  Privilege  of  the 
Writ  of  Habeas  Corpus  shall  not  be  suspended,  unless 
when  in  Cases  of  Rebellion  or  Invasion  the  public  Safety 
may  require  it. 

Art.  I.,  Sec.  9  (continued).  No  Bill  of  Attainder  or 
ex  post  facto  Law  shall  be  passed. 

The  Privilege  of  the  Writ  of  Habeas  Corpus.  The 
words  "habeas  corpus"  are  part  of  a  phrase  in  law 
Latin,  which  freely  translated  means  "we  command  you 
to  produce  the  body  (of  a  prisoner)  in  court" ;  literally, 
"that  you  have  the  body  (of  a  prisoner)  in  court." 
This  is  the  opening  sentence  of  a  writ  or  process  at 
law,  which  calls  for  the  production  of  an  imprisoned 
person  in  open  court  so  that  the  judge  may  decide 
whether  or  not  he  is  lawfully  deprived  of  his  liberty. 
Any  friend  of  a  person  confined  in  a  prison,  or  insane 
asylum,  or  any  other  place  where  people  are  kept  under 
lock  and  key,  can  present  a  petition  for  a  writ  of  habeas 
corpus.    The  judge  to  whom  it  is  presented  is  imder  a 

>9 


178      AMERICAN  PLAN  OF  GOVERNMENT 

legal  duty  to  issue  the  writ.  Indeed,  under  the  laws 
of  many  States  he  can  be  fined  heavily,  if  he  refuses. 
The  writ  of  habeas  corpus  is  an  order  to  the  warden  or 
other  person  in  charge  of  a  place  of  confinement  to 
produce  the  prisoner  in  court.  If  he  does  not  obey,  he 
will  be  severely  punished.  When  the  prisoner  is  pro- 
duced in  court,  the  jail  keeper  makes  his  "return"  or 
answer,  explaining  why  the  man  is  in  custody.  Then 
the  judge  decides  whether  the  custody  is  lawful  or  un- 
lawful. If  lawful,  the  writ  is  ordered  dismissed;  if 
imlawf  ul,  the  prisoner  is  ordered  released.  This  proced- 
ure is  not  strictly  followed  under  the  laws  of  the  United 
States,  which  require  judges  to  issue  habeas  corpus  writs 
only  when  constitutional  rights  have  been  violated. 

Harry  K.  Thaw,  who,  when  tried  in  New  York  for 
the  murder  of  Stanford  White,  had  been  acquitted  on 
the  ground  of  insanity  and  then  confined  in  the  New  York 
State  Hospital  for  the  Criminal  Insane  at  Matteawan, 
made  many  efforts  to  obtain  his  liberty  by  suing  out 
writs  of  habeas  corpus  upon  petitions  which  alleged 
that,  having  regained  his  sanity,  he  was  imprisoned  un- 
lawfully. The  writs  issued  by  the  New  York  courts 
were  dismissed  in  every  case.  When  he  made  an  at- 
tempt to  escape  and  was  arrested  in  New  Hampshire, 
he  again  sued  out  a  writ  of  habeas  corpus,  and  was 
able  to  block  all  attempts  to  take  him  back  to  New  York 
until  the  Supreme  Court  at  Washington,  in  its  judgment 
on  appeal,  ordered  the  writ  dismissed.  ^ 

The  history  and  nature  of  the  writ  of  habeas  corpus 
were  given  in  detail  by  Judge  Cobb  of  the  Supreme 
Court  of  Georgia  in  1903  in  the  case  of  Simmons  vs. 
Georgia  Iron  and  Coal  Co.'    Simmons,  who  had  been 

'  Drew,  Sheriff,  vs.  Thaw,  235  U.  S.  Rep.,  432. 
»  117  Georgia  Rep.,  305, 


LIMITATIONS  UPON  LEGISLATION         179 

sentenced  for  four  misdemeanors  to  what  amounted  to 
three  years  in  the  chain-gang,  asked  the  Georgia  courts 
to  order  his  release  on  the  ground  that  the  penalty 
imposed  on  him  was  unlawful.  In  deciding  against 
Simmons,  Judge  Cobb  explained  the  nature  of  habeas 
corpus  proceedings  as  follows : 

Many  are  accustomed  to  regard  the  writ  as  almost  obsolete 
and  of  little  practical  value;  and  doubtless  this  results  from 
the  fact  that  it  is  so  seldom  called  into  operation.  But  the 
writ  is  as  much  a  palladiimi  of  liberty  today  as  it  was  during 
the  abuses  existing  in  the  days  of  the  ancient  English  sover- 
eigns.  .    .    . 

The  proceeding  by  habeas  corpus  was,  strictly  speaking, 
neither  a  civil  nor  criminal  action.  It  was  not  a  proceeding 
in  a  suit,  but  was  a  summary  application  by  the  person 
detained.  No  party  to  the  proceeding  was  necessarily 
before  or  represented  before  a  judge,  except  the  person 
detaining,  and  that  person  only  because  he  had  the  custody 
of  the  applicant,  and  was  bound  to  bring  him  before  the 
judge  to  explain  and  justify,  if  he  could,  the  fact  of  imprison- 
ment. ...  It  ...  is  instituted  for  the  sole  purpose  of 
having  the  person  restrained  of  his  liberty  produced  before 
the  judge,  in  order  that  the  cause  of  his  detention  may  be 
inquired  into  and  his  status  fixed.  The  person  to  whom  the 
writ  is  directed  makes  response  to  the  writ,  not  to  the  petition. 
.  .  .  When  an  answer  is  made  to  the  writ,  the  respon- 
sibility of  the  respondent  ceases.  .  .  .  The  court  passes 
upon  all  questions,  both  of  law  and  fact,  in  a  summary  way. 
The  person  restrained  is  the  central  figure  in  the  transaction. 
The  proceeding  is  instituted  solely  for  his  benefit.  It  is 
not  designed  to  obtain  redress  against  anybody,  and  no 
judgment  can  be  entered  against  anybody.  .  .  .  The 
judgment  simply  fixes  the  status  of  the  person  for  whose 
benefit  the  writ  was  issued;  and  while  anybody  disobeying 
the  judgment  may  be  dealt  with  as  for  a  contempt,  the 


i8o       AMERICAN  PLAN  OF  GOVERNMENT 

judgment  does  not  fix  the  rights  of  any  one  interested,  fur- 
ther than  to  declare  that  the  person  detained  must  be 
restored  to  liberty. 

The  Privilege  oj  the  Writ  of  Habeas  Corpus  shall  not 
he  suspended.  The  makers  of  the  Constitution  put  the 
habeas  corpus  clause  among  the  limitations  on  the  law- 
making power,  because  they  intended  it  to  be  a  limita- 
tion upon  Congress  alone.  Chief  Justice  Marshall  took 
that  position  in  the  case  of  Ex  Parte  Bollman  and  Swart- 
wout,^  in  which  Samuel  Swartwout  and  Dr.  Erick  Boll- 
man,  who  had  been  charged  with  participation  in  Burr's 
Conspiracy,  were  concerned.  "If  at  any  time  the 
public  safety  requires  the  suspension  of  the  writ  of 
habeas  corpus,  it  is,'^  said  the  Chief  Justice,  ''for 
the  legislature  to  say  so.  That  question  depends  on 
political  considerations,  on  which  the  legislature  is  to 
decide." 

This  rule  was  not  observed  during  the  first  part  of  the 
Civil  War.  Among  other  ways  of  suppressing  treason 
and  rebellion,  President  Lincoln,  on  his  own  responsi- 
bility, directed  the  suspension  of  the  writ  of  habeas 
corpus  at  any  point  on  the  military  line  between  Phil- 
adelphia and  Washington,  although  most  of  the  country 
covered  by  the  proclamation  was  not  in  rebellion. 

"Without  warrant  and  without  any  sworn  state- 
ment, "  says  Franklin  Pierce  in  his  Federal  Usurpation,  ^ 
"but  merely  upon  an  order  of  the  Secretary  of  State  or 
the  Secretary  of  War,  hundreds  of  men  were  arrested 
for  the  expression  of  words  construed  as  tending  to 
inflame  party  spirit  or  as  sympathetic  with  the  Southern 
cause,  and  hurried  away  to  Forts  Lafayette,  Warren, 
McHenry,  Delaware,  Mifflin,  Old  Capitol  Prison,  peni- 

» 4  Cranch's  Rep.,  loi.  'P.  43* 


LIMITATIONS  UPON  LEGISLATION         i8i 

tentiaries  and  military  camps  in  the  different  parts  of 
the  country. " 

An  attempt  was  made  to  test  the  validity  of  the 
President's  action.^  In  1861,  one  John  Merryman, 
who  had  been  arrested  on  a  charge  of  treason  upon  an 
order  issued  by  Secretary  Seward,  was  under  detention 
by  General  George  Cadwalader  at  Fort  McHenry. 
An  application  was  made  to  Chief  Justice  Taney  of  the 
United  States  Supreme  Court  for  a  writ  of  habeas  cor- 
pus. The  Chief  Justice  signed  the  writ  commanding 
General  Cadwalader  to  produce  Merryman  before  him 
and  show  cause  for  his  detention.  When  the  marshal 
of  the  United  States  Court  presented  the  writ,  General 
Cadwalader  refused  to  obey.  Chief  Justice  Taney 
issued  a  body  attachment  against  the  general,  who  then 
shut  the  marshal  out  of  the  fort.  Thereupon  the 
Chief  Justice  wrote  an  opinion  as  to  the  law,  in  which 
he  said : 

The  only  power. .  .which  the  President  possesses  where  the 
"life,  liberty,  or  property"  of  a  private  citizen  is  concerned, 
is  the  power  and  duty  .  .  .  which  requires  "  that  he  shall 
take  care  that  the  laws  shall  be  faithfully  executed."  He 
is  not  authorized  to  execute  them  himself,  or  through  agents 
or  oflficers,  civil  or  military,  appointed  by  himself,  but  he  is 
to  take  care  that  they  be  faithfully  carried  into  execution, 
as  they  are  expounded  and  adjudged  by  the  co-ordinate 
branch  of  the  government  to  which  that  duty  is  assigned 
by  the  Constitution.  It  is  thus  made  his  duty  to  come  in 
aid  of  the  judicial  authority,  if  it  shall  be  resisted  by  a  force 
too  strong  to  be  overcome  without  the  assistance  of  the 
executive  arm;  but  in  exercising  this  power  he  acts  in  sub- 
ordination to  judicial  authority,  assisting  it  to  execute 
its  process  and  enforce  its  judgments. 

'  Ex  Parte  Merryman,  Taney's  Rep.,  246. 


i82       AMERICAN  PLAN  OP  GOVERNMENT 

"President  Lincoln,"  continues  Mr.  Pierce,  in  his 
Federal  Usurpation,  "ignored  this,  but  later,  in  a 
message  to  Congress,  asserted  his  right  to  suspend  the 
writ  of  habeas  corpus  without  limitation  or  interfer- 
ence. " 

"There  lies  before  me  as  I  write, "  Mr.  Pierce  says  on 
another  page,  "a  book  under  the  title  of  The  American 
Bastile,  written  by  one  John  A.  Marshall,  bearing  date 
of  August,  1869,  in  which  he  describes  the  circumstances 
of  the  arrest  of  seventy  citizens  imprisoned  in  these 
fortresses  from  all  the  Northern  States  except  New 
Hampshire,  Rhode  Island,  and  Wisconsin.  Among 
them  were  foreign  ministers,  United  States  Senators, 
Members  of  Congress,  Members  of  State  legislatures, 
judges,  lawyers,  ministers,  doctors,  farmers,  editors, 
merchants,  and  men  from  all  the  other  walks  of  life. 
The  details  connected  with  the  arrests  of  these  men,  as 
described  by  him,  are  as  terrible  as  those  accompanying 
the  state  arrests  in  Russia  today,  and  one  draws  back 
from  his  vivid  description  with  doubt  lest  perhaps  Mr. 
Marshall's  experience  caused  him  to  exaggerate  the 
conditions." 

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.  On  March  3, 
1863,  Congress  passed  an  act  which  provided  that 
"During  the  present  Rebellion,  the  President  of  the 
United  States,  whenever,  in  his  judgment,  the  public 
safety  may  require  it,  is  authorized  to  suspend  the 
privilege  of  the  writ  of  habeas  corpus  in  any  case 
throughout  the  United  States,  or  any  part  thereof." 
Subsequently,  by  public  proclamation,  the  President 
suspended  the  privilege  of  the  writ  throughout  the  coun- 


LIMITATIONS  UPON  LEGISLATION         183 

try,  basing  the  suspension  upon  the  statute.  His  right 
so  to  suspend  the  writ  of  habeas  corpus  was,  tested 
in  the  case  of  Ex  Parte  MilUgan,^  which  grew  out  of 
an  incident  in  the  Civil  War.  On  August  13,  1864, 
Lambdin  P.  Milligan,  a  lawyer  of  Huntington,  In- 
diana, delivered  a  political  speech  at  Fort  Wayne, 
Indiana,  in  which  he  attacked  the  national  government 
on  the  war  issue,  and  opposed  the  reelection  of  Gover- 
nor Morton  on  the  ground  of  his  war  record.  On  Oc- 
tober 5,  he  was  arrested  and  taken  to  Indianapolis  by 
order  of  the  military  authorities  of  the  district  of 
Indiana.  On  October  21,  he  was  tried  by  court-mar- 
tial and  convicted  of  conspiracy  against  the  United 
States,  of  giving  aid  and  comfort  to  the  rebels,  and  of 
disloyal  practices;  and  he  was  sentenced  to  death.  He 
petitioned  the  Federal  courts  for  release  by  habeas 
corpus  and  the  petition  was  denied.  He  appealed 
from  this  decision  to  the  Supreme  Court  of  the  United 
States  on  the  ground  that  Congress  had  no  constitu- 
tional power  to  enact  a  law  suspending  the  privilege  of 
the  writ  of  habeas  corpus  in  States  where  the  process  of 
the  courts  was  not  obstructed,  and  that  the  military  court 
which  had  convicted  and  sentenced  him  to  death  had 
no  power  to  deal  with  criminal  charges  in  States  where 
the  civil  courts  were  open.  This  brought  before  the 
Supreme  Court  all  the  great  questions  which  are  likely 
to  arise  under  this  clause  of  the  Constitutional  Bill  of 
Rights.    Justice  Davis  said: 

In  every  war,  there  are  men  of  previously  good  character, 
wicked  enough  to  counsel  their  fellow-citizens  to  resist  the 
measures  deemed  necessary  by  a  good  government  to  sus- 
tain its  just  authority  and  overthrow  its  enemies;  and  their 

'  4  Wallace's  Rep.,  2. 


184       AMERICAN  PLAN  OF  GOVERNMENT 

influence  may  lead  to  dangerous  combinations.  In  the 
emergency  of  the  times,  an  immediate  public  investigation 
according  to  law  may  not  be  possible;  and  yet,  the  peril  of 
the  country  may  be  too  imminent  to  suffer  such  persons  to 
go  at  large.  Unquestionably,  there  is  then  an  exigency 
which  demands  that  the  government  .  .  .  should  not  be 
required  to  produce  the  persons  arrested  in  answer  to  a  writ 
of  habeas  corpus.  The  Constitution  goes  no  further.  It 
does  not  say  that_after  a  writ  of  habeas  corpus  is  denied  a 
citizen,  he  shall  be  tried  otherwise  than  by  the  course  of  the 
common  law;  if  it  had  intended  that  result,  it  was  easy  by 
the  use  of  direct  words  to  have  accomplished  it.  .  .  . 
But,  it  is  insisted  that  the  safety  of  the  country  in  time  of 
war  demands  that  this  broad  claim  for  martial  law  shall  be 
sustained.  If  this  were  true,  it  could  be  well  said  that  a 
country,  preserved  at  the  sacrifice  of  all  the  cardinal  prin- 
ciples of  liberty,  is  not  worth  the  cost  of  preservation. 
Happily,  it  is  not  so ...  .  If,  in  foreign  invasion  or  civil 
war,  the  courts  are  actually  closed,  and  it  is  then  impossible 
to  administer  criminal  justice  according  to  law,  then,  on 
the  theatre  of  active  military  operations,  where  war  really 
prevails,  there  is  a  necessity  to  furnish  a  substitute  for  the 
civil  authority,  thus  overthrown,  to  preserve  the  safety  of 
the  army  and  society;  and  as  no  power  is  left  but  the  mili- 
tary, it  is  allowed  to  govern  by  martial  rule  until  the  laws 
can  have  their  free  course.  As  necessity  creates  the  rule, 
so  it  limits  its  duration;  for  if  the  government  is  continued 
after  the  courts  are  reinstated,  it  is  a  gross  usurpation  of 
power.  Martial  rule  can  never  exist  where  the  courts 
are  open,  and  in  the  proper  and  unobstructed  exercise  of 
their  jurisdiction.  It  is  also  confined  to  the  locality  of 
actual  war.  Because,  during  the  late  Rebellion  it  could 
have  been  enforced  in  Virginia,  where  the  national  author- 
ity was  overturned  and  the  courts  driven  out,  it  does 
not  follow  that  it  should  obtain  in  Indiana,  where  that 
authority  was  never  disputed,  and  justice  was  always 
administered. 


LIMITATIONS  UPON  LEGISLATION         185 

No  Bill  of  Attainder  or  ex  post  facto  Law  shall  he  passed. 
The  methods  of  procedure  known  as  bills  of  attainder 
and  ex  post  facto  laws,  which  had  prevailed  in  England 
for  centuries,  were  objectionable  because  the  one  in- 
flicted punishment  by  legislative  enactment  without 
any  judicial  trial  concerning  the  fact  of  guilt  or  inno- 
cence, and  the  other  made  men  liable  to  punishment  for 
acts  made  criminal  after  the  deed  had  been  committed. 

When  the  embers  of  the  Civil  War  were  dying  out, 
there  were  serious  attempts  not  only  to  make  treason 
odious,  but  also  to  make  traitors  uncomfortable.  For 
example,  the  State  Constitution  of  Missouri,  adopted  in 
1865,  barred  from  public  office,  from  being  an  officer 
of  any  public  or  private  corporation,  from  acting  as  a 
teacher  or  professor  in  any  educational  establishment, 
from  holding  real  estate  or  other  property  in  trust  for 
any  church  or  religious  society,  and  from  officiating  as 
a  clergyman,  any  person  who  did  not  make  oath  that 
he  never  had  been  disloyal  to  the  United  States,  had 
never  served  against  the  nation  in  war  nor  assisted  its 
enemies,  and  had  not  sought  the  protection  of  another 
nation  in  order  to  avoid  military  service.  Any  viola- 
tion of  laws  made  to  carry  out  this  provision  was  made 
a  criminal  offence.  This  was  a  fine  dragnet  in  which 
were  caught  those  who  had  fought  for  the  South,  and 
the  "  Copperheads"  who  had  run  off  to  Canada  to  avoid 
the  conscription  laws. 

In  the  case  of  Cummings  vs.  Missouri,^  these  facts 
appeared:  In  September,  1865,  Rev.  Father  Cummings, 
an  estimable  Roman  Catholic  priest,  who  had  not  taken 
the  oath  prescribed  in  the  State  Constitution,  had  been 
convicted  and  fined  five  hundred  dollars.  He  appealed 
from  the  State  courts  to  the  Federal  Supreme  Court 

*  4  Wallace's  Rep.,  277. 


i86       AMERICAN  PLAN  OF  GOVERNMENT 

upon  the  ground  that  these  provisions  of  law  were  ex 
post  facto,  having  been  made  after  the  committing  of 
the  offences  they  punished,  and  also  were  bills  of  at- 
tainder of  the  sort  known  as  bills  of  pains  and  penalties. 
The  Supreme  Coiut  said  that  the  Missoiu-i  laws  based 
upon  the  provisions  of  the  State  Constitution  cited 
above  were  repugnant  to  the  Constitution  of  the 
United  States  in  both  ways,  and  so  were  null  and  void. 
In  the  decision.  Justice  Field  defined  bills  of  attainder 
and  ex  post  facto  laws  as  follows: 

A  bill  of  attainder  is  a  legislative  act  which  inflicts  punish- 
ment without  a  judicial  trial.  If  the  punishment  be  less 
than  death,  the  act  is  termed  a  bill  of  pains  and  penalties. 
Within  the  meaning  of  the  Constitution,  bills  of  attainder 
include  bills  of  pains  and  penalties.  In  these  cases,  the 
legislative  body,  in  addition  to  its  legitimate  functions, 
exercises  the  powers  and  office  of  a  judge ;  it  assiunes,  in  the 
language  of  the  text  books,  judicial  magistracy;  it  pro- 
nounces upon  the  guilt  of  the  party,  without  any  of  the 
forms  or  safeguards  of  trial;  it  determines  the  sufficiency 
of  the  proofs  produced,  whether  conformable  to  the  rules  of 
evidence  or  otherwise;  and  it  fixes  the  degree  of  punishment 
in  accordance  with  its  own  notions  of  the  enormity  of  the 
offence.  ...  By  an  grc  post  facto  law  is  meant  one 
which  imposes  a  punishment  for  an  act  which  was  not 
punishable  at  the  time  it  was  committed;  or  imposes  ad- 
ditional punishment  to  that  prescribed;  or  changes  the  rules 
of  evidence  by  which  less  or  different  testimony  is  sufficient 
to  convict  than  was  required. 

Art.  I.,  Sec.  9  (continued) .  No  Capitation,  or  other  di- 
rect, tax  shall  be  laid,  unless  in  Proportion  to  the  Census 
or  Enumeration  herein  before  directed  to  be  taken. 

Art.  I.,  Sec.  9  (continued).  No  Tax  or  Duty  shall 
be  laid  on  Articles  exported  from  any  State. 


LIMITATIONS  UPON  LEGISLATION         187 

The  clause  restricting  the  levying  of  capitation  or 
other  direct  taxes  was  intended  to  prevent  inequalities 
of  national  taxation.  Justice  Paterson  said  in  the 
course  of  his  opinion  in  the  case  of  Hylton  vs.  United 
States^  that  this  declaration  was  made  in  favor  of  the 
southern  States  which,  if  no  provisions  had  been  intro- 
duced in  the  Constitution,  would  have  been  wholly  at 
the  mercy  of  the  other  States.  "They  possessed  a 
large  number  of  slaves;  they  had  extensive  tracts  of 
territory,  thinly  settled,  and  not  very  productive.  A 
majority  of  the  States  had  but  few  slaves  and  several 
of  them  a  limited  territory,  well  settled,  and  in  a  high 
state  of  cultivation.  ,  .  .  Congress,  in  such  a  case, 
might  tax  slaves  at  discretion,  or  arbitrarily,  and  land 
in  every  part  of  the  Union  after  the  same  rate  or  meas- 
ure; so  much  a  head  in  the  first  instance  and  so  much 
an  acre  in  the  other." 

No  Capitation  .  .  .  tax.  The  Supreme  Court  of 
North  Carolina  explained  what  a  "capitation"  tax 
is  in  the  case  of  Gardner  vs.  Hall,'  known  as  the  " Dead- 
head" case.  One  James  L.  Gardner  had  been  com- 
pelled to  pay  a  State  tax  imposed  upon  all  persons,  other 
than  railroad  officials,  who  travelled  on  any  railroad 
in  that  State  without  paying  their  fares.  He  brought 
an  action  against  the  county  officers  who  had  collected 
the  tax,  claiming  that  because  the  law  imposed  a 
"capitation  "  tax  contrary  to  the  provisions  of  the  State 
constitution,  he  had  a  right  to  recover  the  money  paid. 
Judge  Battle  said: 

A  capitation  tax  is  one  upon  the  person  simply,  without 
any  reference  to  his  property,  real  or  personal,  or  to  any 
business  in  which  he  may  be  engaged,  or  to  any  employment 

■  3  Dallas'  Rep.,  171.  •  61  North  Carolina  Rep.,  21. 


1 88       AMERICAN  PLAN  OF  GOVERNMENT 

which  he  may  follow.  It  is  rightfully  imposed,  because  of 
the  protection  which  the  government  affords  to  the  person, 
independently  of  the  connection  or  relation  of  the  person 
to  an3rthing  else. 

No  .  .  .  direct,  tax  shall  he  laid,  unless  in  Propor- 
tion to  the  Census  or  Enumeration  herein  before  directed 
to  be  taken.  Our  national  bank  system  was  established 
in  1864,  at  the  suggestion  of  Salmon  P.  Chase,  then 
Secretary  of  the  Treasury,  and  afterward  Chief  Justice 
of  the  United  States.  His  plan  was  to  create  a  market 
for  United  States  government  bonds  by  issiiing  Federal 
corporation  charters  to  as  many  banks  as  would  agree 
to  invest  a  large  proportion  of  their  capital  in  those 
bonds.  The  special  inducement  offered  was  the  ex- 
clusive privilege  of  issuing  for  circulation  bank  notes 
to  be  secured  by  government  bonds  deposited  with  the 
Secretary  of  the  Treasury.  This  privilege  of  issuing 
notes  was  made  exclusive  by  a  section  of  the  National 
Bank  Law  which  imposed  a  prohibitive  tax  of  ten  per 
cent  upon  the  face  value  of  bank  notes  issued  by  banks 
which  did  not  take  out  national  charters. 

The  plan  was  successful  in  every  way.  Everyone  was 
satisfied,  except  the  bankers  who  continued  to  do  busi- 
ness under  State  charters.  They  protested  that  the 
National  Bank  Act  was  unconstitutional  because  it 
levied  a  "direct"  tax  not  apportioned  to  the  States 
in  proportion  to  a  national  census  or  enumeration. 

The  question  was  brought  up  in  the  Supreme  Court 
in  1869,  in  the  case  of  Veazie  Bank  vs.  Fenno.^  The 
Veazie  Bank,  incorporated  imder  the  laws  of  the  State 
of  Maine,  paid  the  tax  assessed  upon  its  circulating 
notes,  and  then  sued  the  Federal  collector  of  internal 

'  8  Wallace's  Rep.,  533. 


LIMITATIONS  UPON  LEGISLATION         189 

revenue  for  the  amount,  upon  the  ground  that  the  tax 
was  "direct"  and  unapportioned,  and  therefore  un- 
constitutional. 

Chief  Justice  Chase,  who  as  Secretary  of  the  Treas- 
ury had  originally  suggested  the  law,  had  an  opportu- 
nity in  this  case  to  pass  upon  its  vahdity.  As  might 
have  been  expected,  he  stood  up  stoutly  for  what  he 
called  the  "tmdisputed  constitutional  power  [of  Con- 
gress] to  provide  a  currency  for  the  whole  country." 
He  said: 

Having  thus,  in  the  exercise  of  undisputed  constitutional 
powers,  undertaken  to  provide  a  currency  for  the  whole 
country,  it  cannot  be  questioned  that  Congress  may,  con- 
stitutionally, sectire  the  benefit  of  it  to  the  people  by  appro- 
priate legislation.  To  this  end,  Congress  has  denied  the 
quality  of  legal  tender  to  foreign  coins,  and  has  provided  by 
law  against  the  imposition  of  counterfeit  and  base  coin  in 
the  community.  To  the  same  end,  Congress  may  restrain, 
by  suitable  enactments,  the  circulation  as  money  of  any 
notes  not  issued  under  its  own  authority.  Without  this 
power,  indeed,  its  attempts  to  secure  a  sound  and  uniform 
currency  for  the  country  must  be  futile. 

Another  taxing  measure  of  the  Civil  War  period 
provided  for  an  assessment  upon  incomes,  gains,  and 
profits,  in  the  form  of  an  internal  revenue  tax,  not 
apportioned  to  the  States  according  to  population. 
The  celebrated  case  of  Springer  vs.  United  States^  grew 
out  of  an  assessment  upon  William  M.  Springer  of 
Springfield,  Illinois,  of  $4,799.80,  upon  his  net  income, 
derived  partly  from  real  estate,  of  $50,798.  He  refused 
to  pay  the  tax.  The  collector  of  internal  revenue 
seized  and  sold  his  house  to  satisfy  the  levy;  and,  in 

*  103  U.  S.  Rep.,  586. 


190      AMERICAN  PLAN  OF  GOVERNMENT 

1874,  the  United  States,  which  had  bought  in  the 
property  at  the  sale,  commenced  an  action  to  obtain 
possession.  Mr.  Springer  interposed  as  a  defense  to 
this  action  a  claim  that  the  taxing  law,  under  which  his 
property  had  been  sold,  was  void  for  unconstitutional- 
ity in  that,  in  imposing  without  apportionment  a  tax 
upon  his  income  derived  in  part  from  real  estate,  it 
imposed  what  really  was  a  "direct  tax"  upon  land. 
The  question  which  the  Supreme  Court  had  to  decide 
was  whether  a  tax  on  the  income  of  land  is  the  same 
thing  as  a  tax  on  land.  The  justices  answered  that  a 
tax  on  land  undoubtedly  is  a  direct  tax  which  must  be 
apportioned,  but  that  a  tax  on  the  income  of  land  is  an 
excise  duty  upon  interest  and  profits,  which  does  not 
require  apportionment  in  order  to  be  constitutional. 
Justice  Swayne  said: 

The  tax  here  in  question  ...  is  not  a  tax  on  the  "whole 
.  .  .  personal  estate"  of  the  individual,  but  only  on  his 
income,  gains,  and  profits  during  a  year,  which  may  have 
been  but  a  small  part  of  his  personal  estate,  and  in  most 
cases  would  have  been  so.  .  .  .  Our  conclusions  are 
that  direct  taxes,  within  the  meaning  of  the  Constitution, 
are  only  capitation  taxes,  as  expressed  in  that  instrument, 
and  taxes  on  real  estate;  and  that  the  tax  of  which  the  plain- 
tiff. .  .  .  complains,  is  within  the  category  of  an  excise  or 
duty. 

An  income  tax  measure  adopted  by  Congress  in  1894, 
during  President  Cleveland's  second  administration, 
did  not  fare  so  well  in  the  Supreme  Court  when  chal- 
lenged in  the  case  of  Pollock  vs.  Farmers'  Loan  and  Trust 
Company.^  Charles  Pollock,  a  citizen  of  Massachu- 
setts, filed  a  bill  in  equity  in  which  he  said  that  he  was  a 

,« 157  U.  S.  Rep.,  430. 


LEGISLATION  UPON  LEGISLATION         191 

stockholder  in  the  company  and  that  the  directors 
intended  to  pay  the  tax  of  two  per  cent,  on  its  net  in- 
come and  profits,  including  its  income  from  its  real 
estate.  He  urged  that  the  law  was  unconstitutional 
because  it  imposed  a  direct  tax,  in  the  shape  of  a  tax 
on  the  income  of  real  estate,  without  apportioning  the 
amount  to  the  States  as  required  by  the  Constitution. 
This  brought  before  the  Supreme  Court  for  the  second 
time  the  whole  question  of  the  validity  of  income  taxes 
not  apportioned.  In  this  case,  by  a  vote  of  five  justices 
against  four,  the  Supreme  Court  annulled  the  statute. 
Chief  Justice  Fuller  said : 

The  requirement  of  the  Constitution  is  that  no  direct 
tax  shall  be  laid  otherwise  than  by  apportionment — the 
prohibition  is  not  against  direct  taxes  on  land,  from  which 
the  implication  is  sought  to  be  drawn  that  indirect  taxes 
on  land  would  be  constitutional,  but  it  is  against  all  direct 
taxes — and  it  is  admitted  that  a  tax  on  real  estate  is  a 
direct  tax.  .  .  .  The  name  of  the  tax  is  unimportant. 
The  real  question  is,  is  there  any  basis  upon  which  to  rest 
the  contention  that  real  estate  belongs  to  one  of  the  two 
great  classes  of  taxes,  and  the  rent  or  income  which  is  the 
incident  of  its  ownership  belongs  to  the  other?  We  are 
unable  to  perceive  any  groimd  for  the  alleged  distinction. 
An  annual  tax  upon  the  annual  value  or  annual  user  of  real 
estate  appears  to  us  the  same  in  substance  as  an  annual 
tax  on  the  real  estate,  which  would  be  paid  out  of  the  rent 
or  income ....  We  are  of  opinion  that  the  law  in  ques- 
tion, so  far  as  it  levies  a  tax  on  the  rents  or  income  of  real 
estate,  is  in  violation  of  the  Constitution,  and  is  invalid. 

No  Tax  or  Duty  shall  be  laid  on  Articles  exported  from 
any  State.  "The  prohibition  of  a  tax  on  exports, "  said 
James  Madison,  "resulted  from  the  apparent  impossibil- 
ity of  raising  in  that  mode  a  revenue  from  the  States,  pro- 


192       AMERICAN  PLAN  OF  GOVERNMENT 

portioned  to  their  ability  to  pay  it;  the  ability  of  some 
being  derived  in  a  great  measure,  not  from  their  exports, 
but  from  their  fisheries,  from  their  freights,  and  from 
commerce  at  large  in  some  of  the  branches  altogether 
external  to  the  United  States;  the  profits  from  all  of 
which,  being  invisible  and  intangible,  would  escape 
a  tax  on  exports. "' 

Mr.  Madison's  statement  means  that  taxes  on  exports 
were  impossible  because  the  whole  burden  would  have 
fallen  on  the  tobacco,  indigo,  and  rice  produced  in  the 
South,  while  the  North,  which  was  growing  rich  out  of 
the  ocean  transportation  of  those  very  products,  would 
have  escaped  paying  export  taxes  because  it  had  prac- 
tically nothing  to  export. 

In  the  case  of  Fairbank  vs.  United  States  in  which  the 
validity  of  certain  taxes  imposed  during  the  Spanish 
War  was  questioned,'  the  following  facts  appeared: 
A  man  named  Fairbank  was  found  guilty  in  the  Federal 
District  Court  of  Minnesota  of  having  on  March  7, 1900, 
issued  unstamped  bills  of  lading  upon  a  ntunber  of 
carloads  of  wheat  exported  from  Minnesota  to  England. 
He  appealed  to  the  Supreme  Court  at  Washington  on 
the  ground  that  the  law  which  required  the  stamping  of 
bills  of  lading  of  merchandise  for  export  was  inconsistent 
with  the  clause  of  the  Constitution  which  forbids  taxes 
on  exports.  Justice  Brewer,  sustaining  this  contention, 
said: 

The  requirement  of  the  Constitution  is  that  exports 
should  be  free  from  any  governmental  burden.  The  lan- 
guage is  "no  tax  or  duty."  .  .  .  It  is  a  restriction  on  the 
power  of  Congress;  and  as  in  accordance  with  the  rules 
heretofore  noticed  the  grants  of  powers  should  be  so  con- 

» Madison's  Writings,  iii.,  640.  •  181  U.  &  Rep.,  283. 


LIMITATIONS  UPON  LEGISLATION         193 

strued  as  to  give  full  eflScacy  to  those  powers  and  enable 
Congress  to  use  such  means  as  it  deems  necessary  to  carry 
them  into  efiEect,  so  in  like  manner  a  restriction  should  be 
enforced  in  accordance  with  its  letter  and  spirit,  and  no 
legislation  can  be  tolerated  which,  although  it  may  not 
conflict  with  the  letter,  destroys  the  spirit  and  purpose  of 
the  restriction  imposed.  If,  for  instance,  Congress  may 
place  a  stamp  duty  of  ten  cents  on  bills  of  lading  on  goods 
to  be  exported,  it  is  because  it  has  power  to  do  so,  and  if  it 
has  power  to  impose  this  amount  of  stamp  duty,  it  has  like 
power  to  impose  any  sum  in  the  way  of  stamp  duty  which 
it  sees  fit.  And  it  needs  but  a  moment's  reflection  to  show 
that  thereby  it  can  as  effectually  place  a  burden  upon  ex- 
ports as  though  it  placed  a  tax  directly  upon  the  articles 
exported. 

Art.  I.,  Sec.  9  (continued).  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. 

Many  cities  of  the  old  world  had  flourished  greatly 
by  reason  of  special  port  privileges  which  other  centers 
of  trade  did  not  enjoy.  If  Congress  had  been  able  to 
give  the  ports  of  one  State  advantages  over  those  of 
another  by  laws  providing  that  vessels  should  only 
discharge  and  take  on  cargoes  in  certain  harbors,  it 
would  have  been  in  the  power  of  a  majority  of  mem- 
bers to  ruin  the  commerce  of  any  State.  Justice 
Nelson.'in  his  decision  in  the  case  of  Pennsylvania  vs, ' 
Wheeling  etc.  Bridge  Co.,  *  said: 

Luther  Martin  [a  delegate  to  the  Constitutional  Conven- 
tion from  Maryland]  in  his  letter  to  the  legislature  of  Mary- 

« 18  Howard's  Rep.,  421,  434. 

X3 


194  .    AMERICAN  PLAN  OF  GOVERNMENT 

land,  says  that  these  propositions  were  introduced  into  the 
Convention  by  the  Maryland  delegation ;  and  that  without 
them,  he  observes,  it  would  have  been  in  the  power  of  Con- 
gress to  compel  ships  sailing  in  or  out  of  the  Chesapeake 
to  clear  or  enter  at  Norfolk,  or  some  port  in  Virginia — a 
regulation  that  would  be  injurious  to  the  commerce  of 
Maryland.  It  appears  also  from  the  reports  of  the  Conven- 
tion, that  several  of  the  delegates  fromithat  State  expressed 
apprehensions  that  under  the  power  to  regulate  commerce 
Congress  might  favor  ports  of  particular  States,  by  requir- 
ing vessels  destined  to  other  States  to  enter  and  clear  at  the 
ports  of  the  favored  ones,  as  a  vessel  bound  for  Baltimore 
to  enter  and  clear  at  Norfolk. 

An  act  of  Congress  regulating  commerce  or  revenue 
which  gives  incidentally  a  preference  to  a  port  of  one 
State  over  the  ports  of  another  is  valid,  though  the  fact 
of  preference  might  be  a  good  argument  against  its 
enactment.  It  was  shown  to  the  court  in  the  Wheeling 
Bridge  Case^  that  a  bridge  across  the  Ohio  River  at 
Wheeling,  Virginia  (now  West  Virginia),  obstructed  the 
passage  of  steamboats  going  up  and  down  the  river 
and  thereby  gave  Wheeling  a  special  advantage  as  a 
commercial  point  over  Pittsburg  and  other  Pennsylvania 
towns  north  of  the  bridge.  Justice  Nelson  con- 
ceded that  this  amounted  to  a  port  preference.  Never- 
theless, he  said  that  the  act  of  Congress  which  declared 
the  bridge  a  lawful  structure  was  consistent  with  this 
clause  of  the  Constitution.    He  said : 

It  is  urged  that  the  interruption  of  the  navigation  of  the 
steamboats  engaged  in  commerce  and  conveyance  of  pas- 
sengers upon  the  Ohio  river  at  Wheeling  from  the  erection 
of  the  bridge,  and  the  delay  and  expense  arising  therefrom, 
virtually  operate  to  give  a  preference  to  this  port  over  that 

*  l8  Howard's  Rep.,  421. 


LIMITATIONS  UPON  LEGISLATION         195 

of  Pittsburg;  that  the  vessels  to  and  from  Pittsburg  navigat- 
ing the  Ohio  and  Mississippi  rivers  are  not  only  subjected 
to  this  delay  and  expense  in  the  course  of  the  voyage,  but 
that  the  obstruction  will  necessarily  have  the  effect  to  stop 
the  trade  and  business  at  Wheeling,  or  divert  the  same  in 
some  other  direction  or  channel  of  commerce.  Conceding 
all  this  to  be  true,  a  majority  of  the  court  are  of  opinion  that 
the  Act  of  Congress  is  not  inconsistent  with  the  clause  of 
the  Constitution  referred  to — in  other  words,  that  it  is  not 
giving  a  preference  to  the  ports  of  one  State  over  those  of 
another,  within  the  true  meaning  of  that  provision. 

Nor  shall  Vessels  hound  to,  or  from,  one  State,  he 
obliged  to  enter,  clear,  or  pay  Duties  in  another.  Congress 
may  not  so  use  its  power  to  regulate  commerce  as  to 
impair  the  commercial  equality  of  the  States.  At  the 
same  time,  the  States  must  not  take  advantage  of  one 
another  by  imposing  burdensome  harbor  charges. 

The  meaning  of  this  provision  was  explained  by 
Justice  Wayne  of  the  Supreme  Court  in  his  opinion  in 
the  Passenger  Cases,  ^  in  which  the  statutes  of  New 
York  and  Massachusetts  imposing  head-money  taxes 
on  immigrants  were  declared  unconstitutional.  In 
1841,  George  Smith,  master  of  the  British  ship,  Henry 
Bliss,  refused  to  pay  the  State  inspection  tax  of  one 
dollar  a  head  upon  a  large  number  of  steerage  passen- 
gers he  had  brought  to  the  port  of  New  York.  A 
Mr.  Turner,  a  health  commissioner,  brought  suit  in  the 
State  courts  for  the  amount  of  the  tax.  The  defense 
presented  was  that  the  State  taxing  law  was  void 
because  inconsistent  with  the  clause  in  the  Constitution 
of  the  United  States  which  gives  Congress  power  to 
regulate  commerce  with  foreign  nations.  Losing  his 
case  in  the  State  courts,  the  defendant  appealed  to  the 

»  7  Howard's  Rep.,  283. 


196       AMERICAN  PLAN  OF  GOVERNMENT 

Supreme  Court  where  he  won  handsomely.  Justice 
Wayne,  in  giving  his  decision,  referred  as  follows  to 
this  part  of  the  Constitutional  Bill  of  Rights: 

The  5th  clause  of  the  9th  section  of  the  ist  article  of  the 
Constitution,  which  declares  that  "no  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  State  over  those  of  another  State;  nor  shall  vessels 
bound  to  or  from  one  State  be  obliged  to  enter,  clear,  or 
pay  duties  in  another,"  is  a  limitation  upon  the  power  of 
Congress  to  regulate  commerce  for  the  purpose  of  produc- 
ing entire  commercial  equality  within  the  United  States, 
and  also  a  prohibition  upon  the  States  to  destroy  such  equal- 
ity by  any  legislation  prescribing  a  condition  upon  which 
vessels  bound  from  one  State  shall  enter  the  ports  of  another. 

Art.  I.,  Sec.  9  (continued).  No  Money  shall  be 
drawn  from  the  Treasmy,  but  in  Consequence  of  Ap- 
propriations made  by  Law;  and  a  regular  Statement  and 
Accotmt  of  the  Receipts  and  Expenditures  of  all  public 
Money  shall  be  published  from  time  to  time. 

The  clause  which  calls  for  regular  statements  and 
accounts  of  receipts  and  disbtirsements  of  public  money 
was  suggested  by  Benjamin  Franklin,^  who  beyond  a 
doubt  was  the  best  business  man  in  the  Federal  Con- 
vention. Once  suggested,  it  seems  to  have  been  ac- 
cepted as  a  matter  of  course. 

Art  I.,  Sec.  9  (continued).  No  Title  of  Nobility 
shall  be  granted  by  the  United  States:  And  no  Person 
holding  any  Office  of  Profit  or  Trust  under  them,  shall 
without  the  Consent  of  the  Congress,  accept  of  any 
present,  Emoltmient,  Office,  or  Title,  of  any  kind  what- 
ever, from  any  Eling,  Prince,  or  foreign  State. 

*  Madison's  Journal,  p.  306. 


LIMITATIONS  UPON  LEGISLATION         197 

"Nothing  need  be  said  to  illustrate  the  importance 
of  the  prohibition  of  titles  of  nobiHty.  This  may  truly 
be  denominated  the  comer-stone  of  republican  govern- 
ment ;  for  so  long  as  they  are  excluded,  there  can  never 
be  serious  danger  that  the  government  will  be  any 
other  than  that  of  the  people. "     The  Federalist,  84. 


CHAPTER  XV 

RIGHTS  OF  THE  UNITED  STATES  AND  ITS  CITIZENS  AGAINST 
THE  STATES 

Art.  I.,  Sec.  lo.  No  State  shall  enter  into  any  Treaty, 
Alliance,  or  Confederation;  grant  Letters  of  Marque  and 
Reprisal;  coin  Money;  emit  Bills  of  Credit;  make  any 
Thing  but  gold  and  silver  Coin  a  Tender  in  Payment 
of  Debts ;  pass  any  Bill  of  Attainder,  ex  post  facto  Law, 
or  Law  impairing  the  Obligation  of  Contracts,  or  grant 
any  Title  of  Nobility. 

Fourteenth  Amendment,  Sec.  i  (in  part).  No  State 
shall  make  or  enforce  any  law  which  shall  abridge  the 
privileges  or  immimities  of  citizens  of  the  United  States ; 
nor  shall  any  State  deprive  any  person  of  hfe,  liberty, 
or  property,  without  due  process  of  law;  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protection 
of  the  laws. 

Art.  I.,  Sec.  lo  (continued).  No  State  shall,  without 
the  Consent  of  the  Congress,  lay  any  Impost  or  Duties 
on  Lnports  or  Exports,  except  what  may  be  absolutely 
necessary  for  executing  it's  inspection  Laws:  and  the 
net  Produce  of  all  Duties  and  Lnposts,  laid  by  any  State 
on  Imports  or  Exports,  shall  be  for  the  Use  of  the  Treas- 
ury of  the  United  States;  and  all  such  Laws  shall  be 
subject  to  the  Revision  and  Controul  of  the  Congress. 
No  State  shall,  without  the  Consent  of  Congress,  lay 
any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of  War  in 

198 


LIMITATIONS  UPON  LEGISLATION  .      199 

time  of  Peace,  enter  into  any  Agreement  or  Compact 
with  another  State,  or  with  a  foreign  Power,  or  engage 
in  War,  imless  actually  invaded,  or  in  such  imminent 
Danger  as  will  not  admit  of  delay. 

Chief  Justice  Marshall,  in  his  opinion  in  the  great 
case  of  Fletcher  vs.  Peck,^  said: 

The  restrictions  on  the  legislative  power  of  the  States 
.  .  .  may  be  deemed  a  bill  of  rights  for  the  people  of  each 
State. 

The  question  in  the  case  of  Barron  vs.  Baltimore'  was 
whether  the  City  of  Baltimore  was  liable  for  damages 
for  injuries  suffered  by  a  man  whose  wharf  property 
had  been  made  valueless  as  a  result  of  certain  street 
improvements  made  by  the  city  under  the  authority  of 
its  charter  from  the  State  of  Maryland.  In  the  course 
of  these  improvements,  the  city  had  diverted  the  waters 
of  certain  brooks  in  such  a  way  that  the  new  water 
courses  had  made  deposits  of  sand  near  the  wharf  and 
rendered  it  inaccessible  to  ships.  Mr.  Barron  had 
brought  an  action  against  the  City  of  Baltimore  in 
the  Maryland  courts,  which  had  decided  against  him. 
Then  he  had  taken  the  case  to  the  Supreme  Court  at 
Washington  upon  the  ground  that  the  State  courts 
had  not  decided  the  case  justly.  Chief  Justice  Mar- 
shall said: 

It  is  worthy  of  remark,  too,  that  these  inhibitions  gener- 
ally restrain  State  legislation  on  subjects  intrusted  to  the 
general  government,  or  in  which  the  people  of  all  the  States 
feel  an  interest.  A  State  is  forbidden  to  enter  into  any 
treaty,  alliance,  or  confederation.  If  these  compacts  are 
with  foreign  nations  they  interfere  with  the  treaty  making 

» 6  Cranch's  Rep.,  87,  138.  » 7  Peters'  Rep.,  243. 


200       AMERICAN  PLAN  OF  GOVERNMENT 

power,  which  is  conferred  entirely  on  the  general  govern- 
ment; if  with  each  other,  for  political  purposes,  they  can 
scarcely  fail  to  interfere  with  the  general  purpose  and  intent 
of  the  Constitution.  To  grant  letters  of  marque  and  reprisal, 
would  lead  directly  to  war,  the  power  of  declaring  which  is 
expressly  given  to  Congress.  To  coin  money  is  also  the 
exercise  of  a  power  conferred  on  Congress.  It  would  be 
tedious  to  recapitulate  the  several  limitations  on  the  powers 
of  the  States  which  are  contained  in  this  section.  They 
will  be  found,  generally,  to  restrain  State  legislation  on 
subjects  intrusted  to  the  government  of  the  Union,  in 
which  the  citizens  of  all  the  States  are  interested. 

No  State  shall  enter  into  any  Treaty,  Alliance,  or  Con- 
federation. Any  State  law  which  is  inconsistent  with  a 
treaty  of  the  United  States  is  void  for  unconstitutional- 
ity. In  1880,  in  the  early  days  of  anti-Chinese  agita- 
tion in  California,  before  the  Chinese  Exclusion  Law 
was  enacted  by  Congress,  the  California  legislature 
forbade  under  penalty  of  law  the  employment  by  any 
corporation  of  any  Chinaman  or  Mongolian.  Tiburcio 
Parrott,  president  of  the  Sulphur  Bank  Mining  Com- 
pany, arrested  for  employing  Chinamen,'claimed  that  he 
was  unlawfully  imprisoned  imder  a  State  law  which 
conflicted  with  the  treaty  between  the  United  States 
and  China.  This  was  the  case  of  In  re  Parrott,^  in 
which  the  constitutional  question  was  decided  in  his 
favor  by  Circuit  Judge  Sawyer,  who  said: 

The  States  have  surrendered  the  treaty  making  power  to 
the  general  government,  and  vested  it  in  the  President  and 
Senate;  and  when  duly  exercised  by  the  President  and 
Senate,  the  treaty  resulting  is  the  supreme  law  of  the  land, 
to  which  not  only  State  laws  but  State  constitutions  are  in 
express  terms  subordinated. 

*  I  Federal  Reporter,  481. 


LIMITATIONS  UPON  LEGISLATION         201 

No  State  shall  .  .  .  grant  Letters  of  Marque  and 
Reprisal.  The  United  States  would  not  be  able  to  make 
a  lasting  peace,  if  the  States  retained  any  of  the  powers 
incidental  to  offensive  warfare. 

No  State  shall  .  .  .  coin  Money;  emit  Bills  of  Credit; 
make  any  Thing  but  gold  and  silver  Coin  a  Tender  in 
Payment  of  Debts.  The  Constitution  makers  wisely- 
prohibited  the  States  from  attempting  to  exercise 
governmental  fimctions  inconsistent  with  the  sover- 
eignty of  the  nation.  In  1827,  Justice  Washington,  in 
his  opinion  in  the  case  of  Ogden  vs.  Saunders, "^  said: 

These  prohibitions,  associated  with  the  powers  granted 
to  Congress  "to  coin  money,  and  to  regulate  the  value 
thereof  and  of  foreign  coin,"  most  obviously  constitute 
members  of  the  same  family,  being  upon  the  same  subject 
and  governed  by  the  same  policy.  This  policy  was  to  pro- 
vide a  fixed  and  uniform  standard  of  value  throughout  the 
United  States,  by  which  the  commercial  and  other  dealings 
between  the  citizens  thereof,  or  between  them  and  foreigners, 
as  well  as  the  moneyed  transactions  of  the  government 
should  be  regulated. 

In  the  early  days  of  western  settlement,  the  States 
were  eager  to  evade  this  provision  of  the  Constitution 
because  they  wanted  money  to  help  build  up  the  coim- 
try.  In  1 82 1,  Missouri  enacted  a  law  which  authorized 
the  issue  of  certificates  for  sums  of  not  less  than  thirty 
cents  nor  more  than  ten  dollars,  which  were  loaned  out 
to  individuals  in  amounts  of  less  than  $200,  and  were 
intended  to  be  used  as  money.  On  October  i,  1821, 
Hiram  Craig  borrowed  from  the  State  $199.99  in  cer- 
tificates and  gave  his  note  for  that  sum.  In  due  course 
of  time  he  was  sued  on  the  note.    This  case,  Craig  vs. 

*  12  Wheaton's  Rep.,  213. 


202       AMERICAN  PLAN  OF^GOVERNMENT 

Missouri, '  tiimed  upon  the  question  whether  these 
loan  certificates  were  bills  of  credit  which  under  the 
Constitution  of  the  United  States,  the  State  of  Missouri 
had  no  right  to  emit.  The  Supreme  Court  thus  had  to 
decide  whether  a  State  could  evade  the  clause  forbidding 
it  to  emit  bills  of  credit,  by  calling  its  paper  money 
loan  certificates  or  some  other  name.  Chief  Justice 
Marshall  answered  the  question  as  follows: 

-  The  term  "bills  of  credit"  signify  a  paper  medium  in- 
tended to  circulate  between  individuals,  and  between 
government  and  individuals,  for  the  ordinary  purposes  of 
society.  Such  a  medium  always  has  been  liable  to  con- 
siderable fluctuation.  Its  value  is  continually  changing; 
and  these  changes,  often  great  and  sudden,  expose  individ- 
uals to  immense  loss,  are  the  sovuces  of  ruinous  speculations, 
and  destroy  all  confidence  between  man  and  man.  To  cut 
up  this  mischief  by  the  roots,  a  mischief  which  was  felt 
throughout  the  United  States,  and  which  deeply  affected 
the  interest  and  prosperity  of  all,  the  people  declared  in  their 
Constitution  that  no  State  should  emit  bills  of  credit.  If 
the  prohibition  means  anything,  if  the  words  are  not 
empty  sounds,  it  must  comprehend  the  emission  of  any 
paper  medium,  by  a  State  government,  for  the  purpose  of 
common  circulation. 

No  State  shall  .  .  .  pass  any  Bill  of  Attainder,  ex 
post  facto  Law,  .  .  .  or  grant  any  Title  of  Nobility. 
This  is  a  balancing  clause.  The  Constitution  makers 
had  declared  that  Congress  must  not  pass  bills  of  at- 
tainder or  ex  post  facto  laws,  or  grant  titles  of  nobility.' 
For  the  sake  of  consistency,  the  States  had  to  be  laid 
under  the  same  prohibition. 

No  State  shall  .    .    .  pass  any  .    .    .  Law  impairing 

«  4  Peters'  Rep.,  410.         '  U.  S.  Const.,  Art.  I.,  Sec.  9,  Subds.  3,  8. 


LIMITATIONS  UPON  LEGISLATION         203 

the  Obligation  of  Contracts.  This  provision  forbidding 
State  laws  impairing  the  obligation  of  contracts  adds  to 
the  force  and  effect  of  the  clause  in  the  eighth  section 
of  the  first  article  of  the  Constitution,  giving  Congress 
power  to  regulate  commerce.  Indeed,  the  power  of 
Congress  to  regulate  commerce  among  the  States  would 
not  have  amounted  to  much  if  the  States  had  been  left 
free  to  pass  laws  preventing  the  enforcement  in  their 
courts  of  commercial  contracts. 

The  meaning  of  the  phrase  "obligation  of  contracts" 
was  explained  by  Justice  Swayne  in  his  opinion  in  the 
case  of  Edwards  vs.  Kearzey, '  as  follows : 

The  Constitution  of  the  United  States  declares  that  "No 
State  shall  pass  .  .  .  any  law  impairing  the  obligation  of 
contracts." 

A  contract  is  an  agreement  of  minds,  upon  a  sufificient 
consideration,  that  something  specified  shall  be  done,  or 
shall  not  be  done. 

The  lexical  definition  of  "impair"  is  "to  make  worse; 
to  diminish  in  quantity,  value,  excellence,  or  strength;  to 
lessen  in  power;  to  weaken;  to  enfeeble;  to  deteriorate." — 
Webster's  Diet. 

"  Obligation  "  is  defined  to  be  "  the  act  of  obliging  or  bind- 
ing; that  which  obligates;  the  binding  power  of  a  vow, 
promise,  oath,  or  contract, "  etc. — Id. 

The  word  is  derived  from  the  Latin  word  ohligatio, 
tying  up ;  and  that  from  the  word  ohligo,  to  bind  up  or  tie 
up;  to  engage  by  the  ties  of  a  promise  or  oath,  or  form  of 
law;  and  obligo  is  compounded  of  the  verb  ligo,  to  tie  or 
bind  fast,  and  the  preposition  oh,  which  is  prefixed  to  in- 
crease its  meaning. 

In  1809,  twenty  years  after  the  establishment  of 
government  under  the  Constitution,  the  Supreme  Court 

'  96  U.  S.  Rep.,  595. 


204  1  AMERICAN  PLAN  OP  GOVERNMENT 

was  called  upon,  in  the  case  of  Fletcher  vs.  Peck,^  to 
explain  this  right  of  the  nation  against  the  States.  In 
1795,  the  legislature  of  Georgia  had  been  corruptly 
influenced  to  pass  a  law  for  the  sale  of  certain  public 
lands.  In  course  of  time,  the  lands  had  been  bought 
by  people  who  had  had  nothing  to  do  with  the  bribery. 
A  succeeding  State  legislature,  however,  had  passed 
another  act  annulling  the  original  sale  for  fraud.  This 
had  left  the  innocent  holders  of  deeds,  some  of  whom 
had  not  taken  actual  possession  of  lands,  nothing  except 
title  deeds  to  show  their  right  of  ownership.  One  of 
the  purchasers,  Robert  Fletcher,  brought  in  the  United 
States  Circuit  Court  in  Massachusetts  a  suit  for  damages 
against  John  Peck,  who  had  made  a  deed  in  which  there 
was  a  guarantee  of  title.  This  case  was  carried  to  the 
Supreme  Court  upon  the  claim  that  the  Georgia  law 
annulling  the  original  sale  had  impaired  the  obligation 
of  a  contract  and  therefore  was  a  law  which  that  State 
had  no  right  to  enact.  In  his  opinion,  Chief  Justice 
Marshall  said: 

When  ...  a  law  is  in  the  nature  of  a  contract,  when 
absolute  rights  have  vested  under  that  contract,  a  repeal 
of  the  law  cannot  devest  those  rights.  ,  .  .  Georgia 
cannot  be  viewed  as  a  single,  unconnected,  sovereign  power, 
on  whose  legislature  no  other  restrictions  are  imposed  than 
may  be  found  in  its  own  Constitution.  She  is  a  part  of  a 
large  empire;  she  is  a  member  of  the  American  Union;  and 
that  Union  has  a  Constitution,  the  supremacy  of  which  all 
acknowledge,  and  which  imposes  limits  to  the  legislatures 
of  the  several  States,  which  none  claim  a  right  to  pass. 
The  Constitution  of  the  United  States  declares  that  no 
State  shall  pass  any  bill  of  attainder,  ex  post  facto  law,  or 
law  impairing  the  obligation  of  contracts.     Does  the  case 

*  6  Cranch's  Rep.,  87. 


LIMITATIONS  UPON  LEGISLATION         205 

now  under  consideration  come  within  this  prohibitory  sec- 
tion of  the  Constitution? 

In  considering  this  very  interesting  question,  we  im- 
mediately ask  ourselves  what  is  a  contract?  Is  a  grant  a 
contract?  A  contract  is  a  compact  between  two  or  more 
parties,  and  is  either  executory  or  executed.  An  executory 
contract  is  one  in  which  a  party  binds  himself  to  do,  or 
not  to  do  a  particular  thing;  such  was  the  law  under  which 
the  [original]  conveyance  was  made  by  the  governor.  A 
contract  executed  is  one  in  which  the  object  of  contract  is 
performed;  and  this,  says  Blackstone,  differs  in  nothing 
from  a  grant.  The  contract  between  Georgia  and  the  pur- 
chaser was  executed  by  the  grant.  A  contract  executed,  as 
well  as  one  which  is  executory,  contains  obligations  bind- 
ing on  the  parties.  A  grant,  in  its  own  nature,  amounts  to 
an  extinguishment  of  the  right  of  the  grantor,  and  implies 
a  contract  not  to  reassert  that  right.  A  party  is,  therefore, 
always  estopped  [prevented  from  trying  to  dispute]  by  his 
own  grant. 

Since,  then,  in  fact,  a  grant  is  a  contract  executed,  the 
obligation  of  which  still  continues,  and  since  the  Constitu- 
tion used  the  general  term  contract,  without  distinguishing 
between  those  which  are  executory  and  those  which  are 
executed,  it  must  be  construed  to  comprehend  the  latter  as 
well  as  the  former.  ...  If,  under  a  fair  construction  of 
the  Constitution,  grants  are  comprehended  under  the  term 
contracts,  is  a  grant  from  the  State  excluded  from  the  opera- 
tion of  the  provision?  Is  the  clause  to  be  considered  as 
inhibiting  the  State  from  impairing  the  obligation  of  con- 
tracts between  two  individuals,  but  as  excluding  from  that 
inhibition  contracts  made  with  itself?  .    .    . 

It  is  .  .  .  the  unanimous  opinion  of  the  Court,  that, 
in  this  case,  the  estate  having  passed  into  the  hands  of  a 
purchaser  for  a  valuable  consideration,  without  notice,  the 
State  of  Georgia  was  restrained,  either  by  general  principles 
which  are  common  to  our  free  institutions,  or  by  the  par- 
ticular provisions  of  the  Constitution  of  the  United  States, 


206       AMERICAN  PLAN  OF  GOVERNMENT 

from  passing  a"law  whereby  the  estate  of  the  plaintiff  in 
the  premises  so  purchased  could  be  constitutionally  and 
legally  impaired  and  rendered  null  and  void. 

The  property  right  of  the  people  in  their  contracts 
was  explained  again,  in  1 8 12,  by  Chief  Justice  Marshall 
in  the  case  of  New  Jersey  vs.  Wilson.^  In  1758,  the 
colonial  legislature  of  New  Jersey,  in  settling  a  disputed 
claim,  had  conveyed  certain  lands  to  the  remnant  of 
the  tribe  of  Delaware  Indians  by  an  Act  which  said 
"that  the  lands  to  be  purchased  for  the  Indians  afore- 
said shall  not  hereafter  be  subject  to  any  tax,  any  law, 
usage,  or  custom  to  the  contrary  thereof,  in  any  wise 
notwithstanding."  The  Indians  had  held  the  lands 
until  1 801,  when  wishing  to  join  their  brethren  at  Stock- 
bridge,  N.  Y.,  they  had  applied  for  and  obtained  an  act 
of  the  legislature  authorizing  them  to  sell  their  New 
Jersey  land.  In  1803,  commissioners  appointed  for  the 
purpose  had  sold  the  lands  to  Wilson  and  others.  In 
1804,  the  legislature  had  repealed  the  part  of  the  act 
which  exempted  the  lands  from  taxation.  The  lands 
had  then  been  assessed  for  taxes,  which  the  owners  had 
refused  to  pay.     Chief  Justice  Marshall  said : 

Every  requisite  to  the  formation  of  a  contract  is  found  in 
the  proceedings  between  the  then  colony  of  New  Jersey  and 
the  Indians.  The  subject  was  a  purchase  on  the  part  of 
the  government  of  extensive  claims  of  the  Indians,  the 
extinguishment  of  which  would  quiet  the  title  to  a  large 
portion  of  the  province.  A  proposition  to  this  effect  is  made, 
the  terms  stipulated,  the  consideration  agreed  upon,  which 
is  a  tract  of  land  with  the  privilege  of  exemption  from  taxa- 
tion; and  then,  in  consideration  of  the  arrangements 
previously  made,  one  of  which  this  act  of  assembly  is  stated 

» 7  Cranch's  Rep.,  164. 


LIMITATIONS  UPON  LEGISLATION        207 

to  be,  the  Indians  executed  their  deed  of  cession.  This  is 
certainly  a  contract  clothed  in  forms  of  unusual  solemnity. 
The  privilege,  though  for  the  benefit  of  the  Indians,  is 
annexed,  by  the  terms  which  create  it,  to  the  land  itself, 
not  to  their  persons.  It  is  for  their  advantage  that  it  should 
be  annexed  to  the  land,  because,  in  the  event  of  a  sale,  on 
which  alone  the  question  could  become  material,  the  value 
would  be  enhanced  by  it.  It  is  not  doubted  but  that  the 
State  of  New  Jersey  might  have  insisted  on  a  surrender  of 
this  privilege  as  the  sole  condition  on  which  a  sale  of  the 
property  should  be  allowed.  But  this  condition  has  not 
been  insisted  on.  The  land  has  been  sold,  with  the  assent 
of  the  State,  with  all  its  privileges  and  immxmities.  The 
purchaser  succeeds,  with  the  assent  of  the  State,  to  all  the 
rights  of  the  Indians.  He  stands,  with  respect  to  this  land, 
in  their  place,  and  claims  the  benefit  of  their  contract.  The 
contract  is  certainly  impaired  by  a  law  which  would  annul 
this  essential  part  of  it. 

In  the  case  of  Sturgis  vs.  Crowninshield,  ^  the  question 
before  the  Supreme  Court  was  whether  or  not  a  State 
law  for  the  relief  of  insolvent  debtors  was  void  under  this 
clause  of  the  Constitution.  Chief  Justice  Marshall, 
who  delivered  the  opinion  of  the  court,  admitted  that, 
until  Congress  had  exercised  its  power  "to  establish 
uniform  laws  on  the  subject  of  bankruptcies  throughout 
the  United  States,  "'a  State  could  pass  any  bankruptcy 
law  which  did  not  impair  the  obligation  of  a  contract. 
He  said,  however,  that  a  State  could  not  by  such  a  law, 
impair  the  obligation  of  a  contract  in  a  promissory  note 
made  before  the  law  was  enacted.  The  opinion  is  as 
follows: 

Does  the  law  of  New  York,  which  is  pleaded  in  this  case, 
impair  the  obligation  of  contracts,  within  the  meaning  of 

'  4  Wheaton's  Rep.,  122.        » U.  S.  Const.,  Art.  1,  Sec.  8,  Subd.  4. 


208       AMERICAN  PLAN  OF  GOVERNMENT 

the  Constitution  of  the  United  States?  This  act  liberates 
the  person  of  the  debtor,  and  discharges  him  from  all  lia- 
bility for  any  debt  previously  contracted,  on^his  surrendering 
his  property  in  the  manner  it  prescribes.  In  discussing  the 
question  whether  a  State  is  prohibited  from  passing  such  a 
law  as  this,  our  first  inquiry  is  into  the  meaning  of  words  in 
common  use.  What  is  the  obligation  of  a  contract?  and 
what  will  impair  it?  .  .  .  A  contract  is  an  agreement  in 
which  a  party  undertakes  to  do,  or  not  to  do,  a  particular 
thing.  The  law  binds  him  to  perform  his  undertaking, 
and  this  is,  of  course,  the  obligation  of  his  contract.  In 
the  case  at  bar,  the  defendant  has  given  his  promissory 
note  to  pay  the  plaintiff  a  sum  of  money  on  or  before  a 
certain  day.  The  contract  binds  him  to  pay  that  sum  on 
that  day ;  and  this  is  its  obligation.  Any  law  which  releases 
a  part  of  this  obligation,  must,  in  the  literal  sense  of  the 
word,  impair  it.  Much  more  must  a  law  impair  it  which 
makes  it  totally  invalid,  and  entirely  discharges  it.  .  .  . 
Although  .  .  .  the  States  may,  until  that  power  shall 
be  exercised  by  Congress,  pass  laws  concerning  bankrupts, 
yet  they  cannot  constitutionally  introduce  into  such  laws 
a  clause  which  discharges  the  obligations  the  bankrupt  has 
entered  into. 

In  the  great  case  of  Dartmouth  College  vs.  Woodward,  * 
the  Supreme  Court  decided  that  a  corporation  charter 
is  a  contract,  the  obligation  of  which  cannot  be  impaired 
even  by  the  State  which  creates  and  protects  it.  If 
this  ruling  still  governed,  corporations  would  be  dan- 
gerously powerful. 

The  Dartmouth  College  case  originated  in  an  attempt 
in  1816  by  the  New  Hampshire  legislature  to  amend  the 
charter  which  King  George  the  Third  had  granted,  in 
1769,  to  Rev.  Eleazer  Wheelock  for  an  Indian  mission 
school.     Gifts  of  land  and  other  property  had  been 

»4  Wheaton's  Rep.,  518,  642. 


LIMITATIONS  UPON  LEGISLATION        209 

made  by  many  good  people,  including  the  Earl  of  Dart- 
mouth, whose  name  was  adopted  when  the  school  be- 
came a  college.  Under  its  royal  charter,  the  institution 
had  been  governed  by  a  board  of  trustees  who  had  power 
to  fill  all  vacancies  in  their  number.  In  June  and  De- 
cember, 1 8 16,  the  New  Hampshire  legislature  enacted 
laws  "enlarging  and  improving  the  corporation  and 
amending  the  charter"  in  such  a  way  as  to  give  the 
State  full  control  over  the  corporation.  William  H. 
Woodward,  the  defendant  in  the  case,  had  been  secre- 
tary and  treasurer  of  the  original  corporation  known 
as  the  "Trustees  of  Dartmouth  College."  On  August 
27,  1 816,  he  had  been  removed  from  both  offices.  On 
February  4,  1817,  the  college  corporation  had 
been  organized  according  to  the  provisions  of  the 
new  acts,  and  the  new  trustees  appointed  Wood- 
ward secretary  and  treasurer  of  the  college.  He 
had  accepted  the  offices  and  thereby  obtained  cus- 
tody of  the  books  and  some  other  property  of  the 
corporation. 

The  trustees  under  the  old  royal  charter  brought  this 
case  of  Trustees  of  Dartmouth  College  vs.  Woodward  in 
order  to  obtain  possession  of  the  college  books  and 
other  property.  The  case  was  heard  first  in  the  Court 
of  Common  Pleas  of  Grafton  County,  N.  H.,  where 
the  jury  reported  to  the  court  that,  if  the  New  Hamp- 
shire laws  changing  the  college  charter  did  not  impair 
the  obligations  of  a  contract  under  the  provisions  of  the 
Constitution  of  the  United  States,  judgment  ought  to  be 
in  favor  of  Woodward ;  but  that,  if  those  acts  were  void 
for  unconstitutionality,  the  judgment  should  be  for  the 
old  trustees.  Chief  Justice  Marshall  carried  the  Su- 
preme Court  with  him  in  a  far-reaching  decision  in 
which  he  said: 


210      AMERICAN  PLAN  OF  GOVERNMENT 

Dr.  Wheelock,  acting  for  himself  and  for  those  who,  at 
his  solicitation,  had  made  contributions  to  his  school, 
applied  for  this  charter,  as  the  instrument  which  should 
enable  him  and  them  to  perpetuate  their  beneficent  inten- 
tion. It  was  granted.  An  artificial,  immortal  being  was 
created  by  the  crown,  capable  of  receiving  and  distributing 
forever,  according  to  the  will  of  the  donors,  the  donations 
which  should  be  made  to  it.  On  this  being,  the  contribu- 
tions which  had  been  collected  were  immediately  bestowed. 
These  gifts  were  made,  not  indeed  to  make  a  profit  for  the 
donors  or  their  posterity,  but  for  something  in  their  opinion 
of  inestimable  value;  for  something  which  they  deemed  a 
full  equivalent  for  the  money  with  which  it  was  purchased. 
The  consideration  for  which  they  stipulated,  is  the  perpetual 
application  of  the  fund  to  its  object,  in  the  mode  prescribed 
by  themselves.  Their  descendants  may  take  no  inter- 
est in  the  preservation  of  this  consideration.  But  in  this 
respect  their  descendants  are  not  their  representatives. 
They  are  represented  by  the  corporation.  The  corporation 
is  the  assignee  of  their  rights,  stands  in  their  place,  and  dis- 
tributes their  bounty  as  they  would  themselves  have  dis- 
tributed it,  had  they  been  immortal.  So  with  respect  to 
the  students  who  are  to  derive  learning  from  this  source. 
The  corporation  is  a  trustee  for  them  also.  Their  potential 
rights,  which,  taken  distributively,  are  imperceptible, 
amount,  collectively,  to  a  most  important  interest.  These 
are  in  the  aggregate,  to  be  exercised,  asserted,  and  protected, 
by  the  corporation .... 

Had  parliament,  immediately  after  the  emanation  of  this 
charter,  and  the  execution  of  those  conveyances  which 
followed  it,  annulled  the  instnmient,  so  that  the  living 
donors  would  have  witnessed  the  disappointment  of  their 
hopes,  the  perfidy  of  the  transaction  would  have  been  uni- 
versally acknowledged.  Yet,  then,  as  now,  the  donors  would 
have  had  no  interest  in  the  property ;  then,  as  now,  those  who 
might  be  students  would  have  had  no  rights  to  be  violated ; 
then,  as  now,  it  might  be  said,  that  the  trustees,  in  whom  the 


LIMITATIONS  UPON  LEGISLATION         211 

rights  of  all  were  combined,  possessed  no  private,  individual, 
beneficial  interest  in  the  property  confided  to  their  protec- 
tion. Yet  the  contract  would  at  that  time  have  been 
deemed  sacred  by  all.  What  has  since  occurred  to  strip 
it  of  its  inviolability?  Circumstances  have  not  changed  it. 
In  reason,  in  justice,  and  in  law,  it  is  now  what  it  was  in 
1769. 

This  is  plainly  a  contract  to  which  the  donors,  the  trus- 
tees, and  the  crown,  (to  whose  rights  and  obligations  New 
Hampshire  succeeds,)  were  the  original  parties.  It  is  a 
contract  made  on  a  valuable  consideration.  It  is  a  contract 
for  the  security  and  disposition  of  property.  It  is  a  contract 
on  the  faith  of  which,  real  and  personal  estate  has  been 
conveyed  to  the  corporation.  It  is  a  contract  within  the 
letter  of  the  Constitution,  and  within  its  spirit  also,  unless 
the  fact  that  the  property  is  invested  by  the  donors  in 
trustees,  for  the  promotion  of  religion  and  education,  for 
the  benefit  of  persons  who  are  perpetually  changing,  though 
the  objects  remain  the  same,  shall  create  a  particular  ex- 
ception, taking  this  case  out  of  the  prohibition  contained  in 
the  Constitution. 

It  is  more  than  possible  that  the  preservation  of  rights  of 
this  description  was  not  particularly  in  the  view  of  the 
framers  of  the  Constitution,  when  the  clause  under  con- 
sideration was  introduced  into  that  instrimient.  It  is 
probable  that  interferences  of  more  frequent  recurrence,  to 
which  the  temptation  was  stronger,  and  of  which  the  mis- 
chief was  more  extensive,  constituted  the  great  motive 
for  imposing  this  restriction  on  the  State  legislatures.  But 
although  a  particular  and  a  rare  case  may  not,  in  itself,  be 
of  sufficient  magnitude  to  induce  a  rule,  yet  it  must  be 
governed  by  the  rule,  when  established,  unless  some  plain 
and  strong  reason  for  excluding  it  can  be  given.  It  is  not 
enough  to  say,  that  this  particular  case  was  not  in  the  mind 
of  the  convention,  when  the  article  was  framed,  nor  of  the 
American  people  when  it  was  adopted.  ,  .  .  The  case 
being  within  the  words  of  the  rule,  must  be  within  its  opera- 


212       AMERICAN  PLAN  OF  GOVERNMENT 

tion  likewise,  unless  there  be  something  in  the  literal  con- 
struction so  obviously  absurd  or  mischievous,  or  repugnant 
to  the  general  spirit  of  the  instrtraient,  as  to  justify  those 
who  expound  the  Constitution  in  making  it  an  exception. 

The  founders  of  the  college  contracted,  not  merely  for  the 
perpetual  application  of  the  funds  which  they  gave,  to  the 
objects  for  which  those  funds  were  given;  they  contracted 
also,  to  secure  that  application  by  the  constitution  of  the 
corporation.  They  contracted  for  a  system,  which  should, 
as  far  as  himian  foresight  can  provide,  retain  forever  the 
government  of  the  literary  institution  they  had  formed,  in 
the  hands  of  persons  approved  by  themselves.  This  sys- 
tem is  totally  changed.  The  charter  of  1769  exists  no 
longer.  It  is  reorganized;  and  reorganized  in  such  a  man- 
ner, as  to  convert  a  literary  institution,  moulded  according 
to  the  will  of  its  founders,  and  placed  under  the  control  of 
private  literary "  men,  into  a  machine  entirely  subservient 
to  this  will  of  government.  This  may  be  for  the  advantage 
of  the  college  in  particular,  and  may  be  to  the  advantage 
of  literature  in  general;  but  it  is  not  according  to  the  will  of 
the  donors,  and  is  subversive  of  that  contract,  on  the  faith 
of  which  the  property  was  given.    .    .    . 

It  results  from  this  opinion,  that  the  acts  of  the  legis- 
lature of  New  Hampshire  .  .  .  are  repugnant  to  the 
Constitution  of  the  United  States. 

During  the  era  of  railroad  building,  the  rule  in  the 
Dartmouth  College  case  became  "obviously  absurd, 
mischievous,  [and]  repugnant  to  the  general  spirit  of" 
the  Constitution.  The  building  of  railroads  along  lines 
of  travel  parallel  with  turnpikes  and  canals  had  dimin- 
ished the  value  of  the  franchises  of  many  turnpike  and 
canal  companies  operating  under  charters  granted  by 
States.  If  the  turnpike  and  canal  charters,  like  the 
Dartmouth  College  charter,  were  contracts,  the  obliga- 
tion of  which  could  not  lawfully  be  impaired  by  any 


LIMITATIONS  UPON  LEGISLATION         213 

subsequent  laws  of  the  same  States,  the  charters  of  the 
railroad  companies  were  not  valid. 

The  case  of  Proprietors  of  Charles  River  Bridge  vs. 
Proprietors  of  Warren  Bridge^  came  before  the  Supreme 
Court  in  1837.  I^  1650,  the  colonial  legislature  of 
Massachusetts  had  given  Harvard  College  a  right  to 
operate  for  profit  a  ferry  across  Charles  River  between 
Boston  and  Charlestown.  The  college  had  conducted 
the  enterprise  successfully  until  1785,  when  the  State 
legislature  had  incorporated  a  company  under  the  name 
of  "The  Proprietors  of  the  Charles  River  Bridge" 
to  build  a  bridge  in  the  place  where  the  ferry  ran,  and 
incidentally  to  pay  Harvard  College  £200  a  year  to 
replace  the  income  it  had  derived  from  ferry  charges. 
This  charter  was  limited  to  forty  years.  The  bridge 
had  been  built  and  opened  to  the  public  on  June  17, 
1786.  In  1792,  the  charter  had  been  extended  seventy 
years  from  the  opening  of  the  bridge.  In  1828,  the 
Massachusetts  legislature  had  incorporated  a  company 
under  the  name  of  "The  Proprietors  of  the  Warren 
Bridge"  to  erect  another  bridge  over  Charles  River, 
from  Charlestown  to  Boston.  This  bridge  had  been 
built  only  a  few  rods  from  the  old  structure.  Before 
its  completion  the  Charles  River  Bridge  Company  had 
filed  a  petition  praying  for  an  injunction.  The  case 
had  been  heard  by  the  Supreme  Judicial  Court  of  Massa- 
chusetts in  1829.  This  court,  deciding  that  the  charter 
to  the  Warren  Bridge  did  not  impair  the  obligation  of 
the  contract  contained  in  the  charter  of  the  Charles 
River  Bridge,  had  dismissed  the  suit.  The  case  had 
then  been  taken  to  the  Supreme  Court  at  Washington. 
In  the  meantime,  the  Warren  Bridge  had  been  built  and 
turned  over  to  the  State  of  Massachusetts  in  accordance 

*  II  Peters'  Rep.,  421,  547. 


214       AMERICAN  PLAN  OF  GOVERNMENT 

with  a  charter  provision  that  it  should  belong  to  the 
State  as  soon  as  the  proprietors  had  received  in  tolls 
the  full  cost  of  the  structure.  This  made  the  Warren 
Bridge  free,  thereby  destroying  the  value  of  the  old 
bridge  because  no  one  would  pay  for  going  over  a 
toll  bridge  when  a  free  bridge  was  just  as  con- 
venient. Harvard  College  lost  at  the  same  time 
the  £200  a  year  for  which  it  had  surrendered  its  pro- 
perty rights  in  the  old  ferry.  The  Supreme  Court  at 
Washington  would  not  agree  that  there  had  been 
any  impairment  of  the  obligations  of  any  contracts  in 
any  part  of  the  whole  affair.  Chief  Justice  Taney 
said: 

The  object  and  end  of  all  government  is  to  promote  the 
happiness  and  prosperity  of  the  community  by  which  it  is 
established;  and  it  can  never  be  assumed,  that  the  govern- 
ment intended  to  diminish  its  power  of  accomplishing  the 
end  for  which  it  was  created.  ...  A  State  ought  never 
to  be  presumed  to  siurender  this  power,  because,  like  the 
taxing  power,  the  whole  community  have  an  interest  in 
preserving  it  undiminished.  And  when  a  corporation  alleges, 
that  a  State  has  surrendered  for  seventy  years,  its  power  of 
improvement  and  public  accommodation,  in  a  great  and 
important  line  of  travel,  along  which  a  vast  number  of 
citizens  must  daily  pass;  the  community  have  a  right  to 
insist  in  the  language  of  this  court  .  .  .  "  that  its  abandon- 
ment ought  not  to  be  presumed,  in  a  case,  in  which  the  de- 
liberate purpose  of  the  State  to  abandon  it  does  not  appear. " 
...  It  [the  Warren  Bridge]  does  not  interrupt  the 
passage  over  the  Charles  River  Bridge,  nor  make  the  way 
to  it  or  from  it  less  convenient.  None  of  the  faculties  or 
franchises  granted  to  that  corporation  have  been  revoked 
by  the  legislature,  and  its  right  to  take  the  tolls  granted  by 
the  charter  remains  unaltered.  In  short,  all  the  franchises 
and  rights  of  property  emmierated  in  the  charter,  and 


LIMITATIONS  UPON  LEGISLATION         215 

there  mentioned  to  have  been  granted  to  it,  remain  un- 
impaired. But  its  income  is  destroyed  by  the  Warren 
Bridge;  which,  being  free,  draws  off  the  passengers  and 
property  which  would  have  gone  over  it,  and  renders  their 
franchise  of  no  value.  This  is  the  gist  of  the  complaint. 
...  In  order  then  to  entitle  themselves  to  relief,  it 
is  necessary  to  show  that  the  legislature  contracted  [in 
the  charter  of  the  Charles  River  Bridge]  not  to  do  the  act 
of  which  they  complain,  and  that  they  impaired,  or,  in 
other  words,  violated  that  contract  by  the  erection  of  the 
Warren  Bridge.    .    .    . 

And  what  would  be  the  fruits  of  this  doctrine  ...  of 
property  in  a  line  of  travel  by  a  corporation,  if  it  should 
now  be  sanctioned  by  this  court?  ...  If  this  court 
should  establish  the  principle  now  contended  for,  what  is  to 
become  of  the  numerous  railroads  established  on  the  same 
line  of  travel  with  turnpike  companies;  and  which  have 
rendered  the  franchises  of  the  turnpike  corporations  of  no 
value?  Let  it  once  be  understood  that  such  charters  carry 
with  them  these  implied  contracts,  and  give  this  unknown 
and  undefined  property  in  a  line  of  travelling,  and  you  will 
soon  find  the  old  turnpike  corporations  awakening  from  their 
sleep,  and  calling  upon  this  court  to  put  down  the  improve- 
ments which  have  taken  their  place.  The  milHons  of 
property  which  have  been  invested  in  railroads  and  canals, 
upon  lines  of  travel  which  had  been  before  occupied  by  turn- 
pike corporations,  will  be  put  in  jeopardy.  We  shall  be 
thrown  back  to  the  improvements  of  the  last  century,  and 
obliged  to  stand  still,  until  the  claims  of  the  old  turnpike 
corporations  shall  be  satisfied,  and  they  shall  consent  to 
permit  these  States  to  avail  themselves  of  the  lights  of 
modem  science,  and  partake  of  the  benefit  of  those  im- 
provements, which  are  now  adding  to  the  wealth  and 
prosperity,  and  the  convenience  and  comfort  of  every 
other  part  of  the  civilized  world.  .  .  .  This  court  are 
not  prepared  to  sanction  principles  which  must  lead  to 
such  results. 


21 6       AMERICAN  PLAN  OF  GOVERNMENT 

No  State  shall  make  or  enforce  any  law  which  shall 
abridge  the  privileges  or  immunities  of  citizens  of  the 
United  States.  Justice  Miller,  in  his  opinion  in  the 
Slaughter  House  Cases, '  enumerated  the  privileges  and 
immunities  of  citizens  of  the  United  States  as  follows : 

We  may  hold  ourselves  excused  from  defining  the  privi- 
leges and  immtmities  of  citizens  of  the  United  States  which 
no  State  can  abridge,  until  some  case  involving  those 
privileges  may  make  it  necessary  to  do  so.  But  lest  it 
should  be  said  that  no  such  privileges  and  immunities  are 
to  be  found  if  those  we  are  considering  are  excluded,  we 
venture  to  suggest  some  which  owe  their  existence  to  the 
Federal  government,  its  national  character,  its  Constitution, 
or  its  laws. 

One  of  these  is  well  described  in  the  case  of  Crandall  vs. 
Nevada.  It  is  said  to  be  the  right  of  the  citizen  of  this 
great  country,  protected  by  implied  guarantees  of  its  Con- 
stitution, "  to  come  to  the  seat  of  government,  to  assert  any 
claim  he  may  have  upon  that  government,  to  transact  any 
business  he  may  have  with  it,  to  seek  its  protection,  to 
share  its  offices,  to  engage  in  administering  its  functions. 
He  has  a  right  to  free  access  to  its  seaports,  through  which 
all  operations  of  foreign  commerce  are  conducted,  to  the 
sub-treasuries,  land  offices,  and  courts  of  justice  in  the 
several  States."  And  quoting  from  the  language  of  Chief 
Justice  Taney  in  another  case,  it  is  said  "that  for  all  the 
great  purposes  for  which  the  Federal  government  was 
established,  we  are  one  people,  with  one  common  country, 
we  are  all  citizens  of  the  United  States";  .    .    . 

Another  privilege  of  a  citizen  of  the  United  States  is  to 
demand  the  care  and  protection  of  the  Federal  government 
over  his  life,  liberty,  and  property  when  on  the  high  seas 
or  within  the  jurisdiction  of  a  foreign  government.  Of  this 
there  can  be  no  doubt,  nor  that  the  right  depends  upon  his 

» 16  Wallace's  Rep.,  36. 


LIMITATIONS  UPON  LEGISLATION         217 

character  as  a  citizen  of  the  United  States.  The  right  to 
peaceably  assemble  and  petition  for  redress  of  grievances, 
the  privilege  of  the  writ  of  habeas  corpus,  are  rights  of  the 
citizen  guaranteed  by  the  Federal  Constitution.  The  right 
to  use  the  navigable  waters  of  the  United  States,  however 
they  may  penetrate  the  territory  of  the  several  States,  all 
rights  secured  to  our  citizens  by  treaties  with  foreign  na- 
tions, are  dependent  upon  citizenship  of  the  United  States, 
and  not  citizenship  of  a  State.  One  of  these  privileges  is 
conferred  by  the  very  article  under  consideration.  It  is 
that  a  citizen  of  the  United  States  can,  of  his  own  volition, 
become  a  citizen  of  any  State  of  the  Union  by  a  bona  fide 
residence  therein,  with  the  same  rights  as  other  citizens  of 
that  State. 

No  State  shall  .  .  .  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law.  It  is  not  easy 
to  realize  that,  as  late  as  1885,  the  power  of  a  State  to 
regulate  railroad  charges  within  its  own  borders  was 
seriously  challenged  as  a  taking  of  property  without 
due  process  of  law.  What  seems  to  us  a  matter  of 
course  was  then  contested  strenuously  in  the  Railroad 
Commission  Cases,  ^  in  which  the  Farmers'  Loan  and 
Trust  Company  of  New  York  City  asked  the  Federal 
courts  to  restrain  the  Railroad  Commission  of  Missis- 
sippi from  regulating  local  freight  and  passenger  charges. 
The  duty  of  the  commission  under  the  law  creating  it 
was  to  prevent  the  railroads  from  exacting  unreasonable 
or  discriminating  rates  upon  transportation  within  the 
limits  of  that  State.  Chief  Justice  Waite  decided  that 
such  regulation  does  not  necessarily  deprive  persons  of 
property  without  due  process  of  law.    He  said: 

It  is  now  settled  in  this  court  that  a  State  has  power  to 
limit  the  amount  of  charges  by  railroad  companies  for  the 

« 116  U.  S.  Rep.,  307. 


2i8       AMERICAN  PLAN  OF  GOVERNMENT 

transportation  of  persons  and  property  within  its  own  juris- 
diction, unless  restrained  by  some  contract  in  the  charter,  or 
unless  what  is  done  amounts  to  a  regulation  of  foreign  or 
inter-state  commerce.  .  .  .  It  is  not  to  be  inferred  that 
this  power  of  limitation  or  regulation  is  itself  without  limit. 
The  power  to  regulate  is  not  a  power  to  destroy,  and  limita- 
tion is  not  the  equivalent  of  confiscation.  Under  pretence 
of  regulating  fares  and  freights,  the  State  cannot  require  a 
railroad  corporation  to  carry  persons  or  property  without 
reward ;  neither  can  it  do  that  which  in  law  amounts  to  tak- 
ing of  private  property  without  just  compensation,  or  with- 
out due  process  of  law. 

The  State  of  Minnesota,  having  passed  a  statute 
regulating  railroad  rates  and  establishing  a  railroad 
commission  to  decide  all  appeals  by  dissatisfied  com- 
panies, brought  an  action  against  the  Chicago,  Milwau- 
kee, and  St.  Paul  Railway  Company^  to  compel  that 
corporation  to  obey  the  law.  The  railroad,  which  was 
owned  and  operated  by  a  Wisconsin  corporation,  had 
been  built  under  a  charter  issued  in  1856  by  the  Terri- 
tory of  Minnesota.  One  section  of  that  charter  pro- 
vided that  the  directors  of  the  corporation  should  have 
power  to  make  all  needful  rules,  regulations,  and  by- 
laws "touching  the  rates  of  toll  and  the  manner  of 
collecting  the  same."  The  railroad  company  con- 
tended that  the  State  of  Minnesota  was  bound  by  the 
contract  contained  in  the  charter  granted  by  the  Terri- 
tory, claiming  "that  a  contract  existed  that  the  com- 
pany should  have  the  power  of  regulating  its  rates  of 
toll;  that  any  legislation  by  the  State  infringing  upon 
that  right  impairs  the  obligation  of  the  contract." 
The  Supreme  Court  of  Minnesota  decided  in  favor  of 
the  State,  but  this  judgment  was  reversed  by  the  Su- 

*C.M.&  St.  P.  Rwy.  Co.  vs.  Minnesota,  134  U.  S.  Rep.,  418,  456. 


LIMITATIONS  UPON  LEGISLATION         219 

preme  Court.     Justice  Blatchford,  in  the  opinion  ren- 
dered by  the  national  tribunal,  said: 

The  construction  put  upon  the  statute  [giving  a  commis- 
sion power  to  fix  rates]  by  the  Supreme  Court  of  Minnesota 
must  be  accepted  by  this  court,  for  the  purposes  of  the 
present  case,  as  conclusive  and  not  to  be  re-examined  here 
as  to  its  propriety  and  accuracy.  The  Supreme  Court  [of 
Minnesota]  authoritatively  declares  that  it  is  the  expressed 
intention  of  the  legislature  of  Minnesota,  by  the  statute, 
that  the  rates  recommended  and  published  by  the  com- 
mission, if  it  proceeds  in  the  manner  pointed  out  by  the  act, 
are  not  simply  advisory,  nor  merely  prima  facie  equal  and 
reasonable,  but  final  and  conclusive  as  to  what  are  equal 
and  reasonable  charges;  that  the  law  neither  contemplates 
nor  allows  any  issue  to  be  made  or  inquiry  to  be  had  as  to 
their  equality  or  reasonableness  in  fact;  that,  under  the 
statute,  the  rates  published  by  the  commission  are  the  only 
ones  that  are  lawful,  and,  therefore,  in  contemplation  of  law 
the  only  ones  that  are  equal  and  reasonable.  ...  In 
other  words,  though  the  railroad  is  forbidden  to  establish 
rates  that  are  not  equal  and  reasonable,  there  is  no  power  in 
the  courts  to  stay  the  hands  of  the  commission,  if  it  chooses 
to  establish  rates  that  are  unequal  and  unreasonable. 

This  being  the  construction  of  the  statute  by  which  we 
are  bound  in  considering  the  present  case,  we  are  of  opinion 
that,  so  construed,  it  conflicts  with  the  Constitution  of  the 
United  States  in  the  particulars  complained  of  by  the  rail- 
road company.  It  deprives  the  company  of  its  rights  to  a 
judicial  investigation,  by  due  process  of  law,  under  the  forms 
and  with  the  machinery  provided  by  the  wisdom  of  suc- 
cessive ages  for  the  investigation  judicially  of  the  truth  of 
a  matter  in  controversy,  and  substitutes  therefor,  as  an 
absolute  finality,  the  action  of  a  railroad  commission  which, 
in  view  of  the  power  conceded  to  it  by  the  State  court, 
cannot  be  regarded  as  clothed  with  judicial  functions  or 
possessing  the  machinery  of  a  court  of  justice. 


220       AMERICAN  PLAN  OF  GOVERNMENT 

Nor  shall  any  State  .  ,  .  deny  to  any  person  within 
its  jurisdiction  the  equal  protection  of  the  laws.  "The 
Fourteenth  Amendment,"  said  Justice  Field  in  his 
opinion  in  the  case  of  Barhier  vs.  Connolly,^  "in 
declaring  that  no  State  'shall  deprive  any  person  of 
life,  liberty,  or  property  without  due  process  of  law, 
nor  deny  to  any  person  within  its  jurisdiction  the  equal 
protection  of  the  laws, '  undoubtedly  intended  not  only 
that  there  should  be  no  arbitrary  deprivation  of  life 
or  liberty,  or  arbitrary  spoliation  of  property,  but  that 
equal  protection  and  security  should  be  given  to  all 
under  like  circumstances  in  the  enjoyment  of  their 
personal  and  civil  rights;  that  all  persons  should  be 
equally  entitled  to  pursue  their  happiness  and  acquire 
and  enjoy  property ;  that  they  should  have  like  access 
to  the  coiirts  of  the  coimtry  for  the  protection  of  their 
persons  and  property,  the  prevention  and  redress  of 
their  wrongs,  and  the  enforcement  of  contracts;  that 
no  impediment  should  be  interposed  to  the  pursuits  of 
any  one  except  as  applied  to  the  same  pursuits  by  others 
under  like  circumstances;  that  no  greater  burdens  should 
be  laid  upon  one  than  are  laid  upon  others  in  the  same 
calling  and  condition,  and  that  in  the  administration 
of  criminal  justice  no  different  or  higher  punishment 
should  be  imposed  upon  one  than  such  as  is  prescribed 
to  all  for  like  offences. " 

The  limitations  upon  the  powers  of  the  States  im- 
posed by  the  constitutional  bill  of  rights  in  the  tenth 
section  of  the  first  article  and  by  the  provisions  of  the 
Foiirteenth  Amendment  are  controlled  to  some  extent 
by  the  police  powers  of  the  local  governments.  Each 
State  has  an  undoubted  right  to  enforce  many  laws 
which  apparently  violate  these  constitutional  prohi- 

M13U.  S.  Rep.,  27. 


LIMITATIONS  UPON  LEGISLATION         221 

bitions,  if  it  appears  that  such  laws  are  necessary  for 
the  safety,  health,  and  morals  of  their  citizens.  This 
doctrine  of  the  police  powers  of  the  States  dates  back 
to  the  case  of  Coates  vs.  Mayor  and  Aldermen  of  New 
York  City,  ^  in  which  the  New  York  courts  asserted  that, 
in  preserving  the  health  of  its  citizens,  a  State  does  not 
impair  the  obligation  of  a  contract.  The  question  in 
this  case  was  whether  the  city  of  New  York  could  com- 
pel the  sexton  of  Trinity  Church  to  pay  a  penalty  of 
$250  for  burying  a  body  in  Trinity  churchyard  in  viola- 
tion of  a  city  ordinance.  Coates  defended  himself  by 
claiming  that  the  rectors,  church-wardens,  and  vestry- 
men of  Trinity  Church  had  a  property  right  to  inter 
the  bodies  of  deceased  persons  in  this  churchyard,  and 
received  fees,  perquisites,  and  profits  for  so  doing.  He 
claimed  that  this  property  right  amounted  to  a  contract, 
the  obligation  of  which  could  not  be  impaired  by  the 
State  of  New  York.  The  court  denied  this  contention 
upon  the  ground  that  a  by-law  of  a  city,  made  pursuant 
to  a  State  law,  enacted  to  preserve  the  health  of  the 
inhabitants,  was  a  policing  regulation  and  not  a  law 
impairing  the  obligation  of  a  contract.  The  court  said 
in  part: 

It  was  conceded,  on  the  argument,  that  the  corporatiou 
[City  of  New  York]  have,  in  general,  power  so  to  order  the 
use  of  private  property  in  the  city,  as  to  prevent  its  proving 
pernicious  to  the  citizens  generally.  A  contrary  doctrine 
would  strike  at  the  root  of  all  police  regulations.  .  .  . 
A  lot  is  granted  as  a  place  of  deposit  for  gunpowder,  or  other 
purpose,  innocent,  in  itself,  at  the  time;  it  is  devoted  to 
that  purpose,  till,  in  the  progress  of  population,  it  becomes 
dangerous  to  the  property,  the  safety,  or  the  lives  of  hun- 
dreds; it  cannot  be,  that  the  mere  form  of  the  grant,  because 

» 7  Cowen's  [N.  Y.J  Rep.,  585, 604. 


222       AMERICAN  PLAN  OF  GOVERNMENT 

the  parties  choose  to  make  it  particular,  instead  of  general 
and  absolute  [that  is,  saying  that  it  is  to  be  used  for  storing 
gunpowder,  instead  of  saying  nothing  about  what  it  is  to 
be  used  for],  should  prevent  the  use  to  which  it  is  limited 
being  regarded  and  treated  as  a  nuisance,  when  it  becomes 
so  in  fact.  .  .  .  Every  right,  from  an  absolute  ownership 
in  property,  down  to  a  mere  easement  [right  to  use  property 
for  some  purpose  such  as  a  pathway],  is  purchased  and  holden 
subject  to  the  restriction,  that  it  shall  be  so  exercised  as  not 
to  injure  others ....  No  property  has,  in  this  instance, 
been  entered  upon  or  taken.  None  are  benefited  by  the 
destruction,  or  rather  the  suspension  of  the  rights  in  ques- 
tion, in  any  other  way  than  citizens  always  are,  when  one 
of  their  number  is  forbidden  to  continue  a  nuisance.  For 
the  same  reason,  there  is  nothing  impairing  the  obligation 
of  a  contract  within  the  sense  of  the  Constitution  of  the 
United  States. 

The  States,  by  virtue  of  their  power  to  enact  policing 
regiilations,  have  been  able  to  make  and  enforce  laws 
which  have  in  effect  impaired  the  obligations  of  con- 
tracts. For  example,  in  the  Slaughter  House  Cases, ^ 
decided  in  1872,  the  question  at  issue  was  the  constitu- 
tionality of  a  Louisiana  law  by  which  a  corporation  had 
been  given  an  exclusive  right  for  twenty-five  years  to 
maintain  slaughter-houses,  landings  for  cattle,  and 
cattle-yards  in  three  parishes  which  included  the 
whole  city  of  New  Orleans.  It  was  contended  that  the 
law  creating  this  monopoly  was  void  under  the  provi- 
sions of  the  Fourteenth  Amendment  in  that  it  abridged 
the  privileges  and  immunities  of  citizens  of  the  United 
States.    Justice  Miller  overruling  this  contention  said: 

The  power  here  exercised  by  the  legislature  of  Louisiana 
is,  in  its  essential  nature,  one  which  has  been,  up  to  the 

'  16  Wallace's  Rep.,  36. 


LIMITATIONS  UPON  LEGISLATION         223 

present  period  in  the  constitutional  history  of  this  country, 
always  conceded  to  belong  to  the  States,  however  it  may 
now  be  questioned  in  some  of  its  details.  "Unwholesome 
trades,  slaughter-houses,  operations  offensive  to  the  senses, 
the  deposit  of  powder,  the  application  of  steam  power  to 
propel  cars,  the  building  with  combustible  materials,  and 
the  burial  of  the  dead,  may  all,"  says  Chancellor  Kent  [2 
Commentaries,  340],  "be  interdicted  by  law,  in  the  midst  of 
dense  masses  of  population,  on  the  general  and  rational 
principle,  that  every  person  ought  so  to  use  his  property  as 
not  to  injure  his  neighbors;  and  that  private  interests  must 
be  made  subservient  to  the  general  interests  of  the  com- 
munity." .  ,  .  The  power  is,  and  must  be  from  its  very 
nature,  incapable  of  any  very  exact  definition  or  limita- 
tion. Upon  it  depends  the  security  of  social  order,  the  life 
and  health  of  the  citizen,  the  comfort  of  an  existence  in  a 
thickly  populated  community,  the  enjojnuent  of  private  and 
social  life,  and  the  beneficial  use  of  property.  .  .  .  The 
regulation  of  the  place  and  manner  of  conducting  the  slaugh- 
tering of  animals,  and  the  business  of  butchering  within  a 
city,  and  the  inspection  of  the  animals  to  be  killed  for  meat, 
and  of  the  meat  afterwards,  are  among  the  most  necessary 
and  frequent  exercises  of  this  power.  ...  It  cannot  be 
denied  that  the  statute  under  consideration  is  aptly  framed 
to  remove  from  the  more  densely  populated  part  of  the  city, 
the  noxious  slaughter-houses,  and  large  and  offensive  col- 
lections of  animals  necessarily  incident  to  the  slaughtering 
business  of  a  large  city,  and  to  locate  them  where  the  con- 
venience, health,  and  comfort  of  the  people  require  they 
shall  be  located. 

In  the  case  of  Fertilizing  Company  vs.  Hyde  Park,  *  the 
Supreme  Court  decided  that  a  State  could  compel  the 
removal  of  a  malodorous  business  away  from  the  place 
where  it  had  been  located  under  the  authority  of  a  cor- 

» 97  U.  S.  Rep.,  659. 


224       AMERICAN  PLAN  OF  GOVERNMENTj 

poration  charter.  The  ruling  made  was  that,  by  virtue 
of  its  power  to  enact  laws  to  preserve  the  health  of  citi- 
zens, a  State  legislature,  if  necessary  to  put  an  end  to 
a  public  nuisance,  has  an  absolute  right  to  modify  a 
charter  previously  granted.  Justice  Swayne  said  in 
this  case: 

That  a  nuisance  of  a  flagrant  character  existed  ...  is 
not  controverted.  We  cannot  doubt  that  the  police  power 
of  the  State  was  applicable  and  adequate  to  give  an  effectual 
remedy.  That  power  belonged  to  the  States  when  the 
Federal  Constitution  was  adopted.  They  did  not  surrender 
it,  and  they  all  have  it  now.  It  extends  to  the  entire  pro- 
perty and  business  within  their  local  jurisdiction.  Both 
are  subject  to  it  in  all  proper  cases.  It  rests  upon  the  fun- 
damental principle  that  every  one  shall  so  use  his  own  as 
not  to  wrong  and  injure  another.  To  regulate  and  abate 
nuisances  is  one  of  its  ordinary  functions.   .    .    . 

The  charter  [of  the  Fertilizing  Company]  was  a  sufficient 
license  until  revoked ;  but  we  cannot  regard  it  as  a  contract, 
guaranteeing,  in  the  locality  originally  selected,  exemption 
for  fifty  years  from  the  exercise  of  the  police  power  of  the 
State,  however  serious  the  nuisance  might  become  in  the 
future,  by  reason  of  the  growth  of  population  around  it. 
The  owners  had  no  such  exemption  when  they  were  incor- 
porated, and  we  think  the  charter  did  not  give  it  to  them. 

The  police  power  of  the  States  is  a  limitation  upon 
the  powers  of  the  United  States.  It  is  a  right  upon  a 
right.  It  is,  for  example,  the  legal  justification  of  State 
prohibitory  liquor  laws,  which  often  impair  the  obliga- 
tions of  a  contract  and  always  lessen  without  compensa- 
tion to  the  owners  the  value  of  property  employed  in 
brewing  and  distilling.  In  the  case  of  Mugler  vs.  Kan- 
sas, *  in  which  the  owners  of  a  brewery  located  in  Kansas 

*  123  U.  S.  Rep.,  623,  664. 


LIMITATIONS  UPON  LEGISLATION         225 

complained  of  the  operation  of  the  Kansas  prohibitory 
amendment,  Justice  Harlan,  giving  the  opinion  of  the 
Supreme  Court,  said: 

It  is  contended  [by  the  brewers]  that  as  the  primary  and 
principal  use  of  beer  is  as  a  beverage;  as  their  respective 
breweries  were  erected  when  it  was  lawful  to  engage  in  the 
manufacture  of  beer  for  every  purpose;  as  such  establish- 
ments will  become  of  no  value  as  property,  or,  at  least,  will 
be  materially  diminished  in  value,  if  not  employed  in  the 
manufacture  of  beer  for  every  purpose;  the  prohibition 
upon  their  being  so  employed  is,  in  effect,  a  taking  of  pro- 
perty for  public  use  without  compensation,  and  depriving 
the  citizen  of  his  property  without  due  process  of  law.  In 
other  words,  although  the  State,  in  the  exercise  of  her  police 
powers,  may  lawfully  prohibit  the  manufacture  and  sale, 
within  her  limits,  of  intoxicating  liquors  to  be  used  as  a 
beverage,  legislation  having  that  object  in  view  cannot  be 
enforced  against  those  who,  at  the  time,  happen  to  own 
property,  the  chief  value  of  which  consists  of  its  fitness  for 
such  manufacturing  purposes,  unless  compensation  is  first 
made  for  the  diminution  in  the  value  of  their  property, 
resulting  from  such  prohibitory  amendments.   ,    ,    . 

The  Supreme  Court  in  the  case  of  Barhier  vs.  Con- 
nolly,^ ruled  that  State  policing  measures  which  in 
effect  deny  to  some  persons  the  equal  protection  of  the 
laws,  are  not  void  imder  the  provisions  of  the  Four- 
teenth Amendment.  For  example,  on  April  8,  1884, 
the  City  of  San  Francisco,  California,  enacted  a  mu- 
nicipal ordinance,  making  it  imlawful  to  carry  on  a 
laundry  business  in  certain  parts  of  the  city  without 
first  obtaining  one  certificate  from  the  city  health  officer 
that  the  sanitary  arrangements  of  the  laundry  were 
good,  and  another  from  the  Board  of  Fire  Wardens  that 

« 113  U.  S.  Rep.,  27. 
15 


226      AMERICAN  PLAN  OP  GOVERNMENT. 

the  stoves  and  appliances  for  heating  smoothing  irons 
were  so  managed  as  not  to  be  a  source  of  danger  from 
fire  to  surroimding  property.  A  Mr.  Barbier,  who  had 
a  laundry  within  the  city  limits,  was  sentenced  to  im- 
prisonment for  five  days  for  violation  of  this  ordinance. 
He  petitioned  the  United  States  Court  for  release  on  the 
ground  that  his  constitutional  right  to  the  equal  pro- 
tection of  the  laws  had  been  violated.  Justice  Field, 
in  giving  the  opinion  of  the  Court,  said  that  Mr.  Bar- 
bier had  no  just  cause  for  complaint  because  he  had 
received  the  same  protection  of  the  laws  as  all  the  other 
laundrymen  of  San  Francisco,  and,  therefore,  had  been 
punished  under  a  law  which  did  not  violate  this  clause 
of  the  Fourteenth  Amendment.  The  decision  is  in 
part  as  follows: 

A  prohibition  simply  upon  the  use  of  property  for  pur- 
poses that  are  declared,  by  valid  legislation,  to  be  injvirious 
to  the  health,  morals,  or  safety  of  the  community,  cannot, 
in  any  just  sense,  be  deemed  a  taking  or  an  appropriation 
of  property  for  the  public  benefit.  Such  legislation  does  not 
disturb  the  owner  in  the  control  or  use  of  his  property  for 
lawful  purposes,  nor  restrict  his  right  to  dispose  of  it,  but  is 
only  a  declaration  by  the  State  that  its  use  by  any  one,  for 
certain  forbidden  purposes,  is  prejudicial  to  the  public 
interests.  Nor  can  legislation  of  that  character  come  within 
the  Fourteenth  Amendment,  in  any  case,  unless  it  is  ap- 
parent that  its  real  object  is  not  to  protect  the  community, 
or  to  promote  the  general  well-being,  but,  under  the  guise  of 
police  regulation,  to  deprive  the  owner  of  his  liberty,  or 
property  without  due  process  of  law.  The  power  which  the 
States  have  of  prohibiting  such  use  by  individuals  of  their 
property  as  will  be  prejudicial  to  the  health,  the  morals,  or 
the  safety  of  the  public,  is  not — and,  consistently  with 
the  existence  and  safety  of  organized  society,  cannot  be 
— burdened  with  the  condition  that  the  State  must  com- 


LIMITATIONS  UPON  LEGISLATION         227 

pensate  such  individual  owners  for  pecuniary  losses  they 
may  sustain,  by  reason  of  their  not  being  permitted,  by  a 
noxious  use  of  their  property,  to  inflict  injury  upon  the 
community.  The  exercise  of  the  police  power  by  the  de- 
struction of  property  which  is  itself  a  public  nuisance,  or 
the  prohibition  of  its  use  in  a  particular  way,  whereby  the 
property  becomes  depreciated,  is  very  different  from  tak- 
ing property  for  public  use,  or  from  depriving  a  person 
of  his  property  without  due  process  of  law.  In  the  one 
case,  a  nuisance  only  is  abated;  in  the  other,  unoffending 
property  is  taken  away  from  an  innocent  owner. 

Neither  the  [Fourteenth]  amendment — broad  and  com- 
prehensive as  it  is — nor  any  other  amendment,  was  de- 
signed to  interfere  with  the  power  of  the  State,  sometimes 
termed  its  police  power,  to  prescribe  regulations  to  pro- 
mote the  health,  peace,  morals,  education,  and  good 
order  of  the  people,  and  to  legislate  so  as  to  increase  the 
industries  of  the  State,  develop  its  resources,  and  add  to  its 
wealth  and  prosperity.  .  .  .  Regulations  for  these  pur- 
poses may  press  with  more  or  less  weight  upon  one  than 
upon  another,  but  they  are  designed,  not  to  impose  unequal 
or  unnecessary  restrictions  upon  any  one,  but  to  promote, 
with  as  little  individual  inconvenience  as  possible,  the 
general  good.  Though,  in  many  respects,  necessarily 
special  in  their  character,  they  do  not  furnish  just  ground 
for  complaint  if  they  operate  alike  upon  all  persons  and 
property  under  the  same  circumstances  and  conditions. 
Class  legislation,  discriminating  against  some  and  favoring 
others,  is  prohibited,  but  legislation  which,  in  carrying  out 
a  public  purpose,  is  limited  in  its  application,  if  within  the 
sphere  of  its  operation  it  affects  alike  all  persons  similarly 
situated,  is  not  within  the  amendment. 

A  State  even  may  take  private  property  for  private 
uses  without  compensation,  if  the  taking  serves  a  public 
use.  The  Oklahoma  Depositor's  Guaranty  Fund  Act, 
for  example,  was  sustained  by  the  Supreme  Court  in  the 


228       AMERICAN  PLAN  OF  GOVERNMENT 

case  of  Nohle  State  Bank  vs.  Haskell.^  This  was  an 
action  to  restain  the  State  Banking  Board  from  levying 
and  collecting  an  assessment  upon  the  Noble  State  Bank 
upon  the  ground  that  the  Guaranty  Fimd  Act  was  un- 
constitutional. To  compel  a  bank  to  pay  an  assess- 
ment of  one  per  cent  upon  its  average  deposits  in  order 
to  create  a  depositors'  guaranty  fimd  was  claimed  to  be 
a  taking  of  private  property  without  compensation. 
The  Supreme  Court,  however,  ruled  that  a  State  has  a 
right  to  regulate  banking  by  such  laws.  Justice  Holmes 
said: 

It  may  be  said  in  a  general  way  that  the  police  power 
extends  to  all  the  great  public  needs.  ...  It  may  be 
put  forth  in  aid  of  what  is  sanctioned  by  usage,  or  held  by 
the  prevailing  morality  or  strong  and  preponderant  opinion 
to  be  greatly  and  immediately  necessary  to  the  public 
welfare.  Among  matters  of  that  sort  probably  few  would 
doubt  that  both  usage  and  preponderant  opinion  give  their 
sanction  to  enforcing  the  primary  conditions  of  successful 
commerce.  One  of  those  conditions  at  the  present  time  is 
the  possibility  of  payment  by  checks  drawn  against  bank 
deposits,  to  such  an  extent  do  checks  replace  currency  in 
daily  business.  If  then  the  legislature  of  the  State  thinks 
that  the  public  welfare  requires  the  measure  under  consider- 
ation, analogy  and  principle  are  in  favor  of  the  power  to 
enact  it.  .  .  .  In  short,  when  the  Oklahoma  legislature 
declares  by  implication  that  free  banking  is  a  public  danger 
and  that  incorporation,  inspection,  and  the  above  described 
co-operation  are  necessary  safeguards,  this  court  certainly 
cannot  say  it  is  wrong. 

The  police  powers  of  the  States  shrink  into  nothing- 
ness when  they  conflict  with  the  power  of  Congress  to 
regulate  commerce  among  the  States.     Under  no  cir- 

*2I9  U.  S.  Rep.,  104. 


LIMITATIONS  UPON  LEGISLATION         229 

cumstances  can  a  State  so  use  its  right  to  legislate  con- 
cerning public  safety,  health,  and  morals,  as  to  interfere 
directly  or  indirectly  with  the  national  authority  over 
interstate  commerce.  For  example,  it  was  shown  to 
the  Supreme  Court  in  the  case  of  Minnesota  vs.  Barber,  * 
that,  in  1889,  the  State  of  Minnesota  had  enacted  a  law 
forbidding  the  selling  or  offering  for  sale  for  human  food 
of  any  fresh  beef,  veal,  mutton,  lamb,  or  pork,  not  taken 
from  an  animal  which  had  been  inspected  and  certified 
before  slaughter  to  be  healthy  and  in  suitable  condition 
to  be  slaughtered  for  human  food.  One  Henry  E. 
Barber,  who  had  been  convicted  of  selling  in  Minne- 
sota one  hiindred  pounds  of  beef  which  had  been  killed 
in  Illinois  without  inspection  or  certification,  took  his 
case  into  the  United  States  Courts.  The  Federal 
Circuit  Court  ruled  that  the  Minnesota  law  infringed 
the  Constitution  of  the  United  States  by  restricting 
commerce  among  the  States.  The  State  of  Minnesota 
appealed  to  the  Supreme  Court  of  the  United  States, 
which  affirmed  the  decision  of  the  Circuit  Court  in  an 
opinion  in  which  Justice  Harlan  said : 

The  enactment  of  a  similar  statute  by  each  one  of  the 
States  composing  the  Union  would  result  in  the  destruction 
of  commerce  among  the  several  States,  so  far  as  such  com- 
merce is  involved  in  the  transportation  from  one  part  of 
the  country  to  another  of  animal  meats  designed  for  htraian 
food  and  entirely  free  from  disease ....  As  the  inspec- 
tion must  take  place  within  the  twenty-four  hours  im- 
mediately before  the  slaughtering,  the  act,  by  its  necessary 
operation,  excludes  from  the  Minnesota  market,  practically, 
all  fresh  beef,  veal,  mutton,  lamb,  or  pork — in  whatever 
form,  and  although  entirely  sound,  healthy,  and  fit  for 
human  food — taken   from   animals  slaughtered  in  other 

» 136  U,  S.  Rep.,  313. 


230       AMERICAN  PLAN  OF  GOVERNMENT 

States;  and  directly  tends  to  restrict  the  slaughtering  of 
animals,  whose  meat  is  to  be  sold  in  Minnesota  for  human 
food,  to  those  engaged  in  such  business  in  that  State.  This 
must  be  so,  because  the  time,  expense,  and  labor  of  sending 
animals  from  points  outside  of  Minnesota  to  points  in  that 
State,  to  be  there  inspected,  and  bringing  them  back,  after 
inspection,  to  be  slaughtered  at  the  place  from  which  they 
were  sent — the  slaughtering  to  take  place  within  twenty- 
four  hours  after  inspection,  else  the  certificate  of  inspection 
becomes  of  no  value — will  be  so  great  as  to  amount  to  an 
absolute  prohibition  upon  sales,  in  Minnesota,  of  meat  from 
animals  not  slaughtered  within  its  limits.  When  to  this  is 
added  the  fact  that  the  statute,  by  its  necessary  operation, 
prohibits  the  sale,  in  the  State,  of  fresh  beef,  veal,  mutton, 
lamb,  or  pork,  from  animals  that  may  have  been  inspected 
carefully  and  thoroughly  in  the  State  where  they  were 
slaughtered,  no  doubt  can  remain  as  to  its  effect  upon 
commerce  among  the  several  States.  ...  If  this  legis- 
lation does  not  make  such  discrimination  against  the  pro- 
ducts and  business  of  other  States  in  favor  of  the  products 
and  business  of  Minnesota  as  interferes  with  and  burdens 
commerce  among  the  several  States,  it  would  be  difficult 
to  enact  legislation  that  would  have  that  result. 

No  State  shall,  without  the  Consent  of  the  Congress,  lay 
any  Impost  or  Duties  on  Imports  or  Exports.  The  clause 
which  prohibits  State  laws  imposing  customs  duties 
is  a  limitation  upon  local  taxing  powers.  In  the  case  of 
Gibbons  vs.  Ogden,  *  the  holders  of  New  York  licenses 
to  operate  steamboats  in  the  navigable  waters  of  that 
State,  iirged  that  the  States  have  all  powers  over  com- 
merce which  have  not  been  taken  from  them  by  this 
section  of  the  Constitution.  In  answering  this  conten- 
tion, Chief  Justice  Marshall  showed  that  it  refers  only 
to  the  taxing  power.     He  said: 

»  9  Wheaton's  Rep.,  i.,  200. 


LIMITATIONS  UPON  LEGISLATION         231 

We  must  .  .  .  determine  whether  the  act  of  laying 
"duties  or  imposts  on  imports  or  exports,"  is  considered  in 
the  Constitution  as  a  branch  of  the  taxing  power,  or  of  the 
power  to  regulate  commerce.  We  think  it  very  clear,  that 
it  is  considered  as  a  branch  of  the  taxing  power.  It  is  so 
treated  in  the  first  clause  of  the  8th  section:  "Congress 
shall  have  power  to  lay  and  collect  taxes,  duties,  imposts, 
and  excises";  and  before  commerce  is  mentioned,  the  rule 
by  which  the  exercise  of  this  power  must  be  governed  is 
declared.  It  is,  that  all  duties,  imposts,  and  excises  shall 
be  uniform.  In  a  separate  clause  of  the  enumeration,  the 
power  to  regulate  commerce  is  given,  as  being  entirely  dis- 
tinct from  the  right  to  levy  taxes  and  imposts,  and  as  being 
a  new  power  not  before  conferred.  The  Constitution,  then, 
considers  these  powers  as  substantive  and  distinct  from  each 
other;  and  so  places  them  in  the  enumeration  it  contains. 
The  power  of  imposing  duties  on  imports  is  classed  with  the 
power  to  levy  taxes,  and  that  seems  to  be  its  natural  place. 
But  the  power  to  levy  taxes  never  could  be  considered  as 
abridging  the  right  of  the  States  on  that  subject;  and  they 
might,  consequently,  have  exercised  it  by  levying  duties  on 
imports  or  exports,  had  the  Constitution  contained  no 
prohibition  on  this  subject.  The  prohibition,  then,  is  an 
exception  from  the  acknowledged  power  of  the  States  to 
levy  taxes,  not  from  the  questionable  power  to  regulate 
commerce. 

No  State  shall  .  .  .  lay  any  Impost  or  Duties  .  .  . 
except  what  may  be  absolutely  necessary  for  executing  it's 
inspection  Laws.  The  States  never  have  surrendered 
their  power  to  protect  the  health  and  well-being  of 
their  citizens  by  all  sorts  of  quarantine  regulations  and 
other  inspection  laws.  Undesirable  articles  of  com- 
merce, including  diseased  cattle,  foods  unfit  for  use, 
and  merchandise  which  contains  the  germs  of  contagious 
disease,  may  be  stopped  at  the  border  line  of  any  State. 


232       AMERICAN  PLAN  OF  GOVERNMENT 

According  to  the  following  opinion  of  Chief  Justice 
Marshall  in  Gibbons  vs.  Ogden,^  an  inspection  law  is  not 
a  regulation  of  commerce: 

The  object  of  inspection  laws  is  to  improve  the  quality 
of  articles  produced  by  the  labor  of  a  country;  to  fit  them 
for  exportation;  or  it  may  be,  for  domestic  use.  They  act 
upon  the  subject  before  it  becomes  an  article  of  foreign 
commerce,  or  of  commerce  among  the  States,  and  prepare  it 
for  that  purpose.  They  form  a  part  of  that  immense  mass 
of  legislation,  which  embraces  everything  within  the  terri- 
tory of  a  State,  not  surrendered  to  a  general  government; 
all  which  can  be  most  advantageously  exercised  by  the 
States  themselves. 

Who  is  to  decide  whether  a  State  "impost  or  duty  on 
exports  or  imports"  is  "absolutely  necessary  for  exe- 
cuting its  inspection  laws?"  In  1876,  Henry  Neilson, 
in  the  case  of  Neilson  vs.  Garza,^  challenged  the  validity 
of  a  Texas  statute  under  which  he  had  been  compelled 
to  pay  inspection  duties  upon  a  shipment  of  hides  from 
Mexico.  He  claimed  that  the  State  of  Texas  had  levied 
duties  higher  than  were  "absolutely  necessary  for 
executing  its  inspection  laws."  In  passing  upon  this 
question,  Circuit  Judge  Woods  held  that  the  decision 
rests  with  Congress.     He  said: 

How  the  question,  whether  such  a  duty  is  excessive  or 
not,  is  to  be  decided,  may  be  doubtful.  As  that  question 
is  passed  upon  by  the  State  legislattue  when  the  duty  is 
imposed,  it  would  hardly  be  seemly  to  submit  it  to  the  con- 
sideration of  a  jury  in  every  case  that  arises.  This  might 
give  rise  to  a  great  diversity  of  judgment,  the  result  of  which 
would  be  to  make  the  law  constitutional  one  day,  and  in 
one  case,  and  imconstitutional  another  day,  in  another  case. 

»  Vide  supra.  '  2  Wood's  U.  S.  Rep.,  287. 


LIMITATIONS  UPON  LEGISLATION         233 

As  the  article  of  the  Constitution  which  prescribes  the  limit 
goes  on  to  provide  that  "  all  such  laws  shall  be  subject  to  the 
revision  and  control  of  Congress,"  it  seems  to  me  that 
Congress  is  the  proper  tribunal  to  decide  the  question, 
whether  a  charge  or  duty  is  or  is  not  excessive. 

No  State  shall,  without  the  Consent  of  Congress,  lay 
any  Duty  of  Tonnage.  Chief  Justice  Marshall,  in  his 
opinion  in  the  case  of  Gibbons  vs.  Ogden,  ^  defined  the 
phrase  "duty  of  tonnage"  as  follows: 

"A  duty  of  tonnage"  is  as  much  a  tax  as  a  duty  on  im- 
ports or  exports;  and  the  reason  which  induced  the  pro- 
hibition of  those  taxes  extends  to  this  also.  This  tax  may 
be  imposed  by  a  State  with  the  consent  of  Congress;  and 
it  may  be  admitted  that  Congress  cannot  give  a  right  to  a 
State  in  virtue  of  its  own  powers.  But  a  duty  of  tonnage 
being  a  part  of  the  power  of  imposing  taxes,  its  prohibition 
may  certainly  be  made  to  depend  on  Congress,  without 
affording  any  implication  respecting  a  power  to  regulate 
commerce. 

No  State  shall  .  .  .  keep  Troops,  or  Ships  of  War  in 
time  of  Peace.  Judge  Scott  of  Illinois,  in  his  opinion 
in  the  case  of  Dunn  vs.  The  People, ''held  that  the  active 
militia  of  a  State  does  not  come  within  the  prohibition 
of  the  second  clause,  section  10,  art.  i,  of  the  Consti- 
tution of  the  United  States.  * '  Our  understanding, ' '  he 
said,  **is,  the  organization  of  the  active  militia  of  the 
State  conforms  exactly  to  the  definitions  usually  given 
to  militia.  Lexicographers  and  others  define  militia, 
and  so  the  common  understanding  is,  to  be  *a  body  of 
armed  citizens  trained  to  military  duty,  who  may  be 
called  out  in  certain  cases,  but  may  not  be  kept  on 
service  like  standing  armies,  in  time  of  peace.*     That 

»  Vide  supra.  »94  Illinois  Rep.,  121,  138. 


234       AMERICAN  PLAN  OF  GOVERNMENT 

is  the  case  as  to  the  active  militia  of  this  State.  The 
men  comprising  it  come  from  the  body  of  the  militia, 
and  when  not  engaged  at  stated  periods  in  drilling  and 
other  exercises,  they  return  to  their  usual  avocations  as 
is  usual  with  militia,  and  are  subject  to  call  when  the 
public  exigencies  demand  it.  Such  an  organization, 
no  matter  by  what  name  it  may  be  designated,  comes 
within  no  definition  of  'troops'  as  that  word  is  used  in 
the  Constitution. " 

No  State  shall  .  .  .  enter  into  an  Agreement  or  Com- 
pact with  another  State.  The  purpose  of  this  clause  was 
to  make  the  new  central  government  the  referee  in  such 
disputes  over  boundaries  as  those  between  Virginia, 
Connecticut,  and  Massachusetts  over  a  part  of  the 
territory  northwest  of  the  Ohio  River,  between  Con- 
necticut and  Pennsylvania  over  the  strip  along  the 
northerly  boundary  of  the  latter,  and  between  New 
York  and  New  Hampshire  about  the  territorial  area 
which  soon  after  the  Constitution  was  in  operation 
was  admitted  as  the  State  of  Vermont.  In  the  notable 
case  of  Rhode  Island  vs.  Massachusetts,  *  decided  in  1838, 
the  important  question  was  not  whether  the  power  to 
decide  these  controversies  had  been  given  to  the  central 
government,  but  whether  the  judicial  department  had 
sole  power  to  pass  upon  them.  This  action  had  been 
brought  to  settle  an  old  boundary  line  dispute  between 
the  two  States.  Rhode  Island  under  a  survey  made  in 
1642  had  claimed  all  the  territory  up  to  a  line  three  miles 
south  of  the  Charles  River.  Massachusetts  had  in- 
sisted that  the  surveyors  had  been  mistaken  about  the 
location  of  Charles  River.  In  support  of  this  argument, 
Massachusetts  had  referred  to  the  reports  of  boundary 
commissioners  who  had  fixed  the  State  line  in  1709  and 

» 12  Peters'  Rep.,  723. 


LIMITATIONS  UPON  LEGISLATION         235 

in  1 71 8.  Rhode  Island  had  refused  to  be  bound  by 
these  reports  on  the  ground  that  her  colonial  govern- 
ment never  had  accepted  them.  Justice  Baldwin,  an 
able  Pennsylvania  jurist,  who  gave  the  decision  of  the 
Court,  said: 

There  can  be  but  two  tribunals  under  the  Constitution 
who  can  act  on  the  boundaries  of  States,  the  legislative  or 
the  judicial  power;  the  former  is  limited  in  express  terms  to 
assent  or  dissent,  where  a  compact  or  agreement  is  referred 
to  them  by  the  States;  and  as  the  latter  can  be  exercised 
only  by  this  Court  when  a  State  is  a  party,  the  power  is 
here,  or  it  cannot  exist.  For  these  reasons  we  cannot  be 
persuaded  that  it  could  have  been  intended  to  provide  only 
for  the  settlement  of  boundaries  when  States  could  agree, 
and  to  altogether  withhold  the  power  to  decide  controver- 
sies on  which  the  States  could  not  agree,  and  presented  the 

most  imperious  call  for  speedy  settlement. 

« 

No  State  shall  .  .  .  engage  in  War,  unless  actually 
invaded,  or  in  such  imminent  Danger  as  will  not  admit  of 
delay.  "The  prohibition  against  the  States  engaging 
in  war, "  according  to  Watson  on  the  Constitution,  ^  "was 
established  upon  old  colonial  precedents.  In  the  New 
England  Union  of  1643,  it  was  provided  that  neither 
Massachusetts,  Plymouth,  Connecticut,  nor  New  Ha- 
ven, should  engage  in  any  war  without  the  consent  of 
the  commissioners  [who  represented  each  colony  at 
annual  meetings]  (but  they  might  do  so  in  case  of  sud- 
den exigencies).  So  Franklin's  plan  of  a  Confederation 
provided  that  no  colony  should  engage  in  an  offensive 
war  with  any  nation  of  Indians  without  the  consent 
of  the  Congress,  or  Grand  Council.  This  prohibition 
was  continued  in  the  Articles  of  Confederation,  which 


236      AMERICAN  PLAN  OF  GOVERNMENT 

forbade  any  State  engaging  in  war  without  the  consent 
of  the  United  States,  unless  it  were  actually  invaded  by 
enemies.  The  exception  which  is  found  in  all  the  pro- 
hibitions is  substantially  the  same,  viz:  *in  case  of 
actual  invasion  or  such  imminent  danger  as  would  not 
admit  of  delay, '  in  such  case,  it  would  of  course  be  neces- 
sary to  take  such  action  as  would  best  protect  life  and 
property.  In  such  cases  the  probabilities  are  that  war 
would  be  resorted  to  by  any  of  the  States,  whether 
there  was  a  provision  in  the  Constitution  authorizing  it 
or  not." 


CHAPTER  XVI 

RIGHTS  OF   THE   STATES   AND   THEIR   CITIZENS   AGAINST 

THE  UNITED  STATES  AS  ENUMERATED  IN 

AMENDMENTS  I-X 

"An  American  bill  of  rights, "  said  Chief  Justice  Doe 
of  New  Hampshire  in  the  decision  of  Orr  vs.  Quimby,  ^ 
"is  a  declaration  of  private  rights  reserved  in  a  grant 
of  public  powers,  —  a  reservation  of  a  limited  in- 
dividual sovereignty,  annexed  to  and  made  part  of  a 
limited  form  of  government  established  by  the  indepen- 
dent, individual  action  of  the  voting  class  of  the  people. 
The  general  purpose  of  such  a  bill  of  rights  is  to  declare 
those  fundamental  principles  of  the  common  law,  gen- 
erally called  the  principles  of  English  constitutional 
liberty,  which  the  American  people  always  claimed  as 
their  English  inheritance,  and  the  defense  of  which  was 
the  justification  of  the  war  of  1776, " 

The  people  of  the  United  States  were  nearly  all 
English  by  birth  and  inheritance,  the  sons  and  grand- 
sons of  Englishmen  who  had  dared  all  things  and  suffered 
all  things  for  the  sake  of  rights  and  liberties  worth 
fighting  for  and,  if  need  be,  dying  for.  EngHshmen  in 
America  in  the  closing  years  of  the  eighteenth  century 
were  proudly  mindful  of  the  Great  Charter  of  Rights 
and  Liberties  which  Englishmen  in  England  had  wrested 
from  King  John  nearly  six  centuries  before.    The  Pe- 

» 54  N.  H.  Rep.,  590. 

237 


238       AMERICAN  PLAN  OF  GOVERNMENT 

tition  of  Right,  which  English  Puritans  had  forced  upon 
Charles  the  First  in  1628,  was  like  a  family  heirloom 
to  the  descendants  of  New  England  Puritans.  The 
English  Bill  of  Rights  adopted  by  a  convention  parlia- 
ment in  1689,  which  declared  the  rights  and  liberties  of 
English  subjects,  was  one  of  the  models  that  Thomas 
Jefferson  followed  in  drafting  the  Declaration  of  In- 
dependence. The  Instrument  of  Government  of  1653, 
which  established  the  Commonwealth  of  England 
under  the  great  Lord  Protector,  Oliver  Cromwell, 
was  the  prototype  of  the  Massachusetts  Constitution 
of  1780,  and  in  part  of  the  Constitution  of  the  United 
States. 

The  first  charter  of  Virginia,  granted  by  King  James 
the  First  in  1606,  shows  that  Englishmen  in  America 
had  English  rights  from  the  beginning.  Its  fifteenth 
section  says : 

Also  we  do  .  .  .  Declare  .  .  .  that  all  and  every  the 
Persons,  being  ovir  Subjects,  which  shall  dwell  and  inhabit 
within  every  or  any  of  the  said  several  Colonies  and  Plan- 
tations, and  every  of  their  children,  which  shall  happen  to 
be  born  within  any  of  the  Limits  and  Precincts  of  the  said 
several  Colonies  and  Plantations,  shall  Have  and  enjoy  all 
Liberties,  Franchises,  and  Immunities,  within  any  of  our 
other  Dominions,  to  all  Intents  and  Purposes,  as  if  they  had 
been  abiding  and  bom,  within  this  our  realm  of  England, 
or  any  other  of  our  said  Dominions. 

The  Stamp  Act  Congress  of  1765  declared  "that  trial 
by  jury  is  the  inherent  and  invaluable  right  of  every 
British  subject  in  the  Colonies. " 

The  Declaration  of  Rights  adopted  by  the  First 
Continental  Congress  began  with  a  broad  statement 
"that    the    inhabitants   of    the   English    colonies    in 


LIMITATIONS  UPON  LEGISLATION        239 

North  America  .  .  .  are  entitled  to  life,  liberty  and 
property." 

The  Declaration  of  Independence  stated  in  the  plain- 
est words  that  "all  men  are  .  ,  .  endowed  by  their 
Creator  with  certain  unalienable  rights;  that  among 
these  are  life,  liberty,  and  the  pursuit  of  happiness. 
That,  to  secure  these  rights,  governments  are  instituted 
among  men." 

The  Ordinance  of  1787  for  the  government  of  the 
Territory  northwest  of  the  river  Ohio  contains  the 
following  article  evidently  taken  almost  bodily  from 
the  Petition  of  Right  of  1628: 

The  inhabitants  of  the  said  territory  shall  always  be 
entitled  to  the  benefits  of  the  writ  of  habeas  corpus,  and  of 
the  trial  by  jury;  of  a  proportionate  representation  of  the 
people  in  the  legislature,  and  of  judicial  proceedings  accord- 
ing to  the  course  of  common  law.  All  persons  shall  be 
bailable,  unless  for  capital  offences,  where  the  proof  shall  be 
evident,  or  the  presumption  great.  All  fines  shall  be  moder- 
ate; and  no  cruel  or  unusual  punishments  shall  be  inflicted. 
No  man  shall  be  deprived  of  his  liberty  or  property,  but  by 
the  judgment  of  his  peers,  or  the  law  of  the  land,  and  should 
the  public  exigencies  make  it  necessary,  for  the  common  pre- 
servation, to  take  any  person's  property,  or  to  demand  hispar- 
ticular  services,  full  compensation  shall  be  made  for  the  same. 
And,  in  the  just  preservation  of  rights  and  property,  it  is  un- 
derstood and  declared,  that  no  law  ought  ever  to  be  made 
or  have  force  in  the  said  territory,  that  shall,  in  any  manner 
whatever,  interfere  with  or  affect  private  contracts,  or  en- 
gagements, bona  fide,  and  without  fraud  previously  formed. 

The  people  of  the  different  States  had  incorporated 
bills  of  rights  in  their  constitutions.  The  declaration 
in  the  first  Constitution  of  the  State  of  New  York 
adopted  in  1777,  for  example,  reads  as  follows: 


240       AMERICAN  PLAN  OF  GOVERNMENT 

That  the  free  exercise  and  enjoyment  of  religious  profes- 
sion and  worship,  without  discrimination  or  preference, 
shall  forever  hereafter  be  allowed  within  this  State  to  all 
mankind:  Provided,  however,  that  the  liberty  of  conscience 
hereby  granted  shall  not  be  so  construed  as  to  excuse  acts 
of  licentiousness,  or  justify  practises  inconsistent  with  the 
peace  and  safety  of  this  State.  .  .  .  That  trial  by  jury,  in 
all  cases,  in  which  it  hath  heretofore  been  used  in  the  Colony 
of  New  York,  shall  be  established  and  remain  inviolate 
forever:  And  that  no  acts  of  attainder  shall  be  passed  by 
the  legislature  of  this  State,  for  crimes  other  than  those 
committed  before  the  termination  of  the  present  war  [the 
Revolution];  and  that  such  acts  shall  not  work  corruption 
of  blood.  And  further,  that  the  legislature  of  this  State 
shall,  at  no  time  hereafter,  institute  any  new  court  or  courts, 
but  such  as  shall  proceed  according  to  the  course  of  the 
common  law. 

The  history  of  the  adoption  of  the  Bill  of  Rights  as 
embodied  in  Amendments  I-X  was  summed  up  by  Jus- 
tice Harlan  in  his  dissenting  opinion  in  the  case  of 

Maxwell  vs.  Dow,^  as  follows: 

i 
When  the  Constitution  was  adopted  by  the  Convention  of 
1787  and  placed  before  the  people  for  their  acceptance  or 
rejection,  many  wise  statesmen  whose  patriotism  no  one 
then  questioned  or  now  questions  earnestly  objected  to  its 
acceptance  upon  the  ground  that  it  did  not  contain  a  Bill 
of  Rights  guarding  the  fundamental  guaranties  of  life, 
liberty,  and  property  against  the  unwarranted  exercise  of 
power  by  the  National  Government.  But  the  friends  of  the 
Constitution,  believing  that  the  failure  to  accept  it  would 
destroy  all  hope  for  permanent  union  among  the  people  of 
the  original  States,  and  following  the  advice  of  Washington 
who  was  the  leader  of  the  constitutional  forces,  met  this 
objection  by  showing  that  when  the  Constitution  had  been 

» 176  U.  S.  Rep.,  581,  606. 


LIMITATIONS  UPON  LEGISLATION        241 

accepted  by  the  reqmsite  number  of  States  and  thereby 
became  the  supreme  law  of  the  land,  such  amendments  could 
be  adopted  as  would  relieve  the  apprehensions  of  those  who 
deemed  it  necessary,  by  express  provisions,  to  guard  against 
the  infringement  by  the  agencies  of  the  General  Govern- 
ment of  any  of  the  essential  rights  of  American  freemen. 
This  view  prevailed,  and  the  implied  pledge  thus  given  was 
carried  out  by  the  first  Congress,  which  promptly  adopted 
and  submitted  to  the  people  of  the  several  States  the  first 
ten  amendments.  These  amendments  have  ever  since 
been  regarded  as  the  National  Bill  of  Rights. 

What  confuses  most  people  is  that  these  provisos  do 
not  limit  the  powers  of  the  States.  The  average  man 
who  has  been  told  that  the  authority  of  the  United 
States  is  supreme,  cannot  understand  why  a  positive 
prohibition  should  bar  the  general  government  only 
and  have  nothing  to  do  with  the  subordinate  govern- 
ments. Chief  Justice  Marshall  in  his  opinion  in  the 
case  of  Barron  vs.  Baltimore^  said: 

Had  the  framers  of  these  [the  first  ten]  amendments  in- 
tended them  to  be  limitations  on  the  powers  of  the  State 
governments,  they  would  have  imitated  the  framers  of  the 
original  Constitution,  and  have  expressed  that  intention. 
Had  Congress  engaged  in  the  extraordinary  occupation  of 
improving  the  constitutions  of  the  several  States  by  afford- 
ing the  people  additional  protection  from  the  exercise  of 
power  by  their  own  governments  in  matters  which  concerned 
themselves  alone,  they  would  have  declared  this  purpose  in 
plain  and  intelligible  language. 

First  Amendment.  Congress  shall  make  no  law 
respecting  an  establishment  of  religion,  or  prohibiting 
the  free  exercise  thereof;  or  abridging  the  freedom  of 

*  7  Peters'  Rep.,  243. 


242       AMERICAN  PLAN  OF  GOVERNMENT 

speech,  or  of  the  press ;  or  the  right  of  the  people  peace- 
ably to  assemble,  and  to  petition  the  Government  for  a 
redress  of  grievances. 

These  are  the  priceless  personal  rights  for  the  sake  of 
which  in  every  age  man  has  associated  in  tribes,  clans, 
nations,  or  other  social  organizations.  It  is  not  easy 
to  realize  the  value  of  these  rights — to  believe  in  and 
follow  any  form  of  religious  worship ;  to  have  a  mind  of 
one's  own  and  speak  it  anywhere  and  everywhere, 
no  matter  whether  others  like  it  or  not;  to  join  with 
others  in  telling  those  who  have  power  just  what  the 
speaker  thinks  of  them  and  their  doings,  especially 
those  doings  which  are  injurious.  Infinitely  valuable 
as  these  rights  are,  they  are  not  unlimited.  The  limit 
is  this:  that  he  who  asserts  his  rights  must  not  make 
them  a  means  of  destroying  the  equal  rights  of  others. 
And  with  this  limitation  imposed  in  the  fullest  proper 
measure,  these  personal  liberties  are  so  much  worth 
while  that,  if  a  choice  had  to  be  made,  every  man  in  his 
senses  would  keep  them,  if  he  had  to  lose  every  other 
right  which  the  most  perfect  government  could  give 
to  the  governed. 

Congress  shall  make  no  law  respecting  an  establishment 
of  religion.  It  is  generally  believed  that  this  part  of  the 
amendment  was  suggested  by  Mr.  Madison  and  other 
Virginia  members  of  the  First  Congress,  whose  atten- 
tion had  been  called  to  the  subject  by  a  controversy 
which  had  been  settled  in  their  own  State  a  few  years 
before.  The  Church  established  by  law  in  England 
had  few  followers  in  Colonial  America,  which  was 
peopled  mostly  by  Puritans,  Presbyterians,  Quakers, 
and  a  few  Catholics.  Virginia  had  been  colonized  for 
the  most  part  by  adherents  of  the  English  Church.     The 


LIMITATIONS  UPON  LEGISLATION        243 

Episcopal  clergyman  had  a  parish  which  was  under  a 
legal  obligation  to  support  him  by  payments  of  money 
or  its  equivalent  in  tobacco,  which  then  served  the 
purposes  of  money  in  the  colony.  This  plan  worked 
well  enough  except  when  tobacco  fluctuated  in  price; 
then  the  clergy  got  their  pay  in  the  less  valuable  cur- 
rency. Lawsmts  followed,  in  which  the  clergymen 
again  got  the  worst  of  it.  Patrick  Henry  represented 
the  planters.  One  burst  of  his  matchless  eloquence 
made  him  famous,  and  helped  to  deprive  the  Church 
of  England  in  Virginia  of  its  legal  rights.  The  dispute, 
however,  did  not  come  to  an  end  until  1784,  when  the 
Virginia  legislature  passed  the  famous  "Act  for  estab- 
lishing religious  Freedom,"  which  Thomas  Jefferson 
drafted.  This  law,  declaring  "that  no  man  shall  be 
compelled  to  frequent  or  support  any  religious  worship," 
was  rather  hard  on  the  poor  parsons  who,  up  to  that 
time,  had  had  a  legal  right  to  compel  the  planters  to 
support  them.  This  right  had  always  been  held  to  be 
a  tithe  claim  on  land,  and  its  value  always  had  been 
deducted  from  the  purchase  prices  when  sales  were 
made.  By  this  law,  the  land  owners,  who  had  paid 
less  because  of  the  incumbrance,  received  a  free  present 
of  its  cash  value  and  the  clergy  were  the  losers.  The 
Virginia  Representatives  had  this  clause  put  in  this 
amendment  in  order  to  keep  the  advantage  in  that 
quarrel. 

Congress  shall  make  no  law  .  .  .  prohibiting  the  free 
exercise  thereof  [of  religion].  The  right  to  the  free  exer- 
cise of  religion  so  long  as  no  act  injurious  to  others  is 
committed,  was  explained  by  the  Supreme  Court  in 
1 87 1,  in  the  case  of  Watson  vs.  Jones. ^  This  was  a 
quarrel  in  the  Walnut  Street  Presbyterian  Church  of 

'  13  Wallace,  Rep.,  679. 


244       AMERICAN  PLAN  OF  GOVERNMENT 

Louisville,  Kentucky,  about  the  rights  and  wrongs  of 
slavery.  One  party  tried  to  withdraw  the  church 
from  the  General  Presbyterian  Church  in  the  United 
States  of  America,  and  turn  it  over  to  the  General 
Presbyterian  Church  in  the  United  States,  commonly 
known  as  the  Southern  Presbyterian  Church.  The 
others,  who  were  actually  in  possession  of  the  church 
edifice,  wished  to  keep  it  in  association  with  the  North- 
em  churches.  The  court  refused  to  make  such  an 
order  on  the  ground  that  religious  freedom  includes 
the  right  of  a  church  to  govern  itself.  Justice  Miller 
said: 

"In  this  country  the  full  and  free  right  to  entertain  any 
religious  belief,  to  practise  any  religious  principle,  and  to 
teach  any  religious  doctrine  which  does  not  violate  the  laws 
of  morality  and  property,  and  which  does  not  infringe  per- 
sonal rights,  is  conceded  to  all.  The  law  knows  no  heresy 
and  is  committed  to  the  support  of  no  dogma,  the  estab- 
lishment of  no  sect.  The  right  to  organize  voluntary 
religious  associations  to  assist  in  the  expression  and  dis- 
semination of  any  religious  doctrine,  and  to  create  tri- 
bunals for  the  decision  of  controverted  questions  of  faith 
within  the  association,  and  for  the  ecclesiastical  govern- 
ment of  all  the  individual  members,  congregations,  and 
oflScers  within  the  general  association,  is  unquestioned. 

Freedom  of  religion  may  not  be  made  a  cloak  for 
immorality,  vice,  or  crime,  under  the  guise  of  conscien- 
tious belief.  The  Mormon  Church,  insisting  upon  the 
contention  that  the  plural  wife  system  was  a  part  of  its 
religion,  fought  to  the  last  ditch  every  national  statute 
for  the  suppression  of  polygamy.  The  justices  of  the 
Supreme  Court  have  been  against  them  on  every  occa- 
sion, and  with  especial  vehemence  of  argument  in  the 


LIMITATIONS  UPON  LEGISLATION         245 

case  of  Mormon  Church  vs.  United  States,^  in  which 
Justice  Bradley  deHvered  an  opinion  covering  that 
point  as  follows: 

It  is  distinctly  stated  in  the  pleadings  and  findings  of  fact 
that  the  property  of  the  said  corporation  was  held  for  the  pur- 
pose of  religious  and  charitable  uses.  But  it  is  also  stated 
in  the  findings  of  fact,  and  is  a  matter  of  public  notoriety, 
that  the  religious  and  charitable  uses  intended  to  be  sub- 
served and  promoted  are  the  inculcation  and  spread  pf  the 
doctrines  and  usages  of  the  Mormon  Church,  or  Church  of 
Latter  Day  Saints,  one  of  the  distinguishing  features  of  which 
is  the  practise  of  polygamy — a  crime  against  the  laws,  and 
abhorrent  to  the  sentiments  and  feelings  of  the  civilized  world. 
Notwithstanding  the  stringent  laws  which  have  been  passed 
by  Congress — notwithstanding  all  the  efforts  made  to  sup- 
press this  barbarous  practise — the  sect  or  community  com- 
posing the  Church  of  Jesus  Christ  of  Latter  Day  Saints 
perseveres,  in  defiance  of  law,  in  preaching,  upholding, 
promoting,  and  defending  it.  .  .  .  One  pretence  for 
this  •  obstinate  course  is,  that  their  belief  in  the  practise 
of  polygamy,  or  in  the  right  to  indulge  in  it,  is  a  religious 
belief,  and,  therefore,  imder  the  protection  of  the  con- 
stitutional guaranty  of  religious  freedom.  This  is  alto- 
gether a  sophistical  plea.  No  doubt  the  Thugs  of  India 
imagined  that  their  belief  in  the  right  of  assassination  was  a 
religious  belief;  but  their  thinking  so  did  not  make  it  so. 
The  practise  of  suttee  by  the  Hindu  widows  may  have 
sprung  from  a  supposed  religious  conviction.  The  offering 
of  human  sacrifices  by  our  own  ancestors  in  Britain  was  no 
doubt  sanctioned  by  an  equally  conscientious  impulse. 
But  no  one,  on  that  account,  would  hesitate  to  brand  those 
practises,  now,  as  crimes  against  society,  and  obnoxious  to 
condemnation  and  punishment  by  the  civil  authority. 
The  State  has  a  perfect  right  to  prohibit  polygamy,  and  all 

» 136  U.  S.  Rep.,  I. 


246      AMERICAN  PLAN  OF  GOVERNMENT 

other  open  offences  against  the  enlightened  sentiment  of 
mankind,  notwithstanding  the  pretence  of  religious  con- 
viction by  which  they  may  be  advocated  and  practised. 

Congress  shall  make  no  law  .  .  .  abridging  the  free- 
dom of  speech,  or  of  the  press.  As  now  enforced,  liberty 
of  speech  and  of  the  press  goes  further  perhaps  than  the 
founders  of  the  republic  would  have  approved.  What 
they  wanted  was  a  rule  which  would  prevent  the  federal 
authorities  from  meddling  with  the  right  of  citizens 
to  say  or  print  what  they  chose.  What  was  to  be 
permitted  in  the  way  of  free  speech  and  a  free  press  in 
each  State,  they  were  willing  to  leave  to  the  authorities 
of  each  locality.  Speeches  and  pamphlets  had  helped 
the  cause  of  American  independence  almost  as  much 
as  gunpowder  and  cold  steel.  Madison,  Hamilton,  and  ! 
Pinckney  had  used  the  power  of  the  press  in  The  Feder- 
alist to  present  the  reasons  why  the  Constitution  ought 
to  be  adopted. 

Freedom  of  speech  is  the  same  thing  as  freedom  of  the 
press  to  this  extent  that  the  rights  refer  to  different 
ways  of  giving  information  to  other  people.  The  right 
to  speak  freely  is  the  same  as  the  right  to  print  and  pub- 
lish freely,  and  each  has  the  same  limitation:  it  must 
not  be  used  to  the  injury  of  others.  This  point  was 
explained  by  Judge  Bennett  of  Kentucky  in  his  opinion 
in  the  case  of  Riley  vs.  Lee.  ^  A  Dr.  Thelkeld  had  pub- 
lished in  the  Owenton  (Ky.)  News  a  card  saying  that 
O.  V.  Riley  had  said  that  the  doctor's  sister,  Bettie 
Thelkeld,  could  not  secure  a  position  as  school  teacher 
in  the  Cedar  Hill  district,  and  that  this  statement  had 
driven  her  to  despair,  undermined  her  constitution, 

»  88  Kentucky  Rep.,  603.  ' 


LIMITATIONS  UPON  LEGISLATION         247 

and  assisted  the  ravages  of  disease.  Dr.  Thelkeld 
added  that,  before  Mr.  Riley  said  this,  his  own  sister 
had  applied  for  the  position.  "Therefore,"  he  said, 
"I  regard  this  conduct  in  him  as  uncalled  for,  ungentle- 
manly,  and  detestable,  as  his  statement  was  fallacious. " 
Mr.  Riley  took  his  part  in  this  pretty  quarrel  by  bring- 
ing an  action  against  the  publishers  of  the  Owenton 
News,  who  set  up  as  a  defense  that  they  were  protected 
by  the  provision  in  the  Kentucky  Constitution  concern- 
ing freedom  of  the  press.  The  Court  decided  otherwise. 
Judge  Bennett  said  in  the  course  of  the  decision: 

By  the  provisions  of  the  United  States  and  State  con- 
stitutions guaranteeing  the  "freedom  of  the  press,"  it  was 
simply  intended  to  secure  to  the  conductors  of  the  press  the 
same  rights  and  immunities  that  are  enjoyed  by  the  public 
at  large.  The  citizen  has  the  right  to  speak  the  truth  in 
reference  to  the  acts  of  government,  public  officials,  or 
individuals.  The  press  is  guaranteed  the  same  right,  but 
no  greater  right.  The  citizen  has  the  right  to  criticise  the 
acts  of  government,  provided  it  is  with  the  good  motive  of 
correcting  what  he  believes  to  be  existing  evils  or  defects 
and  of  bringing  about  a  more  efficient  or  honest  administra- 
tion of  government.  For  like  purpose  and  with  like  motive 
he  may  criticise  the  acts  of  public  officials,  and  for  the  honest 
purpose  of  better  subserving  the  public  interest  he  may  criti- 
cise the  fitness  and  qualifications  of  candidates  for  office, 
not  only  in  respect  to  their  ability,  fidelity,  and  experience, 
but  in  respect  to  their  honesty  and  personal  habits.  The 
press  has  precisely  the  same  rights,  but  no  more.  An 
individual  may,  in  what  he  honestly  believes  to  be  in  the 
interest  of  good  morals  and  good  order  and  the  suppression 
of  immorality  and  disorder,  criticise  the  acts  of  other  in- 
dividuals. So  may  the  press.  But  in  no  case  has  the 
citizen  the  right  to  injure  the  rights  of  others — among  the 
most  sacred  of  which  is  the  right  to  good  name  and  fame — 


248       AMERICAN  PLAN  OF  GOVERNMENT 

their  rights  are  as  absolute  as  his,  and  neither  can  injure  the 
rights  of  the  other.  This  negation  extends  to  the  denial  of 
the  citizen's  right  to  speak,  write,  or  print  that  which  tends 
to  injure  the  character  or  reputation  of  another  unless  it  is 
in  fact  true.     The  press  is  under  the  same  restraints. 

Congress  shall  make  no  law  .  .  .  abridging  .  .  . 
the  right  of  the  people  peaceably  to  assemble,  and  to 
petition  the  Government  for  a  redress  of  grievances. 
Broad  as  this  right  is,  it  is  limited  by  the  rule  that  the 
people,  in  assembling  peaceably  to  petition  the  govern- 
ment, may  not  make  their  assembling  a  pretext  for 
violating  the  rights  of  others.  The  anarchist  may  be 
silenced  by  the  police  because  his  freedom  of  speech 
may  cause  others  to  lose  their  right  to  life,  liberty,  or 
property.  Any  other  public  speaker  who  attracts  a 
disorderly  crowd,  may  be  suppressed  because  other 
people  have  a  right  to  the  undisturbed  use  of  the  public 
streets. 

The  United  States  declares  by  this  amendment  that 
it  will  not  infringe  this  ancient  prerogative  of  the  free 
man.  This  limitation  of  power  binds  the  nation,  not 
the  States ;  yet,  if  the  State  authorities  should  venture 
to  interfere  with  their  own  citizens  assembled  to  peti- 
tion Congress  for  a  redress  of  their  grievances  against 
the  United  States,  then  the  national  courts  could 
interfere.  During  the  first  years  after  the  Civil  War, 
there  was  much  trouble  in  the  Southern  States  because 
the  white  people  were  unwilling  to  recognize  the  rights 
of  those  who  had  been  their  slaves.  The  Ku  Klux  Klan 
and  other  lawless  organizations,  in  order  to  make  the 
negroes  afraid  to  vote,  went  about  the  coimtry  districts 
in  disguise,  threatening  and  in  some  cases  assaulting 
the  colored  people.    In  1870,  Congress  enacted  a  law 


LIMITATIONS  UPON  LEGISLATION         249 

for  the  express  purpose  of  suppressing  crimes  of  this 
kind.  In  1875,  the  Supreme  Coiirt  was  asked  to  decide, 
under  this  statute,  the  case  of  United  States  vs.  Cruik- 
shank,  ^  in  which  a  number  of  citizens  of  Louisiana  had 
been  foimd  guilty  of  having  banded  together  to  intimi- 
date colored  citizens  from  voting.  One  question  before 
the  Supreme  Court  was  whether,  under  the  First 
Amendment,  the  United  States  could  punish  men  who 
had  been  guilty  of  a  crime  which  usually  would  be 
punished  under  the  laws  of  the  State  where  it  had  been 
committed.  This  amendment  had  been  understood 
to  be  a  limitation  upon  the  law-making  power  of  the 
nation.  The  Court  now  had  to  decide  whether  it  also 
gave  to  Congress  another  power — the  power  to  guard 
the  right  of  the  people  to  assemble.  Chief  Justice 
Waite  said : 

The  right  of  the  people  peaceably  to  assemble  for  the 
purpose  of  petitioning  Congress  for  a  redress  of  grievances, 
.  or  for  anything  else  connected  with  the  powers  or  the  duties 
of  the  national  government,  is  an  attribute  of  national 
citizenship,  and,  as  such,  under  the  protection  of,  and 
guaranteed  by,  the  United  States.  The  very  idea  of  a 
government,  republican  in  form,  implies  a  right  on  the 
part  of  its  citizens  to  meet  peaceably  for  consultation  in 
respect  to  public  affairs  and  to  petition  for  redress  of 
grievances. 

Second  Amendment.  A  well  regulated  Militia,  being 
necessary  to  the  security  of  a  free  State,  the  right  of  the 
people  to  keep  and  bear  Arms,  shall  not  be  infringed. 

The  meaning  and  the  purpose  of  the  Second  Amend- 
ment were  discussed  in  the  case  of  Presser  vs.  Illinois. ' 

» 92  U.  S.  Rep.,  542.  » 116  U.  S.  Rep.,  252. 


«50       AMERICAN  PLAN  OF  GOVERNMENT 

Herman  Presser,  a  citizen  of  the  United  States  and  of 
the  State  of  lUinois,  had  been  tried  in  the  State  courts 
upon  a  charge  that,  in  violation  of  a  State  law,  he  had 
paraded  and  drilled  in  the  streets  of  Chicago  with  an 
armed  body  called  the  Lehr  und  Wehr  Verein.  He  was 
convicted  upon  the  ground  that  his  company  was  not  a 
part  of  the  State  militia  which  alone  had  a  right  to 
parade  in  arms.  Presser  took  his  case  to  the  national 
Supreme  Court  and  lost  it  again.  Justice  Woods 
said: 

We  think  it  clear  that  the  sections  [of  the  Military  Code 
of  Illinois]  under  consideration,  which  only  forbid  bodies  of 
men  to  associate  together  as  military  organizations,  or  to 
drill  or  parade  with  arms  in  cities  and  towns  unless  author- 
ized by  law,  do  not  infringe  the  right  of  the  people  to  keep 
and  bear  arms.  But  a  conclusive  answer  to  the  contention 
that  this  amendment  prohibits  the  legislation  in  question 
lies  in  the  fact  the  amendment  is  a  limitation  only  upon  the 
power  of  Congress  and  the  National  government,  and  not 
upon  that  of  the  States.  .  .  .  The  Second  Amendment 
declares  that  it  shall  not  be  infringed,  but  this,  as  has  been 
seen,  means  no  more  than  that  it  shall  not  be  infringed  by 
Congress. 

Third  Amendment.  No  Soldier  shall,  in  time  of 
peace  be  quartered  in  any  house,  without  the  consent 
of  the  Owner,  nor  in  time  of  war,  but  in  a  manner  to  be 
prescribed  by  law. 

The  purpose  of  the  Third  Amendment  was  to  make 
every  man's  house  his  castle  in  the  United  States  just 
as  it  was  in  England.  For  the  makers  of  the  Con- 
stitution and  the  framers  of  these  amendments  never 
tired  of  repeating  the  part  of  the  elder  William  Pitt's 
great  speech  on  the  Excise,  in  which  he  said: 


LIMITATIONS  UPON  LEGISLATION        251 

The  poorest  man  may  in  his  cottage  bid  defiance  to  all 
the  force  of  the  crown.  It  may  fall,  its  roof  may  shake; 
the  wind  may  blow  through  it;  the  storms  may  enter,  the 
rain  may  enter — but  the  King  of  England  cannot  enter. 
All  his  forces  dare  not  cross  the  threshold  of  the  ruined 
tenement. 

Fourth  Amendment.  The  right  of  the  people  to  be 
secure  in  their  persons,  houses,  papers,  and  effects, 
against  unreasonable  searches  and  seizures,  shaU  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. 

This  noble  amendment  declares  that  the  Federal 
Government  must  not  misuse  the  weapons  and  pro- 
cesses of  the  law.  Our  ancestors  knew  by  bitter  experi- 
ence that  the  law,  which  ought  to  protect  liberty  and 
right,  can  be  used  to  oppress  and  destroy.  Many  of 
those  who,  in  1790,  framed  this  amendment,  could 
remember  how  writs  of  assistance,  or  general  warrants 
in  which  no  persons  were  charged  with  crime,  had 
been  used  by  royal  revenue  officers  to  enable  them  to 
go  into  any  person's  house  and  search  for  articles  that 
might  have  been  smuggled. 

So  oppressive  had  become  the  practice  that  here,  as  in 
England,  it  caused  great  alarm  among  the  people,  and  here, 
as  there,  resistance  was  made  to  such  writs  on  the  ground 
of  their  illegality.  These  warrants  were  principally  issued 
and  the  seiziires  made  in  the  colony  of  Massachusetts.  The 
trial  which  tested  their  legality  occtured  in  Boston  in 
February,  1761.  It  proved  to  be  more  than  a  mere  trial, 
as  we  shall  see,  for  the  greatest  question  which  could  affect 
the  interests  of  the  colonists  was  involved.    James  Otis, 


252       AMERICAN  PLAN  OF  GOVERNMENT 

a  native  of  Massachusetts,  was  Advocate-General  of  the 
Crown  at  Boston,  a  legal  position  of  great  responsibility  and 
honor;  but  he  was  so  wrought  up  at  the  outrage  which  had 
been  committed  by  the  arrests  under  these  warrants  that 
he  resigned  his  office,  and,  though  offered  a  most  remunera- 
tive fee  if  he  would  take  charge  of  the  defense,  he  said:  "In 
such  a  cause  as  this  I  despise  a  fee. "  He  then  acted  as  one 
of  the  counsel  in  resisting  the  arrests.  He  spoke  for  five 
hours,  and  it  is  doubtful  if  any  legal  argument  ever  made  on 
this  continent  produced  a  more  profound  or  lasting  im- 
pression. He  set  fire  to  a  torch  which  is  still  burning,  and 
which  will  continue  to  burn,  for  in  that  masterful  effort  he 
impressed  upon  the  American  heart  the  great  lesson  of 
resistance  to  tyranny  and  outrage.  As  the  result  of  the 
trial  the  writs  were  never  afterwards  served  by  judicial 
sanction.  This  trial  occurred  thirty  years  before  the 
[Fourth]  amendment  .  .  .  was  adopted,  but  its  adoption 
was  largely  due  to  the  opposition  to  the  Writs  of  Assistance, 
and  the  powerful  influence  of  the  speech  of  Otis. — Watson 
on  the  Constitution,  ii.,  1415. 

The  right  of  the  people  to  he  secure  .  .  .  against 
unreasonable  searches  and  seizures,  shall  not  be  violated. 

Fifth  Amendment  (Part  of).  No  person  shall  be 
.  .  .  compelled  in  any  Criminal  Case  to  be  a  witness 
against  himself. 

The  meaning  of  the  immunities  stated  in  these  extracts 
was  explained  at  length  by  Justice  Bradley  in  his  opin- 
ion in  the  great  case  of  Boyd  vs.  United  States,  ^  a  pro- 
ceeding under  the  revenue  laws  of  the  United  States 
for  the  forfeiture  of  thirty-five  cases  of  plate  glass  which 
some  person,  probably  the  claimant  Boyd,  had  tried 
to  smuggle  through  the  New  York  Custom  House. 
The  United  States  Attorney  had  occasion  to  prove,  as 

» 116  U.  S.  Rep.,  616. 


LIMITATIONS  UPON  LEGISLATION        253 

a  part  of  his  case,  the  value  of  the  glass,  and,  therefore, 
had  obtained  an  order  of  court  requiring  the  persons 
who  claimed  that  it  belonged  to  them  to  produce  the 
invoice.  They  obeyed  under  protest,  and,  having  lost 
the  case,  took  an  appeal  upon  the  claim  that  the  order 
of  court  had  authorized  an  unreasonable  search  and 
seizure  and  had  compelled  them  to  be  witnesses  against 
themselves.  Justice  Bradley's  opinion  is  especially 
important  in  that  it  is  based  upon  a  decision  of  Lord 
Camden,  who  in  his  time  was  the  greatest  of  English 
judges.    He  said: 

In  order  to  ascertain  the  nature  of  the  proceedings  in- 
tended by  the  Fourth  Amendment  to  the  Constitution 
under  the  terms  "unreasonable  searches  and  seizures," 
it  is  only  necessary  to  recall  the  contemporary  or  then  recent 
history  of  the  controversies  on  the  subject,  both  in  this 
country  and  in  England.  The  practise  had  obtained  in  the 
colonies  of  issuing  writs  of  assistance  to  the  revenue  officers, 
empowering  them,  in  their  discretion,  to  search  suspected 
places  for  smuggled  goods,  which  James  Otis  pronounced 
"  the  worst  instrument  of  arbitrary  power,  the  most  destruc- 
tive of  English  liberty,  and  the  fundamental  principles  of 
law,  that  ever  was  found  in  an  English  law  book";  since 
they  placed  "the  liberty  of  every  man  in  the  hands  of  every 
petty  officer."  This  was  in  February,  1761,  in  Boston, 
and  the  famous  debate  in  which  it  occurred  was  perhaps  the 
most  prominent  event  which  inaugurated  the  resistance  of 
the  colonies  to  the  oppressions  of  the  mother  country. 
"Then  and  there,"  said  John  Adams,  "then  and  there  was 
the  first  scene  of  the  first  act  of  opposition  to  the  arbitrary 
claims  of  Great  Britain.  Then  and  there  the  child  In- 
dependence was  bom." 

These  things,  and  the  events  which  took  place  in  Eng- 
land immediately  following  the  argument  about  writs  of 
assistance  in  Boston,  were  fresh  in  the  memories  of  those 


254       AMERICAN  PLAN  OF  GOVERNMENT 

who  achieved  our  independence  and  established  our  form 
of  government.  In  the  period  from  1762,  when  the  North 
Briton  was  started  by  John  Wilkes,  to  April,  1766,  when  the 
House  of  Commons  passed  resolutions  condemnatory  of 
general  warrants,  whether  for  the  seizure  of  persons  or 
papers,  occurred  the  bitter  controversy  between  the  Eng- 
lish government  and  Wilkes,  in  which  the  latter  appeared 
as  the  champion  of  popular  rights,  and  was,  indeed,  the 
pioneer  in  the  contest  which  resulted  in  the  abolition 
of  some  grievous  abuses  which  had  gradually  crept  into  the 
administration  of  public  affairs.  Prominent  and  principal 
among  these  was  the  practice  of  issuing  general  warrants  by 
the  Secretary  of  State,  for  searching  private  houses  for  the 
discovery  and  seizure  of  books  and  papers  that  might  be 
used  to  convict  their  owner  of  the  charge  of  libel.  Certain 
numbers  of  the  North  Briton,  particularly  No.  45,  had  been 
very  bold  in  denunciation  of  the  government,  and  were 
esteemed  heinously  libellous.  By  authority  of  the  secre- 
tary's warrant,  Wilkes'  house  was  searched,  and  his  papers 
were  indiscriminately  seized.  For  this  outrage  he  sued  the 
perpetrators  and  obtained  a  verdict  of  £1,000  against  Wood, 
one  of  the  parties  who  made  the  search,  and  £4,000  against 
Lord  Halifax,  the  Secretary  of  State,  who  issued  the  warrant. 
The  case,  however,  which  will  always  be  celebrated  as 
being  the  occasion  of  Lord  Camden's  memorable  discussion 
of  the  subject,  was  that  of  Entick  vs.  Carrington  and  Three 
Other  King's  Messengers.  .  .  .  This  action  was  trespass  for 
entering  the  plaintiff 's  dwelling-house  in  November,  1762, 
and  breaking  open  his  desks,  boxes,  etc.,  and  searching  and 
examining  his  papers.  The  jury  rendered  a  special  verdict, 
and  the  case  was  twice  solemnly  argued  at  the  bar.  Lord 
Camden  pronounced  the  judgment  of  the  court  in  Michael- 
mas Term,  1765,  and  the  law  as  expounded  by  him  has  been 
regarded  as  settled  from  that  time  to  this,  and  his  great 
judgment  on  that  occasion  is  considered  as  one  of  the  land- 
marks of  English  liberty.  It  was  welcomed  and  applauded 
by  the  lovers  of  liberty  in  the  colonies  as  well  as  in  the 


LIMITATIONS  UPON  LEGISLATION        255 

mother  country.  It  is  regarded  as  one  of  the  permanent 
monuments  of  the  British  Constitution,  and  is  quoted  as 
such  by  the  English  authorities  on  that  subject  down  to  the 
present  time. 

As  every  American  statesman,  during  our  revolutionary 
and  formative  period  as  a  nation,  was  undoubtedly  familiar 
with  this  monument  of  English  freedom,  and  considered  it 
as  the  true  and  ultimate  expression  of  constitutional  law, 
it  may  be  confidently  asserted  that  its  propositions  were  in 
the  minds  of  those  who  framed  the  Fourth  Amendment  to 
the  Constitution,  and  were  considered  as  sufficiently  ex- 
planatory of  what  was  meant  by  unreasonable  searches  and 
seizures.    .    .    .     Lord  Camden  says: 

"By  the  laws  of  England,  every  invasion  of  private  pro- 
perty, be  it  ever  so  minute,  is  a  trespass.  No  man  can  set 
his  foot  upon  my  ground  without  my  license,  but  he  is 
liable  to  an  action  though  the  damage  be  nothing;  which 
is  proved  by  every  declaration  in  trespass  where  the  defend- 
ant is  called  upon  to  answer  for  bruising  the  grass  and  even 
treading  upon  the  soil.  If  he  admits  the  fact,  he  is  bound 
to  show,  by  way  of  justification,  that  some  positive  law  has 
justified  or  excused  him ....  If  no  such  excuse  can  be 
found  or  produced,  the  silence  of  the  books  is  an  authority 
against  the  defendant,  and  the  plaintiff  must  have  judg- 
ment. According  to  this  reasoning,  it  is  now  incumbent 
upon  the  defendants  to  show  the  law  upon  which  this 
seizure  is  warranted.  If  that  cannot  be  done,  it  is  a 
trespass. 

"  Papers  are  the  owner's  goods  and  chattels;  they  are  his 
dearest  property;  and  are  so  far  from  enduring  a  seizure, 
that  they  will  hardly  bear  an  inspection;  and  though  the 
eye  cannot  by  the  laws  of  England  be  guilty  of  a  trespass, 
yet  where  private  papers  are  removed  and  carried  away 
the  secret  nature  of  those  goods  will  be  an  aggravation  of  the 
trespass,  and  demand  more  considerable  damages  in  that 
respect.  Where  is  the  written  law  that  gives  any  magis- 
trate such  a  power?     I  can  safely  answer,  there  is  none; 


256       AMERICAN  PLAN  OF  GOVERNMENT 

and,  therefore,  it  is  too  much  for  us,  without  such  authority, 
to  pronounce  a  practise  legal  which  would  be  subversive  of 
all  the  comforts  of  society .... 

"Lastly,  it  is  urged  as  an  argument  of  utility,  that  such  a 
search  is  a  means  of  detecting  offenders  by  discovering  evi- 
dence. I  wish  some  cases  had  been]shown,  where  the  law  forc- 
eth  evidence  out  of  the  owner's  custody  by  process.  There 
is  no  process  against  papers  in  civil  causes ....  In  the 
criminal  law,  such  a  proceeding  was  never  heard  of ...  . 
Whether  this  proceedeth  from  a  gentleness  of  the  law  to- 
wards criminals,  or  from  a  consideration  that  such  a  power 
would  be  more  pernicious  to  the  innocent  than  useful  to  the 
public,  I  will  not  say.  It  is  very  certain  that  the  law  ob- 
ligeth  no  man  to  accuse  himself;  because  the  necessary 
means  of  compelling  self-accusation,  falling  upon  the  inno- 
cent as  well  as  the  guilty,  would  be  both  cruel  and  unjust; 
and  it  would  seem  that  search  for  evidence  is  disallowed 
upon  the  same  principle.  Then,  too,  the  innocent  would  be 
confounded  with  the  guilty .... 

"I  have  now  taken  notice  of  everything  that  has  been 
urged  upon  the  present  point;  and  upon  the  whole  we  are  all 
of  opinion,  that  the  warrant  to  seize  and  carry  away  the 
party's  papers  in  the  case  of  a  seditious  libel,  is  illegal  and 
void."   .    .    . 

Can  we  doubt  that  when  the  Fourth  and  Fifth  Amend- 
ments to  the  Constitution  of  the  United  States  were  penned 
and  adopted,  the  language  of  Lord  Camden  was  relied  on 
as  expressing  the  true  doctrine  on  the  subject  of  searches 
and  seizures,  and  as  furnishing  the  true  criteria  of  the  reas- 
onable and  "unreasonable"  character  of  such  seizures  ? .  .  . 

We  have  already  noticed  the  intimate  relation  between 
the  tw9  amendments.  They  throw  great  light  on  each 
other.  For  the  "unreasonable  searches  and  seizures" 
condemned  in  the  Fourth  Amendment  are  almost  always 
made  for  the  purpose  of  compelling  a  man  to  give  evidence 
against  himself,  which  in  criminal  cases  is  condemned  in 
the  Fifth  Amendment;  and  compelling  a  man  "in  a  criminal 


LIMITATIONS  UPON  LEGISLATION        257 

case  to  be  a  witness  against  himself, "  which  is  condemned 
in  the  Fifth  Amendment,  throws  hght  on  the  question  as  to 
what  is  an  "unreasonable  search  and  seizure"  within  the 
meaning  of  the  Fourth  Amendment.  And  we  have  been 
unable  to  perceive  that  the  seizure  of  a  man's  private 
books  and  papers  to  be  used  in  evidence  against  him  is 
substantially  different  from  compelling  him  to  be  a  witness 
against  himself.  We  think  it  is  within  the  clear  intent  and 
meaning  of  those  terms. 

In  the  case  of  Counselman  vs.  Hitchcock,  ^  it  was  shown 
to  the  court  that,  in  1890,  Charles  Counselman,  a 
Chicagocommission  merchant,  had  refused  to  testify- 
before  a  grand  jury  which  was  investigating  violations 
of  the  Interstate  Commerce  Act.  He  had  been  asked 
whether  he  had  received  rates  on  grain  shipments  on 
any  railroads  coming  to  Chicago  less  than  the  tariff  or 
open  rate,  and  had  declined  to  answer  on  the  ground 
that  it  might  tend  to  incriminate  him.  The  grand 
jury  had  reported  his  refusal  to  the  United  States  Dis- 
trict Judge  who  had  ordered  him  to  answer  the  questions. 
He  again  had  refused  on  the  same  grounds.  Then  he 
had  been  fined  $500  and  ordered  imprisoned  until  he 
should  answer  these  and  similar  questions,  and  pay  the 
fine  and  costs.  He  had  at  once  petitioned  the  Federal 
Circuit  Court  to  order  his  release  on  the  ground  that 
to  compel  him  to  be  a  witness  against  himself  had  been 
a  violation  of  his  constitutional  rights.  The  case 
finally  reached  the  Supreme  Court,  which  ordered  him 
to  be  discharged  from  custody.  Justice  Blatchford, 
in  giving  the  opinion  of  the  court,  said: 

The  relations  of  Counselman  to  the  subject  of  inquiry 
before  the  grand  jury,  as  shown  by  the  questions  put  to 
» 142  U.  S.  Rep.,  547. 

17 


258       AMERICAN  PLAN  OF  GOVERNMENT 

him,  in  connection  with  the  provisions  of  the  Interstate 
Commerce  Act,  entitled  him  to  invoke  the  protection  of  the 
Constitution.  ...  It  remains  to  be  considered  whether 
Sec.  860  of  the  Revised  Statutes  removes  the  protection  of 
the  constitutional  privilege  of  Counselman.  That  section 
must  be  construed  as  declaring  that  no  evidence  obtained 
from  a  witness  by  means  of  a  judicial  proceeding  shall  be 
given  in  evidence,  or  in  any  manner  used  against  him  or 
his  property  or  estate,  in  any  court  of  the  United  States, 
in  any  criminal  proceeding  or  for  the  enforcement  of  any 
penalty  or  forfeiture.  It  follows,  that  any  evidence  which 
might  have  been  obtained  from  Counselman  by  means  of 
his  examination  before  the  grand  jury  could  not  be  given  in 
evidence  or  used  against  him  or  his  property  in  any  court 
of  the  United  States,  in  any  criminal  proceeding,  or  for  the 
enforcement  of  any  penalty  or  forfeiture.  This,  of  course, 
protected  him  against  the  use  of  his  testimony  against  him 
or  his  property,  in  any  criminal  proceeding,  in  a  court  of  the 
United  States.  But  it  had  only  that  effect.  It  could  not, 
and  would  not,  prevent  the  use  of  his  testimony  to  search 
out  other  testimony  to  be  used  in  evidence  against  him  or 
his  property,  in  a  criminal  proceeding  in  such  court.  It 
could  not  prevent  the  obtaining  and  the  use  of  witnesses 
and  evidence  which  should  be  attributable  directly  to  the 
testimony  he  might  give  under  compulsion,  and  on  which 
he  might  be  convicted,  when  otherwise,  and  if  he  had  refused 
to  answer,  he  could  not  possibly  have  been  convicted. 

The  constitutional  provision  distinctly  declares  that  a 
person  shall  not  be  "compelled  in  any  criminal  case  to  be  a 
witness  against  himself";  and  the  protection  of  Sec.  860 
is  not  coextensive  with  the  constitutional  provision.  Legis- 
lation cannot  detract  from  the  privilege  afforded  by  the 
Constitution.  It  would  be  quite  another  thing  if  the  Con- 
stitution had  provided  that  no  person  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself,  unless 
it  should  be  provided  by  statute  that  criminating  evidence 
extracted  from  a  witness  against  his  will  should  not  be  used 


LIMITATIONS  UPON  LEGISLATION        259 

against  him.  But  a  mere  act  of  Congress  cannot  amend  the 
Constitution,  even  if  it  should  engraft  thereon  such  a 
proviso. 

The  Federal  immunity  statute  referred  to  in  the 
Counselman  case,  while  protecting  a  person  from  testify- 
ing against  himself  imder  compulsion,  also  gives  him  a 
chance  to  save  himself  from  punishment  by  giving 
testimony  under  compulsion  against  himself  and  guilty 
associates.  In  such  cases,  a  witness  refuses  to  answer 
the  questions  of  the  prosecutor  upon  the  ground  that  by 
answering  he  will  incriminate  himself.  If  the  judge 
commands  him  to  answer  and  he  refuses,  and  cannot 
show  that  his  answers  would  lead  to  obtaining  testi- 
mony against  himself  upon  another  charge,  he  will  be 
punished  for  contempt  of  court.  If,  on  the  other  hand, 
his  answers  would  not  tend  to  incriminate  him,  except 
in'  ;the  case  on  trial,  and  he  complies,  he  will  automatic- 
ally put  himself  out  of  danger,  and  will  have  taken 
what  is  called  the  "immunity  bath. " 

No  Warrants  shall  issue,  but  upon  probable  cause,  sup- 
ported by  Oath  or  affirmation,  and  particularly  describing 
the  place  to  be  searched,  and  the  persons  or  things  to  be 
seized.  Under  this  provision  of  the  fundamental  law, 
whoever  wishes  to  start  a  prosecution  for  crime  against 
any  person,  must  begin  by  proving  to  a  magistrate  that 
there  is  "probable  cause"  to  believe  that  the  crime  was 
committed  by  the  person  against  whom  a  warrant  or 
order  of  arrest  is  asked. 

Chief  Judge  Cranch  of  the  Federal  Circuit  Court  of 
the  District  of  Columbia  explained  the  meaning  of  the 
words  "probable  cause"  in  the  course  of  an  opinion  in 
the  case  of  United  States  vs.  B oilman,^  in  which  the 

•  I  Cranch 's  C.  C.  Rep.,  373,  or  24  Fed.  Cases,  1189,  Case  No.  14,622. 


26o       AMERICAN  PLAN  OF  GOVERNMENT 

question  was  whether  a  warrant  of  arrest  ought  to  be 
.issued  against  two  of  Aaron  Burr's  associates  in  the 
once  famous  conspiracy.  Judge  Cranch  thought  the 
warrant  ought  not  to  be  issued  on  the  ground  that 
the  prosecutor  had  not  shown  "probable  cause."  To 
justify  himself  in  this  opinion,  the  judge  had  to  show 
what  *  *  probable  cause ' '  is.    He  said : 

The  cause  of  issuing  a  warrant  of  arrest,  is  a  crime  com- 
mitted by  the  person  charged.  Probable  cause,  therefore, 
is  a  probability  that  the  crime  has  been  committed  by  that 
person.  Of  this  probability  the  court  or  magistrate  issuing 
the  warrant  must  be  satisfied,  by  facts  supported  by  oath 
or  affirmation.  The  facts,  therefore,  which  are  stated 
upon  oath,  must  induce  a  reasonable  probability  that  all 
the  acts  have  been  done  which  constitute  the  offence 
charged. 

Fifth  Amendment.  (Part  of.)  Nor  shall  any 
person  be  subject  for  the  same  offence  to  be  twice 
put  in  jeopardy  of  life  or  limb. 

This  ancient  principle  of  law  is  based  upon  the  fact 
that  a  government  which  can  put  a  defendant  on  trial 
again  and  again  on  the  same  criminal  charge,  no  matter 
how  often  a  jury  has  said  he  is  innocent,  is  able  to 
inflict  as  great  injury  upon  the  guiltless  as  ought  to  be 
inflicted  upon  the  guilty. 

The  word  "jeopardy"  means  peril.  According  to 
the  opinion  of  Judge  Williams  in  the  decision  of  Com- 
monwealth vs.  Fitzpatrick,^  it  means  the  peril  "in  which 
a  prisoner  is  put  when  he  is  regularly  charged  with  a 
crime  before  a  tribunal  properly  organized  and  com- 
petent to  try  him.     He  must  under  such  circumstances 

» 121  Penna.  Rep.,  109. 


LIMITATIONS  UPON  LEGISLATION        261 

submit  the  competency  of  his  defence  to  the  decision  of 
a  jury  of  his  peers.  He  is  in  their  hands,  exposed  to 
the  danger  of  conviction  with  all  its  consequences;  or 
in  the  language  of  the  bill  of  rights,  he  is  'in  jeopardy.' " 
When  is  a  person  in  jeopardy?  This  question  was 
answered,  in  1889,  by  the  Supreme  Court  in  the  case  of 
United  States  vs.  Ball.^  It  was  shown  to  the  court  in 
this  case  that  MiUard  Fillmore  Ball  and  two  others  had 
been  tried  in  a  Federal  Circuit  Court  in  Texas  for  the 
murder  of  one  William  T.  Box.  Ball  had  been  ac- 
quitted and  the  others  found  guUty  and  sentenced  to 
death.  The  convicted  men  had  taken  the  case  to  the 
Supreme  Court  on  the  ground  that  the  indictment  did 
not  state  when  and  where  Box  had  died.  The  Supreme 
Court  had  sustained  this  appeal  and  ordered  a  new 
trial.  Thereupon  a  second  indictment  on  the  same 
charge  was  found  against  the  three  men.  To  this 
indictment  Millard  Fillmore  Ball  made  answer  that  he 
had  already  been  in  "jeopardy  of  his  life"  on  a  charge 
of  murdering  the  man  Box,  and,  under  this  clause  of  the 
Fifth  Amendment,  did  not  have  to  defend  himself  a 
second  time.  Justice  Gray  sustained  Ball's  contention, 
saying: 

The  question  being  now  for  the  first  time  presented  to 
this  court,  we  are  unable  to  resist  the  conclusion  that  a 
general  verdict  of  acquittal  upon  the  issue  of  not  guilty  to 
an  indictment  undertaking  to  charge  murder,  and  not  ob- 
jected to  before  the  verdict  as  insufficient  in  that  respect,  is 
a  bar  to  a  second  indictment  for  the  same  killing.  The 
Constitution  of  the  United  States,  in  the  Fifth  Amendment, 
declares  "nor  shall  any  person  be  subject  to  be  twice  put 
in  jeopardy  of  life  or  limb. "  The  prohibition  is  not  against 
being  twice  punished,  but  against  being  twice  put  in  jeop- 

» 163  U.  S.  Rep.,  662. 


262       AMERICAN  PLAN  OF  GOVERNMENT 

ardy;  and  the  accused,  whether  convicted  or  acquitted,  is 
equallyputinjeopardy  at  the  first  trial.  .  .  .  The  verdict 
of  the  jury,  after  a  trial  upon  the  issue  of  guilty  or  not  guilty, 
acquitted  Millard  F.  Ball  of  the  whole  charge,  of  murder, 
as  well  as  of  any  less  offence  included  therein ....  Mil- 
lard F.  Ball's  acquittal  by  the  verdict  of  the  jury,  could  not 
be  deprived  of  its  legitimate  effect  by  the  subsequent  re- 
versal by  this  court  of  the  judgment  against  the  other  de- 
fendants .....  For  these  reasons,  the  verdict  of  acquittal 
was  conclusive  in  favor  of  Millard  F.  Ball ;  and  as  to  him  the 
judgment  must  be  .  .  .  rendered  for  him  upon  his  plea 
of  former  acquittal. 

Fifth  Amendment.  (Part  of.)  No  person  shall 
be  .  .  .  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law. 

Fourteenth  Amendment.  (Part  of.)  Nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law. 

The  "due  process  of  law,"  without  which  no  person 
may  be  deprived  of  life,  liberty,  or  property,  begins 
when  a  warrant  of  arrest  has  been  issued  upon  the 
"probable  cause"  required  by  the  Fourth  Amendment. 
The  person  arrested  under  a  lawful  warrant  is  accused  of 
having  committed  an  offence  by  an  "information,"  or 
by  an  "indictment"  or  a  "presentment"  of  a  "grand 
jury";  the  case  is  tried  before  a  "petit  jury"  which 
decides  whether  the  accused  person  committed  the 
act  charged,  and  a  "judge"  who  decides  whether  that 
act  is  the  crime  charged.  If  the  petit  jury  say  the 
accused  person  is  not  guilty,  he  is  released.  If  the 
decision  or  "verdict"  is  that  he  is  guilty,  the  judge 
declares  the  sentence  which  the  State  has  prescribed 
for  the  crime.     The  guilty  person  is  then  put  in  charge 


LIMITATIONS  UPON  LEGISLATION        263 

of  the  executive  branch  of  the  government,  —  in 
the  case  of  a  Federal  crime,  the  President ;  in  the  case  of 
a  local  crime,  the  governor  of  the  State  —  which 
inflicts  the  penalty. 

Under  due  process  of  law  axe  included  many  terms 
that  require  definition. 

A  "misdemeanor"  is  any  act  which  is  prohibited  and 
punished  by  law,  the  penalty  of  which  is  less  than  death 
or  imprisonment  in  a  State  prison. 

The  old  word  "felony,"  which  originally  signified  an 
act  of  madness  or  insanity,  was  defined  as  follows  by 
District  Judge  Hammond  in  the  case  of  United  States 
vs.  Coppersmith'': 

Felonies  by  common  law  are  such  as  either  concern  the 
taking  away  of  life,  or  concern  the  taking  away  of  goods,  or 
concern  the  habitation,  or  concern  the  obstruction  of  justice 
in  criminal  and  capital  causes,  as  escapes,  rescues,  etc.  .  .  . 
These  crimes  were  of  such  enormity  that  the  common  law 
punished  them  by  forfeiture:  (i)  the  offender's  wife  lost  her 
dower;  (2)  his  children  became  base  and  ignoble  and  his 
blood  corrupted;  (3)  he  forfeited  his  goods  and  chattels, 
lands  and  tenements.  The  superadded  punishment  was 
either  capital  or  otherwise,  according  to  the  degree  of 
guilt.  .  .  . 

In  American  law,  forfeiture  as  a  consequence  of  crime 
being  generally  abolished,  the  word  "felony"  has  lost  its 
original  and  characteristic  meaning,  and  is  rather  used  to 
denote  any  high  crime  punishable  by  death  or  imprisonment. 
,  .  .  The  term  is  so  interwoven  with  our  criminal  law 
that  it  should  have  a  definition  applicable  to  its  present  use; 
and  this  notion  of  moral  degradation  by  confinement  in  the 
penitentiary  has  grown  into  a  general  understanding  that 
it  constitutes  any  offence  a  felony,  just  as,  at  common  law, 

'  4  Federal  Rep.,  189. 


264       AMERICAN  PLAN  OF  GOVERNMENT 

the  idea  of  capital  punishment  became  inseparably  con- 
nected with  that  of  felony. 

"A  criminal  'information*  is  an  accusation  in  the 
nature  of  an  indictment,  from  which  it  differs  only  in 
being  presented  by  a  competent  public  officer  on  his 
oath  of  office,  instead  of  a  grand  jury  on  their  oath.  "^ 
An  information  "differs  in  no  respect  from  an  indict- 
ment in  its  form  and  substance,  except  that  it  is  filed 
at  the  mere  discretion  of  the  proper  law  officer  of  the 
government,  without  the  intervention  of  a  grand  jury. "  ^ 

An  "indictment, "  speaking  very  strictly,  is  an  accusa- 
tion of  crime  made  upon  evidence  by  a  grand  jury  upon 
oath  at  a  court  of  law  at  a  session  for  criminal  trials. 

A  "presentment"  is  properly  that  which  the  grand 
jurors  from  their  own  knowledge  or  observation  find 
and  present  to  the  court.  ^ 

A  "grand  jury"  is  a  body  of  not  more  than  twenty- 
four  citizens,  brought  to  a  court  of  law  for  criminal 
trials,  before  whom  charges  of  crime  may  be  presented 
and  by  whom  indictments  and  presentments  may  be 
made. 

A  "petit  jury"  is  a  body  of  twelve  men,  who  hear  all 
the  evidence  for  and  against  an  accused  person  and 
decide  whether  or  not  he  has  committed  the  crime 
charged.     Their  only  duty  is  to  decide  the  facts. 

A  "judge"  is  a  person  especially  authorized  and 
appointed  to  preside  over  trials  of  actions.  In  all 
criminal  trials,  it  is  his  duty  to  decide  whether  the  acts 
which  have  been  proved  by  the  testimony  of  witnesses 
constitute  a  crime.    He  decides  only  upon  the  law. " 

'  I  Bishop's  Cr.  Proc.,  Sec.  141. 

'  4  Blackstone's  Commentaries,  308. 

3  Story  On  the  Constitution,  Sec.  1784. 

*  U.  S.  vs.  BoUman,  4  Cranch's  C.  C.  Rep.,  75. 


LIMITATIONS  UPON  LEGISLATION        265 

Justice  Matthews  of  the  Supreme  Court  in  his 
opinion  in  the  case  of  Hurtado  vs.  California,  ^  defined 
the  "due  process  of  law,"  without  which  no  man  may 
be  deprived  of  life,  liberty,  or  property.  On  May  7, 
1882,  one  Hurtado  had  been  convicted  in  California  of 
the  murder  of  a  man  named  Jose  Antonio  Stuardo  upon 
an  "information"  filed  in  court,  in  accordance  with  a 
State  law,  by  the  district  attorney  of  Sacramento 
County.  He  had  appealed  to  the  Supreme  Court  of 
the  State,  which  affirmed  the  judgment  of  conviction. 
When  asked  in  court  why  sentence  of  death  should  not 
be  pronounced  upon  him,  he  had  answered  that  he 
"had  been  tried  and  illegally  found  guilty  of  said  crime 
without  any  presentment  or  indictment  of  any  grand 
or  other  jury,  and  that  the  judgment,  rendered  upon 
the  alleged  verdict  of  the  jury  in  such  case,  was  and  is 
void,  and  if  executed  would  deprive  him  of  his  life  or 
liberty  without  due  process  of  law."  In  other  words, 
he  claimed  that  a  charge  of  murder  made  by  an  "in- 
formation," was  not  sufficient  to  support  a  conviction; 
that,  in  such  cases,  an  "indictment"  by  a  grand  jury 
was  the  only  "due  process  of  law. "  His  objection  was 
overruled  by  the  State  Supreme  Court.  He  then  took 
the  question  to  the  Federal  Supreme  Court,  which  also 
decided  against  him.    Justice  Matthews  said : 

Arbitrary  power,  enforcing  its  edicts  to  the  injury  of  the 
persons  and  property  of  its  subjects,  is  not  law,  whether 
manifested  as  the  decree  of  a  personal  monarch  or  of  an 
impersonal  multitude.  And  the  limitations  imposed  by 
our  constitutional  law  upon  the  action  of  the  governments, 
both  State  and  National,  are  essential  to  the  preservation 
of  public  and  private  rights,  notwithstanding  the  representa- 

»iioU.  S.  Rep.,  516. 


266       AMERICAN  PLAN  OF  GOVERNMENT 

tive  character  of  our  political  institutions.  The  enforce- 
ment of  these  limitations  by  judicial  process  is  the  device 
of  self-governing  communities  to  protect  the  rights  of 
individuals  and  minorities,  as  well  against  the  power  of 
numbers,  as  against  the  violence  of  public  agents  transcend- 
ing the  limits  of  lawful  authority,  even  when  acting  in  the 
name  and  wielding  the  force  of  the  government.    .    .    . 

It  follows  that  any  legal  proceeding  enforced  by  public 
authority,  whether  sanctioned  by  age  and  custom,  or  newly 
devised  in  the  discretion  of  the  legislative  power,  in  further- 
ance of  the  general  public  good,  which  regards  and  preserves 
these  principles  of  liberty  and  justice,  must  be  held  to  be 
due  process  of  law. 

No  person  shall  be  .  .  .  deprived  of  life  .  .  .  with- 
out due  process  of  law.  It  was  claimed  in  behalf  of 
Leo  M.  Frank,  ^  whose  sentence  to  death  for  murder  in 
Georgia  was  afterward  commuted  to  life  imprisonment, 
that,  if  he  had  been  executed,  he  would  have  been  de- 
prived of  life  without  due  process  of  law,  because  he 
had  not  been  present  in  court  when  the  jury  announced 
the  verdict  of  guilty.  He  had  asked  the  Supreme  Court 
of  Georgia  to  set  aside  the  judgment  of  conviction  and 
give  him  a  new  trial.  This  request  had  been  denied. 
He  had  then  petitioned  the  same  court  to  set  aside  the 
judgment  on  the  ground  that,  not  being  present  when 
the  verdict  was  rendered,  the  trial  had  not  been  the  due 
process  of  law  to  which  he  was  entitled  tmder  the 
Constitutions  of  Georgia  and  of  the  United  States. 
This  second  request  was  denied  on  the  ground  that  he 
had  had  no  right  to  make  a  second  plea  for  a  new  trial. 
His  lawyers  then  petitioned  the  United  States  District 
Court  of  the  District  of  Georgia  for  a  writ  of  habeas 
corpus  directing  the  persons  having  him  in  custody  to 

»  Frank  vs.  Mangum,  237  U.  S.  Rep.,  309. 


LIMITATIONS  UPON  LEGISLATION        267 

produce  him  in  court,  so  that  the  lawfulness  of  the 
judgment  that  he  had  been  guilty  of  murder  could  be 
tested.  The  Federal  District  Judge  refused  to  issue  this 
writ  and  an  appeal  was  taken  to  the  Supreme  Court  at 
Washington,  which  decided  that  the  State  of  Georgia 
had  retained  jurisdiction  over  him  [Frank],  and  had 
"accorded  to  him  the  fullest  right  and  opportunity  to 
be  heard,  according  to  established  modes  of  procedure. " 
Hence,  said  Justice  Pitney,  "in  our  opinion,  he  is  not 
shown  to  have  been  deprived  of  any  right  guaranteed  to 
him  by  the  Fourteenth  Amendment  or  any  other  pro- 
vision of  the  Constitution  or  laws  of  the  United  States; 
on  the  contrary,  he  has  been  convicted,  and  is  now  held 
in  custody,  under  'due  process  of  law'  within  the 
meaning  of  the  Constitution. " 

In  the  case  of  Hopt  vs.  Utah,  ^  which  involved  some  of 
the  questions  decided  in  the  case  of  Leo  M.  Frank,  the 
Supreme  Court  ruled  that,  under  the  laws  of  the  Terri- 
tory of  Utah,  a  prisoner  on  trial  for  murder  had  a  con- 
stitutional right  to  be  present  even  when  it  was  being 
decided  whether  proposed  jurors  to  whom  he  had 
objected  on  the  ground  of  bias,  really  were  prejudiced 
against  him.  Justice  Harlan  held  that  this  right  could 
not  be  waived,  saying : 

We  are  of  opinion  that  it  was  not  within  the  power  of  the 
accused  or  his  counsel  to  dispense  with  the  statutory  re- 
quirement [of  Utah]  as  to  his  personal  presence  at  the  trial. 
.  .  .  The  public  has  an  interest  in  his  life  and  liberty. 
Neither  can  be  lawfully  taken  except  in  the  mode  pre- 
scribed by  law.  That  which  the  law  makes  essential  in 
proceedings  involving  the  deprivation  of  life  or  liberty  can- 
not be  dispensed  with  or  affected  by  the  consent  of  the 
accused,  much  less  by  his  mere  failure,  when  on  trial  and 

» iioU.  S.  Rep.,  574. 


268       AMERICAN  PLAN  OF  GOVERNMENT 

in  custody,  to  object  to  unauthorized  methods.  .  .  . 
Such  being  the  relation  which  the  citizen  holds  to  the  public, 
and  the  object  of  punishment  for  public  wrongs,  the  legis- 
lature has  deemed  it  essential  to  the  protection  of  one  whose 
life  or  liberty  is  involved  in  a  prosecution  for  felony,  that 
he  shall  be  personally  present  at  the  trial,  that  is,  at  every 
stage  of  the  trial  when  his  substantial  rights  may  be  affected 
by  the  proceedings  against  him.  If  he  be  deprived  of 
life  or  liberty  without  being  so  present,  such  deprivation 
would  be  without  that  due  process  of  law  required  by  the 
Constitution. 

No  person  shall  be  .  .  .  deprived  of  .  .  .  liberty 
.  .  .  without  due  process  of  law.  "It  is  undoubtedly 
true,"  said  Justice  Field  in  his  opinion  in  the  case  of 
Crowley  vs.  Christensen,^  "that  it  is  the  right  of  every 
citizen  of  the  United  States  to  pursue  any  lawful  trade 
or  business,  under  such  restrictions  as  are  imposed  upon 
all  persons  of  the  same  age,  sex,  and  condition.  But  the 
possession  and  enjoyment  of  all  rights  are  subject 
to  such  reasonable  conditions  as  may  be  deemed  by 
the  governing  authority  of  the  country  essential  to  the 
safety,  health,  peace,  good  order,  and  morals  of  the 
community.  Even  liberty  itself,  the  greatest  of  all 
rights,  is  not  unrestricted  license  to  act  according  to 
one's  own  will.  It  is  only  freedom  from  restraint  under 
conditions  essential  to  the  equal  enjoyment  of  the  same 
right  by  others." 

No  person  shall  be  .  .  .  deprived  of  .  .  .  property 
without  due  process  of  law.  The  notable  case  of  Public 
Clearing  House  vs.  Coyne,"  decided  by  the  Supreme 
Court  in  1904,  hinged  upon  the  question  whether  the 
postmaster  of  Chicago,  acting  under  the  orders  of  the 
Postmaster-General,  had  or  had  not  deprived  a  highly 

» 137  U.  S.  Rep.,  86.  '  194  U.  S.  Rep.,  497. 


LIMITATIONS  UPON  LEGISLATION        269 

speculative  concern  of  its  property  without  due  process 
of  law,  by  stopping  its  letters,  stamping  them  "fraudu- 
lent,"  and  returning  them  to  the  senders.  The  de- 
cision of  the  Supreme  Court  in  this  case  established  the 
validity  of  those  "fraud  orders"  by  which  thousands 
of  people,  who  ought  to  know  better,  are  protected 
from  the  consequences  of  their  own  foolishness  and 
credulity.  Justice  Brown  delivered  the  opinion  of  the 
Supreme  Court  which  decided  that  these  orders  are 
due  process  of  law,  saying  in  part : 

It  is  too  late  to  argue  that  due  process  of  law  is  denied 
whenever  the  disposition  of  property  is  affected  by  the  order 
of  an  executive  department.  .  .  .  Inasmuch  as  the 
action  of  the  postmaster  in  seizing  letters  and  returning 
them  to  the  writers  is  subject  to  revision  by  the  judicial 
department  of  the  government  in  cases  where  the  Post- 
master General  has  exceeded  his  authority  under  the 
statute,  ...  we  think  it  within  the  power  of  Congress  to 
entrust  him  with  the  power  of  seizing  and  detaining  letters 
upon  evidence  satisfactory  to  himself,  and  that  his  action 
will  not  be  reviewed  by  the  court  in  doubtful  cases. 

Fifth  Amendment.  (Concluded.)  Nor  shall  private 
property  be  taken  for  public  use,  without  just  compensa- 
tion. 

What  constitutes  a  taking  of  private  property  for 
public  use?  This  question  was  answered  by  the 
Supreme  Court  in  the  case  of  Pumpelly  vs.  Green  Bay 
Company,^  in  which  the  plaintiff  asked  the  courts  to 
award  him  compensation  for  damages  to  his  land  caused 
by  a  canal  company  which  had  built  a  dam  across  Fox 
River,  Wisconsin.     The  water  had  overflowed  his  land, 

» 13  Wallace's  Rep.,  166. 


270       AMERICAN  PLAN  OF  GOVERNMENT 

rooting  up  trees,  ruining  his  hay,  choking  up  his  drains, 
filling  his  ditches,  and  spoiling  his  fields  by  deposits  of 
sand.  The  company  defended  itself  on  the  plea  that 
it  had  been  authorized  by  a  statute  of  the  State  of  Wis- 
consin to  construct  the  dam  in  order  to  make  the  river 
a  navigable  stream,  and  that  it  ought  not  to  be  required 
to  pay  for  damages  resulting  from  improvements  which 
the  State  government  had  a  right  to  authorize.  Pum- 
pelly  said  that  the  court  ought  not  to  consider  the  canal 
company's  plea  because  the  constitution  of  the  State  of 
Wisconsin  provided  that  "the  property  of  no  person 
shall  be  taken  for  public  use  without  just  compensation 
therefor."     Justice  Miller  said: 

It  would  be  a  very  curious  and  unsatisfactory  result,  if 
in  construing  a  provision  of  constitutional  law,  always 
understood  to  have  been  adopted  for  protection  and  security 
to  the  rights  of  the  individual  as  against  the  government 
and  which  has  received  the  commendation  of  jurists, 
statesmen,  and  commentators  as  placing  the  just  principles 
of  the  common  law  on  that  subject  beyond  the  power  of 
ordinary  legislation  to  change  and  control  them,  it  shall  be 
held  that  if  the  government  refrains  from  the  absolute 
conversion  of  the  real  property  to  the  uses  of  the  public,  it 
can  destroy  its  value  entirely,  can  inflict  irreparable  and 
permanent  injury  to  any  extent,  can,  in  effect,  subject 
it  to  total  destruction  without  making  any  compensation, 
because,  in  the  narrowest  sense  of  that  word,  it  is  not  taken 
for  the  public  use.  Such  a  construction  would  pervert  the 
constitutional  provision  into  a  restriction  upon  the  rights  of 
the  citizen,  as  those  rights  stood  at  the  common  law,  instead 
of  the  government,  and  make  it  an  authority  for  invasion 
of  private  right  under  the  pretext  of  the  public  good,  which 
had  no  warrant  in  the  laws  or  practises  of  our  ancestors. 

What   is   just   compensation   for  private  property 


LIMITATIONS  UPON  LEGISLATION        271 

taiiken  for  public  use?  The  Supreme  Court  stood  firmly 
for  the  rights  of  property  owners  in  the  case  of  The 
Monongahela  Navigation  Company  vs.  United  States,^ 
in  which  a  Secretary  of  War  backed  by  Congress  had 
tried  to  take  over  a  lock  and  dam,  belonging  to  the 
Monongahela  Company,  without  just  compensation  for 
the  income  derived  from  tolls  levied  by  that  Company 
upon  vessels  passing  through  the  locks.  The  case  was 
tried  in  the  United  States  Circuit  Court  for  the  Western 
District  of  Pennsylvania,  which  awarded  the  Company 
$209,000  for  its  property,  "not  considering  or  estimat- 
ing in  this  decree  the  franchise  of  the  company  to  collect 
tolls."  The  Navigation  Company  won  the  case  in 
the  Supreme  Court,  where  Justice  Brewer  delivered  an 
opinion  in  which  he  explained  the  meaning  of  "just 
compensation"  as  follows: 

The  noun  "compensation,"  standing  by  itself,  carries  the 
idea  of  an  equivalent.  Thus  we  speak  of  damages  by  way 
of  compensation,  or  compensatory  damages,  as  distinguished 
from  punitive  or  exemplary  damages,  the  former  being  the 
equivalent  for  the  injury  done,  and  the  latter  imposed  by 
way  of  punishment.  So  that  if  the  adjective  "just"  had 
been  omitted,  and  the  provision  was  simply  that  property 
should  not  be  taken  without  compensation,  the  natural 
import  of  the  language  would  be  that  the  compensation 
should  be  the  equivalent  of  the  property.  And  this  is  made 
emphatic  by  the  adjective  "just."  There  can,  in  view  of 
the  combination  of  those  two  words,  be  no  doubt  that  the 
compensation  must  be  a  full  and  perfect  equivalent  for  the 
property  taken.  And  this  just  compensation,  it  will  be 
noticed,  is  for  the  property  and  not  to  the  owner.  Every 
other  clause  in  this  Fifth  Amendment  is  personal.  "No 
person  shall  be  held  to  answer  for  a  capital,  or  otherwise 

« 148  U.  S.  Rep.,  312,  325. 


272       AMERICAN  PLAN  OF  GOVERNMENT 

infamous  crime, "  etc.  Instead  of  continuing  that  form  of 
statement,  and  saying  that  no  person  shall  be  deprived  of 
his  property  without  just  compensation,  the  personal  ele- 
ment is  left  out,  and  the  "just  compensation"  is  to  be  a  full 
equivalent  for  the  property  taken.  This  excludes  the 
taking  into  account,  as  an  element  in  the  compensation, 
any  supposed  benefit  that  the  owner  may  receive  in  common 
with  all  from  the  public  uses  to  which  his  property  is  ap- 
propriated, and  leaves  it  to  stand  as  a  declaration,  that  no 
private  property  shall  be  appropriated  for  public  uses  unless 
a  full  and  exact  equivalent  for  it  be  returned  to  the  owner. 

Sixth  Amendment.  (In  part.)  In  all  criminal  prose- 
cutions, the  accused  shall  enjoy  the  right  .  .  .  to  be 
informed  of  all  nature  and  cause  of  the  accusation;  to 
be  confronted  with  the  witnesses  against  him;  to  have 
compulsory  process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel  for  his  defence. 

The  most  helpless  creature  in  the  world  is  a  prisoner 
on  trial  upon  a  charge  of  crime.  The  whole  body  of  the 
community  is  arrayed  against  him.  The  government 
employs  skillful  prosecuting  lawyers  and  has  means  to 
compel  witnesses  to  come  to  the  court  to  testify  against 
him.  The  accused  is  of  all  men  most  miserable,  unless 
the  law  gives  him  an  equal  chance  to  defend  himself. 
Time  was  when  the  courts  could  hear  privately  the 
witnesses  against  the  prisoner,  and  then  call  him  into 
court  to  answer  charges,  which  he  never  had  heard  of, 
made  upon  the  testimony  of  witnesses  he  never  had 
seen,  without  any  legal  means  of  compelling  his  own 
witnesses  to  come  to  court  to  testify  for  him,  and  with- 
out any  lawyer  to  speak  for  him  against  the  trained 
counsel  for  the  government.  Many  of  these  abuses  had 
been  weeded  out  before  the  Constitution  was  adopted. 


LIMITATIONS  UPON  LEGISLATION        273 

Almost  all  the  reforms  needed  to  make  criminal  pro- 
cedure humane  and  just,  had  been  incorporated  into  the 
constitutions  and  laws  of  the  States  during  the  first  era 
of  independence;  but  the  People  of  the  United  States 
had  no  such  safeguards. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  .  .  .  to  be  informed  of  the  nature  and  cause  of  the 
accusation.  The  charge  to  be  answered  by  a  defendant 
on  trial  in  a  criminal  court  must  be  clear,  explicit,  and 
definite.  The  prosecution  has  no  right  to  compel  any 
man  to  show  that  he  is  a  good  member  of  society.  In 
the  case  of  United  States  vs.  Mills,  ^  the  defendant  had  to 
answer  an  indictment  charging  him  with  "advising, 
procuring,  and  assisting  Joseph  I.  Shaughan,  a  mail 
carrier,  to  rob  the  mail."  Having  been  found  guilty 
by  a  jury,  the  defendant  asked  the  court  to  set  aside 
the  verdict  upon  the  ground  that  the  indictment  on 
which  he  had  been  tried  did  not  set  forth  that  the  mail 
carrier  actually  had  robbed  the  mail.  In  other  words, 
he  claimed  that  he  had  been  found  guilty  of  taking  part 
in  a  robbery  upon  an  indictment  which  did  not  say 
that  there  had  been  any  robbery.  In  delivering  the 
decision  of  the  court,  sustaining  the  conviction  on  the 
ground  that  in  the  case  of  a  misdemeanor,  it  was  not 
necessary  to  specify  the  act  charged  so  definitely  as  in 
the  case  of  a  crime,  Justice  Thompson  explained  what 
information  a  defendant  has  a  right  to  have  of  the 
nature  and  cause  of  an  accusation.     He  said: 

The  general  rule  is  that  in  indictments  for  misdemeanors 
created  by  statute,  it  is  sufficient  to  charge  the  offence  in 
the  words  of  the  statute.  There  is  not  that  technical  nicety 
required  as  to  form,  which  seems  to  have  been  adopted  and 

»  7  Peters'  Rep.,  138. 
18 


274       AMERICAN  PLAN  OF  GOVERNMENT 

sanctioned  by  long  practice  in  cases  of  felony  and  with 
respect  to  some  crimes,  where  particular  words  must  be 
used,  and  no  other  words,  however  synonymous  they  may 
seem,  can  be  substituted.  But  in  all  cases  the  offence  must 
be  set  forth  with  clearness,  and  all  necessary  certainty,  to 
apprise  the  accused  of  the  crime  with  which  he  stands 
charged. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  .  .  .  tobe  confronted  with  the  witnesses  against 
him.  Evidence  of  what  some  one  else  has  said  against 
a  person  on  trial  on  a  charge  of  crime  cannot  be  heard 
in  a  Federal  court.  For  example,  in  the  case  of  United 
States  vs.  Angell,  "■  a  number  of  New  Hampshire  farmers 
once  had  clubbed  together  to  buy  a  barrel  of  rum  "to 
get  through  the  haying  season."  The  man  who  had 
divided  it  up  among  the  purchasers  was  indicted  in  the 
United  States  Court  for  selling  liquor  without  a  Federal 
license.  In  the  course  of  his  trial,  the  defendant  offered 
to  prove  statements  which  had  been  made  by  a  witness 
at  the  preliminary  hearing  before  the  magistrate.  Then 
he  asked  that  this  evidence  be  received  instead  of  the 
oral  testimony  of  the  witness  himself,  because  the  latter 
had  left  the  State  and  could  not  be  brought  to  court. 
The  judge  refused  to  allow  testimony  of  this  kind  to  be 
heard  by  the  jury,  which  found  the  defendant  guilty. 
The  convicted  man  then  made  a  motion  that  the  verdict 
be  set  aside  on  the  ground  that  his  offer  of  testimony 
had  been  improperly  rejected.  District  Judge  Clark, 
in  denying  this  motion,  explained  the  right  of  an  accused 
person  to  be  confronted  with  the  witnesses  against  him : 

I  think  that  the  law  must  be  held  to  be  that  when  the 
witness  is  living  he  must  be  produced,  or  his  testimony  can- 

'  II  Federal  Reporter,  34. 


LIMITATIONS  UPON  LEGISLATION        275 

not  be  received  in  criminal  cases,  even  if  he  be  beyond  the 
jurisdiction  of  the  court  or  of  all  the  United  States.  The 
Constitution  of  the  United  States  provides  .  .  .  that  in 
all  criminal  prosecutions  the  accused  shall  enjoy  the  right 
to  be  confronted  with  the  witnesses  against  him;  and  this 
without  exception.  Not  if  they  can  be  produced,  nor  if 
they  be  within  the  jurisdiction,  but  absolutely  and  on  all 
occasions.  And,  if  the  accused  have  this  right  it  must  be 
mutual,  and  exist  on  the  part  of  the  government.  The 
trial  would  not  be  a  fair  one  otherwise. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy  the 
right  .  .  .  to  have  compulsory  process  for  obtaining 
witnesses  in  his  favor.  A  defendant  in  a  criminal  case 
in  a  Federal  court  can  have  his  witnesses  summoned 
by  the  same  process  as  the  government  uses  in  sum- 
moning its  witnesses.  The  subpoena,  an  ancient  court 
order  which  commands  a  person  to  attend  the  court 
sub  poena  (under  the  penalty  stated  in  the  order),  is 
at  the  service  of  prosecutor  and  prosecuted  alike. 
Some  judges  have  insisted  upon  an  almost  unlimited  use, 
at  the  request  of  accused  person,  of  this  process  for 
summoning  witnesses.  In  the  case  of  United  States 
vs.  Aaron  Burr,^  Chief  Justice  Marshall  issued  a  sub' 
pcena  duces  tecum  (a  subpoena  commanding  a  witness 
to  bring  something,  usually  written  documents,  to 
court)  to  President  Jefferson,  who  paid  no  attention  to 
it.  The  Chief  Justice  did  not  try  to  punish  him  for 
contempt  of  court,  because  the  President  of  the  United 
States  is  not  so  easily  dealt  with  as  other  persons  who 
disobey  a  court  order.  The  right  of  an  accused  person 
to  this  process  was  sustained,  however,  in  an  opinion 
in  which  Judge  Marshall  said  in  substance: 

In  the  provisions  of  the  Constitution,  and  of  the  statute 
» 4  Cranch's  C.  C.  Rep.,  469;  25  Fed.  Cases,  30. 


276       AMERICAN  PLAN  OF  GOVERNMENT 

which  give  to  the  accused  a  right  to  the  compulsory  process 
of  the  court,  there  is  no  exception  whatever.  The  obliga- 
tion, therefore,  of  those  provisions  is  general ;  and  it  would 
seem  that  no  person  could  claim  an  exemption  from  them, 
but  one  who  would  not  be  a  witness ....  If  then,  as  is 
admitted  by  counsel  for  the  United  States,  a  subpoena  may 
issue  to  the  President,  the  accused  is  entitled  to  it  of  course ; 
and  whatever  difference  may  exist  with  respect  to  the  power 
to  compel  the  same  obedience  to  the  process  as  if  it  had  been 
directed  to  a  private  citizen,  there  exists  no  difference  with 
respect  to  the  right  to  obtain  it. 

In  all  criminal  prosecutions,  the  accused  shall  enjoy 
the  right  .  .  .  to  have  the  assistance  of  counsel  for  his 
defence.  The  old  common  law  did  not  allow  an  accused 
person  to  have  a  lawyer  except  to  advise  him  what  to 
say  and  do  during  the  trial.  The  judge  was  supposed 
to  guard  the  rights  of  prisoners.  Ordinarily  the  man 
on  trial  for  his  life  did  not  have  much  chance  unless 
the  public  prosecutor  was  unusually  fair.  Since  the 
adoption  of  the  Sixth  Amendment,  however,  every 
defendant  in  a  criminal  case  in  the  Federal  Courts  has 
had  the  assistance  of  counsel  as  a  matter  of  constitu- 
tional right. 

Some  persons  believe  that  this  constitutional  pro- 
vision does  not  sufficiently  protect  the  rights  of  accused 
persons.  They  urge  that  the  defendant  ought  to  have 
every  advantage  which  the  State  gives  to  the  prosecu- 
tor. Hence  the  demand  for  public  defenders  as  well 
as  public  prosecutors. 

Seventh  Amendment.  In  suits  at  common  law, 
where  the  value  in  controversy  shall  exceed  twenty 
dollars,  the  right  of  trial  by  jury  shaU  be  preserved,  and 
no  fact  tried  by  a  jury  shall  be  otherwise  re-examined 


LIMITATIONS  UPON  LEGISLATION        277 

in  any  Court  of  the  United  States,  than  according  to 
the  rules  of  the  common  law. 

The  People  of  the  United  States,  whose  ideas  of  right 
and  justice  are  grounded  in  the  common  law  of  England, 
believe  implicitly  that,  with  all  its  imperfections  and 
shortcomings,  a  trial  by  a  jury  is  still  the  best  way  to 
sift  out  the  facts  of  any  dispute.  In  the  Federal  courts, 
suits  at  common  law  in  which  the  subject  matter  in 
dispute  is  valued  at  more  than  twenty  dollars,  always 
are  tried  by  juries.  This  is  not  the  rule  in  State  courts. 
Some  of  them  have  jury  trials  only  when  one  party  or 
the  other  so  demands.  In  others,  like  New  York,  the 
parties  do  not  have  to  have  jury  trials  if  they  do  not 
wish  to. 

In  suits  at  common  law.  ' '  The  common  law  consists  of 
those  principles  and  maxims,  usages  and  rules  of  action 
which  observation  and  experience  of  the  nature  of  man, 
the  constitution  of  society  and  the  affairs  of  life  have 
commended  for  the  government  and  security  of  persons 
and  property.  Its  principles  are  developed  by  judicial 
decision  as  necessities  arise  from  time  to  time  demand- 
ing the  application  of  those  principles  to  particular 
cases  in  the  administration  of  justice.  The  authority 
of  its  rules  does  not  depend  upon  positive  legislative 
enactment,  but  upon  the  principles  which  they  are 
designed  to  enforce,  the  nature  of  the  subject  to  which 
they  are  to  be  applied  and  their  tendency  to  accomplish 
the  ends  of  justice.  It  follows  that  these  rules  are  not 
arbitrary  in  their  nature  nor  invariable  in  their  applica- 
tion, but  from  their  nature  as  well  as  the  necessities  in 
which  they  originate,  they  are  and  must  be  susceptible 
of  a  modified  application  suited  to  the  circumstances 
imder  which  that  application  is  to  be  made.    The 


278       AMERICAN  PLAN  OF  GOVERNMENT 

principles  of  the  common  law,  as  its  theory  assumes  and 
its  history  approves,  are  not  exclusively  applicable  or 
suited  to  one  country  or  condition  of  society,  but  on  the 
contrary,  by  reason  of  their  properties  of  expansibility 
and  flexibility,  their  application  to  many  is  practicable. 
The  adoption  of  that  law  in  the  most  general  terms,  by 
the  government  of  any  country,  would  not  necessarily 
require  or  admit  of  an  unqualified  application  of  all  its 
rules  without  regard  to  local  circumstances,  however 
well  settled  and  generally  received  those  rules  might  be. 
Its  rules  are  modified  upon  its  own  principles  and  not  in 
violation  of  them.  Those  rules  being  founded  in  reason, 
one  of  its  oldest  maxims  is  that  where  the  reason  of  the 
rule  ceases  the  rule  also  ceases." — Opinion  of  Green 
J.  in  People  vs.  Randolph.  ^ 

In  suits  at  common  law,  .  .  .  the  right  of  trial  by 
jury  shall  be  preserved.  The  Americans  of  1787  be- 
lieved with  all  their  hearts  and  souls  that  a  jury  trial 
is  the  best  kind  of  trial  for  all  questions  of  fact.  By  a 
jury  trial  is  meant  a  trial  by  a  judge  and  jury.  In  the 
decision  of  the  case  of  Capitol  Traction  Co.  vs.  Hoj,^ 
Justice  Gray  said: 

"Trial  by  jury,"  in  the  primary  and  usual  sense  of  the 
term  at  the  common  law  and  in  the  American  constitutions, 
is  not  merely  a  trial  by  a  jury  of  twelve  men  before  an  officer 
vested  with  authority  to  cause  them  to  be  summoned  and 
empaneled,  to  administer  oaths  to  them  and  to  the  con- 
stable in  charge,  and  to  enter  judgment  and  issue  execution 
on  their  verdict;  but  it  is  a  trial  by  a  jury  of  twelve  men,  in 
the  presence  and  under  the  superintendence  of  a  judge 
empowered  to  instruct  them  on  the  law  and  to  advise  them 
on  the  facts,  and  (except  on  the  acquittal  of  a  criminal 

'  2  Parker's  [N.  Y.]  Crim.  Rep.,  174,  176. 
» 174  U.  S.  Rep.  13. 


LIMITATIONS  UPON  LEGISLATION        279 

charge)  to  set  aside  their  verdict  if  in  his  opinion  it  is  against 
the  law  or  evidence .    .    .    . 

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.  In  the  case  of  Parsons  vs. 
Bedford,^  the  plaintiffs  had  sued  at  common  law  for 
the  value  of  a  quantity  of  tobacco  which  they  had 
sold  to  the  Louisiana  agent  of  a  Boston  mercantile 
firm.  The  case  had  been  tried  before  a  jury  in  the 
United  States  Court  of  Louisiana.  The  defendants  had 
asked  the  court  to  order  the  testimony  given  at  the 
trial  to  be  taken  down  in  writing  and  made  part  of  the 
record  of  the  case.  This  request  had  been  denied. 
The  case  then  had  been  taken  to  the  Federal  Supreme 
Court,  which  was  asked  to  rule  that  the  lower  court 
ought  to  have  submitted  the  testimony  in  the  case  to 
be  reviewed  by  the  higher  court.  The  Supreme  Court 
decided  that,  in  a  suit  at  common  law,  it  had  no  right 
to  weigh  the  testimony  upon  which  the  jury  had  found 
their  verdict,  and  perhaps  set  that  verdict  aside  if  that 
testimony  had  been  insufficient.  If  the  justices  of  the 
Supreme  Court,  in  deciding  the  case,  had  examined  the 
testimony  to  see  whether  the  verdict  was  justified,  they 
would,  contrary  to  the  provisions  of  this  amendment, 
have  reexamined  a  "fact"  tried  by  a  jury,  "otherwise 
.  .  .  than  according  to  the  rules  of  the  common 
law. "    Justice  Story  said: 

The  phrase  "common  law,"  found  in  this  clause,  is  used 
in  contradistinction  to  equity,  and  admiralty  and  maritime 
jurisdiction.  ...  It  is  well  known  that  in  civil  causes, 
in  courts  of  equity  and  admiralty,  jurors  do  not  intervene, 
and  that  courts  of  equity  use  the  trial  by  jury  only  in  ex- 

» 3  Peters'  Rep.,  433. 


28o       AMERICAN  PLAN  OF  GOVERNMENT 

traordinary  cases  to  inform  the  conscience  of  the  court. 
"When,  therefore,  we  find  that  the  amendment  requires  that 
the  right  of  trial  by  jury  shall  be  preserved  in  suits  at  com- 
mon law,  the  natural  conclusion  is,  that  this  distinction 
was  present  to  the  minds  of  the  framers  of  the  amendment. 

What  are  "rules  of  the  common  law,"  according  to 
which  facts  which  have  been  tried  by  a  jury  may  be 
reexamined  in  courts  of  the  United  States?  Justice 
Story  explained  in  the  course  of  his  opinion  in  the  case  of 
Parsons  vs.  Bedford^  just  how  the  Federal  courts  may 
reexamine  the  facts  in  any  case  which  has  been  tried 
by  a  jury.     He  said: 

The  only  modes  known  to  the  common  law  to  re-examine 
such  facts  are  the  granting  of  a  new  trial  by  the  court 
where  the  issue  was  tried,  or  to  which  the  record  was  prop- 
erly returnable,  or  the  award  of  a  venire  facias  de  novo  [an 
order  that  the  case  be  dismissed  and  the  parties  begin  their 
suit  again]  by  an  appellate  coiurt,  for  some  error  of  law  which 
intervened  in  the  proceedings. 

Eighth  Amendment.  Excessive  bail  shall  not  be 
required,  nor  excessive  fines  imposed,  nor  cruel  and 
unusual  punishments  inflicted. 

The  clauses  forbidding  excessive  bail  and  fines,  and 
cruel  and  unusual  punishments  are  still  needed,  though 
not  so  much  as  formerly.  Many  judges  feel  that  all  the 
severity  the  law  allows  is  needed  to  check  the  progress 
of  crime.  There  are  not  wanting  those  who  would 
revive  some  of  the  severe  punishments  which  were  in- 
flicted before  there  were  enough  well-conducted  jails 
to  take  care  of  troublesome  people.     As  a  whole,  law- 

*  3  Peters'  Reports,  433. 


LIMITATIONS  UPON  LEGISLATION        281 

abiding  people  favor  mildness  and  humanity,  but  there 
are  exceptions.  Hence  it  is  well  to  have  this  constitu- 
tional check  upon  those  who  judge  the  people. 

Excessive  bail  shall  not  be  required.  The  word  "bail,  '* 
as  commonly  used,  refers  to  the  bond  or  obligation  given 
by  those  who  undertake  to  produce  in  the  court,  when 
required,  a  person  charged  with  crime.  The  sureties 
or  persons  that  furnish  the  bail  sometimes  are  called 
"bailers."  This  is  a  corruption  of  the  correct  name, 
which  is  "bail."  In  the  case  of  Worthen  vs.  Prescott,^ 
the  word  "bail"  was  defined  as  follows: 

Lord  Coke  says  that  "in  truth  haily  is  an  old  Saxon  word, 
and  signifieth  a  safe  keeper  or  protector,  and  baile  or 
ballium  is  safe  keeping  or  protection;  and  thereupon  we  say, 
when  a  man  upon  surety  is  delivered  out  of  prison,  iradiiur  in 
ballium,  he  is  delivered  into  bayle — that  is,  into  their  safe 
keeping,  or  protection  from  prison."  Blackstone  derives 
the  word  bail  from  the  French  bailler,  to  deliver.  Some 
derive  it  from  the  Greek  ballein,  to  deliver  into  hands. 
Hence,  a  defendant  who  is  delivered  to  special  bail  is  looked 
upon  in  the  eye  of  the  law  as  being  constantly  in  their  cus- 
tody. They  are  regarded  as  his  jailers,  and  have  him  always 
as  it  were  upon  a  string  and  they  may  pull  at  pleasure  and 
surrender  him  in  their  own  discharge. 

At  one  time,  the  judges  of  the  Federal  Courts  seem 
to  have  thought  that  this  provision  of  the  Constitution 
made  it  necessary  to  inquire  into  the  financial  condition 
of  the  defendant  when  fixing  the  amount  of  security  to 
be  given.  The  facts  in  the  case  of  U.  S.  vs.  Lawrence, ' 
heard  in  the  U.  S.  Circuit  Court  at  Washington  in  1835, 
were  as  follows:    On  January  30,  1835,  a  man  named 

» 160  Vermont  Rep.,  68. 

*  4  Cranch's  Circuit  Court  Rep.,  518;  26  Federal  Cases,  887. 


282       AMERICAN  PLAN  OF  GOVERNMENT 

Richard  Lawrence  tried  to  kill  President  Jackson  as 
he  came  out  of  the  rotunda  of  the  Capitol  after  attend- 
ing the  funeral  of  a  member  of  the  House  of  Representa- 
tives. The  pistols  missed  fire;  and  the  man,  who  was 
demented,  was  taken  into  custody  upon  a  charge  of 
attempted  murder.  He  was  brought  before  Chief 
Judge  Cranch  of  the  Federal  Circuit  Court  of  the  Dis- 
trict of  Columbia,  who  after  inquiring  into  his  property- 
fixed  bail  at  $i,ooo.  The  United  States  Attorney,  who 
was  no  other  than  Francis  Scott  Key,  author  of  The 
Star  Spangled  Banner,  asked  to  have  the  amount  in- 
creased because  he  feared  that  others  who  might  be 
concerned  in  the  crime  would  bail  the  man  out  and 
induce  him  to  make  a  second  attempt.  "The  Chief 
Judge  then  said  that  there  was  no  evidence  before  him 
to  induce  a  suspicion  that  any  other  person  was  con- 
cerned in  the  act ;  that  the  Constitution  forbade  him  to 
require  excessive  bail;  and  that  to  require  larger  bail 
than  the  prisoner  could  give  would  be  to  require  exces- 
sive bail,  and  to  deny  bail  in  a  case  clearly  bailable  by 
law." 

Magistrates  now  fix  bail  with  the  one  idea  of  making 
sure  of  the  prisoner's  appearance  in  court  when  wanted. 
The  accused  man  is  presumed  to  be  innocent  for  all 
purposes  except  bail.  In  the  case  of  Ex  Parte  Ryan,^ 
a  man  imder  $15,000  bail  upon  a  charge  of  having 
attempted  to  murder  a  San  Francisco  policeman,  ap- 
plied to  Chief  Justice  Wallace  of  the  Supreme  Court  of 
California  for  a  reduction  of  the  amoimt.  The  chief 
justice  refused,  saying  in  part: 

Assuming  then  that  the  defendant  is  guilty  of  the  offense 
charged,  is  the  sum  of  fifteen  thousand  dollars  excessive  as 

» 44  California  Rep.,  555. 


LIMITATIONS  UPON  LEGISLATION        283 

being  the  amount  in  which  he  is  to  be  let  to  bail?  ...  In 
order  to  constitute  it  "excessive"  it  must  be  per  se  [in  itself] 
unreasonably  great,  and  clearly  disproportionate  to  the 
offense  involved,  or  the  peculiar  circimistances  appearing 
must  show  it  to  be  so  in  the  particular  case ....  I  can- 
not undertake  to  say  that,  as  a  matter  of  law,  fifteen  thou- 
sand dollars  is  excessive  bail  to  be  demanded  of  one  assumed 
to  be  guilty  of  the  offense  of  assault  with  intent  to  kill. 

Nor  excessive  fines  imposed.  "A  fine  is  a  sum  of 
money  exacted  of  a  person  guilty  of  a  misdemeanor  or 
crime,  the  amount  of  which  may  be  fixed  by  law  or  left 
in  the  discretion  of  the  court. " — Lancaster  vs.  Richard- 
son.^ 

According  to  the  decision  of  the  Supreme  Court  of 
Michigan  in  the  case  of  Robison  vs.  Minor,  ^  a  fine  which 
seriously  impairs  the  capacity  of  the  convicted  person 
to  earn  a  livelihood  is  excessive.  This  case  involved 
the  constitutionality  of  a  State  law  which  imposed 
severe  penalties  for  unlawful  liquor  selling.  A  druggist, 
allowed  to  sell  liquors  only  for  chemical,  scientific, 
medicinal,  mechanical,  and  sacramental  purposes,  if 
convicted  of  iinlawful  liquor  selling,  was  liable  to  be 
fined  from  $100  to  $500,  and  imprisoned  for  not 
less  than  ninety  days  nor  more  than  a  year;  and  if 
convicted  a  second  time,  was  to  be  debarred  from  that 
business  for  five  years.  Other  persons  in  the  liquor 
business  were,  if  convicted  under  this  law,  barred  from 
doing  in  Michigan  any  business  subject  to  a  license 
tax.  Judge  Campbell,  who  delivered  the  opinion  of  the 
court,  said  that  these  penalties  were  in  violation  of  the 
State  constitution  for  the  following  reasons: 

Our  State  Constitution  declares   that — "excessive   bail 
» 4  Lansing's  N.  Y.  Rep.,  136,  140.  *  68  Michigan  Rep.,  549. 


284       AMERICAN  PLAN  OF  GOVERNMENT 

shall  not  be  required;  excessive  fines  shall  not  be  imposed; 
cruel  and  unusual  punishment  shall  not  be  inflicted."  .  .  . 
A  druggist,  cut  off  for  five  years  from  his  business,  may 
suffer  a  loss  of  immense  sums,  and  so  may  any  large  manu- 
facturer or  large  dealer  by  having  his  store  shut  up  and  his 
business  barred.  It  not  only  must  usually  bring  about 
bankruptcy,  but  it  also  includes  what  is  meant  to  be  an 
infamous  disability, — to  receive  credit  as  a  surety.  .  .  . 
The  great  fines  imposed  during  the  times  of  the  Stuarts, 
especially  by  the  Star  Chamber,  were  among  the  worst 
abuses  of  that  period  of  tyranny.  .  .  .  The  forfeiture 
of  indefinite  interests  or  sums  only  occurred  in  felonies  when 
the  penalty  was  death  as  well  as  forfeiture.  .  .  .  These 
punishments  have  always  been  regarded  as  incompatible 
with  our  institutions,  and  there  can  be  no  doubt  that  the 
cruel  and  unusual  punishments  forbidden  by  the  United 
States  Constitution  had  special  reference  to  the  barbarities 
of  the  old  law  of  felony.  It  is  equally  clear  that  any  fine 
or  penalty  is  excessive  which  seriously  impairs  the  capacity 
of  gaining  a  business  livelihood. 

Nor  cruel  and  unusual  punishments  inflicted.  Our 
State  and  national  courts  have  put  it  on  record  that 
the  punishments  for  crime  which  are  customary  in  this 
country  are  neither  cruel  nor  unusual.  The  Supreme 
Court  of  New  Mexico,  in  the  case  of  Garcia  vs.  Territory,  ^ 
said  that  "thirty  lashes  on  the  bare  back,  well  laid  on, " 
was  neither  cruel  nor  imusual.  In  1861,  the  Supreme 
Court  of  New  York,  in  the  case  of  Done  vs.  People,'* 
decided  that  death  by  hanging  is  not  a  cruel  punish- 
ment. Death  by  shooting,  the  penalty  for  murder  in 
some  Western  States,  was  declared  constitutional  in  the 
case  of  Wilkerson  vs.  Utah.  ^ 

» I  New  Mexico  Rep.,  415. 

» 5  Parker's  [N.  Y.],  Crim.  Rep.,  364. 

J  99  U.  S.  Rep.,  130. 


LIMITATIONS  UPON  LEGISLATION        285 

Electrocution  or  the  infliction  of  the  death  penalty 
**by  causing  to  pass  through  the  body  of  the  convict, 
a  current  of  electricity  of  sufficient  intensity  to  cause 
death"  was  adopted  by  the  State  of  New  York  in  1888, 
and  has  since  been  imposed  by  the  laws  of  many  other 
States.  The  New  York  courts  held  in  the  case  of  People 
vs.  Kemmler^  that  this  was  not  a  cruel  or  unusual  penalty 
within  the  meaning  of  the  State  constitution.  The 
national  Supreme  Court,  when  asked  in  the  case  of 
In  F£'Kefnmler'  to  interfere  with  the  sentence  in  that 
case,  refused  on  the  ground  that  the  privileges  and 
immunities  of  a  citizen  of  the  United  States  who  has 
been  found  guilty  of  murder  in  the  first  degree,  are  not 
denied  or  abridged  by  a  State  law  inflicting  the  punish- 
ment of  death  by  electrocution.  Chief  Justice  Fuller 
said:  1 

Punishments  are  cruel  when  they  involve  torture  or  a 
lingering  death;  but  the  punishment  of  death  is  not  cruel 
within  the  meaning  of  that  word  as  used  in  the  Constitution. 
It  implies  there  something  inhuman  and  barbarous,  some- 
thing more  than  the  mere  extinguishment  of  life.  The 
coiuts  of  New  York  held  that  the  mode  adopted  in  this 
instance  might  be  said  to  be  unusual  because  it  was  new, 
but  that  it  could  not  be  assumed  to  be  cruel  in  the  light  of 
that  common  knowledge  which  has  stamped  certain  pun- 
ishments as  such;  that  it  was  for  the  legislature  to  say  in 
what  manner  sentence  of  death  should  be  executed;  that 
this  act  was  passed  in  the  effort  to  devise  a  more  humane 
method  of  reaching  the  result;  that  the  courts  were  bound 
to  presume  that  the  legislature  was  possessed  of  the  facts 
upon  which  it  took  action;  and  that  by  evidence  taken 
aliunde  [outside  of]  the  statute  that  presumption  could  not 
be  overthrown.     They  went  further,  and  expressed  the 

» 119  New  York  Rep.,  580.  •  136  U.  S.,  Rep.,  436. 


286       AMERICAN  PLAN  OF  GOVERNMENT 

opinion  that  upon  the  evidence  the  legislature  had  attained 
by  the  act  the  object  had  in  view  in  its  passage.  The 
decision  of  the  State  courts  sustaining  the  validity  of  the 
act  under  the  State  constitution  is  not  re-examinable 
here. 

In  the  case  of  Jackson  vs.  United  States,  ^  it  was  held 
that  any  sentence  which  is  not  greater  than  the  maximum 
provided  by  law  is  not  "unusual."  Jackson  had  been 
convicted  in  the  Federal  District  Court  of  Alaska  of 
assault  with  a  dangerous  weapon,  and  sentenced  to  ten 
years*  imprisonment  at  hard  labor  in  the  penitentiary 
at  McNeil's  Island,  State  of  Washington.  The  Circuit 
Court  of  Appeals  struck  out  the  "hard  labor"  part  of 
the  sentence  because  the  law  did  not  call  for  that  penalty, 
but  on  the  ground  that  the  judge  who  had  presided  at 
the  trial  knew  better  than  any  one  else  what  the  penalty 
ought  to  be,  had  refused  to  cut  off  any  part  of  the  term 
of  imprisonment.     District  Judge  Hawley  said: 

That  the  sentence  of  ten  years  was  a  severe  one  must  be 
admitted.  .  .  .  The  fact  that  the  court  imposed  the 
maximum  punishment  furnishes  no  ground  for  the  reversal 
of  the  case.  The  extent  of  the  sentence  was  within  the 
discretion  of  the  judge  who  tried  the  case,  and  who  was  well 
advised  as  to  the  facts.  .  .  ,  The  general  rule  is  well 
settled  that  the  sentence  and  punishment  imposed  upon  a 
defendant  for  any  violation  of  the  provisions  of  the  statute, 
which  is  within  the  punishment  provided  for  by  the  statute, 
cannot  be  regarded  as  excessive,  cruel  or  unusual. 

Ninth  Amendment.  The  enumeration  in  the  Con- 
stitution, of  certain  rights,  shall  not  be  construed  to  deny 
or  disparage  others  retained  by  the  people. 

*  102  Federal  Reporter,  473. 


LIMITATIONS  UPON  LEGISLATION        287 

The  First  Congress  was  called  upon  to  deal  with 
thirty-five  amendments  proposed  to  it  by  the  ratifying 
conventions  of  the  States.  These  amendments  passed 
successively  through  the  hands  of  a  Committee  of 
Eleven  and  of  a  Special  Committee  of  Three  before 
reaching  their  present  form.  The  Ninth  Amendment, 
for  example,  probably  suggested  by  Madison,  originally 
ran  as  follows: 

•  The  exceptions  here  or  elsewhere  in  the  Constitution 
made  in  favor  of  particular  rights,  shall  not  be  construed  as 
to  diminish  the  just  importance  of  other  rights  retained  by 
the  people,  or  to  enlarge  the  powers  delegated  by  the  Con- 
stitution ;  but  either  as  actual  limitations  of  such  powers,  or 
as  inserted  merely  for  greater  caution. ' ' 

It  emerged  from  the  Committee  of  Eleven  in  the 
following  form : 

The  enumeration  in  this  Constitution  of  certain  rights, 
shall  not  be  construed  to  disparage  others  retained  by  the 
people. 

The  Special  Committee  of  Three  gave  it  its  present 
form.  ^ 

Tenth  Amendment.  The  powers  not  delegated  to 
the  United  States  by  the  Constitution,  nor  prohibited 
by  it  to  the  States,  are  reserved  to  the  States  respec- 
tively, or  to  the  people. 

Chief  Justice  Marshall,  in  his  opinion  in  the  case  of 
McCulloch  vs.  Maryland, '  explained  the  origin  and  pur- 
pose of  the  Tenth  Amendment  as  follows : 

'  Thorpe's  Constitutional  History  of  the  U.  S.,  vol.  ii.,  pp.  226,  258. 
»4  Wheaton's  Rep.,  316,  406. 


288       AMERICAN  PLAN  OF  GOVERNMENT 

The  loth  Amendment  .  .  .  formed  for  the  purpose  of 
quieting  the  excessive  jealousies  which  had  been  excited, 
.  .  .  declares  only  that  the  powers,  "not  delegated  to  the 
United  States,  nor  prohibited  to  the  States,  are  reserved  to 
the  States  or  to  the  people";  thus  leaving  the  question, 
whether  this  [any]  particular  power  which  may  become  the 
subject  of  contest,  has  been  delegated  to  the  one  govern- 
ment, or  prohibited  to  the  other,  to  depend  on  a  fair  con- 
struction of  the  whole  instrument. 


CHAPTER  XVII 

RIGHTS   OF   CITIZENS   OF    THE   UNITED   STATES   AGAINST 
THE  STATES  AND  THE  NATION 

Thirteenth  Amendment,  Sec.  i.  Neither  slavery  nor 
involuntary  servitude,  except  as  a  punishment  for 
crime  whereof  the  party  shall  have  been  duly  convicted, 
shall  exist  within  the  United  States,  or  any  place  sub- 
ject to  their  jurisdiction. 

This  noble  pronouncement  of  the  People  of  the  United 
States  was  published  to  the  world  on  December  i8, 1865. 
Mountains  of  treasure  had  been  spent  and  rivers  of 
blood  had  been  shed  in  order  to  place  on  the  statute 
books  of  this  nation  a  permanent  law  abolishing  slavery 
in  every  form  throughout  the  United  States  and  every 
place  under  its  control.  They  did  not  die  in  vain  who 
gave  their  lives  to  vindicate  the  greatest  of  human  rights, 
the  right  to  freedom. 

It  seems  to  have  been  taken  for  granted  at  first  by 
almost  every  one  that  the  amendment  which  made  all 
men  free,  also  made  all  men  equal  and  with  equal  rights 
and  privileges  everywhere  in  the  United  States.  The 
Senators  and  Representatives  who  voted  for  the  once 
famous  Civil  Rights  Bill  of  1875,  apparently  believed 
that  a  negro,  being  a  freeman,  had  as  much  right  as  a 
white  man  in  any  hotel,  theater,  or  special  car  of  a  rail- 
road train,  and  that  to  deny  him  such  rights  was  to 
impose  an  ' '  involuntary  servitude. ' '  Accordingly,  they 
19  289 


290       AMERICAN  PLAN  OF  GOVERNMENT 

declared  that  to  deny  any  such  privileges  to  any  citizen 
of  the  United  States,  should  be  a  misdemeanor,  punish- 
able by  fine  or  imprisonment,  or  by  forfeiture  of  the 
sum  of  $500,  to  be  sued  for  by  the  person  aggrieved. 
The  Civil  Rights  Cases,  ^  decided  in  1883,  brought 
squarely  before  the  Supreme  Court  the  question  whether 
the  general  government  of  the  United  States  has  any 
power  under  this  amendment  to  regulate  the  conduct 
and  morals  of  citizens  of  the  States.  Two  of  these  cases 
were  indictments  against  hotel-keepers  who  had  refused 
to  accommodate  persons  of  color.  A  third  was  based 
upon  the  refusal  of  a  theatrical  manager  to  allow  ne- 
groes to  occupy  seats  in  certain  parts  of  a  theater. 
Another  was  an  action  to  recover  the  statutory  penalty 
from  a  railroad  company  that  had  prevented  a  colored 
woman  from  riding  in  a  "Ladies"  Car,  a  special  kind 
of  accommodation  reserved  for  women  traveling  alone 
or  with  their  families.  The  Court  decided  that  the 
regulation  of  the  conduct  and  behavior  of  citizens  of  the 
States  was  not  a  matter  upon  which  Congress  could 
make  a  law  under  the  authority  of  the  Thirteenth 
Amendment,  and  therefore  that  the  Civil  Rights  Bill 
was  unconstitutional.     Justice  Bradley  said: 

It  [the  Civil  Rights  Bill]  proceeds  ex  directo  [directly]  to 
declare  that  certain  acts  committed  by  individuals  shall  be 
deemed  offences,  and  shall  be  prosecuted  and  punished  by 
proceedings  in  the  courts  of  the  United  States.  It  does  not 
profess  to  be  corrective  of  any  constitutional  wrong  com- 
mitted by  the  States;  it  does  not  make  its  operation  to  de- 
pend upon  any  such  wrong  committed.  It  applies  equally 
to  cases  arising  in  States  which  have  the  justest  laws  re- 
specting the  personal  rights  of  citizens,  and  whose  author- 
ities are  ever  ready  to  enforce  such  laws,  as  to  those  which 

» 109  U.  S.  Rep.,  3. 


LIMITATIONS  UPON  LEGISLATION        291 

arise  in  States  that  may  have  violated  the  provisions  of  the 
amendment.  In  other  words,  it  steps  into  the  domain  of 
local  jurisprudence,  and  lays  down  rules  for  the  conduct  of 
individuals  in  society  towards  each  other,  and  imposes 
sanctions  for  the  enforcement  of  those  rules,  without  refer- 
ring in  any  manner  to  any  supposed  action  of  the  State  or 
its  authorities.  .  ,  .  The  only  question  under  the 
present  head,  therefore,  is,  whether  the  refusal  to  any  per- 
sons of  the  accommodations  of  an  inn,  or  a  public  convey- 
ance, or  a  place  of  public  amusement,  by  an  individual,  and 
without  any  sanction  or  'support  from  any  State  law  or 
regulation,  does  inflict  upon  such  persons  any  manner  of 
servitude,  or  form  of  slavery  as  those  terms  are  understood 
in  this  country?  .  .  .  After  giving  to  these  questions  all 
the  consideration  which  their  importance  demands,  we  are 
forced  to  the  conclusion  that  such  an  act  of  refusal  has 
nothing  to  do  with  slavery  or  involuntary  servitude. 

Involuntary  servitude  .  .  .  shall  [not]  exist  within  the 
United  States,  or  any  place  subject  to  their  jurisdiction. 
Although  the  Thirteenth  Amendment  abolished  negro 
slavery  throughout  the  United  States,  the  "Peonage" 
system,  under  which  men  sold  their  services  or  were 
compelled  to  work  out  debts,  continued  to  exist  in  New 
Mexico  until  prohibited  by  the  Peonage  Law  of  1867. 
A  similar  plan  of  forced  labor,  under  the  guise  of  im- 
prisonment for  debt,  was  afterward  introduced  in  some  of 
the  Southern  States.  The  prisons  for  such  debtors  were 
stockades  in  which  unlucky  men,  mostly  negroes,  were 
compelled  to  work  for  the  benefit  of  their  creditors. 
According  to  a  charge  delivered  by  District  Judge  Jones 
to  a  grand  jury  in  the  United  States  District  Court  of 
Alabama  on  June  16,  1903,  in  the  Peonage  Cases,  ^ 
such  forced  labor  was  involuntary  servitude.     He  said: 

'  123  Federal  Rep.,  671,  679. 


292       AMERICAN  PLAN  OF  GOVERNMENT 

What  is  meant  by  "a  condition  of  peonage,"  or  holding 
or  returning  thereto,  is  easily  gathered  from  the  words  of 
the  statute  [Peonage  Law],  and  the  working  of  the  system 
in  New  Mexico,  when  upheld  there  as  a  legal  institution. 
Under  the  abolished  system,  as  we  have  seen,  the  citizen 
could  sell  his  own  services,  and  could  contract  with  another 
for  the  exercise  of  dominion  thereafter  over  his  person  and 
liberty,  so  that  he  could  be  held  or  subjected,  against  his 
will,  to  the  performance  of  his  "obligation. "  He  could  also 
sell  or  transfer  his  interest  in  the  performance  of  personal 
service  due,  or  claimed  to  be  due,  him  from  other  persons, 
and  thus  cause  them  to  be  held  in  subjection,  by  dominion 
exercised  over  person  and  liberty,  to  coerce  them  to  the 
performance  of  contracts  and  obligations.  Citizens  and 
foreigners  alike,  under  the  forbidden  system,  had  power  to 
put  themselves  or  others  in  a  situation — a  "condition," 
— where  they  could  be  put  upon  the  block,  and  dominion 
over  their  persons  and  liberties  sold,  for  the  term,  to  the 
highest  bidder,  to  compel  performance  of  private  obligations. 
.  .  .  This  state  of  things  constituted  the  "condition  of 
peonage"  which  the  statute  .  .  .  designed  to  destroy  and 
tear  up,  root  and  branch. 

In  the  case  of  United  States  vs.  McClellan/  the  de- 
fendant had  been  indicted  in  the  United  States  District 
Court  in  Georgia  upon  a  charge  of  having  sold  and  de- 
livered one  John  Wesley  Boney  to  three  other  defend- 
ants to  work  out  a  debt  which  they  claimed  he  owed 
them.  The  plea  of  the  accused  persons  was  that  the 
indictment  did  not  charge  them  with  any  crime  against 
the  United  States.  Judge  Speer  overruled  this  plea, 
saying  in  part : 

The  substantial  inquiry  is,  did  the  accused  consign  or  hold 
the  citizen  in  a  condition  of  involuntary  servitude  for  the 

'  127  Federal  Reporter,  971. 


LIMITATIONS  UPON  LEGISLATION        293 

purpose  of  compelling  him  to  work  out  a  real  or  alleged 
obligation.  This,  if  done,  created  a  condition  of  peonage. 
A  peon  is  defined  as  "a  debtor  held  by  his  creditor  in  a 
qualified  servitude  to  work  out  the  debt. ".  .  .  The  invol- 
untary servitude  prohibited  by  the  Constitution  is  a  per- 
sonal servitude,  and  this  "consists  in  the  subjection  of  one 
person  to  another.  If  it  consists  in  the  right  of  property 
which  a  person  exercises  over  another,  it  is  slavery.  When 
the  subjection  of  one  person  to  another  is  not  slavery,  it 
consists  simply  in  the  right  of  requiring  of  another  what  he  is 
bound  to  do  or  not  to  do.  This  right  arises  from  all  kinds 
of  contracts  or  quasi  contracts.".  .  .  It  follows,  then, 
that  an  unwilling  servitude  enforced  by  the  stronger  to 
collect  a  debt  is  to  reduce  the  victim  to  the  condition  of  a 
peon,  and  logically  to  a  condition  of  peonage. 

Fourteenth  Amendment,  Sec.  4.  (Part  of.)  Neither 
the  United  States  nor  any  State  shall  assume  or  pay  any 
debt  or  obligation  incurred  in  aid  of  insurrection  or 
rebellion  against  the  United  States,  or  any  claim  for  the 
loss  or  emancipation  of  any  slave;  but  all  such  debts, 
obligations  and  claims  shall  be  held  illegal  and  void. 

The  Fourteenth  Amendment  was  adopted  in  1868, 
when  the  great  issues  which  had  caused  the  Civil  War 
were  fresh  in  the  public  mind.  The  men  who  had  waged 
the  battle  for  freedom  in  that  great  struggle  had  no 
intention  of  permitting  any  future  legislation  for  the 
settlement  in  money  of  claims  which  they  had  settled 
on  the  battlefield.  Particularly  they  meant  to  make 
sure  that  those  who  had  aided  the  rebellion  should  not 
recover  money  which  had  been  used  to  prolong  the 
conflict. 

Neither  the  United  States  nor  any  State  shall  assume  or 
pay  .  .  .  any  claim  for  the  loss  or  emancipation  oj  any 


294       AMERICAN  PLAN  OF  GOVERNMENT 

slave;  hut  all  such  .  .  .  claims  shall  be  held  illegal  and 
void.  But  for  the  adoption  of  this  provision  of  the  free- 
dom amendment,  the  slave-holders  of  the  South  might 
have  brought  actions  to  recover  the  value  of  their 
emancipated  bondmen  under  the  clause  in  the  Fifth 
Amendment  which  says  that  private  property  shall  not 
be  taken  for  public  use  without  just  compensation. 
The  Southern  men  could  have  urged  quite  plausibly 
that  they  ought  to  have  compensation  for  their  property 
in  slaves  which  certainly  had  been  taken  by  emancipa- 
tion for  a  public  purpose.  This  amendment  annuls 
all  claims  for  the  loss  of  slaves.  This  is  a  broad  prohibi- 
tion, but  the  Supreme  Court  in  the  case  of  White  vs. 
Hart, '  ruled  that  claims  for  the  value  of  slave  property 
sold  on  credit  before  the  Civil  War  began,  are  valid. 
Such  cases,  however,  could  not  reasonably  have  been 
included  within  the  meaning  of  the  prohibition  in 
question. 

Fifteenth  Amendment,  Sec.  i.  The  right  of  citizens 
of  the  United  States  to  vote  shall  not  be  denied  or 
abridged  by  the  United  States  or  by  any  State  on  ac- 
coimt  of  race,  color,  or  previous  condition  of  servitude. 

The  meaning  of  this  section  was  explained  in  the 
opinion  of  the  Supreme  Court  in  the  case  of  United 
States  vs.  Reese,^  decided  in  1875,  in  which  two  inspec- 
tors at  a  municipal  election  in  Kentucky  had  been 
indicted  for  refusing  to  receive  and  count  the  vote  of 
a  colored  citizen  of  the  United  States.  Chief  Justice 
Waite  said : 

The  Fifteenth  Amendment  does  not  confer  the  right  of 
suffrage  upon  any  one.     It  prevents  the  States,  or  the 

«  13  Wallace's  Rep.,  346  »  92  U.  S.  Rep.,  214. 


LIMITATIONS  UPON  LEGISLATION        295 

United  States,  however,  from  giving  preference,  in  this 
particular,  to  one  citizen  of  the  United  States  over  another 
on  account  of  race,  color,  or  previous  condition  of  servitude. 
Before  its  adoption,  this  could  be  done.  It  was  as  much 
within  the  power  of  a  State  to  exclude  citizens  of  the 
United  States  from  voting  on  account  of  race,  etc.,  as  it 
was  on  account  of  age,  property,  or  education.  Now  it  is 
not.  If  citizens  of  one  race  having  certain  qualifications 
are  permitted  by  law  to  vote,  those  of  another  having  the 
same  qualifications  must  be.  Previous  to  this  amendment, 
there  was  no  constitutional  guaranty  against  this  discrimina- 
tion; now  there  is.  It  follows  that  the  amendment  has 
invested  the  citizens  of  the  United  States  with  a  new  con- 
stitutional right  which  is  within  the  protecting  power  of 
Congress.  That  right  is  exemption  from  discrimination 
in  the  exercise  of  the  elective  franchise  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

One  of  the  odd  things  about  the  Constitution  is  that 
the  "People  of  the  United  States"  who  ordained  and 
established  it,  did  not  make  any  provision  for  their  own 
right  to  vote.  The  phrase  in  the  Preamble,  "We,  the 
People  of  the  United  States,"  did  not  mean  much  to 
the  framers  of  the  Constitution  or  to  the  statesmen  of 
the  era  before  the  Civil  War.  The  States  had  ruled  the 
general  government  during  the  Revolutionary  War  and 
under  the  Confederation.  The  people  of  the  States 
had  elected  the  members  of  the  State  legislatures,  who 
in  turn  elected  the  delegates  to  the  old  Congress. 
Thus  the  citizens  of  the  States  which  formed  the  United 
States  of  the  Constitution-making  era,  had  been  the 
supreme  body  politic.  The  makers  of  the  Constitution 
and  their  successors  who  ruled  the  destinies  of  the  repub- 
lic before  the  Civil  War  took  it  for  granted  the  phrase 
"People  of  the  United  States"  meant  "People  of  the 


296       AMERICAN  PLAN  OF  GOVERNMENT 

States  of  the  United  States."  The  Fifteenth  Amend- 
ment by  giving  the  "People  of  the  United  States'* 
political  rights,  which  may  not  be  denied  or  abridged 
by  the  United  States  or  by  any  State,  practically  created 
a  new  supreme  political  body  under  the  Constitution. 

The  Fifteenth  Amendment  was  adopted  in  1870  to 
prevent  the  Southern  States  from  enacting  laws  which 
would  have  barred  from  the  privileges  of  citizenship 
the  colored  "People  of  the  United  States"  who  had 
been  slaves.  "It  does  not  confer  the  right  of  suffrage 
on  any  one.  It  merely  invests  citizens  of  the  United 
States  with  the  constitutional  right  to  exemption  from 
discrimination  in  the  enjoyment  of  the  electoral  fran- 
chise on  account  of  race,  color,  or  previous  condition  of 
servitude."^ 

Neither  the  Constitution  nor  any  of  the  amendments 
prevent  many  restrictions  which  the  States  may  impose 
upon  the  right  of  citizens  of  the  United  States  to  vote. 
In  the  first  era  of  constitutional  government  nearly  all 
the  States  had  laws  which  declared  that  only  those 
should  vote  who  had  a  certain  amount  of  property. 
In  Massachusetts,  until  long  after  this  amendment  was 
adopted,  the  payment  of  a  poll  tax  of  two  dollars  was 
a  condition  of  the  right  of  the  citizen  to  cast  his  ballot. 
Paupers,  insane  persons,  and  criminals  are  barred  from 
the  ballot  box,  even  if  they  are  citizens.  In  nearly  all 
the  States  only  those  citizens  who  have  been  registered 
as  voters  before  the  election  have  a  right  to  vote.  This 
is  only  a  way  of  preventing  election  frauds. 

What  is  called  the  "grandfather"  clause  has  been 
adopted  in  some  States  in  order  to  prevent  illiterate 
colored  people  from  voting,  without  at  the  same  time 
barring  illiterate  white  citizens.     For  example,  in  1908, 

'  U.  S.  vs.  Harris,  106  U.  S.  Rep.,  629. 


LIMITATIONS  UPON  LEGISLATION        297 

the  legislature  of  the  State  of  Maryland  enacted  a  law 
providing  that  no  persons  should  be  allowed  to  vote 
at  municipal  elections  in  the  city  of  Annapolis,  except, 
(i)  male  citizens  over  twenty-one  years  of  age,  who 
have  not  been  convicted  of  crime,  have  resided  more 
than  one  year  in  the  State,  and  are  tax-payers  assessed 
upon  more  than  $500  worth  of  property,  (2)  natural- 
ized aliens  and  their  male  children,  over  twenty-one 
years  of  age,  (3)  male  descendants  of  voting  age,  of  persons 
who  before  January  i,  1868,  were  entitled  to  vote  in  Mary- 
land or  any  other  State  of  the  Union.  The  Constitution 
of  Maryland  in  force  on  January  I,  1868,  had  limited 
the  right  to  vote  to  white  persons,  and  this  provision 
had  been  valid  until  the  adoption  on  July  21,  1868,  of 
the  Fourteenth  Amendment,  which  declared  that  all 
persons  bom  or  naturalized  in  the  United  States  are 
citizens  of  the  United  States  and  of  the  State  in  which 
they  reside.  The  members  of  the  Maryland  legislature 
seem  to  have  thought  that  the  law  of  1908,  without 
depriving  any  white  man  of  the  right  to  vote,  would  bar 
from  the  polls  negroes  who  had  not  had  the  right  to 
vote  on  January  i,  1868,  and  their  descendants.  Test 
cases  were  brought  against  two  election  officers  who  had 
refused  to  register  the  names  of  three  colored  men,  one 
of  whom,  named  Anderson,  plaintiff  in  the  case  of 
Anderson  vs.  Myers,  said  in  his  complaint  that  he  was  a 
citizen  of  the  United  States,  bom  in  Maryland  in  1834, 
and  that  he  would  have  been  entitled  to  vote  in  Mary- 
land on  January  i,  1868,  if  the  right  to  vote  had  not 
then,  by  the  State  Constitution,  been  restricted  to  white 
persons.  In  this  action,  brought  in  the  United  States 
court  of  Maryland,  the  plaintiff  asked  for  damages  on 
the  groimd  that  the  defendants,  by  refusing  to  place  his 
name  on  the  voting  list,  had  deprived  him  of  his  con- 


298       AMERICAN  PLAN  OF  GOVERNMENT 

stitutlonal  right  to  vote.  The  defendants  answered  by 
referring  to  the  Maryland  law.  The  plaintiff  replied 
that  this  law  was  void  because  it  denied  the  right  of  a 
citizen  of  the  United  States  to  vote  on  account  of  his 
race  and  color.  District  Judge  Morris  sustained  the 
plaintiff's  contention  that  the  "grandfather"  clause  was 
void  upon  the  ground  that  "the  Fifteenth  Amendment 
had  the  effect  of  eliminating  the  qualifying  adjective 
'white'  from  all  State  constitutions  and  laws  .  .  . 
fixing  the  qualifications  of  voters. " 

In  the  case  of  Guinn  vs.  United  States,  Frank  J. 
Guinn  and  J.  J.  Beal,  Oklahoma  election  officers,  had 
been  convicted  in  the  United  States  District  Court  of 
Oklahoma  of  having  prevented  negroes  from  voting  at 
an  election  of  members  of  Congress  held  in  1910.  They 
had  defended  themselves  by  calling  the  attention  of  the 
court  to  an  amendment  of  the  Constitution  of  Oklahoma 
which  reads  as  follows: 

No  person  shall  be  registered  as  an  elector  of  this  State 
or  be  allowed  to  vote  in  any  election  herein,  unless  he  be 
able  to  read  and  write  any  section  of  the  Constitution  of  the 
State  of  Oklahoma;  but  no  person  who  was,  on  Jan.  i,  1866, 
or  at  any  time  prior  thereto,  entitled  to  vote  under  any  form 
of  government,  or  who  at  that  time  resided  in  some  foreign 
nation,  and  no  lineal  descendant  of  such  person,  shall  be 
denied  the  right  to  register  and  vote  because  of  his  inability 
to  so  read  and  write  sections  of  such  constitution. 

These  cases,  Anderson  vs.  Myers  ^  and  Guinn  vs. 
United  States, "  were  taken  to  the  Supreme  Court,  which, 
on  June  21,  191 5,  handed  down  decisions  holding  that 
the  "grandfather"  clauses  were  void  because  inconsist- 
ent with   the  Fifteenth  Amendment,     Chief  Justice 

» 238  U.  S.  Rep.,  368.  » 238  U.  S.  Rep.,  347. 


LIMITATIONS  UPON  LEGISLATION         299 

White,  in  delivering  the  opinion  of  the  Court  in  the 
Maryland  case,  said  that  the  "election  officials  could 
not  ignore  the  potency  of  the  Fifteenth  Amendment  in 
striking  out  the  word  'white'  as  a  qualification  for 
voting,  and  that  this  Amendment  applies  to  municipal 
as  well  as  to  Federal  elections. "  In  the  decision  of  the 
Oklahoma  case,  he  said : 

There  seems  no  escape  from  the  conclusion  that  to  hold 
that  there  was  even  possibility  for  dispute  on  the  subject 
would  be  but  to  declare  that  the  Fifteenth  Amendment 
not  only  had  not  the  self-executing  power  which  it  has 
been  recognized  to  have  from  the  beginning,  but  that  its 
provisions  were  wholly  inoperative  because  susceptible  of 
being  rendered  inapplicable  by  mere  forms  of  expression 
embodying  no  exercise  of  judgment  and  resting  upon  no 
discernible  reason  other  than  the  purpose  to  disregard  the 
prohibitions  of  the  amendment  by  creating  a  standard  of 
voting  which  on  its  face  was  in  substance  but  a  revitalization 
of  the  conditions  which,  when  they  prevailed  in  the  past, 
had  been  destroyed  by  the  self-operative  force  of  the 
amendment.   .    .    . 

We  are  unable  to  discover  how,  unless  the  prohibitions 
of  the  Fifteenth  Amendment  were  considered,  the  slightest 
reason  was  afforded  for  basing  the  classification  upon  a 
period  of  time  prior  to  the  Fifteenth  Amendment.  Cer- 
tainly it  cannot  be  said  that  there  was  any  peculiar  necro- 
mancy in  the  time  named  which  engendered  attributes 
affecting  the  qualification  to  vote  which  would  not  exist 
at  another  and  different  period  unless  the  Fifteenth  Amend- 
ment was  in  view. 


PART  VI 

Executive  Government  in  the 
United  States 


301 


^n 


CHAPTER  XVIil 

THE  CHIEF  EXECUTIVE  OFFICER 

The  Americans  of  the  first  era  of  independence  had 
learned  by  bitter  experience  that  government  by  Con- 
gress through  executive  committees  was  good  for 
nothing.  A  Committee  on  Foreign  affairs  had  been 
appointed  by  Congress  to  manage  our  diplomatic  rela- 
tions ;  but  Franklin,  in  his  negotiations  with  France,  was 
hampered  rather  than  helped  by  that  committee.  There 
had  been  a  Committee  on  Military  Affairs  to  which 
General  Washington  was  theoretically  responsible;  but, 
luckily  for  the  cause,  our  great  captain  had  carried 
on  the  war  without  the  help  of  congressional  advisers, 
who  had  annoyed  him  sometimes,  but  certainly  never 
had  controlled  him.  Hence  our  ancestors  were  quite 
ready  to  have  a  reasonably  powerful  chief  executive. 
They  knew  that  no  man  can  do  good  work  with  his 
hands  tied;  but  they  knew  also  that  it  would  not  be  wise 
to  make  the  man  important  because  his  work  was 
important.  They  provided  for  the  appointment  of  a 
national  business  manager  who  should  have  all  the 
powers  he  ought  to  have  in  order  to  execute  efficiently 
the  objects  and  purposes  for  which  the  people  of  the 
United  States  were  forming  the  "more  perfect  Union." 
They  did  not  see  fit  to  grant  titles,  honors,  or  privileges 
which  sometimes  interfere  with  equality  before  the 
law. 

303 


304       AMERICAN  PLAN  OF  GOVERNMENT 

Art  n.,  Sec.  i.  The  executive  Power  shall  be 
vested  in  a  President  of  the  United  States  of  America. 
He  shall  hold  his  Office  during  the  Term  of  four  years, 
and,  together  with  the  Vice  President,  chosen  for  the 
same  Term,  be  elected,  as  follows. 

Most  of  us  know  that  there  is  a  central  government  at 
Washington  only  through  the  activities  of  the  President 
of  the  United  States  and  his  officers.  The  citizen  who 
votes  at  Federal  elections  cannot  avoid  learning  that, 
once  in  four  years,  one  man  is  taken  from  the  body  of 
the  people  and  made  the  chief  executive  magistrate  of 
the  nation.  The  letter  carrier  is  the  President's  officer, 
hired  and  paid  to  deliver  the  mail.  It  is  the  President 
who  in  the  person  of  a  custom-house  officer  takes  a  look 
at  the  trunks  full  of  presents  which  the  traveling  Ameri- 
can brings  home  from  foreign  parts.  His  consuls  keep 
us  out  of  trouble  when  we  are  abroad.  His  attorneys 
prosecute  those  who  send  forbidden  articles  through  the 
mails  or  form  combinations  in  restraint  of  trade.  His 
collectors  of  internal  revenue  receive  the  income  taxes 
of  the  well-to-do,  and  put  the  revenue  stamp  on  the 
poor  man's  bag  of  tobacco.  The  people  may  not  know 
what  Congress  and  the  courts  are  doing;  but  when  the 
President  acts,  every  one  knows  because  every  one  is 
affected  by  his  acts.  The  executive  power  is  every- 
where. 


Art  n..  Sec.  i  (continued).  Each  State  shall 
appoint,  in  such  Manner  as  the  Legislature  thereof  may 
direct,  a  Number  of  Electors,  equal  to  the  whole  Number 
of  Senators  and  Representatives  to  which  the  State 
may  be  entitled  in  the  Congress;  but  no  Senator  or 
Representative,  or  Person  holding  an  Office  of  Trust 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    305 

or  Profit  under  the  United  States,  shall  be  appointed 
an  Elector. 

"The  sole  function  of  the  presidential  electors," 
said  Justice  Gray  in  the  case  of  In  re  Green, ^  "is  to 
cast,  certify,  and  transmit  the  vote  of  the  State  for 
President  and  Vice  President  of  the  nation.  Although 
the  electors  are  appointed  and  act  under  and  pursuant 
to  the  Constitution  of  the  United  States,  they  are  no 
more  officers  and  agents  of  the  United  States  than 
are  members  of  the  State  legislatures  when  acting 
as  electors  of  federal  senators,  or  the  people  of  the 
States  when  acting  as  electors  of  representatives  in 
Congress. " 

Senators,  representatives,  and  other  national  officials 
were  made  ineligible  for  the  office  of  electors  in  order  to 
prevent  scandalous  political  deals  for  the  presidency; 
national  officers,  living  most  of  the  time  at  the  seat  of 
the  government,  could  have  devised  and  carried  out 
all  sorts  of  schemes  for  continuance  in  power,  if  they 
could  have  served  as  electors  of  Presidents  with  whom 
they  were  to  have  close  relations. 

Art.  n.,  Sec.  i  (continued).  The  electors  shall 
meet  in  their  respective  States,  and  vote  by  ballot  for 
two  Persons,  of  whom  one  at  least  shall  not  be  an  In- 
habitant of  the  same  State  with  themselves.  And  they 
shall  make  a  List  of  all  the  Persons  voted  for,  and  of  the 
Number  of  Votes  for  each ;  which  List  they  shall  sign  and 
certify,  and  transmit  sealed  to  the  Seat  of  the  Govern- 
ment 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, 

« 134  U-  S.  Rep.,  377. 


3o6       AMERICAN  PLAN  OF  GOVERNMENT 

open  all  the  Certificates,  and  the  Votes  shall  then  be 
cotinted.  The  Person  having  the  greatest  Number  of 
Votes  shall  be  the  President,  if  such  Number  be  a 
Majority  of  the  whole  Number  of  Electors  appointed; 
and  if  there  be  more  than  one  who  have  such  Majority, 
and  have  an  equal  Number  of  Votes,  then  the  House  of 
Representatives  shall  immediately  chuse  by  Ballot  one 
of  them  for  President ;  and  if  no  Person  have  a  Majority, 
then  from  the  five  highest  on  the  List  the  said  House 
shall  in  like  Manner  chuse  the  President.  But  in 
chusing  the  President,  the  Votes  shall  be  taken  by 
States,  the  Representation  from  each  State  having  one 
Vote;  A  quorum  for  this  Purpose  shall  consist  of  a 
Member  or  Members  from  two-thirds  of  the  States, 
and  a  Majority  of  all  the  States  shall  be  necessary  to  a 
choice.  In  every  Case,  after  the  Choice  of  the  Presi- 
dent, the  Person  having  the  greatest  Niunber  of  Votes 
of  the  Electors  shall  be  the  Vice  President.  But  if 
there  should  remain  two  or  more  who  have  equal  Votes, 
the  Senate  shall  chuse  from  them  by  ballot  the  Vice 
President. 

"Originally,  in  the  Convention,  the  choice  of  the 
President  was  .  .  .  given  to  the  national  legislature. 
This  mode  of  appointment,  however,  does  not  seem  to 
have  been  satisfactory;  for,  a  short  time  afterwards, 
upon  a  reconsideration  of  the  subject,  it  was  voted  by 
six  States  against  three,  one  being  divided,  that  the 
President  should  be  chosen  by  Electors  appointed  for 
that  purpose.  .  .  .  One  motive  which  induced  a 
change  of  the  choice  of  the  President  from  the  national 
legislature  unquestionably  was,  to  have  the  sense  of  the 
people  operate  in  the  choice  of  the  person  to  whom  so 
important  a  trust  was  confided.    This  would  be  accom- 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    307 

plished  much  more  perfectly  by  committing  the  right 
of  choice  to  persons  selected  for  that  sole  purpose  at  the 
particular  conjuncture,  instead  of  persons  selected  for 
the  general  purposes  of  legislation." — Story  on  the 
Constitution. ' 

"The  process  of  election  affords  a  moral  certainty 
that  the  office  of  President  will  never  fall  to  the  lot  of 
any  man  who  is  not  in  an  eminent  degree  endowed  with 
the  reqmsite  qualifications.  Talents  for  low  intrigue, 
and  the  little  arts  of  popularity,  may  alone  suffice  to 
elevate  a  man  to  the  first  honors  of  a  single  State;  but 
it  will  require  other  talents,  and  a  different  kind  of  merit, 
to  establish  him  in  the  esteem  and  confidence  of  the 
whole  Union,  or  of  so  considerable  a  portion  of  it  as 
will  be  necessary  to  make  him  a  successful  candidate 
for  the  distinguished  office  of  President  of  the  United 
States. " — The  Federalist ,  No.  68. 

The  original  plan  of  choosing  Presidents  and  Vice 
Presidents  was  the  result  of  an  effort  to  satisfy  the 
members  of  the  Constitutional  Convention  from  the 
smaller  States.  They  were  afraid  that  Virginia,  Massa- 
chusetts, and  Pennsylvania  would  combine  to  control 
the  election  of  the  national  executive  officer.  If  the 
presidential  electors  voted  for  two  persons  without 
naming  the  person  voted  for  as  President  and  the  per- 
son voted  for  as  Vice  President,  the  smaller  States, 
which  might  not  be  able  to  elect  a  President,  might 
still  be  able  to  prevent  any  candidate  from  getting  a 
"majority  of  the  whole  number  of  electors  appointed." 
This  woiild  throw  the  choice  of  President  into  the  House 
of  Representatives  in  Congress,  where  the  vote  would 
be  taken  by  States,  the  representatives  of  each  State 
having  one  vote  between  them.     In  other  words,  the 

« Sees.  1455,  I456. 


3o8       AMERICAN  PLAN  OF  GOVERNMENT 

small  States  by  joining  forces  always  would  be  able  to 
gain  an  equal  voice  in  presidential  elections. 

The  method  prescribed  by  the  Constitution  makers 
worked  satisfactorily  in  the  elections  of  1788,  and  1792, 
because  all  the  electors  voted  for  General  Washington, 
who  thus  was  chosen  President.  John  Adams^  receiv- 
ing on  each  occasion,  the  next  highest  number  of  elec- 
toral votes,  was  chosen  Vice  President.  At  the  election 
of  1796,  John  Adams  received  the  highest  number  of 
electoral  votes  and  Thomas  Jefferson,  who  came  next, 
was  chosen  Vice  President.  But  in  1800,  there  were 
one  hundred  and  thirty-eight  electors;  and  two  can- 
didates, Jefferson  and  Burr,  each  received  seventy- 
three  votes,  a  majority  of  all  the  electors.  There 
being  no  majority  for  any  person,  the  choice  had  to 
be  made  by  the  House  of  Representatives.  At  that 
time,  there  were  sixteen  States.  At  first  eight  of  these 
voted  for  Jefferson,  six  for  Burr,  and  two  were  divided. 
A  majority  vote  of  the  States  being  necessary,  the 
"dead-lock"  continued  until  the  thirty-sixth  ballot, 
when  Jefferson  was  chosen. 

The  defect  in  the  constitutional  method  of  choosing 
the  President  and  Vice  President  revealed  in  the  elec- 
tion of  1800  led  to  the  preparation  of  the  Twelfth 
Amendment,  which  was  ratified  in  September,  1804, 
just  in  time  for  use  in  the  presidential  election  of  that 
year. 

Twelfth  Amendment:  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 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    309 

Vice-President,  and  they  shall  make  distinct  lists  of  all 
persons  voted  for  as  President,  and  of  all  persons  voted 
for  as  Vice-President,  and  of  the  number  of  votes  for 
each,  which  lists  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  seat  of  the  government  of  the 
United  States,  directed  to  the  President  of  the  Senate; 
— The  President  of  the  Senate  shall,  in  presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted; — The 
person  having  the  greatest  number  of  votes  for  Presi- 
dent, shall  be  the  President,  if  such  number  be  a  major- 
ity of  the  whole  number  of  Electors  appointed;  and  if 
no  person  have  such  majority,  then  from  the  persons 
having  the  highest  niunbers  not  exceeding  three  on  the 
list  of  those  voted  for  as  President,  the  House  of  Repre- 
sentatives 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  Vice-President  shall 
act  as  President,  as  in  the  case  of  the  death  or  other 
constitutional  disability  of  the  President.  The  person 
having  the  greatest  nimiber  of  votes  as  Vice-President, 
shall  be  the  Vice-President,  if  such  number  be  a  major- 
ity of  the  whole  number  of  Electors  appointed,  and  if  no 
person  have  a  majority,  then  from  the  two  highest 
nimibers  on  the  Hst,  the  Senate  shall  choose  the  Vice- 
President;  a  quonun  for  the  purpose  shall  consist  of 
two-thirds  of  the  whole  number  of  Senators,  and  a 


310  J     AMERICAN  PLAN  OF  GOVERNMENT 

majority  of  the  whole  number  shall  be  necessary  to  a 
choice.  But  no  person  constitutionally  ineUgible  to  the 
office  of  President  shall  be  eligible  to  that  of  Vice- 
President  of  the  United  States. 

Since  the  adoption  of  the  Twelfth  Amendment,  only 
one  disputed  presidential  election  has  occurred,  the 
Hayes-Tilden  election  of  1876.  The  point  then  in 
dispute  involved,  not  the  method  laid  down  in  this 
amendment,  but  the  way  in  which  the  popular  vote  had 
been  counted  in  certain  States.  At  some  future  election 
there  may  be  more  than  three  candidates  none  of  whom 
have  a  majority  of  electoral  votes,  though  each  have  an 
equal  number  of  votes,  that  number  being  the  highest 
number  cast.  Only  a  prophet  can  tell  us  how,  in  such 
a  case,  the  House  of  Representatives  will  be  able  "from 
the  persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President"  to 
"choose  immediately,  by  ballot,  the  President." 
Thomas  Jefferson,  in  a  letter  written  in  1823,  said:  "I 
have  no  hesitation  in  saying  that  I  have  ever  considered 
the  constitutional  mode  of  election  ultimately  by  the 
legislature  voting  by  States  as  the  most  dangerous  blot 
in  our  Constitution,  and  which  some  unlucky  chance 
will  some  day  hit.  .  .  .  Another  general  convention 
can  alone  relieve  us." 

Art.  n.,  Sec.  i  (continued).  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. 

An  Act  of  Congress  of  February  3,  1887,  provides 
"That  the  electors  of  each  State  shall  meet  and  give 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    311 

their  votes  on  the  second  Monday  in  January  next 
following  their  appointment,  at  such  place  in  each  State 
as  the  legislature  of  such  State  shall  direct."  This 
reads  nicely,  but  it  does  not  provide  against  the  chance 
that  the  electors  may  not  be  able  to  reach  the  appointed 
place  on  time.  For  example,  in  the  election  of  1856, 
the  Wisconsin  electors  were  detained  by  a  blizzard 
and  did  not  reach  the  State  capital  imtil  the  day  after 
their  votes  ought  to  have  been  cast.  As  it  happened, 
it  made  no  difference  in  the  result  whether  those  votes 
were  counted  or  not. 

Art.  11.,  Sec.  i  (continued.)  No  Person  except  a 
natural  bom  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. 

"  Limiting  the  Presidency  to  one  who  is  a  natural  born 
citizen  of  the  United  States  was  a  wise  provision  which 
has  been  appreciated  and  justified  by  the  sentiment  of 
the  country.  It  prevents  wealthy  and  ambitious 
foreigners  from  scheming  for  the  position  after  having 
been  citizens  a  short  time,  and  secures  our  coimtry  from 
machinations  which  might  cause  serious  embarrass- 
ment."— Watson  on  the  Constitution.^ 

The  exception  in  favor  of  those  who  might  be  citizens 
when  the  Constitution  should  be  adopted  has  been 
explained  as  a  compliment  to  a  number  of  distinguished 
foreigners  who  had  served  in  the  Continental  army 

» i.,  889. 


312       AMERICAN  PLAN  OF  GOVERNMENT 

during  the  War  for  Independence.  That  may  be  true, 
but  it  is  also  true  that  several  of  the  members  of  the 
Constitutional  Convention  had  been  bom  outside  of 
the  United  States.  A  convention  in  which  Alexander 
Hamilton,  a  native  of  the  island  of  Nevis  in  the  West 
Indies,  sat  as  a  delegate  was  not  likely  to  adopt  any 
self-denying  ordinance. 

"Considering  the  nature  of  the  duties,  the  extent  of 
the  information,  and  the  solid  wisdom  and  experience 
required  in  the  executive  department,  no  one  can 
reasonably  doubt  the  propriety  of  some  qualification  of 
age.  That  which  has  been  selected  is  the  middle  age 
of  life,  by  which  period  the  character  and  talents  of 
individuals  are  generally  known  and  fully  developed; 
and  opportunities  have  usually  been  afforded  for  public 
service,  and  for  experience  in  the  public  councils.  The 
faculties  of  the  mind,  if  they  have  not  then  attained  to 
their  highest  maturity,  are  in  full  vigor,  and  are  hasten- 
ing towards  their  ripest  state.  The  judgment,  acting 
upon  large  materials,  has,  by  that  time,  attained  a  solid 
cast;  and  the  principles  which  form  the  character,  and 
the  integrity  which  gives  lustre  to  the  virtues  of  life, 
must  then,  if  ever,  have  acquired  public  confidence  and 
approbation." — Story  on  the  Constitution.^ 

Art.  n.,  Sec.  i  (continued).  In  Case  of  the  Re- 
moval 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  Inabil- 
ity, both  of  the  President  and  Vice  President,  declaring 
what  Officer  shall  then  act  as  President,  and  such 

'  Sec  1478. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    313 

Officer  shall  act  accordingly,  until  the  Disability  be 
removed,  or  a  President  shall  be  elected. 

Thus  far  no  serious  complication  over  a  presidential 
succession  has  occurred;  five  Presidents  of  the  United 
States  have  died  in  office,  and  under  the  provisions  of 
this  section  have  been  succeeded  by  Vice  Presidents. 
Suppose,  however,  the  President  chosen  by  the  electors, 
whose  election  has  been  announced  at  the  joint  meeting 
of  the  two  Houses  of  Congress,  on  the  second  Wednes- 
day of  February  next  after  a  national  election,  should 
die  before  the  fourth  day  of  the  following  March,  upon 
whom  would  the  office  of  President  "devolve"?  The 
Constitution  answers  that  it  would  devolve  upon  the 
Vice  President.  But  what  Vice  President  is  meant? 
Obviously  the  incoming  Vice  President  could  not  take 
the  office  in  that  contingency,  because  he  was  not  Vice 
President  when  the  President-elect  died.  It  is  hardly 
supposable  that  the  outgoing  Vice  President  is  meant. 
Our  people  will  win  out  of  the  muddle  some  way  if  ever 
they  have  to,  but  it  is  a  pity  that  a  proper  "stitch  in 
time"  is  not  taken. 

In  Case  of  the  .  .  .  Inability  [of  the  President]  to 
discharge  the  Powers  and  Duties  of  the  said  Office,  the 
same  shall  devolve  on  the  Vice  President.  Who  is  to 
decide  what  constitutes  an  "inability"  to  discharge  the 
powers  and  duties  of  the  President?  The  People  of 
the  United  States  certainly  would  not  have  allowed  any 
tribunal  to  declare  that  President  Garfield,  during  the 
months  when  he  was  dying  from  the  assassin's  wound, 
was  under  such  an  "inability"  that  Vice  President 
Arthur  ought  to  have  taken  his  place.  A  President 
might  be  a  drunkard  or  a  moral  degenerate  or  anything 
else  on  the  safe  side  of  impeachment,  without  incurring 


314       AMERICAN  PLAN  OF  GOVERNMENT 

any  serious  risk  of  losing  his  office  on  account  of  "in- 
ability" to  perform  its  duties.  He  might  even  suffer 
from  some  forms  of  insanity  and  still  hold  his  position. 
One  so  highly  placed  always  will  have  enough  friends  to 
pull  him  through  everything  except  an  actual  convic- 
tion upon  an  impeachment  trial,  which  naturally  would 
settle  the  case  with  satisfactory  finality. 

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.  The  Presidential  Succession 
Act  of  1886  provides  that  in  case  of  removal,  death, 
resignation,  or  inability  of  both  the  President  and  Vice 
President,  the  office  of  President  shall  devolve  upon  the 
Secretary  of  State,  the  Secretary  of  War,  the  Attorney 
General,  the  Postmaster  General,  the  Secretary  of  the 
Navy,  or  the  Secretary  of  the  Interior,  in  the  order 
named,  until  the  disability  of  the  President  or  Vice 
President  is  removed  or  a  President  shall  be  elected. 

According  to  the  case  of  Attorney  General  vs.  Taggart,^ 
however,  the  existence  of  a  vacancy  is  a  question  of  law 
and  fact  for  a  court  to  decide.  In  1890,  Governor 
Goodell  of  New  Hampshire,  being  ill,  instructed  the 
attorney  general  of  the  State  to  take  the  necessary  legal 
steps  under  a  similar  clause  in  the  New  Hampshire 
constitution,  to  declare  a  vacancy  in  the  office  of  govern- 
or and  to  compel  the  president  of  the  State  senate  to 
assume  the  office.  David  A.  Taggart,  then  president 
of  the  senate,  refused  to  take  over  the  governorship 
without  a  court  decision  that  such  was  his  duty. 
Thereupon  a  petition  for  an  order  requiring  him  to  do  so 
was  filed  in  the  Supreme  Court  of  New  Hampshire. 
Upon  this,  Chief  Justice  Doe  said: 

*  66  New  Hampshire  Rep.,  362. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    315 

While  a  determination  of  the  question  of  vacancy,  on  a 
petition  of  this  kind,  is  not  legally  requisite  to  call  the  presi- 
dent of  the  senate  to  the  executive  chair,  it  may  be  a 
convenient  mode  of  avoiding  embarrassment  that  might 
sometimes  arise  from  doubt  and  controversy  in  regard  to  his 
authority  and  the  validity  of  his  acts.  The  existence  of  an 
executive  vacancy  is  a  question  of  law  and  fact  within 
the  judicial  jurisdiction.  If  the  defendant  exercised  ex- 
ecutive power  without  a  previous  judgment  on  that 
question,  the  legality  of  his  acts  could  be  contested  and 
determined  in  subsequent  litigation;  and  the  judicial 
character  of  the  question  does  not  depend  upon  the  time 
when  it  is  brought  into  court.  With  adequate  legal  pro- 
cess, the  consideration  and  decision  may  be  prospective 
as  well  as  retrospective. 

Art.  n.,  Sec.  i  (continued).  The  President  shall, 
at  stated  Times,  receive  for  his  Services,  a  Compen- 
sation, which  shall  neither  be  encreased  nor  dimin- 
ished during  the  Period  for  which  he  shall  have  been 
elected,  and  he  shall  not  receive  within  that  Period 
any  other  Emolimient  from  the  United  States,  or  any 
of  them. 

"The  wisdom  of  this  clause  can  scarcely  be  too  highly 
commended.  The  legislature,  on  the  appointment  of  a 
President,  is  once  for  all  to  declare  what  shall  be  the 
compensation  for  his  services  during  the  time  for  which 
he  shall  have  been  elected.  This  done,  they  will  have 
no  power  to  alter  it,  either  by  increase  or  diminution, 
till  a  new  period  of  service  by  a  new  election  commences. 
They  can  neither  weaken  his  fortitude  by  operating 
upon  his  necessities,  nor  corrupt  his  integrity  by  appeal- 
ing to  his  avarice.  Neither  the  Union,  nor  any  of  its 
members  will  be  at  liberty  to  give,  nor  will  he  be  at 


3i6       AMERICAN  PLAN  OF  GOVERNMENT 

liberty  to  receive  any  other  emolument. " — Story  on  the 
Constitution.  ^ 

Art.  n.,  Sec.  i  (continued).  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  Presi- 
dent of  the  United  States,  and  will  to  the  best  of  my 
Ability,  preserve,  protect  and  defend  the  Constitution 
of  the  United  States.  " 

"There  is  little  need  of  commentary  upon  this  clause. 
No  man  can  well  doubt  the  propriety  of  placing  a 
President  of  the  United  States  under  the  most  solemn 
obligations  to  preserve,  protect,  and  defend  the  Con- 
stitution. It  is  a  suitable  pledge  of  his  fidelity  and 
responsibility  to  his  cotmtry;  and  creates  upon  his 
conscience  a  deep  sense  of  duty,  by  an  appeal,  at  once 
in  the  presence  of  God  and  man,  to  the  most  sacred  and 
solemn  sanctions  which  can  operate  upon  the  human 
mind." — Story  on  the  Constitution.^ 

'  Sec.  i486.  "  Sec.  1488. 


CHAPTER  XIX 

THE  CHIEF  EXECUTIVE  OFFICE 

Art.  n.,  Sec.  2.  The  President  shall  be  Commander 
in  Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  Militia  of  the  several  States,  when  called  into 
the  actual  Service  of  the  United  States;  he  may  require 
the  Opinion,  in  writing,  of  the  principal  Officer  in  each 
of  the  executive  Departments,  upon  any  Subject  re- 
lating to  the  Duties  of  their  respective  Offices,  and  he 
shall  have  power  to  grant  Reprieves  and  Pardons  for 
Offences  against  the  United  States,  except  in  Cases  of 
Impeachment. 

"It  is  somewhat  singular  that  the  Constitution  of  a 
Republic  whose  President — ^it  could  have  reasonably 
been  presumed — would  be  selected  from  the  peaceful 
vocations  of  life — without  military  or  naval  training 
— should  make  its  President  Commander  in  Chief  of 
the  military  and  naval  force  of  the  country.  But  there 
was  no  opposition  to  this  provision  in  the  Convention 
which  framed  the  Constitution.  The  action  of  the  Con- 
vention was  probably  due  to  some  particular  cause,  and 
none  seems  more  reasonable  than  the  fact  that,  during 
the  Revolution,  Washington  experienced  great  trouble 
and  embarrassment  from  the  failiue  of  Congress  to 
support  him  with  firmness  and  despatch.  There  was  a 
want  of  directness  in  the  management  of  affairs  during 

317 


3i8       AMERICAN  PLAN  OF  GOVERNMENT 

that  period  which  was  attributable  to  the  absence  of 
centralized  authority  to  command.  The  members  of 
the  Convention  knew  this  and  probably  thought  they 
could  prevent  its  recurrence  by  making  the  President 
Commander  in  Chief  of  the  Army  and  Navy. " — Watson 
on  the  Constitution.  ^ 

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.  Congress  has  power  "to  raise  and 
support  armies  ...  to  provide  and  maintain  a  navy 
...  to  provide  for  calling  forth  the  militia,  and  to 
make  rules  for  the  government  of  the  land  and  naval 
forces."  Nevertheless,  the  President  disposes  of  the 
army  and  navy  as  he  pleases.  Congress  lays  down  the 
rules  for  managing  the  forces,  but  the  President  controls 
their  activities.  "Congress,"  said  Chief  Justice  Chase 
in  Ex  Parte  Milligan,^  "has  the  power  not  only  to  raise 
and  support  armies  but  to  declare  war.  It  has,  there- 
fore, the  power  to  provide  by  law  for  carrying  on  war. 
This  power  necessarily  extends  to  all  legislation  essen- 
tial to  the  prosecution  of  war  with  vigor  and  success, 
except  such  as  interferes  with  the  command  of  the 
forces  and  the  conduct  of  campaigns.  That  power  and 
duty  belong  to  the  President  as  commander-in-chief." 

The  dividing  line  between  the  war  powers  of  Congress 
and  the  war  powers  of  the  President  is  drawn  in  the 
decision  of  the  case  of  Fleming  vs.  Page,  ^  in  which  the 
broad  rule  was  laid  down  that  under  the  war  powers 
granted  him  the  President  cannot  extend  the  bounda- 
ries of  the  United  States.  In  1847,  during  the  Mexican 
War,  our  troops  occupied  the  City  of  Tampico,  Mexico. 
Fleming  and  Marshall  of  Philadelphia  paid  under  pro- 

» iL,  912.  '  4  Wallace's  Rep.,  2.  J  9  Howard's  Rep.,  603. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    319 

test  customs  duties  levied  on  goods  which  they  had 
imported  from  Tampico.  If  Tampico,  while  occupied 
by  our  troops,  were  a  part  of  the  United  States,  the 
levying  of  duties  was  unlawful,  because  duties  are  not 
collected  on  merchandise  shipped  from  one  part  of  the 
country  to  another.  The  Supreme  Court  therefore  had 
to  decide  whether  the  President  enlarges  the  national 
domain  whenever  the  armies  under  his  command  hold 
places  outside  the  boundary  lines.  Chief  Justice  Taney 
answered  the  question  involved  as  follows : 

A  war  .  .  .  declared  by  Congress,  can  never  be  presumed 
to  be  waged  for  the  purpose  of  conquest  or  the  acquisition 
of  territory;  nor  does  the  law  declaring  the  war,  imply  an 
authority  to  the  President  to  enlarge  the  limits  of  the  United 
States  by  subjugating  the  enemy's  country.  The  United 
States  .  .  .  may  extend  its  boundaries  by  conquest  or 
treaty,  and  may  demand  the  cession  of  territory  as  the  con- 
dition of  peace,  in  order  to  indemnify  its  citizens  for  the 
injuries  they  have  suffered,  or  to  reimburse  the  government 
for  the  expenses  of  the  war.  But  this  can  be  done  only  by 
the  treaty-making  power  or  the  legislative  authority,  and 
is  not  a  part  of  the  power  conferred  upon  the  President  by 
the  declaration  of  war.  His  duty  and  his  power  are  purely 
military.  As  commander-in-chief  he  is  authorized  to  direct 
the  movements  of  the  naval  and  military  forces  placed  by 
law  at  his  command,  and  to  employ  them  in  the  manner  he 
may  deem  most  effectual  to  harass  and  conquer  and  subdue 
the  enemy.  He  may  invade  the  hostile  country,  and  sub- 
ject it  to  the  sovereignty  and  authority  of  the  United  States. 
But  his  conquests  do  not  enlarge  the  boundaries  of  this  Union, 
nor  extend  the  operation  of  our  institutions  and  laws  beyond 
the  limits  before  assigned  to  them  by  the  legislative  power. 

The  President's  power,  as  defined  above  by  Chief 
Justice  Taney,  "to  direct  the  movements  of  the  naval 


320       AMERICAN  PLAN  OF  GOVERNMENT 

and  military  forces  placed  by  law  at  his  command,  and 
to  employ  them  in  the  manner  he  may  deem  most 
effectual  to  harass  and  conquer  and  subdue  the  enemy" 
is  as  unlimited  as  any  power  granted  to  Congress  by  the 
Constitution.  President  Lincoln  used  this  absolute 
power  in  the  early  days  of  the  Civil  War  by  proclaiming 
and  enforcing  a  blockade  of  the  ports  of  the  States  which 
had  attempted  to  secede  from  the  Union.  In  the  Prize 
Cases ^^  decided  in  1862,  the  owners  of  a  number  of 
captured  blockade  runners  challenged  the  validity  of 
the  seizures  on  the  ground  that  no  war  existed  at  the 
time  of  seizure,  and  that  they  had  a  right  to  send  their 
vessels  to  the  blockaded  ports.  Justice  Grier,  who  gave 
the  opinion  of  the  Supreme  Court  in  these  cases,  said: 

,  Whether  the  President  in  fuljSlling  his  duties  as  com- 
mander-in-chief in  suppressing  an  insurrection,  has  met 
with  such  armed  hostile  resistance,  and  a  civil  war  of  such 
alarming  proportions  as  will  compel  him  to  accord  to  them 
[the  states  in  rebellion]  the  character  of  belligerents,  is  a 
question  to  be  decided  by  him,  and  this  court  must  be 
governed  by  the  decisions  and  acts  of  the  political  depart- 
ment of  the  government  to  which  this  power  was  entrusted. 
"He  must  determine  what  degree  of  force  the  crisis  de- 
mands. "  The  proclamation  of  blockade  is  itself  official  and 
conclusive  evidence  to  the  court  that  a  state  of  war  existed 
which  demanded  and  authorized  a  recourse  to  such  a 
measure,  under  the  circumstance  peculiar  to  the  case. 

In  the  case  of  The  Springbok,'^  decided  in  1866,  the 
Supreme  Court,  sustaining  the  power  of  the  President 
to  enforce  a  blockade,  inflicted,  says  Moore's  Interna- 
tional Digest,  "a  more  serious  blow  on  neutral  rights 
than  did  all  the  orders  in  council  [made  by  the  British 

« 2  Black's  Rep.,  635.  •  5  Wallace's  Rep.,  i. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    321 

just  before  the  war  of  1 8 12]  put  together.  .  .  .  The 
decision  can  not  be  accepted  without  discarding  those 
rules  as  to  neutral  rights  for  which  the  United  States 
made  war  in  18 12,  and  which,  except  in  the  Springbok 
and  cognate  cases,  the  executive  department  of  the 
United  States  Government,  when  stating  the  law,  has 
since  then  consistently  vindicated.  The  first  of  these 
is  that  blockades  must  be  of  specific  ports.  The  second 
is  that  there  can  be  no  confiscation  of  non-contraband 
goods  owned  by  neutrals  and  in  neutral  ships,  on  the 
ground  that  it  is  probable  that  such  goods  may  be,  at 
one  or  more  intermediate  points,  transshipped  or  re- 
transshipped,  and  then  find  their  way  to  a  port  block- 
aded by  the  party  seizing. " 

The  British  bark,  The  Springbok,  chartered  by  a 
London  mercantile  house,  had  sailed  on  December  8, 
1862,  from  London  with  clearance  papers  declaring  the 
"destination  of  the  voyage,  Nassau,  New  Providence," 
a  British  possession.  On  February  3,  1863,  she  was 
captured  at  sea  by  the  United  States  gunboat  Sonoma^ 
and  brought  to  the  port  of  New  York  as  a  prize.  Her 
cargo  consisted  in  part  of  gray  army  blankets  marked 
"C.  S.  N.,"  cavalry  sabres,  army  boots,  and  similar 
articles.  "The  port  [Nassau]  which  lay  not  very  far 
from  a  part  of  the  southern  coast  of  the  United  States, 
it  was  common  knowledge,  had  been  largely  used  as 
one  for  call  and  transshipment  of  cargoes  intended  for 
the  ports  of  the  insurrectionary  States  of  the  Union 
then  under  blockade  by  the  Federal  Government.  The 
vessel  when  captured  made  no  resistance  and  all  her 
papers  were  given  up  without  attempt  at  concealment 
or  spoliation."  The  Springbok  wa^  libelled  as  a  prize 
on  February  12,  1863,  in  the  United  States  Court  at 
New  York.     On  March  9,  1863,  her  owners,  who  were 


322       AMERICAN  PLAN  OF  GOVERNMENT 

British  subjects,  claimed  the  vessel.  On  March  24, 
1863,  an  agent  of  the  chartering  firm  put  in  a  claim  for 
the  cargo. 

The  Supreme  Court  decided  that  the  vessel,  which 
had  been  seized  while  on  its  way  from  one  British  port 
to  another,  should  be  delivered  to  the  owners,  but  that 
the  cargo,  which  obviously  was  intended  to  be  trans- 
shipped to  the  Confederacy,  was  contraband  of  war  and 
must  be  condemned.  This  means  much  to  the  United 
States,  which  is  boimd  by  the  decision  of  its  highest 
court  to  concede  that  cargoes  owned  by  its  citizens 
on  transit  from  one  neutral  port  to  another,  are  liable 
to  seizure  and  condemnation  under  similar  circum- 
stances.    Chief  Justice  Chase  said  in  this  decision : 

Upon  the  whole  case,  we  cannot  doubt  that  the  cargo 
was  originally  shipped  with  intent  to  violate  the  blockade; 
that  the  owners  of  the  cargo  intended  that  it  should  be 
transshipped  at  Nassau  into  some  vessel  more  likely  to 
succeed  in  reaching  safely  a  blockaded  port  than  the 
Springbok;  that  the  voyage  from  London  to  the  blockaded 
port  was,  as  to  cargo,  both  in  law  and  in  the  intent  of  the 
parties,  one  voyage;  and  that  the  liability  to  condemnation, 
if  captured  during  any  part  of  that  voyage,  attached  to  the 
cargo  from  the  time  of  sailing. 

The  President  .  .  .  shall  have  power  to  grant  Re- 
prieves and  Pardons  for  Offences  against  the  United 
States,  except  in  Cases  of  Impeachment.  "A  pardon," 
according  to  Justice  Field  in  the  decision  of  Ex  Parte 
Garlatid,^  "reaches  both  the  punishment  prescribed  for 
the  offence  and  the  guilt  of  the  offender;  and  when  the 
pardon  is  full,  it  releases  the  punishment  and  blots  out 
of  existence  the  guilt,  so  that  in  the  eye  of  the  law  the 

*  4  Wallace's  Rep,,  333,  380. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    323 

offender  is  as  innocent  as  if  he  had  never  committed 
the  offence.  If  granted  before  conviction,  it  prevents 
any  of  the  penalties  and  disabilities  consequent  upon 
conviction  from  attaching;  if  granted  after  conviction, 
it  removes  the  penalties  and  disabilities,  and  restores 
him  to  all  his  civil  rights;  it  makes  him,  as  it  were,  a 
new  man,  and  gives  him  a  new  credit  and  capacit3^  " 

What  is  a  "pardon"  which  makes  a  man  as  innocent 
as  if  he  had  never  committed  the  offence?  The  Supreme 
Court  has  answered  the  question  in  the  case  of  Osborn 
vs.  United  States.  ^  A  Southern  man,  who  had  received  a 
pardon  for  treasonable  acts  as  a  Confederate  soldier,  pe- 
titioned the  United  States  District  Court  of  Kansas  for 
the  restoration  of  certain  bonds  and  mortgages  which 
had  been  confiscated  during  the  Civil  War.  The  bonds 
and  mortgages  had  been  collected  or  foreclosed,  and 
the  proceeds  paid  into  court,  where  the  clerk,  judge, 
and  coiu-t  officers  seem  to  have  divided  the  money 
among  themselves.  At  all  events  none  of  it  ever  got 
into  the  national  treasury.  The  District  Court  denied 
the  application  on  the  ground  that  one  of  the  conditions 
of  his  pardon  was  that  he  should  not  claim  any  property 
which  had  been  sold  by  order  of  court  under  confisca- 
tion laws.  The  case  was  taken  to  the  Supreme  Court, 
where  Justice  Field  sustained  the  petitioner  in  an  opin- 
ion which  is  alive  with  the  just  indignation  of  an  honest 
man.    He  said: 

The  pardon,  as  is  seen,  embraces  all  offences  arising  from 
participation  of  the  petitioner,  direct  or  indirect,  in  the 
rebellion.  It  covers,  therefore,  the  offences  for  which  the 
forfeiture  of  his  property  was  decreed ....  The  pardon 
of  the  offence  necessarily  carried  with  it  the  release  of  the 

'  91  U.  S.  Rep.,  474. 


324       AMERICAN  PLAN  OF  GOVERNMENT 

penalty  attached  to  its  commission,  so  far  as  such  release 
was  in  the  power  of  the  government,  unless  specially  re- 
strained by  exceptions  embraced  in  the  instrument  itself. 
It  is  of  the  very  essence  of  a  pardon  that  it  releases  the 
offender  from  the  consequences  of  his  offence. 

The  President  has  power  to  grant  reprieves  and  par- 
dons except  in  cases  of  impeachment.  This  exception 
was  made  in  order  to  keep  the  control  of  administrative 
officers  in  the  hands  of  the  Congress.  The  founders  of 
our  republic  did  not  propose  to  let  the  President,  by  ex- 
ercising the  prerogative  of  mercy  in  impeachment  cases, 
keep  undesirable  favorites  in  office. 

Art.  n.,  Sec.  2  (continued).  He  [the  President]  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  nominate,  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. 

The  Confederation  had  failed  to  measiire  up  to  the 
needs  of  the  new  republic  mainly  because  its  Congress 
had  tried  to  do  everything.  The  ministers  plenipo- 
tentiary who  had  negotiated  treaties  with  foreign  na- 
tions, had  had  to  confide  momentous  diplomatic  secrets 
to  an  ill-regulated  legislative  body  whose  members  could 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    325 

not  be  prevented  from  blabbing.  The  chiefs  of  the 
executive  departments  of  war  and  finance  had  been  sub- 
ject to  the  whims  and  caprices  of  a  Congress,  the  make- 
up of  which  had  changed  frequently.  The  makers  of 
the  Constitution,  according  to  the  resolution  of  Congress 
under  which  they  had  met,  were  so  to  revise  the  Articles 
of  Confederation  as  to  "render  the  Federal  Constitution 
adequate  to  the  exigencies  of  the  government  and  the 
preservation  of  the  Union. "  ^  They  fulfilled  that  duty, 
in  part  at  least,  by  entrusting  to  the  President  and  the 
Senate  the  control  of  foreign  relations  and  governmental 
appointments. 

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. 

''However  proper  and  safe,"  said  Hamilton  in  the 
Federalist,'  "it  may  be  in  governments  where  the  execu- 
tive magistrate  is  an  hereditary  monarch,  to  commit 
to  him  the  entire  power  of  making  treaties,  it  would  be 
utterly  unsafe  and  improper  to  intrust  that  power  to  an 
elective  magistrate  of  four  years'  duration.  .  .  .  The 
history  of  human  conduct  does  not  warrant  that  ex- 
alted opinion  of  human  virtue  which  would  make  it 
wise  in  a  nation  to  commit  interests  of  so  delicate  and 
momentous  a  kind,  as  those  which  concern  its  inter- 
course with  the  rest  of  the  world,  to  the  sole  disposal  of 
a  magistrate  created  and  circumstanced  as  would  be  a 
President  of  the  United  States. 

"To  have  entrusted  the  power  of  making  treaties  to 
the  Senate  alone,  would  have  been  to  relinquish  the 
benefits  of  the  Constitutional  agency  of  the  President 
in  the  conduct  of  foreign  negotiations ....  Though 
it  would  be  imprudent  to  confide  in  him  solely  so  impor- 

'  4  Journals  of  Congress,  724.  •  No.  75. 


326       AMERICAN  PLAN  OF  GOVERNMENT 

tant  a  trust,  yet  it  cannot  be  doubted  that  his  participa- 
tion would  materially  add  to  the  safety  of  the  society. 
It  must,  indeed,  be  clear  to  a  demonstration  that  the 
joint  possession  of  the  power  in  question,  by  the  Presi- 
dent and  Senate,  would  afford  a  greater  prospect  of 
security,  than  the  separate  possession  of  it  by  either 
of  them .... 

"The  remarks  made  in  a  former  number  .  .  .  will 
apply  with  conclusive  force  against  the  admission  of  the 
House  of  Representatives  to  a  share  in  the  formation  of 
treaties.  The  fluctuating  and,  taking  its  futiu*e  increase 
into  the  account,  the  multitudinous  composition  of  that 
body,  forbid  us  to  expect  in  it  those  qualities  which  are 
essential  to  the  proper  execution  of  such  a  trust.  Ac- 
curate and  comprehensive  knowledge  of  foreign  politics ; 
a  steady  and  systematic  adherence  to  the  same  views; 
a  nice  and  uniform  sensibility  to  national  character ; 
decision,  secrecy,  and  despatch,  are  incompatible  with 
the  genius  of  a  body  so  variable  and  so  numerous.  .  .  . 

"The  only  objection  which  remains  to  be  canvassed, 
is  that  which  would  substitute  the  proportion  of  two 
thirds  of  all  the  members  composing  the  senatorial 
body,  to  that  of  two  thirds  of  the  members  present. 
It  has  been  shown  .  .  .  that  all  provisions  which 
require  more  than  a  majority  of  any  body  to  its  resolu- 
tions, have  a  direct  tendency  to  embarrass  the  operations 
of  the  government,  and  an  indirect  one  to  subject  the 
sense  of  the  majority  to  that  of  the  minority.  This 
consideration  seems  sufficient  to  determine  oiu"  opinion, 
that  the  convention  have  gone  as  far  in  the  endeavor  to 
secure  the  advantage  of  numbers  in  the  formation  of 
treaties,  as  could  have  been  reconciled  either  with  the 
activity  of  the  public  councils  or  with  a  reasonable  regard 
to  the  major  sense  of  the  community.     If  two  thirds 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    327 

of  the  whole  number  of  members  had  been  reqmred,  it 
would,  in  many  cases,  from  the  non-attendance  of  a 
part,  amount  in  practise  to  a  necessity  of  unanimity." 
The  President  and  Senate  have  exclusive  control  of 
the  making  of  all  treaties  except  those  involving  the 
expenditure  of  money.  The  courts  so  decided  in  1852, 
when  the  question  was  presented  in  the  case  of  Turner 
vs.  The  American  Baptist  Missionary  Union.^ 
\  In  1838,  a  man  named  Turner  took  up  under  the  land 
laws  a  quarter-section  (160  acres)  of  certain  lands  at  the 
Falls  of  the  Grand  River  in  Michigan,  upon  which  the 
Baptist  missionaries  then  had  their  station.  In  1842, 
he  obtained  another  title  from  a  man  who  had  purchased 
a  part  of  the  land  from  the  State  of  Michigan  which 
under  the  provisions  of  the  act  of  admission  to  the 
Union,  had  claimed  title  to  all  vacant  lands.  The 
missionaries  had  supposed  they  had  a  good  title  to  the 
property  under  a  treaty  made  by  the  United  States 
with  the  Indians  in  March,  1836,  in  which  it  had  been 
stipulated  that  "The  mission  establishment  upon  the 
Grand  River  shall  be  appraised  and  the  proper  value 
paid  to  the  proper  Boards."  This  treaty  had  been 
amended  in  the  Senate  by  a  provision  that  the  mission- 
ary society  should  have  the  proceeds  of  the  sale  of  160 
acres  of  land  upon  which  their  buildings  stood.  Because 
the  treaty  called  for  a  payment  of  money.  Congress  had 
enacted  a  statute  to  give  effect  to  its  provisions.  When 
Mr.  Turner  asserted  his  right  to  these  lands,  the  mis- 
sionary society  brought  an  action  for  their  recovery, 
and  Turner  retaliated  by  asking  for  an  injunction  re- 
straining the  missionaries  from  prosecuting  their  case. 
The  United  States  Circuit  Court  of  Ohio,  where  this 
case  was  heard,  therefore,  had  before  it  questions  which 

'  5  McL-ean's  Rep.,  344. 


328       AMERICAN  PLAN  OF  GOVERNMENT 

called  for  explanations  of  the  nature  and  application  of 
the  treaty  power.     The  Court  said : 

A  treaty,  under  the  federal  constitution,  is  declared  to  be 
the  supreme  law  of  the  land.  This,  unquestionably,  ap- 
plies to  all  treaties,  where  the  treaty-making  power,  with- 
out the  aid  of  Congress,  can  carry  it  into  effect.  It  is  not, 
however,  and  cannot  be  the  supreme  law  of  the  land,  where 
the  concurrence  of  Congress  is  necessary  to  give  it  effect. 
Until  this  is  exercised,  as  where  the  appropriation  of  money 
is  required,  the  treaty  is  not  perfect.  It  is  not  operative, 
in  the  sense  of  the  Constitution,  as  money  cannot  be  appro- 
priated by  the  treaty-making  power.  This  results  from  the 
limitations  of  our  government.  The  action  of  no  depart- 
ment of  the  government  can  be  regarded  as  a  law  until  it 
shall  have  all  the  sanctions  required  by  the  Constitution 
to  make  it  such.  As  well  might  it  be  contended  that  an 
ordinary  act  of  Congress,  without  the  signature  of  the  Presi- 
dent, was  a  law,  as  that  a  treaty  which  engages  to  pay  a  sum 
of  money,  is  in  itself  a  law.  And  in  such  a  case,  the  repre- 
sentatives of  the  people  and  the  States  exercise  their  own 
judgments  in  granting  or  withholding  the  money.  They 
act  upon  their  own  responsibility,  and  not  upon  the  re- 
sponsibility of  the  treaty-making  power.  It  cannot  bind 
or  control  the  legislative  action  in  this  respect,  and  every 
foreign  government  may  be  presumed  to  know,  that  so  far 
as  the  treaty  stipulates  to  pay  money,  the  legislative  sanc- 
tion is  required. 

The  treaty-making  power  is  limited  to  contracts 
which  this  government  may  make  with  other  nations. 
The  President  has  no  authority  to  lay  down  any  new 
rule  of  diplomacy  or  proclaim  a  foreign  policy  uncon- 
nected with  the  making  of  treaties.  Nevertheless  the 
President  can  serve  notice  on  all  the  world  that  the 
United  States  will  not  allow  other  governments  to 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    329 

meddle  with  the  internal  affairs  of  any  American  republic 
or  establish  new  colonies  in  any  part  of  this  hemisphere. 
This  is  the  substance  of  the  "Monroe  doctrine." 

In  1 81 5,  after  the  battle  of  Waterloo,  the  Emperors  of 
Austria  and  Russia  and  the  King  of  Prussia  formed  the 
Holy  Alliance  which  had  for  its  object  the  preservation 
of  the  rights  and  interests  of  European  dynasties.  It 
was  an  alliance  of  kings  against  the  spirit  of  republican- 
ism. The  United  States  paid  no  attention  to  this 
alliance  until  1823,  when  the  royal  association  under- 
took to  help  the  King  of  Spain  regain  his  American 
dependencies  which  had  declared  their  independence. 
Richard  Rush,  our  minister  to  England,  at  once  gave 
notice  that  the  United  States  would  object  to  any 
meddling  in  the  affairs  of  this  hemisphere,  and  on 
December  2,  1823,  President  Monroe  took  up  the  ques- 
tion in  a  message  to  Congress,  which  has  been  called  the 
Second  Declaration  of  Independence.    He  said  in  part : 

We  owe  it,  therefore,  to  candor  and  to  the  amicable  rela- 
tions existing  between  the  United  States  and  those  powers, 
to  declare  that  we  should  consider  any  attempt  on  their  part 
to  extend  their  system  to  any  portion  of  this  hemisphere  as 
dangerous  to  our  peace  and  safety.  With  the  existing  colo- 
nies or  dependencies  of  any  European  power,  we  have  not 
interfered  and  shall  not  interfere.  But  with  the  govern- 
ments who  have  declared  their  independence  and  main- 
tained it,  and  whose  independence  we  have,  on  great 
consideration  and  on  just  principles,  acknowledged,  we 
could  not  view  any  interposition  for  the  purpose  of  op- 
pressing them  or  controlling  in  any  other  manner  their 
destiny,  by  any  European  power,  in  any  other  light  than  a 
manifestation  of  an  unfriendly  disposition  toward  the 
United  States,  .  .  .  The  American  continents,  by  the 
free  and  independent  condition  which  they  have  assumed 


330       AMERICAN  PLAN  OF  GOVERNMENT 

and  maintain,   are  henceforth   not   to   be   considered  as 
subjects  for  future  colonization  by  any  European  powers.^ 

He  shall  nominate,  and  by  and  with  the  Advice  and 
Consent  of  the  Senate,  shall  appoint  Ambassadors, 
.  .  .  Judges  of  the  supreme  Court,  and  all  other  Officers 
of  the  United  States,  whose  Appointments  are  not  herein 
otherwise  provided  for.  "To  what  purpose  then  require 
the  co-operation  of  the  Senate  in  the  appointment  of 
public  officers?"  asked  Hamilton  in  The  Federalist.'^ 
"  I  answer  that  the  necessity  of  their  concurrence  would 
have  a  powerful,  though,  in  general,  a  silent  operation. 
It  would  be  an  excellent  check  upon  a  spirit  of  favoritism 
in  the  President,  and  would  tend  greatly  to  prevent  the 
appointment  of  unfit  characters  from  State  prejudice, 
from  family  connection,  from  personal  attachment,  or 
from  a  view  to  popularity.  In  addition  to  this,  it 
would  be  an  efficacious  source  of  stability  in  the  ad- 
ministration." 

Who  are  "officers  of  the  United  States?"  "An  office, " 
said  Justice  Miller  of  the  Supreme  Court  in  the  case  of 
U.  S.  vs.  Hartwell,^  "is  a  public  station,  or  employment, 
conferred  by  the  appointment  of  government.  The 
term  embraces  the  ideas  of  tenure,  duration,  emolument, 
duties.  Unless  a  person  in  the  service  of  the  govern- 
ment .  .  .  holds  his  place  by  virtue  of  an  appoint- 
ment by  the  President,  or  of  one  of  the  courts  of  justice, 
or  heads  of  department,  he  is  not  ...  an  officer  of 
the  United  States." 

The  Supreme  Court  declared  that  the  power  to 
appoint  officers  includes,  by  necessary  implication  of 
law,  the  power  to  remove.     This  looks  like  amending 

*  Moore's  American  Diplomacy,  p.  148.  » No.  75. 

*6  Wallace's  Rep.,  385,  393. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    331 

the  supreme  law  of  the  land  by  judicial  decision  instead 
of  by  the  method  prescribed  in  the  Constitution. 

In  the  case  of  Ex  Parte  Hennen,^  decided  in  1839,  it 
was  brought  to  the  attention  of  the  Supreme  Court 
that  a  Federal  district  judge  in  Louisiana  had  removed 
the  clerk  of  his  court  without  assigning  any  cause  except 
that  he  wished  to  give  the  place  to  a  friend.  The  clerk, 
thus  removed,  asked  the  judges  of  the  Circuit  Court 
to  continue  him  in  office  upon  the  ground  that  he  had 
been  legally  appointed  to  the  clerkship  and,  not  having 
resigned,  was  still  legally  clerk  of  the  coiurt.  The  cir- 
cuit judges,  not  being  able  to  agree  upon  the  question 
thus  presented,  certified  the  case  to  the  Supreme 
Court,  which  handed  down  a  decision  written  by  Justice 
Thompson,  upholding  the  removal  for  the  following 
reasons : 

All  offices,  the  tenure  of  which  is  not  fixed  by  the  Con- 
stitution or  limited  by  law,  must  be  held  either  during  good 
behavior,  or  (which  is  the  same  thing  in  contemplation  of 
law)  during  the  life  of  the  incumbent;  or  must  be  held  at  the 
will  and  discretion  of  some  department  of  the  government, 
and  subject  to  removal  at  pleasure. 

It  cannot,  for  a  moment,  be  admitted,  that  it  was  the  in- 
tention of  the  Constitution,  that  those  offices  which  are 
denominated  inferior  offices  should  be  held  during  life. 
And  if  removable  at  pleasure,  by  whom  is  such  removal  to 
be  made?  In  the  absence  of  all  constitutional  provision, 
or  statutory  regulation,  it  would  seem  to  be  a  sound  and 
necessary  rule  to  consider  the  power  of  removal  as  incident 
to  the  power  of  appointment. 

Art.  11.,  Sec.  2  (continued).  The  President  shall 
have  Power  to  fill  up  all  Vacancies  that  may  happen 

« 13  Peters'  Rep.,  230. 


332       AMERICAN  PLAN  OF  GOVERNMENT 

during  the  Recess  of  the  Senate,  by  granting  Commis- 
sions which  shall  expire  at  the  End  of  their  next  Session. 

In  the  case  of  In  re  Farrow,  ^  the  United  States  Circuit 
Court  had  to  pass  upon  the  validity  of  a  recess  appoint- 
ment to  a  vacancy  which  had  occurred  during  a  session 
of  the  Senate.  The  term  of  Henry  P.  Farrow,  United 
States  District  Attorney  for  Georgia,  had  expired  on 
April  19,  1880,  and  he  had  been  reappointed  by  one  of 
the  justices  to  serve  until  an  appointment  should  be 
made  by  the  President.  In  May,  1880,  while  the  Sen- 
ate was  still  in  session,  the  President  had  nominated 
John  S.  Bigby  for  the  office,  but  the  nomination  had  not 
been  confirmed  when  the  upper  House  had  adjourned 
during  the  following  month.  Thereupon  the  President 
gave  Bigby  a  recess  appointment  and  issued  his  com- 
mission. Farrow  refused  to  surrender  the  office  on  the 
ground  that  Bigby  had  been  appointed  to  a  vacancy 
which  had  happened  during  a  session  of  the  Senate,  and 
not  "diiring  the  recess  of  the  Senate."  Justice  Woods 
decided  the  controversy  mainly  upon  the  authority  of 
numerous  opinions  which  had  been  rendered  by 
attorney-generals  of  the  United  States,  saying  in  part : 

The  first  opinion  given  upon  this  point  is  that  of  Mr. 
William  Wirt,  attorney  general  under  President  Monroe, 
...  in  which  he  argues  for  the  construction  claimed  in 
support  of  the  President's  action  in  this  case.  He  says  "in 
reason,  it  seems  to  me  perfectly  immaterial  when  the  va- 
cancy first  arose,  for,  whether  it  arose  during  the  session  of 
the  Senate  or  during  their  recess,  it  equally  requires  to  be 
filled.  The  Constitution  does  not  look  to  the  moment  of 
the  origin  of  the  vacancy,  but  tb  the  state  of  things  at  the 
point  of  time  at  which  the  President  is  called  on  to  act.    Is 

*  13  Federal  Rep.,  112. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.   333 

the  Senate  in  session?  Then  he  must  make  a  nomination 
to  that  body.  Is  it  in  recess?  Then  the  President  must 
fill  the  vacancy  by  a  temporary  commission.  This  seems 
to  me  the  only  construction  of  the  Constitution  which  is 
compatible  with  its  spirit,  reason,  and  purpose,  while  at  the 
same  time  it  offers  no  violence  to  its  language,  and  these  are, 
I  think,  the  governing  points  to  which  all  sound  construction 
looks. "...  The  only  authority  relied  on  to  support  the 
other  view  is  the  case  decided  by  the  late  Judge  Cad wallader, 
the  learned  and  able  United  States  District  Judge  for  the 
Eastern  District  of  Pennsylvania.  It  is  no  disparagement 
to  Judge  Cadwallader  to  say  that  his  opinion,  unsupported 
by  any  other,  ought  not  to  be  held  to  outweigh  the  authority 
of  the  great  number  which  are  cited  in  support  of  the  op- 
posite view,  and  of  the  practise  of  the  executive  department 
for  nearly  sixty  years,  the  acquiescence  of  the  Senate  therein, 
and  the  recognition  of  the  power  claimed  by  both  houses  of 
Congress.  I  therefore  shall  hold  that  the  President  had 
constitutional  power  to  make  the  appointment  of  Bigby, 
nothwithstanding  the  fact  that  the  vacancy  filled  by  his 
appointment  first  happened  when  the  Senate  was  in  session. 

Art.  n.,  Sect.  3.  He  [The  President]  shall  from  time 
to  time  give  to  the  Congress  Information  of  the  State 
of  the  Union,  and  recommend  to  their  Consideration 
such  Measures  as  he  shall  judge  necessary  and  expedi- 
ent; he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and,  in  Case  of  Disagree- 
ment between  them,  with  Respect  to  the  Time  of  Ad- 
journment, he  may  adjourn  them  to  such  Time  as  he 
shall  think  proper;  he  shall  receive  Ambassadors  and 
other  public  ministers;  .  .  .  and  shall  Commission 
all  the  Officers  of  the  United  States. 

These  are  instructions  which  the  People  of  the 
United  States  have  given  to  their  chief  executive  officer. 


334       AMERICAN  PLAN  OF  GOVERNMENT 

The  President,  because  he  has  these  orders,  has  some 
control  over  the  legislative  body,  although  he  has  no 
direct  legislative  power.  Being  so  instructed,  he  ex- 
tends to  the  diplomatic  representatives  of  other  nations 
the  formal  recognition  without  which  they  could  not  act ; 
yet  the  power  of  the  Senate  to  a  controlling  voice  in  all 
negotiations  with  diplomatists  is  not  modified  or 
changed.  It  is  the  President's  duty  to  enforce  obedi- 
ence to  the  laws  of  the  nation  by  executing  the  man- 
dates and  orders  of  the  courts;  but  this  duty  does  not 
add  to,  or  take  away  from,  his  power  as  supreme  com- 
mander of  the  army  and  navy.  The  war  powers  of  the 
Congress  are  not  modified  in  any  particular  by  the  Presi- 
dent's obligation  to  keep  the  peace. 

He  shall  from  time  to  time  give  to  the  Congress  Informa- 
tion of  the  State  of  the  Union,  and  recommend  to  their 
Consideration  such  Measures  as  he  shall  judge  necessary 
and  expedient.  Our  earlier  Presidents  thought  they  had 
performed  their  whole  duty  when  they  had  told  the 
Senators  and  Representatives  what  they  ought  to  know 
about  the  state  of  the  nation  and  what  they  ought  to  do 
about  it.  That  rule  no  longer  governs.  The  President 
now  can  speak  his  mind,  if  he  chooses,  in  one  of  the 
40,000-word  addresses  to  the  world  which  President 
Roosevelt  used  to  send  to  the  Congress  to  be  read  by 
relays  of  clerks  to  rows  of  empty  benches  at  the  joint 
session,  and  afterward  read  religiously  by  the  bulk  of 
the  people  in  their  homes.  He  can,  like  President  Wil- 
son, read  in  person  short,  pithy,  eloquent  addresses, 
worthy  of  ranking  as  classics.  President  Washington 
and  the  elder  Adams,  who  were  naturally  stately  and 
ceremonious,  made  set  speeches,  perhaps  because  they 
liked  to  deliver  the  President's  message  to  Congress  in 
the  manner  of  an  English  King's  speech  from  the  throne. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.   335 

Jefferson,  who  "wrote  like  an  angel,"  but  could  not 
make  a  speech  to  save  his  life,  set  the  fashion  of  written 
messages  which  prevailed  until  President  Wilson  revived 
the  older  custom. 

He  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them.  The  President  quite  fre- 
quently'^ has  called  both  Houses  of  Congress  to  meet  in 
extra  session;  but,  *'the  principal  exercise  of  this  power 
has  been  in  proclamations  in  which  the  President  has 
called  the  Senate  together,  at  the  close  of  a  session  of 
Congress,  for  the  purpose  of  considering  appointments 
to  offices  and  sometimes  treaties.**^ 

A  nd  shall  Commission  all  the  Officers  of  the  United  States. 
It  is  the  duty  of  the  President  to  deliver  their  commis- 
sions to  all  properly  appointed  officers  of  the  United 
States.  For  example,  the  Supreme  Court  ruled  in  the 
case  of  Marbury  vs.  Madison'  that  an  appointment  made 
by  President  John  Adams  during  the  last  hours  of  his 
administration,  was  valid  and  binding  because  the  com- 
mission to  the  appointee  had  been  signed  and  sealed, 
though  not  delivered.  Chief  Justice  Marshall  stated 
in  his  opinion  in  that  case  that  an  officer  so  appointed 
had  a  legal  right  to  his  position  for  the  term  fixed  by  the 
act  of  Congress  creating  it,  that  the  President  was  in 
duty  bound  to  issue  a  commission  to  all  persons  who 
had  been  appointed  to  an  office  created  by  an  act  of 
Congress,  and  that  if  the  President  had  refused  to  per- 
form his  duty  in  such  a  case,  the  Supreme  Court  had  a 
constitutional  right  to  direct  him  to  do  so.  Chief 
Justice  Marshall  said: 

By  the  Constitution  of  the  United  States,  the  President 
is  vested  with  certain  important  political  powers,  in  the 

*  Miller,  On  the  Constitution,  p.  170.  ■  i  Cranch's  Rep.,  137. 


336       AMERICAN  PLAN  OF  GOVERNMENT 

exercise  of  which  he  is  to  use  his  own  discretion,  and  is 
accountable  only  to  his  country  in  his  political  character, 
and  to  his  own  conscience.  To  aid  him  in  the  performance 
of  these  duties,  he  is  authorized  to  appoint  certain  officers, 
who  act  by  his  authority  and  in  conformity  with  his  orders. 
In  such  cases  their  acts  are  his  acts;  and  whatever  opinion 
may  be  entertained  of  the  manner  in  which  executive 
discretion  may  be  used,  still  there  exists,  and  can  exist, 
no  power  to  control  that  discretion.  Their  subjects  are 
political.  They  respect  the  nation,  not  individual  rights, 
and  being  intrusted  to  the  executive,  the  decision  of  the 
executive  is  conclusive.  The  application  of  this  remark  will 
be  perceived  by  adverting  to  the  act  of  Congress  for  estab- 
lishing the  department  of  foreign  affairs.  This  officer,  as 
his  duties  were  prescribed  by  that  act,  is  to  conform  pre- 
cisely to  the  will  of  the  President.  He  is  the  mere  organ  by 
whom  that  will  is  communicated.  The  acts  of  such  an 
officer,  as  an  officer,  can  never  be  examinable  by  the 
courts. 

But  when  the  legislative  proceeds  to  impose  on  that  officer 
other  duties,  when  he  is  directed  peremptorily  to  perform 
certain  acts;  when  the  rights  of  individuals  are  dependent  on 
the  performance  of  those  acts ;  he  is  so  far  the  officer  of  the 
law;  is  amenable  to  the  laws  for  his  conduct;  and  cannot  at 
his  discretion  sport  away  the  vested  rights  of  others .... 

This,  then,  is  a  plain  case  for  a  mandamus  [court  order], 
either  to  deliver  the  commission,  or  a  copy  of  it  from  the 
record;  and  it  only  remains  to  be  inquired,  Whether  it  can 
issue  from  that  Court .... 

The  Constitution  vests  the  whole  judicial  power  of  the 
United  States  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  Congress  shall,  from  time  to  time,  ordain  and 
establish.  This  power  is  expressly  extended  to  all  cases 
arising  under  the  laws  of  the  United  States;  and,  conse- 
quently, in  some  form,  may  be  exercised  over  the  present 
case,  because  the  right  claimed  is  given  by  a  law  of  the 
United  States. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.   337 

Art.  IT.,  Sec.  3.  (Part  of.)  He  shall  take  Care  that 
the  Laws  be  faithfully  executed. 

The  command  to  "take  care  that  the  laws  be  faith- 
fully executed,"  being  fully  interpreted,  signifies  that 
the  laws  are  to  be  carried  into  execution  "as  they  are 
expounded  and  adjudged  "  by  the  judiciary.  This  point 
was  made  by  Chief  Justice  Taney  in  his  opinion  in  the 
case  of  Ex  Parte  Merryman,  ^  which  grew  out  of  the  first 
incidents  of  the  Civil  War. 

The  President  executes  the  Constitution,  laws,  and 
treaties  of  the  United  States  in  his  own  way  until  the 
courts  decide  upon  the  meaning  and  application  of  the 
written  law  of  the  United  States.  For  example,  until 
the  Chinese  Exclusion  Case'  was  decided  in  1888,  the 
President  through  his  officers  obeyed  the  instructions  of 
Congress  concerning  restricting  the  admission  of  Chi- 
nese laborers.  The  Supreme  Court  in  passing  upon  this 
case,  which  is  more  correctly  called  Chae  Chan  Ping  vs. 
United  States,  explained  the  policy  of  the  United  States 
on  the  whole  subject  of  immigration.  Chae  Chan  Ping, 
a  Chinese  subject  who  had  resided  in  San  Francisco 
since  1875,  went  back  to  China  on  a  visit  in  1887,  having 
first  obtained  a  certificate  or  license  issued  under  the 
Chinese  Exclusion  Act  of  1882,  entitling  him  to  re- 
admission  to  the  United  States.  On  September  7, 1888, 
he  left  Hong  Kong  on  his  return  voyage,  arriving  at 
San  Francisco  on  October  8, 1888.  On  October  i,  1888, 
Congress  had  passed  an  act  supplementary  to  the  Ex- 
clusion Act  of  1882,  declaring  null  and  void  all  certifi- 
cates authorizing  re-admission  which  had  been  issued 
to  Chinese  laborers  who  had  left  the  United  States  and 
had  not  returned  prior  to  the  passage  of  the  act.     The 

•  Taney's  Decisions,  246.  '  130  U.  S.  Rep.,  581. 


338    .  AMERICAN  PLAN  OF  GOVERNMENT 

collector  of  customs  of  San  Francisco,  therefore,  refused 
to  accept  Chae  Chan  Ping's  certificate  and  ordered  him 
to  be  deported  to  China.  The  Chinaman  then  brought 
an  action  in  the  United  States  Circuit  Court  of  California 
in  which  he  claimed  that  he  had  been  unlawfully  ex- 
cluded from  the  United  States.  This  case  was  taken 
to  the  Supreme  Court  which  decided  that  he  had  no 
right  to  be  readmitted  to  the  United  States.  Justice 
Field,  himself  a  Califomian,  delivered  the  opinion  of  the 
court  in  words  which  showed  plainly  that,  while  he 
believed  in  the  policy  of  excluding  Chinese  laborers,  he 
thought  Congress  had  not  been  quite  fair  in  the  way  it 
had  dealt  with  them.    He  said: 

The  discovery  of  gold  in  California  in  1848,  as  is  well 
known,  was  followed  by  a  large  immigration  thither  from 
all  parts  of  the  world,  attracted  not  only  by  the  hope  of 
gain  from  the  mines,  but  from  the  great  prices  paid  for 
all  kinds  of  labor.  The  news  of  the  discovery  penetrated 
China,  and  laborers  came  from  there  in  great  numbers,  a 
few  with  their  own  means,  but  by  far  the  greater  number 
under  contract  with  employers  for  whose  benefit  they 
worked.  These  laborers  readily  secured  employment,  and, 
as  domestic  servants,  and  in  various  kinds  of  out-door  work, 
proved  to  be  exceedingly  useful.  For  some  years  little 
opposition  was  made  to  them  except  when  they  sought  to 
work  in  the  mines,  but,  as  their  numbers  increased,  they 
began  to  engage  in  various  mechanical  pursuits  and  trades, 
and  thus  came  in  competition  with  our  artisans  and  mechan- 
ics, as  well  as  our  laborers  in  the  field. 

The  competition  steadily  increased  as  the  laborers  came 
in  crowds  on  each  steamer  that  arrived  from  China,  or 
Hong  Kong,  an  adjacent  English  port.  They  were  gener- 
ally industrious  and  frugal.  Not  being  accompanied  by 
families,  except  in  rare  instances,  their  expenses  were  small ; 
and  they  were  content  with  the  simplest  fare,  such  as  would 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.   339 

not  sufSce  for  our  laborers  and  artisans.  The  competition 
between  them  and  our  people  was  for  this  reason  altogether 
in  their  favor,  and  the  consequent  irritation,  proportionately 
deep  and  bitter,  was  followed,  in  many  cases,  by  open  con- 
flicts to  the  great  disturbance  of  the  public  peace.   .    .    . 

So  urgent  and  constant  were  the  prayers  for  relief  against 
existing  and  anticipated  evils,  both  from  the  public  author- 
ities of  the  Pacific  Coast  and  from  private  individuals  that 
Congress  was  impelled  to  act  on  the  subject.  Many  per- 
sons, however,  both  in  and  out  of  Congress,  were  of  opinion 
that  so  long  as  the  treaty  [with  China,  negotiated  by  Anson 
Burlingame  in  1868]  remained  unmodified,  legislation  re- 
stricting immigration  would  be  a  breach  of  faith  with 
China.  A  statute  was  accordingly  passed  appropriating 
money  to  send  commissioners  to  China  to  act  with  our 
minister  there  in  negotiating  and  concluding  by  treaty  a 
settlement  of  such  matters  of  interest  between  the  two 
governments  as  might  be  confided  to  them.  .  .  .  Such 
commissioners  were  appointed,  and  as  the  result  of  their 
negotiations  the  supplementary  treaty  of  November  17, 
1880,  was  concluded  and  ratified  in  May  of  the  following 
year ....  It  declares  in  its  first  article  that ' '  Whenever, 
in  the  opinion  of  the  Government  of  the  United  States, 
the  coming  of  Chinese  laborers  to  the  United  States  or  their 
residence  therein,  affects  or  threatens  to  affect  the  interests 
of  that  country,  or  to  endanger  the  good  order  of  the  said 
country  or  of  any  locality  within  the  territory  thereof,  the 
Government  of  China  agrees  that  the  Government  of  the 
United  States  may  regulate,  limit,  or  suspend  such  coming 
or  residence,  but  may  not  absolutely  prohibit  it.  The  limi- 
tation or  suspension  shall  be  reasonable  and  shall  apply 
only  to  Chinese  who  may  go  to  the  United  States  as  laborers, 
other  classes  not  being  included  in  the  limitations.  Legisla- 
tion taken  in  regard  to  Chinese  laborers  will  be  of  such  a 
character  only  as  is  necessary  to  enforce  the  regulation, 
limitation,  or  suspension  of  immigration,  and  immigrants 
shall  not  be  subject  to  personal  maltreatment  or  abuse." 


340       AMERICAN  PLAN  OF  GOVERNMENT 

In  its  second  article  it  declares  that  "Chinese  subjects, 
whether  proceeding  to  the  United  States  as  teachers, 
students,  merchants,  or  from  curiosity,  together  with  their 
body  and  household  servants,  and  Chinese  laborers  who 
are  now  in  the  United  States  shall  be  allowed  to  go  and  come 
of  their  own  free  will  and  accord,  and  shall  be  accorded  all 
the  rights,  privileges,  immunities,  and  exemptions  which  are 
accorded  to  the  citizens  and  subjects  of  the  most  favored 
nation."   .    .    . 

On  the  6th  of  May,  1882,  an  act  of  Congress  was  approved 
to  carry  this  supplementary  treaty  into  effect.  .  ,  . 
Its  first  section  declares  that  after  ninety  days  from  the 
passage  of  the  act,  and  for  the  period  of  ten  years  from  its 
date,  the  coming  of  Chinese  laborers  to  the  United  States  is 
suspended,  and  that  it  shall  be  unlawful  for  any  such  laborer 
to  come,  or  having  come,  to  remain  within  the  United 
States.    .    .    . 

To  prevent  the  possibility  of  the  policy  of  excluding  Chi- 
nese laborers  being  evaded,  the  act  of  October  i,  1888,  the 
validity  of  which  is  the  subject  of  consideration  in  this  case, 
was  passed.  .  .  .  It  is  as  follows :  "Be  it  enacted  .  .  . 
That  from  and  after  the  passage  of  this  act,  it  shall  be  un- 
lawful for  any  Chinese  laborer,  who  shall  at  any  time  hereto- 
fore have  been,  or  who  may  now  or  hereafter  be,  a  resident 
within  the  United  States,  and  who  shall  have  departed,  or 
shall  depart  therefrom,  and  shall  not  have  returned  before 
the  passage  of  this  act,  to  return  to,  or  remain  in  the  United 
States.  .  .  .  That  .  ,  .  every  certificate  heretofore  issued 
[under  the  act  of  1882]  ...  is  hereby  declared  void  and 
of  no  effect,  and  the  Chinese  laborer  claiming  admission  by 
virtue  thereof  shall  not  be  permitted  to  enter  the  United 
States."  .  .  .  The  validity  of  this  act  .  .  .  is  assailed 
as  being  in  effect  an  expulsion  from  the  country  of  Chinese 
laborers  in  violation  of  existing  treaties  between  the  United 
States  and  the  government  of  China,  and  of  rights  vested  in 
them  under  the  laws  of  Congress .... 

It  must  be  conceded  that  the  act  of  1888  is  in  contra ven- 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.    341 

tion  of  express  stipulations  of  the  treaty  of  1868  and  of  the 
supplemental  treaty  of  1880,  but  it  is  not  on  that  account 
invalid  or  to  be  restricted  in  its  enforcement.  The  treaties 
were  of  no  greater  legal  obligation  than  the  act  of  Congress. 
By  the  Constitution,  laws  made  in  pursuance  thereof  and 
treaties  made  under  the  authority  of  the  United  States  are 
both  declared  to  be  the  supreme  law  of  the  land,  and  no 
paramount  authority  is  given  to  one  over  the  other.  A 
treaty  .  .  .  is  in  its  nature  a  compact  between  nations  and 
is  often  merely  promissory  in  its  character,  requiring  legis- 
lation to  carry  its  provisions  into  effect.  Such  legislation 
will  be  open  to  future  repeal  or  amendment.  If  a  treaty 
operates  by  its  own  force,  and  relates  to  a  subject  within  the 
power  of  Congress,  it  can  be  deemed  in  that  particular  only 
the  equivalent  of  a  legislative  act,  to  be  repealed  or  modified 
at  the  pleasure  of  Congress.  In  either  case  the  last  expres- 
sion of  the  sovereign  will  must  control .... 

That  the  government  of  the  United  States,  through  the 
action  of  its  legislative  department,  can  exclude  aliens  from 
its  territory  is  a  proposition  which  we  do  not  think  open 
to  controversy.  Jurisdiction  over  its  own  territory  to  that 
extent  is  an  incident  of  every  independent  nation.  It  is  a 
part  of  its  independence.  If  it  could  not  exclude  aliens,  it 
would  be  to  that  extent  subject  to  the  control  of  another 
power.    .    .    , 

The  power  of  exclusion  of  foreigners  being  an  incident 
of  sovereignty  belonging  to  the  government  of  the  United 
States,  as  a  part  of  those  sovereign  powers  delegated  by  the 
Constitution,  the  right  to  its  exercise  at  any  time  when, 
in  the  judgment  of  the  government,  the  interests  of  the 
country  require  it,  cannot  be  granted  away  or  restrained  on 
behalf  of  any  one.  The  powers  of  government  are  delegated 
in  trust  to  the  United  States,  and  are  incapable  of  transfer 
to  any  other  parties.  They  cannot  be  abandoned  or  sur- 
rendered. Nor  can  their  exercise  be  hampered,  when 
needed  for  the  public  good,  by  any  considerations  of  private 
interest.    The  exercise  of  these  public  trusts  is  not  the  sub- 


342       AMERICAN  PLAN  OF  GOVERNMENT 

ject  of  barter  or  contract.  Whatever  license,  therefore, 
Chinese  laborers  may  have  obtained,  previous  to  the  act  of 
October  i,  1888,  to  return  to  the  United  States  after  their 
departure,  is  held  at  the  will  of  the  government,  revocable 
at  any  time,  at  its  pleasure.  Whether  a  proper  considera- 
tion by  our  government  of  its  previous  laws,  or  a  proper 
respect  for  the  nation  whose  subjects  are  affected  by  its 
action,  ought  to  have  qualified  its  inhibition  and  made  it 
applicable  only  to  persons  departing  from  the  country  after 
the  passage  of  the  act,  are  not  questions  for  judicial  deter- 
mination. If  there  be  any  just  complaint  on  the  part  of 
China,  it  must  be  made  to  the  political  department  of  our 
government,  which  alone  is  competent  to  act  upon  the 
subject. 

The  President  also  is  in  duty  bound  to  take  care  that 
the  laws  and  treaties  for  the  extradition  of  fugitives 
from  justice  be  faithfully  executed.  Upon  request  of 
any  foreign  country  with  which  we  are  on  good  terms, 
it  is  part  of  the  work  of  our  executive  magistrate  to 
arrest  and  deliver  up  any  foreign  criminals  who  have 
evaded  the  officers  of  justice  in  his  own  country.  Any 
international  treaty  which  provides  for  the  extradition 
of  escaped  offenders  is  a  part  of  the  supreme  law  of  the 
land  which  the  President  enforces.  Also,  when  the 
United  States  wishes  to  lay  hands  on  rascals  who  have 
escaped  from  its  jurisdiction,  the  chief  magistrate  at 
Washington  asks  for  their  arrest  and  surrender. 

In  the  case  of  Terlinden  vs.  Ames,^  the  German  Em- 
pire asked  the  United  States  to  surrender  one  Gerhard 
Terlinden  who,  after  committing  forgery  on  a  grand 
scale  in  Prussia,  had  escaped  to  the  United  States. 
Terlinden  was  arrested  in  Chicago  on  complaint  of  the 
imperial  consul  and  brought  before  a  commissioner  of 

» 184  U.  S.  Rep.,  270. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.   343 

the  United  States  Court,  who  ordered  that  he  be  held 
for  extradition.  The  rogue  then  petitioned  the  United 
States  Court  for  an  order  directing  his  release  upon  the 
ground  that  the  German  Empire  could  not  properly 
demand  his  surrender  to  Prussia  for  trial,  because  the 
treaty  of  1852  between  the  United  States  and  Prussia 
had  been  terminated  by  the  establishment  in  187 1  of  the 
German  Empire.  Therefore  he  claimed  that  there  was 
no  treaty  under  which  he  could  be  surrendered.  Chief 
Justice  Fuller,  who  gave  the  decision  of  the  court,  said : 

The  application  of  the  foreign  government  was  made 
through  the  proper  diplomatic  representative  of  the  German 
Empire,  .  .  .  and  the  complaint  before  the  commissioner 
was  made  by  the  proper  consular  authority  representing  the 
German  Empire.  .  .  .  We  concur  in  the  view  that  the 
question  whether  power  remains  in  a  foreign  State  to  carry 
out  its  treaty  obligations  is  in  its  nature  political  and  not 
judicial,  and  that  the  courts  ought  not  to  interfere  with  the 
conclusions  of  the  political  department  in  that  regard .... 
Extradition  may  be  sufficiently  defined  to  be  the  surrender 
by  one  nation  to  another  of  an  individual  accused  or  con- 
victed of  an  offence  outside  of  its  own  territory,  and  within 
the  territorial  jurisdiction  of  the  other,  which,  being  com- 
petent to  try  and  to  punish  him,  demands  his  surrender. 
.  .  .  If  it  be  assumed  .  .  .  that  the  commissioner,  on 
hearing,  deemed  the  evidence  sufficient  to  sustain  the 
charges,  and  certified  his  findings  and  the  testimony  to  the 
Secretary  of  State,  and  a  warrant  for  the  surrender  of  Ter- 
linden  on  the  proper  requisition  was  duly  issued,  it  cannot 
be  successfully  contended  that  the  courts  could  properly 
intervene  on  the  ground  that  the  treaty  under  which  both 
governments  had  proceeded,  had  terminated  by  reason  of 
the  adoption  of  the  constitution  of  the  German  Empire, 
notwithstanding  the  judgment  of  both  governments  to  the 
contrary.    The  decisions  of  the  Executive  Department  in 


344       AMERICAN  PLAN  OF  GOVERNMENT 

matters  of  extradition,  within  its  own  sphere,  and  in  ac- 
cordance with  the  Constitution,  are  not  open  to  judicial 
revision. 

Fugitives  from  justice,  brought  back  to  the  United 
States,  cannot  be  put  on  trial  for  any  offences  except 
those  stated  in  the  extradition  proceedings.  In  the  case 
of  United  States  vs.  Rauscher,  ^  tried  in  the  Federal  Court 
in  New  York  City,  William  Rauscher,  who  had  been 
surrendered  by  Great  Britain  to  be  tried  for  the  murder 
on  the  high  seas  of  a  man  named  Janssen,  was  indicted 
and  convicted  on  a  charge  of  cruel  treatment  of  the  same 
man.  Rauscher  at  once  petitioned  the  court  for  release 
on  the  ground  that  he  had  been  extradited  on  one 
charge  and  had  been  tried  on  another.  Justice  Miller 
sustained  his  contention,  saying: 

Upon  a  review  of  the  decisions  of  the  Federal  and  State 
courts,  to  which  may  be  added  the  opinions  of  the  distin- 
guished writers  which  we  have  cited  in  the  earlier  part  of 
this  opinion,  we  feel  authorized  to  state  that  the  weight  of 
authority  and  of  sound  principle  are  in  favor  of  the  proposi- 
tion, that  a  person  who  has  been  brought  within  the  juris- 
diction of  the  court  by  virtue  of  proceedings  under  an 
extradition  treaty,  can  only  be  tried  for  one  of  the  offences 
described  in  that  treaty,  and  for  the  offence  with  which  he 
is  charged  in  the  proceedings  for  his  extradition,  until  a 
reasonable  time  and  opportunity  have  been  given  him,  after 
his  release  or  trial  on  such  charge,  to  return  to  the  country 
from  whose  asylum  he  had  been  forcibly  taken  under  those 
proceedings. 

Art.  n.,  Sec.  4.  The  President,  Vice  President,  and 
all  civil  OfGlcers  of  the  United  States,  shall  be  removed 

*  1 19 U.S. Rep., 407. 


EXECUTIVE  GOVERNMENT  IN  THE  U.  S.   345 

from  Office  on  Impeachment  for,  and  Conviction  of, 
Treason,  Bribery,  or  other  high  Crimes  and  Misde- 
meanors. 

In  the  decision  of  the  case  of  Langford  vs.  The  United 
States,^  the  Supreme  Court  pointed  out  this  difference 
between  ours  and  other  forms  of  government :  that  the 
officers  of  the  United  States,  however  exalted,  are  them- 
selves accountable  for  their  misdeeds.  They  cannot 
shift  the  consequences  upon  their  subordinates.  Lang- 
ford,  as  assignee  of  the  American  Board  of  Commission- 
ers for  Foreign  Missions,  had  brought  action  against  the 
United  States  in  the  Court  of  Claims  upon  his  complaint 
that  certain  Indian  agents  had  taken  forcible  possession 
of  buildings  which  the  Board  had  erected  and  owned. 
The  claim  of  the  United  States  was  that  upon  the  old 
English  common  law  principle  that  the  king  can  do  no 
wrong,  the  government,  "in  taking  and  using  the  pro- 
perty of  an  individual  against  his  consent,  cannot  be 
guilty  of  ...  a  wrongful  act  for  which  it  is  answer- 
able to  a  court."  Justice  Miller  ruled  to  the  contrary, 
saying : 

It  is  not  easy  to  see  how  the  first  proposition  [that  the 
King  can  do  no  wrong]  can  have  any  place  in  our  system  of 
government.  We  have  no  king  to  whom  it  can  be  applied. 
The  President,  in  the  exercise  of  the  executive  functions, 
bears  a  nearer  resemblance  to  the  limited  monarch  of  the 
English  government  than  any  other  branch  of  our  govern- 
ment, and  is  the  only  individual  to  whom  it  could  possibly 
have  any  relation.  It  cannot  be  applied  to  him,  because 
the  Constitution  admits  that  he  may  do  wrong,  and  has 
provided,  by  the  proceeding  of  impeachment,  for  his  trial 
for  wrong-doing,  and  his  removal  from  office  if  found  guilty. 
None  of  the  eminent  counsel  who  defended  President  John- 

» 101  U.  S.  Rep.,  341. 


346      AMERICAN  PLAN  OF  GOVERNMENT 

son  on  his  impeachment  trial  asserted  that  by  law  he  was 
incapable  of  doing  wrong,  or  that,  if  done,  it  could  not,  as 
in  the  case  of  the  King,  be  imputed  to  him,  but  must  be  laid 
to  the  charge  of  the  ministers  who  advised  him.  It  is  to  be 
observed  that  the  English  maxim  does  not  declare  that  the 
government,  or  those  who  administer  it,  can  do  no  wrong; 
for  it  is  a  part  of  the  principle  itself  that  wrong  may  be  done 
by  the  governing  power,  for  which  the  ministry,  for  the 
time  being,  is  held  responsible;  and  the  ministers  personally, 
like  our  President,  may  be  impeached;  or  if  the  wrong 
amounts  to  a  crime,  they  may  be  indicted  and  tried  at  law 
for  the  offense.  We  do  not  understand  that  either  in  refer- 
ence to  the  government  of  the  United  States,  or  of  the 
several  States,  or  of  any  of  their  officers,  the  English  maxim 
has  an  existence  in  this  country. 


PART  vn 

Judicial  Government  in  the  United  States 


347 


CHAPTER  XX 

THE  GRANT  OF  JUDICIAL  POWER 

Art.  ni.,  Sec.  i.  The  judicial  Power  of  the  United 
States  shall  be  vested  in  one  supreme  Court,  and  in  such 
inferior  Courts  as  the  Congress  may  from  time  to  time 
ordain  and  establish.  The  Judges,  both  of  the  supreme 
and  inferior  Courts,  shall  hold  their  Offices  during 
good  Behaviour,  and  shall,  at  stated  Times,  receive  for 
their  Services,  a  Compensation,  which  shall  not  be 
diminished  during  their  Continuance  in  Office. 

In  April,  1851,  Justice  Nelson  of  the  Supreme  Court 
gave  a  definition  of  the  words  "judicial  power"  in  the 
course  of  a  special  charge  to  a  grand  jury, '  in  which  he 
said: 

The  judicial  power  mentioned  in  the  Constitution  and 
vested  in  the  courts,  means  the  power  conferred  upon 
courts  ordained  and  established  by  and  under  the  Con- 
stitution, in  the  strict  and  appropriate  sense  of  that  term 
— courts  that  compose  one  of  the  three  great  departments 
of  the  government  prescribed  by  the  fundamental  law 
the  same  as  the  other  two,  the  legislative  and  the  executive. 

The  jtidicial  Power  .  .  .  shall  be  vested  in  one  su- 
preme Court.  "  In  modern  times,  and  under  our  form  of 
government,"  said  Judge  McCabe  in  White  County 
Commissioners  vs.  Givin,'  "the  judicial  power  is  exer- 

'  Blatchford's  Rep.,  635,  643.  *  136  Indiana  Rep.,  562. 

349 


350       AMERICAN  PLAN  OF  GOVERNMENT  . 

cised  by  means  of  courts.  A  court  is  an  instrumen- 
tality of  government.  It  is  a  creation  of,  the  law,  and 
in  some  respects  it  is  an  imaginary  thing,  that  exists 
only  in  legal  contemplation,  very  similar  to  a  corpora- 
tion. A  time  when,  a  place  where,  and  the  persons 
by  whom  judicial  functions  are  to  be  exercised,  are 
essential  to  complete  the  idea  of  a  court.  It  is  in  its 
organized  aspect,  with  all  these  constituent  elements  of 
time,  place,  and  officers,  that  it  completes  the  idea  of  a 
court  in  the  general  legal  acceptance  of  the  term." 

A  "supreme  court"  contains  another  idea.  "The 
word  'supreme'  means  highest  in  the  sense  of  final  or 
last  resort,"  said  Judge  Dent  of  the  Supreme  Court 
of  West  Virginia  in  the  case  of  Koonce  vs.  DooUttle.^ 
"Here  all  litigation  must  end,  and  when  this  court  has 
once  finally  determined  a  question  it  has  no  power  to 
reopen  it. "  The  supreme  courts  of  States  are  courts  of 
last  resort  in  all  matters  reserved  to  the  States;  the 
Supreme  Court  of  the  United  States  is  the  final  author- 
ity in  all  federal  matters. 

The  judicial  power  of  the  United  States  is  something 
which  must  be  reckoned  with,  because  the  courts  of  the 
United  States  can  and  will  summon  all  the  civil  officers 
and  the  whole  military  power  of  the  People  of  the  United 
States  for  the  enforcement  of  their  orders  and  mandates. 
For  example,  within  twenty  years  after  the  Constitution 
had  been  adopted,  Pennsylvania  was  taught  in  a  very 
masterly  way  that  the  whole  power  of  the  richest  and 
perhaps  most  powerful  State  in  the  Union  wotild  have  to 
yield  before  the  simple  command  of  the  Supreme  Cotut 
of  the  United  States. 

This  lesson  was  given  by  a  decree  in  the  case  of  United 
States  vs.   Peters,'   in   which   United   States   District 

» 48  West  Va.  Rep.,  592.  '  3  Dallas'  Rep.,  135. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    351 

Judge  Peters  of  Philadelphia  was  directed  to  enforce  a 
judgment  of  his  court,  which  the  State  legislature  had 
ordered  the  governor  of  Pennsylvania  to  resist  by  military 
force  if  necessary.  This  conflict  of  authority  between  a 
great  State  of  the  United  States  and  the  Supreme  Court 
of  the  United  States  had  grown  out  of  an  incident  of  the 
War  for  Independence.  In  1776,  Gideon  Olmsted,  a 
Connecticut  ship  captain  on  a  trading  voyage  in  the 
West  Indies,  was  captvured  by  the  British  and  put  on 
board  a  sloop  of  war  bound  for  New  York  with  supplies 
for  Sir  William  Howe's  army.  Captain  Olmsted  and 
three  other  prisoners  below  the  decks  melted  their 
pewter  spoons  and  dishes  into  a  substitute  for  bullets, 
broke  open  the  hatches,  overpowered  the  captain  and 
crew  of  the  sloop,  and  drove  them  below  the  decks, 
where  they  had  to  stay  because  Olmsted  had  got 
possession  of  a  swivel  gun  and  trained  it  on  the  hatch- 
way. The  British  officer  and  his  men,  however,  did  not 
give  up  the  struggle.  On  the  contrary,  hoping  to  make 
the  vessel  unmanageable,  they  cut  a  hole  in  the  stern 
and  wedged  the  rudder.  After  two  days  of  hunger  and 
thirst,  however,  they  surrendered.  The  new  commander 
then  sailed  for  Egg  Harbor  on  the  New  Jersey  coast. 
Almost  in  sight  of  land,  he  was  overhauled  by  two  armed 
vessels — the  Convention,  owned  by  the  State  of  Penn- 
sylvania, and  the  Le  Gerard,  a  privateer.  The  captains 
of  the  vessels  were  sure  that  Olmsted's  story  of  having 
captured  this  ship  of  war  with  only  three  men  was  a 
pretense.  They  insisted  that  the  British  captain,  per- 
ceiving that  his  ship  was  sure  to  be  captured,  had  fixed 
up  a  scheme  with  Olmsted  to  let  him  appear  to  be  the 
captor,  and  later  divide  up  the  proceeds  of  the  prize 
sale. 

The  case  was  heard  in  the  Philadelphia  Admiralty 


352       AMERICAN  PLAN  OF  GOVERNMENT 

Court  which  decided  that  the  sloop  and  its  cargo  should 
be  sold,  and  that  Olmsted  should  have  one  fourth  of  the 
proceeds  of  the  sale,  the  balance  to  be  divided  between 
the  State  of  Pennsylvania  and  the  owners  of  the  Le 
Gerard.  Olmsted,  who  was  not  the  man  to  submit  to 
injustice,  promptly  appealed  to  a  committee  of  the 
Continental  Congress  which,  at  that  time,  constituted 
the  "United  States  Court  of  Commissioners  of  Appeals 
in  Admiralty  Cases."  In  September,  1778,  the  Com- 
missioners of  Appeals  reversed  the  decision  of  the 
Philadelphia  Admiralty  Court  and  directed  that  the 
captured  vessel  and  cargo  should  be  sold  and  the  pro- 
ceeds paid  over  to  Olmsted.  The  marshal  of  the  Phila- 
delphia court,  after  selling  the  property  for  £47,981. 
2s.  5d.  proclamation  money,  which  later  became  of 
some  value,  paid  over  that  sum,  not  to  Olmsted  but  to 
Judge  Ross  of  Philadelphia,  who  in  turn  handed  it  over 
to  David  Rittenhouse,  treasurer  of  Pennsylvania. 

In  1790,  Judge  Ross  died.  Olmsted  then  brought  an 
action  against  his  executors  to  recover  the  proceeds  of 
the  sale,  and  they  in  turn  sued  State  Treasurer  Ritten- 
house and  obtained  a  judgment,  which  he  did  not  see 
fit  to  pay. 

In  1795,  the  Supreme  Court  decided,  in  the  great  case 
of  Penhallow  vs.  Doane,  *  that  it  had  power  to  carry  out 
and  enforce  decisions  of  the  old  Court  of  Commissioners 
of  Appeals.  This  gave  Olmsted  another  chance.  He 
sued  Mrs.  Sergeant  and  Mrs.  Waters,  the  daughters  and 
heirs  of  Rittenhouse  who  had  died,  and  obtained  a 
judgment  against  them  in  the  United  States  District 
Court  at  Philadelphia.  This  judgment  contained  an 
order  by  which  the  two  ladies  were  commanded  to 
deliver  to  the  United  States  Marshal  the  certificates  of 

*  3  Dallas*  Rep.,  54. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    353 

public  debt  in  which  their  father  had  invested  the 
money  paid  over  to  him  by  Judge  Ross.  Then 
the  Pennsylvania  legislature  enacted  a  law  ordering  the 
certificates  to  be  turned  over  to  the  State  treasury,  and 
directing  the  governor  to  defend  the  Rittenhouse  heirs 
against  the  execution  of  any  process  issued  out  of 
the  national  courts.  Again  the  parties  stood  still  and 
looked  at  each  other,  because  Judge  Peters  quite  reason- 
ably did  not  wish  to  defy  the  State  of  Pennsylvania. 

In  1808,  however,  more  than  thirty  years  after  the 
trouble  began,  Olmsted  applied  again  to  the  Supreme 
Court  and  this  time  the  court  issued  an  order  command- 
ing Judge  Peters  to  enforce  the  judgment  against  the 
Rittenhouse  heirs.  He  obeyed,  but  when  the  United 
States  Marshal  went  to  the  house  where  Mrs.  Sergeant 
and  Mrs.  Waters  lived,  he  found  himself  barred  out  by 
the  State  militia  acting  under  the  orders  of  the  governor. 
As  nothing  could  be  done  at  the  moment,  the  marshal 
read  his  warrant,  made  a  speech,  and  went  back  to  re- 
port to  the  court.  He  then  named  a  day  four  weeks 
ahead  on  which  he  said  he  would  serve  the  warrant,  and 
issued  summonses  to  2,000  citizens  to  aid  him  as  a  posse 
comitatus  (a  company  of  persons  called  upon  to  aid  a 
public  officer). 

The  marshal's  act  brought  the  matter  to  a  point  where 
the  State  of  Pennsylvania  had  to  settle  the  case  or 
undertake  a  fight  against  the  whole  United  States. 
The  State  legislature  appropriated  a  sum  of  money, 
which  the  governor  paid.  Then  the  whole  matter  was 
dropped.  This  sounds  like  a  very  tame  ending,  but  it 
did  not  seem  so  at  the  time.  It  was  an  exhibition  of  the 
judicial  power  of  the  United  States  in  its  most  convinc- 
ing form.  No  second  example  has  had  to  be  made  in 
order  to  satisfy  every  one  that  a  mandate  of  the  Su- 
33 


354       AMERICAN  PLAN  OF  GOVERNMENT 

preme  Court  of  the  United  States  is  not  to  be  trifled 
with. 

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  he  diminished  during  their  Continuance 
in  Office.  A  judge  who  is  to  hold  his  office  as  long  as  he 
behaves  himself,  and  is  to  have  a  salary  which  cannot  be 
cut  down  while  he  is  in  office,  ought  to  feel  safe  from 
removal.  The  judges  of  all  the  United  States  courts 
now  feel  that  way,  but  it  was  not  always  so.  Samuel 
Chase  of  Maryland,  one  of  the  signers  of  the  Declaration 
of  Independence,  had  been  a  member  of  the  Colonial 
Congress,  and  had  served  on  the  old  Court  of  Appeals 
in  Admiralty  Cases.  President  Washington  had  made 
him  a  justice  of  the  Supreme  Court  in  1796.  It  was 
said  that  he  was  ill  tempered  on  the  bench,  and,  what 
the  friends  of  Mr.  Jefferson  resented  most,  he  was  an 
ardent  Federalist.  He  was  apparently  beyond  the 
reach  of  any  enemies  because  neither  peevishness  nor 
offensive  partizanship  could  be  considered  high  crimes 
and  misdemeanors  for  which  civil  officers  might  be 
removed  on  impeachment.  Nevertheless,  when  the 
Supreme  Court  had  handed  down  its  famous  decision 
in  Marbury  vs.  Madison,  ^  in  which  the  executive  depart- 
ment was  told  very  plainly  that  it  had  wrongfully  held 
up  the  commission  of  a  duly  appointed  government 
officer,  the  justices  and  especially  Justice  Chase  had 
reason  to  wish  they  had  been  more  prudent. 

Articles  of  impeachment  for  misconduct  in  office  were 
filed  against  Justice  Chase,  perhaps  because  it  was  sup- 
posed that  he,  being  unpopular,  could  be  removed  with- 
out much  public  disapproval.     Also,  it  was  openly  said 

»  I  Cranch's  Rep,,  165,     See  above. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    355 

that  other  judges  were  to  be  dealt  with  summarily  until 
the  make-up  of  the  Court  should  be  wholly  changed. 
The  Jeffersonians  could  have  carried  the  program 
through  if  they  had  chosen,  because  they  had  majorities 
in  both  Houses  of  Congress.  Judge  Chase,  however, 
escaped  removal  from  office,  though  the  vote  against 
him  in  the  Senate  was  unpleasantly  near  the  number 
required  by  law. 

In  1808,  John  Pickering,  a  District  Court  Judge  in 
New  Hampshire,  was  removed  for  wrongful  rulings  and 
intoxication  while  on  duty;  but  there  was  evidence  that 
he  was  insane  at  the  time.  In  1862,  Judge  Humphreys 
of  the  District  Court  of  Tennessee  was  impeached  for 
assisting  the  cause  of  the  South  in  the  Civil  War  by 
refusing  to  perform  his  duties  as  an  officer  of  the  United 
States.  In  1912,  Robert  W.  Archbald,  a  Circuit  Judge, 
who  had  been  designated  a  member  of  the  Commerce 
Court  (now  abolished),  was  turned  out  of  office  for  hav- 
ing made  improper  use  of  his  official  credit  and  accepting 
money  favors  which  might  have  influenced  his  conduct 
as  a  judge. 


CHAPTER  XXI 

JURISDICTION   OF  COURTS   OF  THE   UNITED   STATES 

Art.  m.,  Sec.  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,  imder  their 
Authority;  —  to  all  cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls;  —  to  all  Cases 
of  admiralty  and  maritime  Jurisdiction;  —  to  Con- 
troversies to  which  the  United  States  shall  be  a  Party; 

—  to  Controversies  between  two  or  more   States; 

—  between  a  State  and  Citizens  of  another 
State ;  —  between  Citizens  of  different  States ;  — 
between  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. 

Americans  are  justly  proud  of  the  great  system  of 
jurisprudence  which  five  generations  of  justices  of  the 
Supreme  Court  have  built  up  imder  the  authority  of 
this  clause  of  the  Constitution.  They  realize  that  the 
world  has  been  made  richer  by  a  distinct  addition  to  a 
science  which  is  most  necessary  for  the  preservation  of 
society. 

"This  'jurisprudence'  or  common  law,  in  some  na- 
tions," said  Judge  Porter  of  Louisiana  in  the  decision 

356 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    357 

of  Saul  vs.  His  Creditors,^  "is  found  in  the  decrees  of 
their  courts;  in  others,  it  is  furnished  by  private  indi- 
viduals, eminent  in  their  learning  and  integrity,  whose 
superior  wisdom  has  enabled  them  to  gain  the  proud 
distinction  of  legislating,  as  it  were,  for  their  country, 
and  enforcing  their  legislation  by  the  most  noble  of  all 
means; — that  of  reason  alone.  After  a  long  series  of 
years,  it  is  sometimes  difficult  to  say,  whether  these 
opinions  and  judgments  were  originally  the  effect 
of  principles  previously  existing  in  society,  or  whether 
they  were  the  cause  of  the  doctrines,  which  all  men  at 
last  recognize.  But  whether  the  one  or  the  other, 
when  acquiesced  in  for  ages,  their  force  and  effect  can- 
not be  distinguished  from  statutory  law.  No  civilized 
nation  has  been  without  such  a  system.  None,  it 
is  believed,  can  do  without  it;  and  every  attempt  to 
expel  it,  only  causes  it  to  return  with  increased  strength 
on  those,  who  are  so  sanguine  as  to  think  it  may  be 
dispensed  with. " 

The  judicial  Power  shall  extend.  These  words  de- 
clare that  the  courts  of  the  United  States  shall  have 
a  "jurisdiction"  or  right  to  judge.  "Jurisdiction," 
said  Chief  Justice  Beasley  of  New  Jersey  in  the  decision 
of  Munday  vs.  Vail,'  "may  be  defined  to  be  the  right  to 
adjudicate,  to  judge  concerning  the  subject  matter  in 
the  given  case.  To  constitute  this,  there  are  three 
essentials:  First.  The  court  must  have  cognizance 
of  the  class  of  cases  to  which  the  one  to  be  judged 
belongs.  Second.  The  proper  parties  must  be  present. 
And,  Third.  The  point  to  be  decided  must  be,  in  sub- 
stance and  effect,  within  the  issue.  That  a  court 
cannot  go  out  of  its  appointed  sphere,  and  that  its 

» 5  Martin's  (La)  N.  S.,  569,  582. 
*  34  New  Jersey  Law  Rep.,  418. 


358       AMERICAN  PLAN  OF  GOVERNMENT 

action  is  void  with  respect  to  persons  who  are  strangers 
to  its  proceedings,  are  propositions  established  by  miil- 
titudes  of  authorities. " 

The  judicial  Power  shall  extend  to  all  Cases,  .  .  . 
[and]  Controversies.  The  word  "cases"  in  this  clause 
of  the  Constitution  refers  to  the  nature  or  subject  mat- 
ter of  litigation  which  may  be  adjudicated  in  the  Federal 
courts;  and  the  word  "controversies"  is  used  when  per- 
sons or  parties  are  spoken  of  as  the  persons  or  parties 
arrayed  against  each  other.  In  his  opinion  in  the  case  of 
King  vs.  McLean  Asylum,^  Circuit  Judge  Putnam  said: 

The  appellees  rely  on  a  supposed  distinction  between  the 
use  of  the  word  "cases"  and  the  word  "controversies"  in 
the  section  of  the  Constitution  defining  the  federal  judicial 
power.  That  section  used  the  word  "cases"  in  the  first 
three  clauses,  namely,  "cases  in  law  and  equity,"  arising 
under  the  Constitution  and  the  laws  and  treaties  of  the 
United  States,  "cases  affecting  ambassadors,  other  public 
ministers  and  consuls,"  and  "cases  of  admiralty  and  mari- 
time jurisdiction."  So  far  it  has  relation  mainly,  although 
not  entirely,  to  the  subject  matter  of  the  litigation,  and  not 
to  the  parties  involved.  It  then  changes  to  the  word 
"controversies,"  and  uses  this  with  reference  to  "con- 
troversies to  which  the  United  States  shall  be  a  party," 
"to  controversies  between  two  or  more  States,  and  then, 
without  repeating  the  word,  continues  "between  a  State 
and  citizens  of  another  State;  between  citizens  of  different 
States;  between  citizens  of  the  same  State  claiming  lands 
under  grants  of  different  States,  and  between  a  State,  and 
citizens  thereof,  and  foreign  States,  citizens  or  subjects." 
.  .  .  The  change  under  consideration  from  the  word, 
"cases"  to  the  word  "controversies, "  will  be  found  to  have 
been  a  mere  matter  of  style,  and  to  have  no  relation  to  any 
limitation  or  extension  of  the  class  of  questions  to  be  ad- 

*  64  Federal  Reporter,  332,  335. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    359 

judicated.  As  we  have  already  said,  so  long  as  this  section 
of  the  Constitution  speaks  specially  with  reference  to  the 
nature  of  the  questions  involved,  it  uses  the  word  "cases," 
but,  when  it  considers  more  particularly  proceedings  having 
relation  to  the  existence  of  parties,  it  uses  the  word  "con- 
troversies, "  probably  because,  when  parties  are  spoken  of 
as  arrayed  against  each  other,  literary  style  suggested  the 
change." 

The  judicial  Power  shall  extend  to  all  Cases,  in  Law  and 
Equity.  When  the  Constitution  was  made,  "law" 
was  one  thing  and  "equity"  was  something  very 
different.  In  very  old  times  the  word  "  law  "  had  meant 
what  we  mean  by  the  word  "right."  A  man's  "law" 
was  a  part  of  his  property.  It  was  an  imaginary  thing 
which  he  owned  and  possessed  against  all  the  world. 
■Whatever  land  he  occupied  was  his  by  his  "law"  or 
property  right.  He  possessed  a  "law"  or  right  to 
defend  himself  and  his  family  against  the  violence  of 
others.  Lawsuits  had  to  be  decided  when  one  man's 
"law"  or  right  conflicted  with  some  other  man's  real 
or  supposed  "law"  or  right.  For  example,  if  one  man 
thought  it  was  his  "law"  or  right  to  occupy  a  farm 
which  another  man  held  and  occupied,  he  would  go 
upon  the  land  and  pick  up  a  twig  or  some  other  trifle 
as  a  way  of  claiming  that  it  was  his  "law"  to  have  the 
land.  The  other  man,  by  interfering,  would  assert  a 
conflicting  "law"  or  right. 

In  old  times,  disputes  of  this  sort  were  settled  by  all 
the  people  in  their  tribal  assemblies.  Each  party  to 
the  lawsuit  brought  witnesses  to  swear  that  it  was  his 
"law"  or  right  to  possess  the  land.  These  witnesses 
were  sworn  and  thus  were  called  "jurors"  from  the 
Latin  word  jur are,  which  means  "to  swear."  Appar- 
ently the  land  went  to  the  one  who  presented  the  larger 


36o       AMERICAN  PLAN  OF  GOVERNMENT 

number  of  jurors.  Later  on,  the  jurors  became  judges 
of  all  the  circumstances  which  ought  rightly  to  be  con- 
sidered in  deciding  lawsuits.  Thus  it  came  about  that 
a  lawsuit  or  a  "case  in  law,"  as  this  clause  puts  it, 
meant  a  case  which  had  to  be  tried  by  a  jury. 

A  "case  in  equity,"  on  the  other  hand,  means  a  case 
which  is  decided  by  a  judge  alone.  The  technicalities 
and  formalities,  which  had  been  invented  to  protect  the 
weak  or  ignorant  from  the  strong  and  clever,  often  had 
made  the  process  of  justice  a  cruel  practical  joke. 
Those  who  had  the  right  in  a  controversy  often  had 
been  denied  justice.  English  kings  had  tried  to  remedy 
this  evil  by  holding  what  were  called  "equity"  courts, 
in  which  the  rules  of  law  were  suspended  and  the 
decisions  were  dictated  by  the  royal  conscience.  New 
rules  and  many  of  them  were  soon  adopted;  and,  in  the 
end,  it  was  doubtful  whether  the  suitor  in  equity  was 
not  more  unfortunate  than  the  suitor  at  law. 

Each  of  these  ways  of  administering  justice  was  in 
force  throughout  the  United  States  when  the  Constitu- 
tion was  framed.  The  Americans  of  that  day  were 
accustomed  to  courts  in  which  cases  in  law  and  cases 
in  equity  were  heard  and  decided.  Hence,  because  it 
was  the  natural  thing  to  do,  they  gave  the  courts  of 
the  new  constitutional  government  power  to  judge  cases 
of  both  kinds.  Although  abolished  in  nearly  all  the 
States,  the  distinction  between  law  and  equity  has  been 
retained  in  the  Federal  courts. 

The  difference  between  a  case  in  law  and  a  case  in 
equity  was  explained  by  the  Supreme  Court  of  Wiscon- 
sin in  the  case  of  Callanan  vs.  Judd,  ^  decided  in  1868,  an 
action  to  foreclose  a  mortgage.  Judd  had  given  a  mort- 
gage upon  his  property  at  Fox  Lake,  Wisconsin,  to  the 

» 23  Wisconsin  Rep.,  343,  349. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    361 

La  Crosse  and  Milwaukee  Railroad  Company  in  return 
for  a  promise  that  the  railroad  would  be  built  through  the 
village  and  the  station  so  located  as  to  increase  the  value 
of  the  rest  of  his  property.  As  often  happened  in  those 
boom  times,  the  railroad  went  somewhere  else,  but  Mr. 
Judd  had  been  called  upon  to  pay  the  mortgage  or  lose 
his  property.  The  legislature  of  Wisconsin  had  enacted 
a  law  requiring  the  trial  by  a  jury  of  all  actions  to  fore- 
close mortgages  in  which  the  defense  was  that  the  mort- 
gage had  been  paid  or  that  no  consideration  in  money 
had  been  given  to  the  maker.  The  law  was  intended  to 
cover  cases  in  which  the  mortgagees  had  been  swindled. 
The  jury  had  decided  this  case  in  favor  of  the  defendant, 
and  an  appeal  had  been  taken  which  presented  this 
question:  Can  an  action  to  foreclose  a  mortgage,  which 
is  an  action  in  equity,  be  tried  by  a  jury  under  a  statute 
which  so  provides?  The  decision  of  the  Supreme  Court 
of  Wisconsin  in  this  case  had  hinged  upon  the  meaning 
of  the  clause  in  the  State  constitution,  which  provided 
that  "  the  judicial  power  of  this  State,  both  as  to  matters 
of  law  and  equity,  shall  be  vested  in  a  supreme  court, 
circuit  courts,  courts  of  probate  and  justices  of  the 
peace."    Judge  Paine  said: 

In  order  to  determine  the  meaning  of  the  phrase  "judicial 
power  as  to  matters  of  law  and  equity, "  it  is  only  necessary 
to  recur  to  the  system  of  jurisprudence  established  in  this 
country  and  derived  from  England,  in  which  the  courts  had 
certain  well-defined  powers  in  those  two  classes  of  actions. 
In  actions  at  law  they  had  the  power  of  determining  ques- 
tions of  law,  and  were  required  to  submit  questions  of  fact 
to  a  jury.  When  the  constitution,  therefore,  vests  in  certain 
courts  judicial  power  in  matters  at  law,  this  would  be  con- 
strued as  vesting  such  power  as  the  courts,  under  the 
English  and  American  systems  of  jurisprudence,  had  always 


362       AMERICAN  PLAN  OF  GOVERNMENT 

exercised  in  that  class  of  actions.  It  would  not  import 
that  they  were  to  decide  questions  of  fact,  because  such  was 
not  the  judicial  power  in  such  actions .... 

Under  the  old  equity  system,  the  chancellor  might  at 
any  time  refer  questions  of  fact  to  a  jury,  but  it  was  merely 
to  inform  his  conscience.  He  might,  if  he  saw  fit,  disregard 
their  verdict,  and  take  it  upon  himself  to  dispose  of  the 
questions  of  fact  absolutely,  as  he  could  have  done  in  the 
first  instance. 

The  judicial  Power  shall  extend  to  all  Cases  .  .  . 
arising  under  this  Constitution,  [and]  the  Laws  of  the  United 
States.  A  case  under  the  Constitution  of  the  United 
States  arises  when  a  State  makes  a  law  which  the  Con- 
stitution forbids.  In  the  case  of  Dartmouth  College  vs. 
Woodward,^  the  story  of  which  already  has  been  told, 
one  question  before  the  Supreme  Court  was  whether 
a  case  under  the  Constitution  of  the  United  States  arose 
when  the  State  of  New  Hampshire  passed  a  law  which 
impaired  the  obligation  of  a  contract  contained  in  the 
charter  granted  by  King  George  the  Third  to  Dart- 
mouth College.    Chief  Justice  Marshall  said: 

The  single  question  now  to  be  considered  is,  do  the  acts 
to  which  the  verdict  refers  violate  the  Constitution  of  the 
United  States?  .  .  .  On  more  than  one  occasion,  this 
Court  .  .  .  has  declared  that,  in  no  doubtful  case,  would 
it  pronounce  a  legislative  act  to  be  contrary  to  the  Constitu- 
tion. But  the  American  people  have  said,  in  the  Constitu- 
tion of  the  United  States,  that  "no  State  shall  pass  any  bill 
of  attainder,  ex  post  facto  law,  or  law  impairing  the  obli- 
gation of  contracts."  In  the  same  instrument  they  have 
also  said,  "that  the  judicial  power  shall  extend  to  all  cases 
in  law  and  equity  arising  under  the  Constitution. "  On  the 
judges  of  this  Court,  then,  is  imposed  the  high  and  solemn 

*  4  Wheaton's  Rep.,  518.    See  above. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    363 

duty  of  protecting,  even  from  legislative  violation,  those 
contracts  which  the  Constitution  of  our  country  has  placed 
beyond  legislative  control;  and,  however  irksome  the  task 
may  be,  this  is  a  duty  from  which  we  dare  not  shrink. 

A  case  under  the  Constitution  and  laws  of  the 
United  States  arises  when  a  State  makes  a  law  which  is 
inconsistent  with  and  repugnant  to  a  valid  law  of  the 
United  States.  Justice  Paterson  of  the  Supreme  Court, 
who  as  a  member  of  the  Constitutional  Convention  had 
been  one  of  the  most  ardent  supporters  of  the  rights 
of  the  smaller  States,  presided  as  circuit  judge  at  the 
trial,  in  1795,  of  the  great  case  of  Van  Home  vs.  Dor- 
rance,^  the  report  of  which  begins  with  these  quaint 
words:  "This  was  a  cause  of  great  expectation  involv- 
ing several  important  questions  of  constitutional  law.  '* 
One  of  the  questions  in  that  case  was  whether  the  words 
which  extend  the  judicial  power  to  "  a  case  arising  under 
the  Constitution  and  laws  of  the  United  States"  mean 
that  the  Supreme  Court  can  set  aside  a  State  law  which 
is  inconsistent  with  a  national  law.  Justice  Paterson 
said  in  his  charge  to  the  jury: 

I  take  it  to  be  a  clear  position;  that  if  a  legislative  act 
oppugns  a  constitutional  principle,  the  former  must  give 
way,  and  be  rejected  on  the  score  of  repugnance.  I  hold 
it  to  be  a  position  equally  clear  and  sound,  that,  in  such  case, 
it  will  be  the  duty  of  the  court  to  adhere  to  the  Constitution 
and  to  declare  the  act  null  and  void.  The  Constitution  is 
the  basis  of  legislative  authority;  it  lies  at  the  foundation 
of  all  law,  and  is  a  rule  and  commission  by  which  both 
legislators  and  judges  are  to  proceed. 


In  the  case  of  McCuUoch  vs.  Maryland,"  the  following 
facts  appeared.     In  April,  1816,  Congress  had  incor- 

, » 2  Dallas'  Rep.,  304.  '  4  Wheaton's  Rep.,  316,  425,  426. 


364       AMERICAN  PLAN  OP  GOVERNMENT 

porated  the  Bank  of  the  United  States.  A  branch  of 
the  bank  had  been  established  at  Baltimore  in  1817 ;  and 
in  1 818,  the  legislature  of  Maryland  had  passed  a  law 
which  imposed  a  tax  upon  the  operations  in  that  State 
of  all  banks  not  chartered  by  its  legislature.  The  Balti- 
more branch  of  the  Bank  had  refused  to  pay  this  tax. 
Suit  had  been  brought  in  the  State  courts  against  Mr. 
McCuUoch,  the  cashier.  The  State  courts  had  sus- 
tained the  law.  The  case  then  had  been  taken  to  the 
Supreme  Court  of  the  United  States  upon  the  ground 
that  the  State  taxing  law  was  repugnant  to  the  Con- 
stitution of  the  United  States,  and  ought  to  be  declared 
null  and  void  by  the  highest  court  of  justice  of  the 
nation.    Chief  Justice  Marshall  said : 

That  the  power  of  taxation  is  one  of  vital  importance ;  that 
it  is  retained  by  the  States;  that  it  is  to  be  concurrently 
exercised  by  the  two  governments;  are  truths  which  have 
never  been  denied.  But,  such  is  the  paramount  character 
of  the  Constitution,  that  its  capacity  to  withdraw  any  sub- 
ject from  the  action  of  even  this  power  is  admitted.  .  .  . 
On  this  ground,  the  counsel  for  the  bank  place  its  claim  to 
be  exempted  from  the  power  of  a  State  to  tax  its  operations. 
There  is  no  express  provision  for  the  case;  but  the  claim  has 
been  sustained  on  a  principle  which  so  entirely  pervades  the 
constitution,  is  so  intermixed  with  the  materials  which 
compose  it,  so  interwoven  with  its  web,  so  blended  with  its 
texture,  as  to  be  incapable  of  being  separated  from  it  with- 
out rending  it  into  shreds.  The  great  principle  is,  that  the 
Constitution  and  the  laws  made  in  pursuance  thereof  are 
supreme;  that  they  control  the  constitution  and  laws  of  the 
respective  States,  and  cannot  be  controlled  by  them. 

In  the  case  of  Brown  vs.  Maryland,^  the  Supreme 
Court  nullified  as  inconsistent  with  the  national  cus- 
'  12  Wheaton's  Rep.,  419. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    365 

toms  laws,  a  State  law  imposing  a  tax  upon  importers. 

The  Supreme  Court  decided  in  Dobbins  vs.  Erie 
County,  *  that  a  State  could  not  compel  an  official  of  the 
United  States  to  pay  a  tax  upon  his  salary,  because  the 
local  taxing  law  conflicted  with  the  national  statute 
which  entitled  him  to  receive  for  his  services  a  specified 
compensation. 

In  the  Passenger  Cases,'  the  Supreme  Court  set  aside, 
because  of  inconsistency  with  the  laws  of  the  nation  for 
the  regulation  of  commerce,  a  State  law  which  compelled 
captains  of  vessels  to  pay  a  head-money  tax  on  the 
immigrants  they  brought  to  this  country. 

In  the  case  of  Barron  vs.  Burnside,^  the  Supreme 
Court  declared  unconstitutional  and  void  an  Iowa  law 
which  required  all  foreign  corporations,  before  doing 
business  in  that  State,  to  stipulate  not  to  remove  to 
the  Federal  courts  certain  kinds  of  actions  to  which 
they  might  be  made  parties.  The  justices  said  this 
statute  was  inconsistent  with  the  laws  of  the  United 
States  giving  to  the  national  courts  jurisdiction  in  those 
actions. 

A  case  under  the  Constitution  also  arises  whenever 
Congress  makes  a  law  which  it  has  no  constitutional 
power  to  enact. 

John  Marshall,  Chief  Justice  of  the  United  States 
from  1801  to  1835,  explained  in  his  opinion  in  the  case  of 
Marbury  vs.  Madison,^  just  how  the  courts  of  the 
United  States  must  deal  with  an  unconstitutional 
national  law.    He  said: 

If  an  act  of  the  legislature  [Congress]  repugnant  to  the 
Constitution,  is  void,  does  it,  notwithstanding  its  invalidity 

*  16  Peters'  Rep.,  435.  » 7  Howard's  Rep.,  283. 

» 121  U.  S.  Rep.,  186.  M  Cranch's  Rep.,  137. 


366       AMERICAN  PLAN  OF  GOVERNMENT 

bind  the  courts,  and  oblige  them  to  give  it  effect  ?  Or,  in 
other  words,  though  it  be  not  law,  does  it  constitute  a  rule 
as  operative  as  if  it  was  a  law?  This  would  be  to  overthrow 
in  fact  what  was  established  in  theory;  and  would  seem,  at 
first  view,  an  absurdity  too  gross  to  be  insisted  on.  It 
shall,  however,  receive  a  more  attentive  consideration. 
It  is  emphatically  the  province  and  duty  of  the  judicial 
department  to  say  what  the  law  is.  Those  who  apply  the 
rule  to  particular  cases,  must  of  necessity  expound  and 
interpret  that  rule.  If  two  laws  conflict  with  each  other, 
the  courts  must  decide  on  the  operation  of  both.  So  if  a 
law  be  in  opposition  to  the  Constitution;  if  both  the  law  and 
the  Constitution  apply  to  a  particular  case,  so  that  the 
Court  must  either  decide  that  case  conformably  to  the  law, 
disregarding  the  Constitution,  or  conformably  to  the  Con- 
stitution, disregarding  the  law,  the  Court  must  decide 
which  of  these  conflicting  rules  governs  the  case.  This  is 
of  the  very  essence  of  judicial  duty. 

This  was  strong  doctrine;  but,  in  1819,  in  the  course 
of  his  opinion  in  the  case  of  McCulloch  vs.  Maryland,^ 
the  great  chief  justice  made  it  stronger  still  by  saying: 

Should  Congress,  in  execution  of  its  powers,  adopt 
measures  which  are  prohibited  by  the  Constitution;  or 
should  Congress,  under  the  pretext  of  executing  its  powers, 
pass  laws  for  the  accomplishment  of  objects  not  intrusted 
to  the  government,  it  would  become  the  painful  duty  of 
this  tribunal,  should  a  case  requiring  such  a  decision  come 
before  it,  to  say  that  such  an  act  was  not  the  law  of  the 
land. 

In  1857,  in  the  case  of  Dred  Scott  vs.  Sanjord,'  the 
Supreme  Court  decided  that,  in  passing  the  Missouri 
Compromise  Act  of  1821,  which  had  limited  the  spread 

»  4  Wheaton's  Rep.  316,  423. 

'  19  Howard's  Rep.,  393.    See  pp.  27-8  above. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    367 

of  slavery,  Congress  had,  "under  pretext  of  executing 
its  powers,"  passed  a  law  "for  the  accompHshment 
of  objects  not  entrusted  to  the  government."  Chief 
Justice  Taney,  speaking  for  himself  and  five  others  of 
the  nine  justices,  decided  that  the  Missouri  Compromise 
Act  was  unconstitutional  because  Congress  had  had  no 
power  to  enact  a  law  which  took  away  the  master's 
right  of  property  in  a  slave,  that  had  been  taken  into 
free  territory.    He  said: 

The  powers  of  the  government  [of  the  United  States], 
and  the  rights  of  the  citizen  under  it,  are  positive  and  prac- 
tical regulations  plainly  written  down.  The  people  of  the 
United  States  have  delegated  to  it  certain  enumerated 
powers,  and  forbidden  it  to  exercise  others.  It  has  no 
power  over  the  person  or  property  of  a  citizen  but  what  the 
citizens  of  the  United  States  have  granted.  And  no  laws 
or  usages  of  other  nations,  or  reasoning  of  statesmen  or 
jurists  upon  the  relations  of  master  and  slave,  can  enlarge 
the  powers  of  the  government,  or  take  from  the  citizens  the 
rights  they  have  reserved.  And  if  the  Constitution  recog- 
nizes the  right  of  property  of  the  master  in  a  slave  and 
makes  no  distinction  between  that  description  of  property 
and  other  property  owned  by  a  citizen,  no  tribunal,  acting 
under  the  authority  of  the  United  States,  whether  it  be 
legislative,  executive,  or  judicial,  has  a  right  to  draw  such  a 
distinction,  or  deny  to  it  the  benefit  of  the  provisions  and 
guarantees  which  have  been  provided  for  the  protection  of 
private  property  against  the  encroachments  of  the  govern- 
ment ....  Upon  these  considerations,  it  is  the  opinion 
of  the  Court  that  the  act  of  Congress  [Missouri  Com- 
promise], which  prohibited  a  citizen  from  owning  and 
holding  property  of  this  kind  in  the  territory  of  the 
United  States  north  of  the  line  therein  mentioned.  Is  not 
warranted  by  the  Constitution,  and  Is  therefore  void;  and 
that  neither  Dred  Scott  himself,  nor  any  of  his  family  were 


368       AMERICAN  PLAN  OF  GOVERNMENT 

made  free  by  being  carried  into  this  territory;  even  if  they 
had  been  carried  there  by  the  owner,  with  the  intention  of 
becoming  a  permanent  resident. 

From  the  beginning  until  the  end  of  the  Civil  War, 
the  People  of  the  United  States  dealt  with  governmental 
problems  as  well  as  they  could,  but  without  much 
regard  to  constitutional  limitations.  Their  chief  task 
then  was  to  keep  the  Union  intact  in  one  way  or  another 
and  settle  questions  of  regularity  afterward.  The  press- 
ing problem  was  to  equip,  feed,  and  pay  the  Union 
army.  In  1863,  when  hard  money  was  not  to  be  had, 
Congress  solved  this  problem  by  making  a  law  under 
which  paper  dollars  were  printed,  issued  by  the  million, 
and  made  a  legal  tender  for  the  payment  of  debts. 
The  Constitution  nowhere  says  that  Congress  may  make 
laws  for  the  issuance  of  paper  money,  and  many  mem- 
bers of  the  Constitutional  Convention  had  said  that  the 
Constitution  did  not  confer  any  such  power.  Never- 
theless, our  people  accepted  the  Civil  War  "shin- 
plaster"  currency  and  were  glad  to  get  it,  because  paper 
money  was  better  than  none.  In  December,  1869, 
however,  the  power  of  Congress  to  pass  the  paper- 
money  law  was  challenged  in  the  case  of  Hepburn  vs. 
Griswoldy^  and  the  justices  of  the  Supreme  Court  de- 
clared the  act  unconstitutional.  The  Supreme  Court 
had  not  then  fully  recovered  the  popularity  it  had  lost 
by  its  decision  in  the  Dred  Scott  case.  Its  power  to 
annul  and  set  aside  a  law  of  Congress  for  unconstitu- 
tionality, which  had  been  exercised  only  in  the  case  of 
Marbury  vs.  Madison,'  in  which  the  decision  had  not 
been  enforced,  and  in  the  Dred  Scott  case,  ^  in  which  the 

»  8  Wallace's  Rep.,  603.  '  Vide  supra. 

3  Vide  supra. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    369 

decision  was  regarded  as  indefensibly  wrong,  was  not 
generally  conceded.  But  Chief  Justice  Taney  was 
dead,  and  his  successor,  Salmon  P.  Chase  of  Ohio,  was 
a  tried  and  trusted  supporter  of  the  Union.  Hence, 
this  decision,  setting  aside  another  national  law,  was 
received  respectfully.    Chief  Justice  Chase  said: 

It  is  not  necessary  ...  in  order  to  prove  the  existence 
of  a  particular  authority  to  show  a  particular  and  express 
grant.  The  design  of  the  Constitution  was  to  establish  a 
government  competent  to  the  direction  and  administration 
of  the  affairs  of  a  great  nation.  To  this  end  it  was  needful 
only  to  make  express  grants  of  general  powers,  coupled  with 
a  further  grant  of  such  incidental  and  auxiliary  powers  as 
might  be  required  for  the  exercise  of  the  powers  expressly 
granted.  These  powers  are  necessarily  extensive.  It  has 
been  found,  indeed,  in  the  practical  administration  of  the 
government,  that  a  very  large  part,  if  not  the  largest  part, 
of  its  functions  have  been  performed  in  the  exercise  of 
powers  thus  implied ....  All  powers  of  this  nature  are 
included  under  the  description  of  "power  to  make  all  laws 
necessary  and  proper  for  carrying  into  execution  the  powers 
expressly  granted  to  Congress  or  vested  by  the  Constitution 
in  the  government  or  in  any  of  its  departments  or  ofificers. " 

It  must  be  taken . .  .  .as  finally  settled,  so  far  as  judicial 
decisions  can  settle  anything,  that  the  words  "all  laws 
necessary  and  proper  for  carrying  into  execution"  powers 
expressly  granted  or  vested,  have,  in  the  Constitution,  a 
sense  equivalent  to  that  of  the  words,  laws,  not  absolutely 
necessary  indeed,  but  appropriate,  plainly  adapted  to 
constitutional  and  legitimate  ends ;  laws  not  prohibited,  but 
consistent  with  the  letter  and  spirit  of  the  Constitution; 
laws  really  calculated  to  effect  objects  intrusted  to  the 
government. 

We  are  obliged  to  conclude  that  an  act  making  mere 
promises  to  pay  dollars  a  legal  tender  in  payment  of  debts 


370      AMERICAN  PLAN  OF  GOVERNMENT  . 

previously  contracted,  is  not  a  means  appropriate,  plainly 
adapted,  really  calculated  to  carry  into  effect  any  express 
power  vested  in  Congress;  that  such  an  act  is  inconsistent 
with  the  spirit  of  the  Constitution;  and  that  it  is  prohibited 
by  the  Constitution. 

In  December,  1870,  only  a  year  later,  the  Supreme 
Court,  with  two  new  men  on  the  bench,  changed  its 
mind,  in  the  Legal  Tender  Cases y  ^  and  decided  that  this 
very  Legal  Tender  act  was  constitutional.  The  four 
justices  who  had  said  the  law  was  void  were  now  out- 
voted.    The  majority  opinion  reads: 

That  would  appear  ...  to  be  a  most  unreasonable  con- 
struction of  the  Constitution  which  denies  to  the  government 
created  by  it,  the  right  to  employ  freely  every  means,  not 
prohibited,  necessary  for  its  preservation,  and  for  the  ful- 
filment of  its  acknowledged  duties.  Such  a  right,  we  hold, 
was  given  by  the  last  clause  of  the  eighth  section  of  the 
first  article.  The  means  or  instrumentalities  referred  to  in 
that  clause,  and  authorized  are  not  enumerated,  or  defined. 
In  the  nature  of  things  enumeration  and  specification  were 
impossible.  But  they  were  left  to  the  discretion  of  Congress 
subject  only  to  the  restrictions  that  they  be  not  prohibited, 
and  be  necessary  and  proper  for  carrying  into  execution  the 
enumerated  powers  given  to  Congress,  and  all  other  powers 
vested  in  the  government  of  the  United  States,  or  in  any 
department  or  officer  thereof .... 

We  are  not  aware  of  anything  else  which  has  been  ad- 
vanced in  support  of  the  proposition  that  the  legal  tender 
acts  were  forbidden  by  either  the  letter  or  the  spirit  of  the 
Constitution.  If,  therefore,  they  were,  what  we  have 
endeavored  to  show,  appropriate  means  for  legitimate  ends, 
they  were  not  transgressive  of  the  authority  vested  in 
Congress. 

*  12  Wallace's  Rep.,  457,  531,  533,  552. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    371 

'  .  In  1894,  the  Supreme  Court  again  set  aside  a  national 
law.  Congress  had  enacted  a  law  imposing  taxes  upon 
incomes.  It  was  then  generally  supposed  that  such 
taxes  were  included  among  the  "excises,"  authorized 
by  the  Art.  I.,  Sec.  8.,  of  the  Constitution,  Indeed,  the 
Supreme  Court  had  so  ruled  in  the  case  of  Springer  vs. 
United  States.^  The  constitutionality  of  income  taxa- 
tion, however,  was  challenged  in  the  case  of  Pollock  vs. 
Farmers  Loan  and  Trust  Co.,  ^  upon  the  ground  that  a  tax 
upon  incomes  derived  in  part  from  rents  of  real  estate, 
not  apportioned  to  the  States  according  to  population, 
was  such  a  direct  tax,  as,  under  the  provisions  of  the 
ninth  section  of  the  first  article  of  the  Constitution, 
Congress  was  forbidden  to  enact.  Chief  Justice  Fuller, 
after  reviewing  the  history  of  the  clause  forbidding 
direct  taxes  not  apportioned  to  the  States  in  proportion 
to  population,  said : 

Thus  was  accomplished  one  of  the  great  compromises 
of  the  Constitution,  resting  on  the  doctrine  that  the  right  of 
representation  ought  to  be  conceded  to  every  community 
on  which  a  tax  is  to  be  imposed,  but  crystallizing  it  in  such 
form  as  to  allay  jealousies  in  respect  of  the  future  balance 
of  power;  to  reconcile  conflicting  views  in  respect  of  the 
enumeration  of  slaves;  and  to  remove  the  objection  that,  in 
adjusting  a  system  of  representation  between  the  States, 
regard  should  be  had  to  their  relative  wealth,  since  those 
who  were  to  be  most  heavily  taxed  ought  to  have  a  propor- 
tionate influence  in  the  government.  The  compromise,  in 
embracing  the  power  of  direct  taxation,  consisted  not 
simply  in  including  part  of  the  slaves  in  the  enumeration 
of  population,  but  in  providing  that  as  between  State 
and  State,  such  taxation  should  be  proportioned  to  repre- 
sentation. .  .  . 

*  102  U.  S.'Rep.,  596.  *  157  U.  S.  Rep.,  429. 


372       AMERICAN  PLAN  OF  GOVERNMENT 

It  is  apparent :  i.  That  the  distinction  between  direct 
and  indirect  taxation  was  well  understood  by  the  framers 
of  the  Constitution  and  those  who  adopted  it.  2.  That 
under  the  State  systems  of  taxation  all  taxes  on  real  estate 
or  personal  property  or  the  rents  or  income  thereof  were 
regarded  as  direct  taxes.  3.  That  the  rules  of  apportion- 
ment and  of  uniformity  were  adopted  in  view  of  that 
distinction  and  those  systems.  ...  5.  That  the  original 
expectation  was  that  the  power  of  direct  taxation  would  be 
exercised  only  in  extraordinary  exigencies,  and  down  to 
August  15,  1894  [the  date  of  the  income  tax  law  under 
consideration],  this  expectation  has  been  realized.  The  act 
of  that  date  was  passed  in  a  time  of  profound  peace,  and  if 
we  assume  that  no  special  exigency  called  for  unusual 
legislation,  and  that  resort  to  this  mode  of  taxation  is  to 
become  an  ordinary  and  usual  means  of  supply,  that 
fact  furnishes  an  additional  reason  for  circumspection 
and  care  in  disposing  of  this  case.  .  .  . 

The  requirement  of  the  Constitution  is  that  no  direct  tax 
shall  be  laid  otherwise  than  by  apportionment — the  pro- 
hibition is  not  against  direct  taxes  on  land,  from  which  the 
implication  is  sought  to  be  drawn  that  indirect  taxes  on  land 
would  be  constitutional,  but  it  is  against  all  direct  taxes — 
and  it  is  admitted  that  a  tax  on  real  estate  is  a  direct  tax. 
.  .  .  An  annual  tax  upon  the  annual  value  or  annual 
user  of  real  estate  appears  to  us  the  same  in  substance  as  an 
annual  tax  on  the  real  estate,  which  would  be  paid  out  of  the 
rent  or  income.  .  .  . 

We  are  of  opinion  that  the  law  in  question,  so  far  as  it 
levies  a  tax  on  the  rents  or  income  of  real  estate,  is  in  vio- 
lation of  the  Constitution,  and  is  invalid. 

The  Supreme  Court  no  longer  offers  more  or  less 
apologetic  explanations  when  it  sets  aside  a  national 
law  for  inconsistency  with  the  Constitution.  In  the 
decision  of  a  majority  of  the  justices  in  the  Employers' 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    373 

Liability  Case,^  handed  down  in  1907,  for  example. 
Chief  Justice  White  said  that  the  court  was  in  duty- 
bound  to  annul  the  Employers'  Liability  Act  of  1906, 
because  it  regulated  the  persons  who  engage  in  interstate 
commerce,  and  did  not  regulate  the  business  of  inter- 
state commerce.     He  said: 

The  act  .  .  .  being  addressed  to  all  common  carriers 
engaged  in  interstate  commerce,  and  imposing  a  liability 
upon  them  in  favor  of  any  of  their  employes,  without  quali- 
fication or  restriction  as  to  the  business  in  which  the  carriers 
or  their  employes  may  be  engaged  at  the  time  of  the  injury, 
of  necessity  includes  subjects  wholly  outside  of  the  power  of 
Congress  to  regulate  commerce.    .    .    . 

Concluding,  as  we  do,  that  the  statute,  whilst  it  embraces 
subjects  within  the  authority  of  Congress  to  regulate  com- 
merce, also  includes  subjects  not  within  its  constitutional 
power,  and  that  the  two  are  so  interblended  in  the  statute 
that  they  are  incapable  of  separation,  we  are  of  opinion  that 
the  courts  below  rightly  held  the  statute  to  be  repugnant 
to  the  Constitution. 

Our  courts  construe  and  interpret  the  laws  whenever 
there  is  any  doubt  about  either  meaning  or  application. 
Therefore  it  is  needful  to  know  exactly  what  is  meant 
by  construction  and  interpretation  of  law;  also  by  what 
right  the  justices  of  the  Supreme  Court  construe  and 
interpret  the  laws. 

These  points  were  discussed  by  Chief  Justice  Jones 
of  the  Supreme  Court  of  Washington  Territory  in  the 
case  of  Bloomer  vs.  Todd,"*  in  which  the  question  was 
whether  a  law  of  the  legislature  of  Washington  Terri- 
tory, enacted  in  1888,  giving  women  the  right  to  vote, 

»  207  U.  S.  Rep.,  463.  » 3  Washington  Territory  Rep.,  599. 


374       AMERICAN  PLAN  OP  GOVERNMENT 

was  consistent  with  the  act  of  Congress  by  which  the 
Territory  had  been  estabHshed.  Section  1859  of  the 
Revised  Statutes  of  the  United  States  concerning 
the  government  of  Territories  gave  the  suffrage  at  the 
first  territorial  election  to  "male  citizens,"  and  section 
i860  gave  the  legislature  power  to  regulate  future  elec- 
tions at  its  pleasure,  subject  only  to  the  limitation  that 
the  suffrage  must  be  confined  to  "citizens,"  omitting 
the  word  "male."  It  was  argued  that  this  omission 
gave  the  territorial  legislature  power  to  confer  the 
suffrage  upon  women.  The  Territorial  Supreme  Court 
ruled  against  woman  suffrage  on  the  ground  that  this 
omission  did  not  signify  anything  of  the  kind,  and, 
further,  that  in  the  original  act  establishing  the  Terri- 
tory, the  word  "citizen"  in  the  proviso  stands  opposed 
to  the  words  "white  male  inhabitants"  in  the  enacting 
clause.  That  is  to  say  the  court  took  it  upon  itself  to 
decide  what  the  laws  of  the  nation  for  the  establishment 
and  government  of  the  Territory  meant.  Chief  Justice 
Jones  said: 

Interpretation  differs  from  construction  in  this :  that  it  is 
used  for  the  purpose  of  ascertaining  the  true  sense  of  any 
form  of  words;  while  construction  involves  the  drawing  of 
conclusions  regarding  subjects  that  are  not  always  included 
in  the  direct  expression.  In  all  constitutional  governments 
the  powers  of  government  are  divided  or  allotted  to  different 
officers  or  departments,  and  each  of  these  has  by  constitu- 
tional limitation  certain  powers,  generally  independent  of 
each  other,  and  usually  involving  the  duty  of  interpretation, 
and  often  of  construction,  upon  each  of  the  several  depart- 
ments or  officers  who  have  the  administration  of  the 
government  in  charge.  Constitutions  have  not  as  a  rule 
provided  for  a  tribunal  whose  specific  duty  is  that  of  solving 
difficult  questions  which  may  arise  under  it  prior  to  the 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    375 

necessary  solution  resulting  from  litigation,  ...  As  a 
rule  the  construction  and  interpretation  of  the  laws  arise 
after  enactment.  To  illustrate  further,  the  administration 
of  public  justice,  in  this  territory,  is  conferred  upon  the 
courts,  and  the  courts  perform  that  duty  by  first  ascertain- 
ing the  facts  in  any  case,  and  giving  effect  to  their  conclusion 
of  fact  by  applying  the  laws  to  the  facts  ascertained.  In 
doing  so,  a  construction  or  interpretation  of  law  is  necessary. 
The  right  and  power  of  the  courts  to  do  this  is  so  universal 
that  their  conduct  in  that  regard  is  unquestioned. 

The  judicial  Power  shall  extend  to  all  Cases  .  .  . 
arising  under  .  .  .  Treaties  made  .  .  .  •  tinder  their 
[United  States]  Authority.  A  case  under  a  treaty,  sifted 
down,  is  a  case  under  a  contract  made  by  one  nation, 
acting  for  its  citizens,  with  one  or  more  other  nations, 
acting  for  their  citizens.  Those  citizens  may  have 
rights  like  rights  under  a  contract  which  may  be  referred 
to  the  courts.  Under  this  provision  of  the  Constitution, 
such  disputes  may  be  referred  to  the  courts  of  the  United 
States  whenever  they  arise  in  the  United  States  under 
any  treaty  giving  rights  to  persons,  apart  from  the  rights 
reserved  to  the  nations  which  make  it. 

There  is  a  broad  distinction  between  a  political  case 
arising  under  a  treaty,  with  which  the  Federal  courts 
cannot  deal,  and  a  judicial  case  arising  under  a  treaty, 
to  which  the  judicial  power  of  the  United  States  ex- 
tends. For  example,  in  1829,  the  Supreme  Court 
refused  to  decide  the  case  of  Foster  vs.  Neilson,^  in 
which  the  petitioners  asked  for  a  judicial  decree  to  con- 
firm them  in  the  possession,  under  an  old  Spanish  land 
grant,  of  certain  lands  in  West  Florida,  now  Louisiana. 
Ap  article  in  the  treaty  of  18 19  with  Spain,  ceding  East 
and  West  Florida  to  the  United  States,  had  stipulated 

» 3  Peters'  Rep.,  253,  314. 


376       AMERICAN  PLAN  OF  GOVERNMENT 

that  all  grants  of  j[and  made  by  the  King  of  Spain 
before  January  24,  181 8,  should  be  ratified  and  con- 
firmed to  the  persons  in  possession.  Chief  Justice 
Marshall,  referring  to  the  provisions  of  the  treaty  of 
1803,  by  which  France  had  ceded  Louisiana  to  the 
United  States,  explained  that  the  confirming  of  such  a 
land  grant  under  the  provisions  of  a  treaty  was  an  act 
which  only  the  legislature  could  perform.     He  said: 

Our  Constitution  declares  a  treaty  to  be  the  law  of  the 
land.  It  is,  consequently,  to  be  regarded  in  courts  of  justice 
as  equivalent  to  an  act  of  the  legislature,  whenever  it 
operates  of  itself  without  the  aid  of  any  legislative  provision. 
But  when  the  terms  of  the  stipulation  import  a  contract, 
when  either  of  the  parties  engages  to  perform  a  particular 
act,  the  treaty  addresses  itself  to  the  political,  not  the 
judicial  department;  and  the  legislature  must  execute  the 
contract  before  it  can  become  a  rule  for  the  court. 

In  the  Head  Money  Cases,  ^  the  Supreme  Court  passed 
upon  questions  in  which  the  Cunard  Line  and  a  firm 
of  steamship  agents  doing  business  in  New  York  City 
were  interested.  The  claim  set  up  was  that  the  na- 
tional law  imposing  a  tax  upon  immigrants  of  fifty 
cents  a  head,  to  be  paid  by  the  company  which  brought 
them,  was  inconsistent  with  the  provisions  of  our 
treaties  with  the  nations  from  which  the  immigrants 
came.     Justice  Miller  said: 

A  treaty  is  primarily  a  compact  between  independent 
nations.  It  depends  for  the  enforcement  of  its  provisions 
on  the  interest  and  the  honor  of  the  governments  which  are 
parties  to  it.  If  these  fail,  its  infraction  becomes  the  sub- 
ject of  international  negotiations  and  reclamations,  so  far 
as  the  injured  party  chooses  to  seek  redress,  which  may  in 

« 112  U.S.  Rep.,  580. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    377 

the  end  be  enforced  by  actual  war.  It  is  obvious  that  with 
all  this  the  judicial  courts  have  nothing  to  do  and  can  give 
no  redress.  But  a  treaty  may  also  contain  provisions 
which  confer  certain  rights  upon  the  citizens  or  subjects  of 
one  of  the  nations  residing  in  the  territorial  limits  of  the 
other,  which  partake  of  the  nature  of  municipal  law,  and 
which  are  capable  of  enforcement  as  between  private  parties 
in  the  courts  of  the  country.  An  illustration  of  this  char- 
acter is  found  in  treaties,  which  regulate  the  mutual  rights 
of  citizens  and  subjects  of  the  contracting  nations  in  regard 
to  rights  of  property  by  descent  or  inheritance,  when  the 
individuals  concerned  are  aliens.  The  Constitution  of  the 
United  States  places  such  provisions  as  these  in  the  same 
category  as  other  laws  of  Congress  by  its  declaration  that 
"this  Constitution  and  the  laws  made  in  pursuance  thereof, 
and  all  treaties  made  or  which  shall  be  made  under  authority 
of  the  United  States,  shall  be  the  supreme  law  of  the  land. " 
A  treaty  then,  is  the  law  of  the  land  as  an  act  of  Congress  is, 
whenever  its  provisions  prescribe  a  rule  by  which  the  rights 
of  the  private  citizen  or  subject  may  be  determined.  And 
when,  such  rights  are  of  a  nature  to  be  enforced  in  a  court  of 
justice,  that  court  resorts  to  the  treaty  for  a  rule  of  decision 
for  the  case  before  it  as  it  would  to  a  statute. 

The  judicial  Power  shall  extend  to  all  Cases  .  .  . 
affecting  Ambassadors,  other  public  Ministers  and  Consuls. 
Chief  Justice  Marshall  defined  a  case  "affecting 
ambassadors,  other  public  ministers,  and  consuls"  in 
his  opinion  in  the  case  of  Osborn  vs.  Bank  of  United 
States,^    He  said: 

If  a  suit  be  brought  against  a  foreign  minister,  the  Su- 
preme Court  alone  has  original  jurisdiction,  and  this  is 
shown  on  the  record.  But  suppose  a  suit  to  be  brought 
which  affects  the  interest  of  a  foreign  minister,  or  by  which 

'  9  Wheaton's  Rep.,  251. 


378       AMERICAN  PLAN  OF  GOVERNMENT 

the  person  of  his  secretary,  or  of  his  servant,  is  arrested. 
The  minister  does  not,  by  the  mere  arrest  of  his  secretary, 
or  his  servant,  become  a  party  to  this  suit,  but  the  actual 
defendant  pleads  to  the  jurisdiction  of  the  court,  and  asserts 
his  privilege.  If  the  suit  affects  a  foreign  minister,  it  must 
be  dismissed,  not  because  he  is  a  party  to  it,  but  because  it 
affects  him.  The  language  of  the  Constitution  in  the  two 
cases  is  different.  This  Court  can  take  cognizance  of  all 
cases  "affecting"  foreign  ministers;  and,  therefore,  jurisdic- 
tion does  not  depend  on  the  party  named  in  the  record. 
But  this  language  changes  when  the  enumeration  proceeds 
to  States.  Why  this  change?  The  answer  is  obvious.  In 
the  case  of  foreign  ministers,  it  was  intended,  for  reasons 
which  all  comprehend,  to  give  the  national  courts  jurisdic- 
tion over  all  cases  by  which  they  were  in  any  manner 
affected. 

This  is  all  a  matter  of  international  good  manners, 
according  to  the  rule  laid  down  in  1833  by  Justice 
Thompson,  in  the  opinion  of  the  Supreme  Court  in  the 
case  of  Davis  vs.  Packard.'^  In  this  case,  the  consul- 
general  of  the  King  of  Saxony  at  New  York  had 
appealed  to  the  Supreme  Court  from  a  State  court 
judgment,  upon  the  ground  that  the  courts  of  a  State 
have  no  power  to  judge  a  case  against  a  consul. 
Justice  Thompson  said: 

The  only  cause  assigned  for  error  was  that  Charles  A. 
Davis  was  consul-general  of  the  King  of  Saxony;  and  the 
conclusion  must  necessarily  follow  that  this  was  not,  in 
the  opinion  of  the  court,  a  sufficient  cause  for  reversing  the 
judgment ....  If  the  question  was  open  for  considera- 
tion here,  whether  the  privilege  claimed  was  not  waived  by 
omitting  to  plead  it  in  the  Supreme  Court,  we  should 
incline  to  say  it  was  not.  ...     It  is  the  privilege  of  the 

»  7  Peters'  Rep.,  276. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    379 

country  or  government  which  the  consul  represents.  This 
is  the  hght  in  which  foreign  ministers  are  considered  by  the 
law  of  nations,  and  our  Constitution  and  law  seem  to  put 
consuls  on  the  same  footing  in  this  respect.  If  the  privilege 
or  exemption  was  merely  personal,  it  can  hardly  be  supposed 
that  it  would  have  been  thought  a  matter  sufficiently 
important  to  require  a  special  provision  in  the  Constitution 
and  laws  of  the  United  States.  Higher  considerations  of 
public  policy  doubtless  led  to  the  provision.  It  was  deemed 
fit  and  proper  that  the  courts  of  the  government,  with  which 
rested  the  regulation  of  all  foreign  intercourse,  should  have 
cognizance  of  suits  against  the  representatives  of  such 
foreign  governments. 

The  judicial  Power  shall  extend  .  .  .  to  all  Cases  of 
admiralty  and  maritime  Jurisdiction.  The  law  of  the 
seas  is  called  admiralty  law  because  at  one  time  all 
English  marine  cases  were  tried  in  the  Lord  High  Ad- 
miral's Court.  The  law,  however,  dates  back  to  those 
early  times  when  men  first  felt  the  need  of  tribunals 
to  settle  disputes  over  commercial  transactions.  The 
courts  which  decided  cases  arising  on  land  had  no  power 
over  cases  arising  on  the  high  seas.  The  process  of  the 
land  court  which  seized  the  property  or  body  of  a  debtor 
to  compel  him  to  satisfy  a  judgment,  was  ineffective 
against  strangers  who  came  across  the  seas  to  barter 
their  wares  for  local  products.  Therefore,  under  the 
law  of  the  seas,  the  ships  themselves  were  made  respons- 
ible for  the  debts  of  those  who  owned  or  sailed  them. 
Such  was  the  origin  of  those  actions  in  rem  (against 
a  thing)  which  are  puzzling  to  those  not  familiar  with 
maritime  law. 

Justice  Bradley,  in  the  decision  of  the  case  of  New 
England  Insurance  Co.  vs.  Dunham,^  explained  the 

'  II  Wallace's  Rep.,  i,  23. 


380       AMERICAN  PLAN  OF  GOVERNMENT 

nature  of  "admiralty  and  maritime  jurisdiction"  as 
follows : 

The  admiralty  courts  were  originally  established  in  that 
[England]  and  other  maritime  countries  of  Europe  for  the 
protection  of  commerce  and  the  administration  of  that 
venerable  law  of  the  sea  which  reaches  back  to  sources  long 
anterior  even  to  those  of  the  civil  law  itself;  which  Lord 
Mansfield  says  is  not  the  law  of  any  particular  country,  but 
the  general  law  of  nations ....  In  all  countries  border- 
ing on  the  Mediterranean  or  the  Atlantic  the  marine  courts, 
whether  under  the  name  of  admiralty  courts  or  otherwise, 
are  generally  invested  with  jurisdiction  of  all  mattdts  arising 
in  marine  commerce,  as  well  as  other  marine  matters  of 
public  concern,  such  as  crimes  committed  on  the  sea,  cap- 
tures, and  even  naval  affairs.  But  in  England,  .  .  . 
the  common  law  courts  succeeded  in  establishing  this 
general  rule  that  the  jurisdiction  of  the  admiralty  was 
confined  to  the  high  seas  and  entirely  excluded  from  transac- 
tions arising  on  waters  within  the  body  of  a  country,  such  as 
rivers,  inlets,  and  arms  of  the  sea  as  far  out  as  the  naked 
eye  could  discern  objects  from  shore  to  shore,  as  well  as 
from  transactions  arising  on  the  land,  though  relating  to 
marine  affairs.  .  .  .  But  this  narrow  view  has  not 
prevailed  here.  ...  It  would  be  contrary  to  the  first 
principles  on  which  the  Union  was  formed  to  confine  these 
rights  to  the  States  bordering  on  the  Atlantic,  and  to  the 
tide-water  rivers  connected  with  it,  and  to  deny  them  to  the 
citizens  who  border  on  the  lakes  and  the  great  navigable 
streams  which  flow  through  the  western  States. 

The  judicial  Power  shall  extend  .  .  .  to  Controver- 
sies to  which  the  United  States  shall  he  a  Party.  In 
1895,  in  the  case  of  United  States  vs.  Texas,  "^  the  At- 
torney General  of  the  United  States  had  asked  the 

» 143  U.  S.  Rep.,  621. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    381 

Supreme  Court  to  fix  the  northern  boundary  line  of  the 
State  of  Texas.  One  defense  presented  by  that  State 
was  that  the  United  States  had  no  power  under  the 
Constitution  to  sue  a  State.  Justice  Harlan,  in  the 
course  of  his  opinion  overruling  this  defense  and  sus- 
taining the  right  of  the  United  States  to  sue  a  State, 
said: 

We  cannot  assume  that  the  framers  of  the  Constitution, 
while  extending  the  judicial  power  of  the  United  States  to 
controversies  between  two  or  more  States  of  the  Union,  and 
between  a  State  of  the  Union  and  foreign  States,  intended  to 
exempt  a  State  altogether  from  suit  by  the  General  Govern- 
ment. They  could  not  have  overlooked  the  possibility 
that  controversies,  capable  of  judicial  solution,  might  arise 
between  the  United  States  and  some  of  the  States,  and  that 
the  permanence  of  the  Union  might  be  endangered  if  to  some 
tribunal  was  not  entrusted  the  power  to  determine  them 
according  to  the  recognized  principles  of  law.  ...  It 
would  be  difficult  to  suggest  any  reason  why  this  court 
should  have  jurisdiction  to  determine  questions  of  boundary 
between  two  or  more  States,  but  not  jurisdiction  of  contro- 
versies of  like  character  between  the  United  States  and  a 
State. 

The  judicial  Power  shall  extend  .  .  .  to  Controver- 
sies between  two  or  more  States.  In  the  case  of  Rhode 
Island  vs.  Massachusetts, '  in  which  an  old  boundary  line 
quarrel  had  been  referred  to  the  Supreme  Coiurt,  the 
first  question  was  whether  an  action  by  one  State 
against  another  could  be  decided  by  the  Supreme 
Court  of  the  United  States.    Justice  Baldwin  said: 

Those  States,  in  their  highest  sovereign  capacity,  in  the 
convention  of  the  people  thereof;  on  whom,  by  the  Revolu- 

» 12  Peters'  Rep.,  657,  720. 


382       AMERICAN  PLAN  OF  GOVERNMENT 

tion,  the  prerogative  of  the  crown,  and  the  transcendent 
power  of  parliament  devolved,  in  a  plenitude  unimpaired  by 
any  act,  and  controllable  by  no  authority,  ,  .  .  adopted 
the  Constitution,  by  which  they  respectively  made  to  the 
United  States  a  grant  of  judicial  power  over  controversies 
between  two  or  more  States.  By  the  Constitution,  it  was 
ordained  that  this  judicial  power,  in  cases  where  a  State 
was  a  party,  should  be  exercised  by  this  Court  as  one  of 
original  jurisdiction.  The  States  waived  their  exemption 
from  judicial  power  ...  as  sovereigns  by  original  and 
inherent  right,  by  their  own  grant  of  its  exercise  over  them- 
selves in  such  cases,  but  which  they  would  not  grant  to  any 
inferior  tribunal.  By  this  grant,  this  court  has  acquired 
jurisdiction  over  the  parties  in  this  cause,  by  their  own 
consent  and  delegated  authority ;  as  their  agent  for  executing 
the  judicial  power  of  the  United  States  in  the  cases  specified. 

The  judicial  Power  shall  extend  .  .  .  to  Controver- 
sies .  .  .  between  a  State  and  Citizens  of  another  State, 
The  plaintiff  in  the  famous  case  of  Chisholm  vs.  Georgia,  * 
a  citizen  of  South  Carolina,  had  obtained  a  summons 
from  the  Supreme  Court  directing  the  State  of  Georgia 
to  answer  in  an  action.  In  July,  1792,  the  United 
States  marshal  had  reported  that  he  had  given  copies 
of  this  summons  to  Governor  Telfair  of  Georgia  and 
Thomas  P.  Carnes,  the  attorney  general  of  that  State. 
The  State  of  Georgia  had  paid  no  attention  to  this 
summons.  The  justices  postponed  taking  any  action  in 
order,  as  they  said,  "to  avoid  every  appearance  of 
precipitancy;"  but,  in  February,  1793,  they  dealt  with 
the  case  faithfully,  sustaining  absolutely  the  power  of 
the  Supreme  Court  to  judge  controversies  in  which  a 
citizen  of  one  State  asks  the  aid  of  the  Federal  courts 
against  another  State.    Justice   Iredell  opposed  the 

'  2  Dallas'  Rep.,  419. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    383 

issuance  of  a  judgment  because  he  thought  Congress  had 
not  passed  any  act  which  authorized  the  Supreme  Court 
to  proceed  with  such  an  action.  Justice  Wilson  said 
that  the  Constitution  had  expressly  authorized  the 
Court  to  give  Chisholm  the  remedy  he  sought.  Justice 
Cushing's  opinion  was  that  the  Constitution  had  given 
the  Supreme  Court  jurisdiction  under  this  clause  be- 
cause, if  not  submitted  to  a  disinterested  tribunal,  con- 
troversies between  a  State  and  citizens  of  another  State 
might  cause  bloodshed.  Chief  Justice  Jay  insisted 
that  the  judicial  power  had  been  extended  to  suits  by 
a  citizen  of  a  State  against  another  State  in  order  to 
"establish  justice,"  one  of  the  chief  objects  stated  in 
the  Preamble  to  the  Constitution.  Justice  Blair,  an 
eminent  Virginian  jurist,  urged  that  the  Supreme  Court 
had  jurisdiction,  saying: 

It  seems  to  me  that  if  this  Court  should  refuse  to  hold 
jurisdiction  of  a  case  where  a  State  is  defendant,  it  would 
renounce  part  of  the  authority  conferred,  and  consequently 
part  of  the  duty  imposed  on  it  by  the  Constitution ;  because 
it  would  be  a  refusal  to  take  cognizance  of  a  case  where  a 
State  is  a  party. 

This  decision  was  good  law  because  the  justices  had 
said  so,  but  it  lasted  only  imtil  the  advocates  of  State 
sovereignty  could  lay  hands  on  it.  In  1798,  the  States 
adopted  the  Eleventh  Amendment,  which  effectually 
deprived  the  Federal  Courts  of  jurisdiction  in  any  case 
brought  by  a  private  citizen  against  a  State. 

Eleventh  Amendment.  The  Judicial  power  of  the 
United  States  shall  not  be  construed  to  extend  to  any 
suit  in  law  or  equity,  commenced  or  prosecuted  against 
one  of  the  United  States  by  Citizens  of  another  State, 
or  by  Citizens  or  Subjects  of  any  Foreign  State. 


384       AMERICAN  PLAN  OF  GOVERNMENT 

In  the  case  of  HoUingsworth  vs.  Virginia,  ^  decided  in 
1798,  the  Supreme  Court  was  asked  by  the  Attorney 
General  of  the  United  States  to  decide  whether  the 
Eleventh  Amendment  appHed  to  lawsuits  which  had 
already  beeii  brought.  The  Court  delivered  its  iman- 
imous  opinion  "that  the  amendment  being  constitu- 
tionally adopted,  there  could  not  be  exercised  any 
jurisdiction,  in  any  case,  past  or  future,  in  which  a  State 
was  sued  by  citizens  of  another  State,  or  by  citizens  or 
subjects  of  any  foreign  State." 

In  1 82 1,  the  Supreme  Court  was  called  upon  to 
decide  whether  it  had  power  to  revise  judgments  of 
State  coiu^ts  in  cases  in  which  a  State  was  a  party. 
The  question  in  the  case  of  Cohens  vs.  Virginia'  was 
upon  the  constitutionality  of  a  Virginia  law  forbidding 
the  sale  of  lottery  tickets.  Two  men  named  Cohen 
had  been  convicted  at  Norfolk,  Va.,  of  selling  tickets 
in  a  lottery  which  had  been  authorized  by  an  act  of 
Congress.  They  took  the  case  to  the  Supreme  Court 
on  the  claim  that  they  had  been  convicted  under  a  State 
law,  which  was  void  because  inconsistent  with  a  law  of 
the  United  States.  The  Supreme  Court  decided  that 
the  Constitution  as  amended  did  not  prevent  the  courts 
of  the  United  States  from  passing  upon  the  constitu- 
tionality of  a  State  law  which  had  been  challenged  on 
the  ground  of  repugnancy  to  a  national  law.  Chief 
Justice  Marshall  said: 

It  is  a  part  of  our  history,  that,  at  the  adoption  of  the 
Constitution,  all  the  States  were  greatly  indebted;  and  the 
apprehension  that  these  debts  might  be  prosecuted  in 
the  federal  courts,  formed  a  very  serious  objection  to  that 
instrument.     Suits  were  instituted;  and  the  court  main- 

» 3  Dallas'_Rep.,  378.  '  6  Wheaton's  Rep.,  264. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    385 

tained  its  jurisdiction.  The  alarm  was  general;  and  to 
quiet  the  apprehensions  that  were  so  extensively  entertained 
this  [Eleventh]  amendment  was  proposed  in  Congress  and 
adopted  by  the  State  legislatures.  That  its  motive  was 
not  to  maintain  the  sovereignty  of  a  State  from  the  degrada- 
tion supposed  to  attend  a  compulsory  appearance  before 
the  tribunal  of  the  nation,  may  be  inferred  from  the  terms 
of  the  amendment.  It  does  not  comprehend  controversies 
between  two  or  more  States,  or  between  a  State  and  a  foreign 
State.  The  jurisdiction  of  the  Court  still  extends  to  these 
cases;  and  in  these  a  State  may  still  be  sued.  We  must 
ascribe  the  amendment,  then,  to  some  other  cause  than 
the  dignity  of  a  State.  There  is  no  difficulty  in  finding  this 
cause.  Those  who  were  inhibited  from  commencing  a  suit 
against  a  State,  or  from  prosecuting  one  which  might  be 
commenced  before  the  adoption  of  the  amendment,  were 
persons  who  might  probably  be  its  creditors.  .  .  .  The 
amendment  therefore  extended  to  suits  commenced  or 
prosecuted  by  individuals,  but  not  to  those  brought  by 
States. 

The  judicial  Power  shall  extend  to  .  .  .  Controversies 
.  .  .  between  Citizens  of  different  States.  During  the 
whole  of  the  colonial  period,  the  provinces  had  done 
little  trading  with  each  other,  partly  because  English 
law  fostered  a  British  monopoly  of  trade  with  the 
colonies,  but  mostly  because  the  merchants  of  one 
colony  could  not  safely  extend  credits  to  persons  who 
lived  in  other  colonies.  By  extending  the  judicial 
power  to  controversies  between  citizens  of  different 
States,  the  Constitution  makers  gave  the  People  of  the 
United  States  a  chance  to  do  business  with  each  other 
on  a  sound  basis.  That  basis  was  that,  if  a  citizen  of 
one  State  should  be  cheated  by  a  citizen  of  another 
State,  the  aggrieved  party  could  apply  to  the  courts 
of  the  United  States  for  relief. 
as 


386       AMERICAN  PLAN  OF  GOVERNMENT 

In  the  case  of  Gordon  vs.  Longest,^  decided  in  1842,  it 
was  shown  to  the  Supreme  Court  that  the  defendant,  a 
steamboat  captain,  had  taken  a  slave  on  board  his 
vessel  as  a  passenger,  thereby  aiding  the  poor  fellow 
to  escape.  The  owner  had  brought  an  action  in  the 
Kentucky  courts  asking  for  damages  in  the  sum  of 
$1,000  for  the  loss  of  his  bondman.  The  defendant,  a 
citizen  of  Pennsylvania,  had  filed  in  the  Kentucky  State 
court  a  petition  that  the  action  be  removed  to  the 
United  States  court,  upon  the  ground  that,  the  plaintiff 
being  a  citizen  of  Kentucky,  the  suit  was  a  controversy 
*'  between  citizens  of  different  States, "  which  the  federal 
tribunals  had  a  right  to  judge  and  decide.  The  Ken- 
tucky court  had  refused  to  grant  the  petition  for  the 
removal  of  the  case  because  "it  did  not  appear  to  its 
satisfaction  that  the  amount  in  controversy  exceeded 
$500,  exclusive  of  costs."  This  ruling  was  based  upon 
a  clause  of  the  Federal  Judiciary  act  which  provided 
that  the  Circuit  Courts  should  have  jurisdiction  only  of 
cases  in  which  the  matter  in  dispute  exceeded  five 
hundred  dollars.  The  case  had  been  tried  twice  in  the 
Kentucky  courts  which  had  found  for  the  plaintiff  and 
on  the  second  trial  had  given  him  damages  in  the  simi  of 
six  hundred  and  fifty  dollars.  The  defendant  then  took 
the  case  to  the  national  Supreme  Court,  which  decided 
that  the  Kentucky  court  had  wrongfully  denied  the 
petition  for  the  removal  of  the  action  to  the  federal 
courts.  In  the  decision  of  this  case,  Justice  McLean 
said: 

The  damages  claimed  by  the  plaintiff  in  his  writ  gives 
jurisdiction  to  the  court,  whether  it  be  an  original  suit  in 
the  circuit  court  of  the  United  States,  or  brought  here  by 

«  16  Peters'  Rep.,  97. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    387 

petition.  From  the  decision  of  the  State  judge,  he  seemed 
to  consider  the  application  for  the  removal  of  the  cause  as  a 
matter  to  be  decided  by  his  discretion.  But  he  must 
exercise  a  legal  discretion.  The  defendant  was  entitled  to 
a  right  under  the  law  of  the  United  States;  and,  on  the  facts 
in  the  case,  the  judge  had  no  discretion  to  withhold  that 
right. 

The  judicial  Power  shall  extend  .  .  .  to  Controversies 
.  .  .  between  Citizens  of  the  same  State  claiming  Lands 
under  Grants  oj  different  States.  Before  the  Revolution, 
much  territory  in  what  is  now  Vermont  and  in  the 
Mississippi  Valley  had  been  claimed  by  more  than  one 
colony.  The  States  that  succeeded  these  colonies  had 
made  many  land  grants  to  settlers,  some  of  which  over- 
lapped. Many  of  the  resulting  disputes  were  unsettled 
at  the  time  of  the  adoption  of  the  Constitution.  The 
members  of  the  Federal  Convention  deemed  it  wise  to 
give  the  Federal  courts  power  to  judge  such  disputes 
because  the  rights  of  different  States  were  involved. 
For  example,  in  the  case  of  Town  of  Pawlet  vs.  Clark, ^ 
decided  in  181 5,  it  was  shown  that  lands  in  the  town  of 
Pawlet  in  the  western  part  of  New  Hampshire,  which 
afterward  became  the  State  of  Vermont,  had  been  set 
apart  by  a  New  Hampshire  grant  for  the  support  of  a 
minister  of  the  Church  of  England.  The  land  had  been 
held  by  Mr.  Clark  under  a  lease  which  provided  for 
payment  of  the  rents  and  profits  to  the  Episcopal 
minister  who  preached  in  the  local  church.  In  1805, 
however,  the  Vermont  legislature  had  made  a  law  by 
which  it  was  declared  that  the  title  to  all  glebe  lands 
in  that  State  had,  by  the  Revolution,  become  vested  in 
the  sovereignty  of  the  State  of  Vermont,  and  had  di- 
rected the  selectmen  of  the  different  towns  to  bring 

'  9  Cranch's  Rep.,  292,  322. 


388       AMERICAN  PLAN  OF  GOVERNMENT 

actions  to  obtain  possession  of  such  lands.  The  case 
was  taken  to  the  national  Supreme  Court  upon  the 
question  whether  a  grant  made  by  the  State  of  New 
Hampshire  when  it  owned  all  of  Vermont  and  a  later 
grant  of  the  same  land  by  Vermont,  were  grants  made 
by  different  States.  Justice  Story,  in  the  course  of  this 
decision,  said: 

The  Constitution  intended  to'secure  an  impartial  tribunal 
for  the  decision  of  causes  arising  from  the  grants  of  different 
States;  and  it  was  supposed  that  a  State  tribunal  might 
not  stand  indifferent  in  a  controversy,  where  the  claims  of 
its  own  sovereign  were  in  conflict  with  those  of  another 
sovereign.  It  had  no  reference  whatever  to  the  antecedent 
situation  of  the  territory,  whether  included  in  one  sover- 
eignty or  another.  It  simply  regarded  the  fact,  whether 
grants  arose  under  the  same  or  under  different  States.  Now 
it  is  very  clear  that,  although  the  territory  of  Vermont  was 
once  a  part  of  New  Hampshire,  yet  the  State  of  Vermont,  in 
its  sovereign  capacity,  is  not,  and  never  was  the  same  as  the 
State  of  New  Hampshire.  The  grant  of  the  plaintiffs 
emanated  purely  and  exclusively  from  the  sovereignty  of 
Vermont;  that  of  the  defendants  purely  and  exclusively 
from  the  sovereignty  of  New  Hampshire.  .  .  .  The 
case  is,  therefore,  equally  within  the  letter  and  the  spirit 
of  the  clause  of  the  Constitution. 

The  judicial  Power  shall  extend  to  .  .  .  Controversies 
.  .  .  between  a  State,  or  the  Citizens  thereof,  and  foreign 
States,  Citizens  or  Subjects.  In  1829,  one  John  Twenty- 
man  brought  an  action  in  the  United  States  Court  at 
New  York  against  Daniel  and  Joseph  Jackson  in  which, 
as  a  basis  for  obtaining  relief  in  a  Federal  tribunal,  he 
set  forth  the  fact  that  he  was  a  British  subject.  Un- 
luckily he  failed  to  claim  that  the  Jacksons  were  citizens 
of  the  United  States.     The  Circuit  Court  sustained  the 


JUDICIAL  GOVERNMENT  IN_THE  U.  S.    389 

appeal  of  the  defendants  on  the  ground  that  Twenty- 
man  had  not  shown,  as  required  by  the  Constitution 
and  by  the  Judiciary  Act,  which  carries  the  judicial 
power  into  effect,  that  this  was  a  controversy  between 
a  citizen  of  a  State  and  a  subject  of  a  foreign  state. 
The  decision*  says: 

The  court  were  of  opinion  that  the  nth  section  of  the 
Judiciary  Act  must  be  construed  in  connection  with  and  in 
conformity  to  the  Constitution  of  the  United  States.  That, 
by  the  latter,  the  judicial  power  was  not  extended  to  private 
suits,  in  which  an  alien  is  a  party,  unless  a  citizen  be  an 
adverse  party.  It  was  indispensable,  therefore,  to  aver  the 
citizenship  of  the  defendants,  in  order  to  show  on  the  record 
the  jurisdiction  of  the  court.  The  omission  to  do  so  was 
fatal. 

Art.  m.,  Sec.  2  (continued).  In  all  Cases  affect- 
ing Ambassadors,  other  public  Ministers  and  Consuls, 
and  those  in  which  a  State  shall  be  a  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  Regulations  as  the 
Congress  shall  make. 

Certain  persons  and  parties  can,  if  they  choose, 
bring  lawsuits  in  the  Supreme  Court  without  first  being 
heard  in  an  inferior  court.  All  other  cases  must  be 
heard  in  some  other  court  before  being  considered  by  the 
Supreme  Court  of  the  United  States.  This  is  the  differ- 
ence between  "original  jurisdiction"  and  "appellate 
jurisdiction"  in  the  Federal  courts. 

"Original  jurisdiction"  does  not  mean  "exclusive" 
jiirisdiction.    Congress  though  it  cannot  prevent  suits 

'Jackson  vs.  Twentyman,  2  Peters'  Rep.,  136. 


390       AMERICAN  PLAN  OF  GOVERNMENT 

affecting  ambassadors,  other  public  ministers,  and  con- 
suls from  being  brought  in  the  first  instance  in  the 
Supreme  Court,  may  authorize  the  hearing  of  such 
suits  in  the  lower  courts.  The  case  of  Gittings  vs. 
Crawford,  ^  tried  in  the  Federal  Circuit  Court  at  Balti- 
more, in  1838,  was  a  suit  against  a  British  consul  upon 
a  promissory  note.  The  action  had  been  brought  in  the 
Federal  District  Court  and  the  appeal  to  the  Circuit 
Court  taken  by  the  British  consul  was  based  upon  the 
contention  that  the  Constitution  did  not  give  Congress 
power  to  authorize  the  trial  in  a  Federal  District  Court 
of  a  case  against  a  foreign  consul.  Chief  Justice  Taney, 
sitting  as  a  circuit  judge,  explained  what  original  jtuis- 
diction  is,  saying : 

It  is  insisted,  that  the  grant  of  original  jurisdiction  in 
these  cases  to  the  Supreme  Court,  means  exclusive  original 
jurisdiction,  and  that  it  is  not  in  the  power  of  Congress  to 
confer  original  jurisdiction,  in  the  cases  there  mentioned, 
upon  any  other  court.  ...  It  could  hardly  have  been 
the  intention  of  the  statesmen, who  framed  our  Constitution, 
to  require  that  one  of  our  citizens  who  had  a  petty  claim  of 
even  less  than  five  dollars  against  another  citizen,  who  had 
been  clothed  by  some  foreign  government  with  the  consular 
office,  should  be  compelled  to  go  into  the  Supreme  Court  to 
have  a  jury  summoned  in  order  to  enable  him  to  recover  it. 
.  .  .  There  is  no  reason,  either  of  policy  or  convenience, 
for  introducing  such  a  provision  in  the  Constitution;  and 
we  cannot,  with  any  probability,  impute  such  a  design  to 
the  great  men  who,  with  so  much  wisdom  and  foresight, 
framed  the  Constitution  of  the  United  States. 

"Appellate  jurisdiction"  is  exercised  when  the  rec- 
ord of  a  decision  of  a  lower  court  is  reviewed  in  a 

*  Taney's  Dedsions,  1. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    391 

higher  tribunal.  "  It  is  the  essential  criterion  of  appel- 
late jurisdiction,"  said  Chief  Justice  Marshall  in  his 
opinion  in  the  case  of  Marbury  vs.  Madison,^  "that  it 
revises  and  corrects  the  proceedings  in  a  cause  already 
instituted,  and  does  not  create  that  cause." 
In  Cohens  vs.  Virginia,''  Chief  Justice  Marshall  said: 

The  Constitution  gives  the  Supreme  Court  original  juris- 
diction  in  certain  enumerated  cases,  and  gives  it  appellate 
jurisdiction  in  all  others.  Among  those  in  which  juris- 
diction must  be  exercised  in  the  appellate  form,  are  cases 
arising  under  the  Constitution  and  laws  of  the  United  States. 
...  If  a  State  be  a  party,  the  jurisdiction  of  this  court 
is  original ;  if  a  case  arise  under  a  constitution  or  a  law,  the 
jurisdiction  is  appellate.  But  a  case  to  which  a  State  is  a 
party,  may  arise  under  the  Constitution  or  a  law  of  the 
United  States.  What  rule  is  applicable  to  such  a  case? 
What,  then,  becomes  the  duty  of  the  court?  Certainly,  we 
think,  so  to  construe  the  Constitution  as  to  give  effect  to 
both  provisions,  so  far  as  it  is  possible  to  reconcile  them,  and 
not  to  permit  their  seeming  repugnancy  to  destroy  each 
other ....  In  one  description  of  cases,  the  jurisdiction 
of  the  court  is  founded  entirely  on  the  character  of  the 
parties;  and  the  nature  of  the  controversy  is  not  contem- 
plated by  the  Constitution.  The  character  of  the  parties 
is  everything,  the  nature  of  the  case  nothing.  In  the  other 
description  of  cases  the  jurisdiction  is  founded  entirely  on 
the  character  of  the  case,  and  the  parties  are  not  contem- 
plated by  the  Constitution.  In  these  the  nature  of  the  case 
is  everything,  the  character  of  the  parties  nothing.  When, 
then,  the  Constitution  declares  the  jurisdiction,  in  cases 
where  a  State  shall  be  a  party,  to  be  original,  and  in  all  cases 
arising  under  the  Constitution  or  a  law,  to  be  appellate 
—  the  conclusion  seems  irresistible,  that  its  framers  de- 

'■  I  Cranch's  Rep.,  137.  *  6  Wheaton's  Rep.,  264,  392. 


392       AMERICAN  PLAN  OF  GOVERNMENT 

signed  to  include  in  the  first  class  those  cases  in  which  juris- 
diction is  given,  because  a  State  is  a  party;  and  to  include 
in  the  second,  those  in  which  jurisdiction  is  given,  because 
the  case  arises  under  the  Constitution  or  a  law. 


CHAPTER  XXII 

CRIMINAL  PROCEDURE  IN  THE  FEDERAL  COURTS 

Art.  in.,  Sec.  2  (continued).  The  Trial  of  all 
Crimes,  except  in  Cases  of  Impeachment,  shall  be  by 
Jury ;  and  such  Trial  shall  be  held  in  the  State  where  the 
said  Crimes  shall  have  been  committed;  but  when  not 
committed  within  any  State,  the  Trial  shall  be  at  such 
Place  or  Places  as  the  Congress  may  by  Law  have 
directed. 

Fifth  Amendment  (Part  of).  No  person  shall  be 
held  to  answer  for  a  capital,  or  otherwise  infamous 
crime,  tmless  on  a  presentment  or  indictment  of  a 
Grand  Jury,  except  in  cases  arising  in  the  land  or  naval 
forces,  or  in  the  MiUtia,  when  in  actual  service  in  time 
of  War  or  pubUc  danger; — 

Sixth  Amendment  (Part  of).  In  all  criminal  prose- 
cutions, 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. 

The  Trial  of  all  Crimes,  except  in  Cases  of  Impeach- 
ment, shall  be  by  Jury.  Justice  Brewer,  in  the  case  of 
Schick  vs.  TTie  United  States,^  which  involved  the  con- 
stitutionality of  laws  regulating  the  sale  of  oleomar- 
garine, defined  the  word  "crimes"  as  follows: 

'  195  U.  S.  Rep.,  65,  68. 

393 


394      AMERICAN  PLAN  OF  GOVERNMENT 

In  the  draft  of  that  instrument  [the  Constitution],  as 
reported  by  the  committee  of  five,  the  language  was  "the 
trial  of  all  criminal  offenses  .  .  .  shall  be  by  jury, "  but 
by  unanimous  vote  it  was  amended  so  as  to  read  "the  trial 
of  all  crimes."  The  significance  of  this  change  cannot  be 
misunderstood.  If  the  language  had  remained  "criminal 
offenses, "  it  might  have  been  contended  that  it  meant  all 
offenses  of  a  criminal  nature,  but  when  the  change  was  made 
from  "criminal  offenses"  to  "crimes,"  and  made  in  the 
light  of  the  popular  understanding  of  the  meaning  of  the 
word  "crimes"  .  .  .  it  is  obvious  that  the  intent  was  to 
exclude  from  the  constitutional  requirement  of  a  jury  the 
trial  of  petty  criminal  offenses. 

No  person  shall  be  held  to  answer  for  a  capital,  or  other- 
wise infamous  crime,  unless  on  a  presentment  or  indict- 
ment of  a  grand  jury. 

A  "capital  crime,"  according  to  Bouvier's  Law  Dic- 
tionary is  "one  for  which  the  punishment  of  death  is 
inflicted. " 

Whether  a  crime  is  "infamous"  or  not  depends  on 
how  it  is  punished.  In  the  case  of  Mackin  vs.  United 
States,^  the  Supreme  Court,  in  an  opinion  written  by 
Justice  Gray,  said: 

We  cannot  doubt  that  at  the  present  day  imprisonment 
in  a  State  prison  or  penitentiary,  with  or  without  hard 
labor,  is  an  infamous  punishment.  It  is  not  only  so  con- 
sidered in  the  general  opinion  of  the  people,  but  it  has  been 
recognized  as  such  in  the  legislation  of  the  States  and  Terri- 
tories, as  well  as  of  Congress. " 

A  "presentment  or  indictment"  is  a  written  charge 
of  crime  made  by  a  majority  vote  of  a  grand  jury,  which 
must  consist  of  from  sixteen  to  twenty-three  grand 

» 117  U.  S.  Rep.,  348. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    395 

jurors,  who  have  been  specially  assembled  to  decide 
what  persons  accused  of  crimes  are  to  be  tried  by  the 
courts.  The  grand  jury  holds  the  supreme,  irrespons- 
ible power  of  the  people  for  this  purpose  only.  No 
person  can  be  convicted  legally  in  a  court  of  the  United 
States  of  a  capital  or  otherwise  infamous  crime  unless 
brought  to  trial  upon  such  a  presentment  or  indictment, 
even  if  he  should  plead  guilty  to  a  complaint  in  open 
court.  In  the  case  of  Ex  Parte  McClusky,^  the  de- 
fendant had  pleaded  guilty  in  the  Federal  court  of 
Arkansas  to  a  complaint  charging  him  with  having 
stolen  property  worth  more  than  twenty-five  dollars, 
and  was  sent  to  the  penitentiary.  Then  he  was  sorry 
he  had  confessed  and  asked  the  Federal  Circuit  Court 
for  his  release  upon  the  ground  that  no  indictment 
ever  had  been  found  against  him.  The  court  released 
him.     Circuit  Judge  Parker  said: 

A  party  cannot  waive  a  constitutional  right  when  its 
effect  is  to  give  a  court  jurisdiction.  .  .  .  The  fifth 
amendment  to  the  Constitution,  that  no  person  shall  be 
held  to  answer  for  a  capital  or  otherwise  infamous  crime 
unless  on  a  presentment  or  indictment  of  a  grand  jury,  pro- 
vides for  a  requisite  to  jurisdiction ....  If  the  crime  is 
of  such  a  nature  that  an  indictment  to  warrant  a  prosecu- 
tion of  the  crime  is  required  by  the  law,  the  court  has  no 
jurisdiction  to  try  without  such  an  indictment.  Can  a 
party  consent  to  jurisdiction?  Can  he,  by  an  agreement 
with  the  government,  surrender  his  liberty  for  a  stipulated 
time?  Has  any  person  the  right  to  surrender  his  liberty  in 
violation  of  a  fundamental  right,  secured  to  him  for  the 
protection  of  the  liberty  of  such  person  by  the  fifth  amend- 
ment to  the  Constitution  of  the  United  States?  No  man 
and  no  power  has  a  right  to  take  away  another  person's 

» 40  Federal  Reporter,  71. 


396       AMERICAN  PLAN  OF  GOVERNMENT 

liberty,  even  though  with  consent,  except  by  due  process 
of  law. 

Cases  arising  in  the  land  or  naval  forces,  or  in  the 
Militia,  when  in  actual  service  in  time  of  War  or  public 
danger.  These  cases  are  dealt  with  by  martial  law, 
the  administration  of  which  is  a  part  of  the  duty  of  the 
President  as  commander-in-chief  of  the  army  and  navy. 
"Courts-martial  [which  enforce  martial  law]  form  no 
part  of  the  judicial  system  of  the  United  States." 
The  Supreme  Court,  in  the  case  of  Kurtz  vs.  Moffitt,^ 
has  so  ruled. 

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  as- 
certained by  law.  The  words  "speedy  trial,"  in  the 
Sixth  Amendment,  mean  a  trial  "within  a  reasonable 
time."  In  the  case  of  Ex  Parte  Stanley,^  Judge 
Lewis  of  Nevada  had  occasion  to  tell  a  man  under  in- 
dictment for  murder  that  he  could  not  be  discharged  on 
habeas  corpus  just  because  his  case  had  been  kept  ad- 
journed for  a  year.    Judge  Lewis  said: 

.That  all  persons  held  on  a  criminal  charge  have  the  legal 
right  to  demand  a  speedy  and  impartial  trial  by  jury,  there 
can  at  this  time  be  no  doubt.  .  .  .  But  what  is  to  be 
understood  by  a  speedy  trial,  is  the  embarrassing  question 
now  to  be  determined.  It  is  very  clear  that  one  arrested 
and  accused  of  crime  has  not  the  right  to  demand  a  trial 
immediately  upon  the  accusation  or  arrest  being  made. 
He  must  wait  until  a  regular  term  of  the  court  having  juris- 
diction of  the  offense  with  which  he  is  charged,  until  an 
indictment  is  found  and  presented,  and  until  the  prosecution 

*  115  U.  S.  Rep.,  487.  » 4  Nevada  Rep.,  113. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    397 

has  had  a  reasonable  time  to  prepare  for  the  trial.  Nor 
does  a  speedy  trial  mean  a  trial  immediately  upon  the 
presentation  of  the  indictment  or  the  arrest  upon  it.  It 
simply  means  that  the  trial  shall  take  place  as  soon  as 
possible  after  the  indictment  is  found,  without  depriving 
the  prosecution  of  a  reasonable  time  for  preparation. 

A  "public  trial"  is  one  at  which  all  persons  who  have 
a  proper  interest  in  the  matter  at  issue  may  be  present. 
"By  this  is  not  meant,"  says  Judge  Cooley  in  his 
Constitutional  Limitations,^  "that  every  person  who 
sees  fit  shall  in  all  cases  be  permitted  to  attend  criminal 
trials;  because  there  are  many  cases  where,  from  the 
character  of  the  charge  and  the  nature  of  the  evidence 
by  which  it  is  to  be  supported,  the  motives  to  attend  the 
trial  on  the  part  of  portions  of  the  community  would  be 
of  the  worst  character,  and  where  a  regard  to  public 
morals  and  public  decency  would  require  that  at  least 
the  young  be  deluded  from  hearing  and  witnessing  the 
evidences  of  human  depravity  which  the  trial  must 
necessarily  bring  to  light.  The  requirement  of  the 
public  trial  is  for  the  benefit  of  the  accused;  that  the 
public  may  see  he  is  fairly  dealt  with  and  not  unjustly 
condemned,  and  that  the  presence  of  interested  specta- 
tors may  keep  his  triers  keenly  alive  to  a  sense  of  their 
responsibility  and  to  the  importance  of  their  functions; 
and  the  requirement  is  fairly  observed  if,  without 
partiality  or  favoritism,  a  reasonable  proportion  of  the 
public  is  suffered  to  attend,  notwithstanding  that  those 
persons  whose  presence  could  be  of  no  service  to  the 
accused,  and  who  would  only  be  drawn  thither  by  a 
prurient  curiosity  are  excluded  altogether." 

The  phrase  "trial  by  an  impartial  jury"  in  the  Sixth 
Amendment  is  the  "trial  ...  by  jury"  specified  in 

•7th  Ed.,  p.  411. 


398       AMERICAN  PLAN  OF  GOVERNMENT 

the  third  article  of  the  original  Constitution.  Justice 
Harlan,  in  his  opinion  in  the  case  of  Thompson  vs.  Utah,^ 
upset  the  notion  that  a  "jury"  under  the  Federal  law 
can  consist  of  less  than  twelve  men.    He  said: 

The  next  inquiry  is  whether  the  jury  referred  to  in  the 
original  Constitution  and  in  the  Sixth  Amendment  is  a 
jury  constituted,  as  it  was  at  common  law,  of  twelve  persons, 
neither  more  nor  less.  .  .  .  The  question  must  be 
swered  in  the  affirmative ....  It  must  ...  be  taken 
that  the  word  "jury"  and  the  words  "trial  by  jury"  were 
placed  in  the  Constitution  of  the  United  States  with  refer- 
ence to  the  meaning  affixed  to  them  in  the  law  as  it  was  in 
this  country  and  in  England  at  the  time  of  the  adoption  of 
that  instrument;  and  that  when  Thompson  committed  the 
offence  of  grand  larceny  in  the  Territory  of  Utah — which 
was  under  the  complete  jurisdiction  of  the  United  States  for 
all  purposes  of  government  and  legislation — the  supreme 
law  of  the  land  required  that  he  should  be  tried  by  a  jury 
of  not  less  than  twelve  persons. 

Our  Constitution  makes  it  impossible  to  drag  per- 
sons accused  of  national  crimes  from  one  end  of  the 
country  to  the  other  for  their  trials. 

In  the  case  of  In  re  Rosdeitscher,^  the  defendant  had 
been  arrested  in  Virginia  upon  a  warrant  which  charged 
him  with  having  passed  a  counterfeit  twenty-dollar 
United  States  bank  bill  at  Chester,  Pennsylvania.  The 
warrant  of  arrest  had  been  issued  by  a  commissioner  of 
the  United  States  Circuit  Court  of  Virginia  instead  of  by 
the  United  States  court  of  Pennsylvania.  Rosdeitscher 
had  petitioned  for  release  from  arrest  on  the  ground  that 
an  officer  of  the  Federal  court  in  Virginia  had  had  no 
right  to  issue  the  warrant  for  his  arrest  for  a  crime 

*  170  IT.  S.  Rep.,  343.  » 33  Federal  Reporter,  657. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    399 

alleged   to   have   been   committed   in   Pennsylvania. 
District  Judge  Hughes  ordered  that  he  be  discharged 
from  custody  for  the  following  reasons : 

My  reasons  for  discharging  the  prisoner  are  founded  on 
elementary  principles.  An  indictment  cannot  be  found  in 
one  State  of  this  Union  for  an  offense  committed  in  another. 
This  is  forbidden  by  clause  3  of  Section  2  of  Article  3  of 
the  national  Constitution.  ...  As  there  can  be  no 
original  indictment  for  such  a  crime  here,  so  there  can  be 
no  original  complaint  against  him  here. 

In  the  case  of  Callan  vs.  Wilson,^  the  question  before 
the  Court  was  whether  the  District  of  Columbia  was  a 
"State  and  district"  which  had  been  "ascertained  by 
law"  in  accordance  with  the  Sixth  Amendment.  A 
number  of  musicians  who  had  been  suspended  from 
membership  in  Washington,  D.  C,  Musical  Assembly 
No.  4308,  Knights  of  Labor,  had  continued  to  play  at 
hotel  dinners  and  pubUc  dances.  The  Knights  of 
Labor  had  then  boycotted  the  employers  of  the  non- 
union musicians;  and  the  boy  cotters  had  been  prose- 
cuted, found  guilty,  and  fined  in  the  United  States 
court  of  the  District  of  Columbia.  They  had  appealed 
to  the  Supreme  Court  on  the  ground  that  the  District 
of  Columbia  where  they  had  been  tried  was  not  a 
"State  and  district"  which  had  been  "previously 
ascertained  by  law."  Justice  Harlan  ruling  upon  this 
point  said: 

And  as  the  guarantee  of  a  trial  by  jury,  .  .  .  implied  a 
trial  in  that  mode  and  according  to  the  settled  rules  of  the 
common  law,  the  enimieration,  in  the  Sixth  Amendment,  of 
the  rights  of  the  accused  in  criminal  prosecutions,  is  to  be 
taken  as  a  declaration  of  what  those  rules  were,  and  is  to  be 

» 127  U.  S.  Rep.,  540. 


400       AMERICAN  PLAN  OF  GOVERNMENT 

referred  to  the  anxiety  of  the  people  of  the  States  to  have  in 
the  supreme  law  of  the  land,  and  so  far  as  the  agencies  of  the 
General  Government  were  concerned,  a  full  and  distinct 
recognition  of  those  rules,  as  involving  the  fundamental 
rights  of  life,  liberty,  and  property.  This  recognition  was 
demanded  and  secured  for  the  benefit  of  all  the  people  of 
the  United  States,  as  well  those  permanently  or  temporarily 
residing  in  the  District  of  Columbia,  as  those  residing  or 
being  in  the  several  States.  There  is  nothing  in  the  history 
of  the  Constitution  or  of  the  original  amendments  to  justify 
the  assertion  that  the  people  of  this  District  may  be  lawfully 
deprived  of  the  benefit  of  any  of  the  constitutional  guaran- 
tees of  life,  liberty,  and  property — especially  of  the  privilege 
of  trial  by  jury  in  criminal  cases. 

Persons  who  commit  crimes  against  the  laws  of  the 
United  States  cannot  escape  the  consequences  by  run- 
ning off  to  another  State  and  district.  The  procedure 
in  such  cases  is  to  obtain  an  indictment  against  the 
wrongdoer  in  the  State  and  district  in  wliich  the  crime 
was  committed.  This  indictment  is  sent  to  the  State 
and  district  where  the  criminal  has  taken  refuge,  and  the 
Federal  Courts  there  order  his  arrest  and  removal  to 
the  place  where  the  crime  was  committed.  This  puts 
the  criminal  in  the  custody  of  the  Federal  court  which 
has  power  to  punish  him. 

Art.  in.,  Sec.  3.  Treason  against  the  United  States, 
shall  consist  only  m.  levying  War  against  them,  or  in 
adhering  to  their  Enemies,  giving  them  Aid  and  Com- 
fort. 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. 

Treason  against  the  United  States,  the  only  crime 
defined  in  our  Constitution,  covers  only  the  acts  speci- 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    401 

fied  in  this  section.  It  does  not  include  words  spoken 
or  plans  made,  which  in  other  countries  have  been  and 
are  construed  to  be  treasonable.  Our  people,  even  in 
the  earliest  colonizing  era,  never  would  have  permitted 
judges  to  construe  the  acts  or  conduct  of  accused  per- 
sons as  being  treason.  An  extreme  case  of  such  con- 
structive treason,  which  happened  in  England  in  the 
reign  of  Edward  the  Fourth,  was  that  of  a  gentleman, 
whose  favorite  deer  had  been  killed  by  the  king  while 
hunting,  and  who  thereupon  had  wished  the  buck,  horns 
and  all,  in  the  king's  belly;  and  he  was  executed  for  it. 
Treason  against  the  United  States  shall  consist  only  in 
levying  War  against  them.  The  Supreme  Court  ex- 
plained the  phrase  "levying  war  against  the  United 
States"  in  the  case  of  Ex  Parte  Bollman;  Ex  Parte 
Swartwont.^  Dr.  Bollman  and  Mr.  Swartwout  had 
been  arrested  under  an  order  of  the  Federal  court  of 
the  District  of  Columbia  "to  take  their  trial  for 
treason  against  the  United  States  by  levying  war 
against  them."  The  prisoners  had  brought  their 
case  before  the  Supreme  Court  upon  a  petition  for 
release  upon  the  ground  that  no  evidence  of  any  trea- 
son had  been  presented  to  the  court  which  had  or- 
dered their  arrest.  The  evidence  presented  against 
them  consisted  of  a  deposition  made  by  General  Eaton 
about  conversations  with  Colonel  Burr  concerning  a 
number  of  projects  the  latter  had  in  mind.  There  also 
was  an  affidavit  of  General  Wilkinson  containing  the 
substance  of  a  letter  signed  by  Btu-r,  relating  to  a 
military  enterprise,  which,  if  against  Mexico,  would 
have  been  a  high  misdemeanor;  if  against  the  United 
States  and  involving  the  employment  of  an  assemblage 
of  men,  would  have  amounted  to  levying  war  against 

*  4  Cranch's  Rep.,  75. 
»6 


402   -   AMERICAN  PLAN  OF  GOVERNMENT 

the  United  States.  The  letter  said:  "Burr's  plan  of 
operation  is  to  move  rapidly  down  from  the  Falls  on 
the  15th  of  November  with  the  first  500  or  1000  men  in 
light  boats  now  constructing  for  that  purpose,  to  be  at 
Natchez  between  the  5th  and  15th  of  December,  there 
to  meet  Wilkinson;  then  to  determine  whether  it  will 
be  expedient,  in  the  first  instance,  to  seize  on,  or  pass 
by  Baton  Rouge.  The  people  of  the  country  to  which 
we  are  going  are  prepared  to  receive  us.  Their  agents, 
now  with  Burr,  say  that  if  we  will  protect  their  religion, 
and  will  not  subject  them  to  a  foreign  power,  in  three 
weeks  all  will  be  settled."  The  words  used  by  Swart- 
wout  were  that  "Colonel  Burr  was  levying  an  armed 
body  of  7000  men."  There  was  no  evidence  at  all  to 
support  a  charge  of  treason  against  Bollman.  It  was 
the  unanimous  opinion  of  the  court  that  they  could  not 
be  tried  in  the  District  of  Columbia  because  no  crime 
had  been  committed  there.  Chief  Justice  Marshall, 
in  his  opinion  in  the  decision  that  the  prisoners  should 
be  discharged  from  custody,  gave  the  following  defi- 
nition of  "treason  by  levying  war": 

"Treason  against  the  United  States,  shall  consist  only  in 
levying  war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort. "  To  constitute  that  specific 
crime  for  which  the  prisoners  now  before  the  court  have  been 
committed,  war  must  be  actually  levied  against  the  United 
States.  However  flagitious  may  be  the  crime  of  conspiring 
to  subvert  by  force  the  government  of  our  country,  such 
conspiracy  is  not  treason.  To  conspire  to  levy  war,  and 
actually  to  levy  war,  are  distinct  offenses.  The  first  must 
be  brought  into  open  action  by  the  assemblage  of  men  for  a 
purpose  treasonable  in  itself,  or  the  fact  of  levying  war  can- 
not have  been  committed.  ...  If  war  be  actually 
levied,  that  is,  if  a  body  of  men  be  actually  assembled  for  the 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    403 

purpose  of  effecting  by  force  a  treasonable  purpose,  all  those 
who  perform  any  part,  however  minute,  or  however  remote 
from  the  scene  of  action,  and  who  are  actually  leagued  in 
the  general  conspiracy,  are  to  be  considered  as  traitors. 
But  there  must  be  an  actual  assembling  of  men  for  the 
treasonable  purpose,  to  constitute  a  levying  of  war. 

Treason  against  the  United  States,  shall  consist  .  .  . 
in  adhering  to  their  Enemies,  giving  them  Aid  and 
Comfort.  Whoever  tries  to  help  the  enemy,  gives  them 
aid  and  comfort.  Justice  Field  said  in  the  course  of 
his  charge  to  the  jury  in  the  case  of  U.  S.  vs.  Greathouse  * : 

If,  for  example,  a  vessel  fully  equipped  and  armed  in  the 
service  of  the  rebellion  should  fail  in  its  attack  upon  one  of 
our  vessels  and  be  itself  captured,  no  assistance  would  in 
truth  be  rendered  to  the  rebellion;  but  yet,  in  judgment  of 
law,  in  legal  intent,  the  aid  and  comfort  would  be  given. 
So  if  a  letter  containing  important  intelligence  for  the 
insurgents  be  forwarded,  the  aid  and  comfort  are  given, 
though  the  letter  be  intercepted  on  its  way.  Thus  Foster, 
in  his  treatise  on  Crown  Law  says:  "And  the  bare  sending 
of  money  or  provisions,  or  sending  intelligence  to  rebels 
or  enemies,  which  in  most  cases  is  the  most  effectual  aid 
that  can  be  given  them,  will  make  a  man  a  traitor,  though 
the  money  or  intelligence  should  happen  to  be  intercepted; 
for  the  party  in  sending  it  did  all  he  could;  the  treason 
was  complete  on  his  part,  though  it  had  not  the  effect  he 
intended." 

No  Person  shall  he  convicted  of  Treason  unless  on  the 
Testimony  oj  two  Witnesses  to  the  same  overt  Act,  or  on 
Confession  in  open  Court.  Chief  Justice  Marshall,  in 
his  charge  to  the  jury  at  the  trial  of  the  case  of  United 
States  vs.  Aaron  Burr,'  commented  as  follows  upon  the 
requirement  of  two  witnesses  to  the  same  overt  act: 

*  4  Sawyer's  Rep.,  457,  472.  » 25  Federal  Cases,  176. 


404       AMERICAN  PLAN  OF  GOVERNMENT 

The  presence  of  the  party,  where  presence  is  necessary, 
being  part  of  the  overt  act,  must  be  positively  proved  by 
two  witnesses.  No  presumptive  evidence,  no  facts  from 
which  presence  may  be  conjectured  or  inferred,  will  satisfy 
the  Constitution  and  the  law.  If  procurement  take  the 
place  of  presence  and  become  part  of  the  overt  act,  then 
no  presumptive  evidence,  no  facts  from  which  the  procure- 
ment may  be  conjectured  or  inferred,  can  satisfy  the  Con- 
stitution and  the  law.  The  mind  is  not  to  be  led  to  the 
conclusion  that  the  individual  was  present  by  a  train  of 
conjectures,  of  inferences,  or  of  reasoning;  the  fact  must  be 
proved  by  two  witnesses.  Neither,  where  procurement 
supplies  the  want  of  presence,  is  the  mind  to  be  conducted 
to  the  conclusion  that  the  accused  procured  the  assembly 
by  a  train  of  conjectures,  or  inferences,  or  of  reasoning; 
the  fact  itself  must  be  proved  by  two  witnesses,  and  must 
have  been  committed  within  the  district.  If  it  be  said 
that  the  advising  or  procurement  of  treason  is  a  secret 
transaction,  which  can  scarcely  ever  be  proved  in  the  manner 
required  by  this  opinion,  the  answer  which  will  readily 
suggest  itself  is,  that  the  difficulty  of  proving  a  fact  will  not 
justify  conviction  without  proof.  Certainly  it  will  not 
justify  conviction  without  a  direct  and  positive  witness  in  a 
case  where  the  Constitution  requires  two. 

The  two  witnesses  must  testify  to  an  "overt  act" 
— some  act  or  deed  of  treason  actually  performed.  In 
the  case  of  United  States  vs.  Hodges,  ^  it  was  shown  to  the 
court  that,  during  the  war  of  1812,  four  stragglers  from 
the  British  army,  then  retreating  from  Washington, 
had  been  made  prisoners  by  the  people  of  the  town  of 
Upper  Marlborough,  Maryland.  The  British  general 
had  threatened  to  burn  the  town  if  his  men  were  not 
surrendered.  Two  brothers,  named  Hodges,  who  lived 
at  Upper  Marlborough,  in  order  to  prevent  the  disaster, 

» 26  Federal  Cases,  332.    Case  No.  15,374. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    405 

prevailed  upon  General  Bowie,  who  had  the  soldiers  in 
his  custody,  to  let  them  take  these  prisoners  to  the 
British.  The  Hodges  brothers  afterward  were  indicted 
for  treason,  the  overt  act  charged  being  the  delivering 
of  the  men  to  the  British.  The  jury  rendered  a  verdict 
of  not  guilty,  although  Circuit  Judge  Duval  ruled  that 
what  the  Hodges  had  done  was  an  overt  act  of  treason. 
He  said: 

Hodges  is  accused  of  adhering  to  the  enemy,  and  the 
overt  act  laid  consists  in  the  delivery  of  certain  prisoners, 
and  I  am  of  opinion  that  the  overt  act  laid  in  the  indictment 
and  proved  by  the  witness  is  high  treason  against  the  United 
States,  .  .  ,  When  the  act  itself  amounts  to  treason  it 
involves  the  intention,  and  such  was  the  character  of  this 
act. 

The  rule  that  no  person  shall  be  convicted  of  treason 
upon  any  confession  not  made  in  open  court  is  founded 
upon  common  sense  and  common  justice.  The  men  of 
the  constitutional  era  were  familiar  with  English  state 
trials  in  which  many  innocent  men  had  been  doomed  to 
cruel  and  shameful  death  upon  evidence  of  confessions 
which  never  had  been  made  except  in  the  imaginations 
of  perjured  witnesses.  They  did  not  intend  to  have  our 
judicial  annals  disgraced  by  any  scandals  of  that  kind. 

Art.  ni.,  Sect.  3  (continued).  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  Attainted. 

Public  opinion  at  the  close  of  the  Revolution  was 
against  the  atrocious  penalties  of  the  English  law  by 


406       AMERICAN  PLAN  OF  GOVERNMENT 

which  the  condemned  traitor  was  dragged  to  the  gal- 
lows, hung  up  by  the  neck,  and  cut  down  while  still 
alive,  his  entrails  taken  out  and  burned,  his  head  cut 
off,  and  his  body  divided  into  four  quarters,  and  by 
which  the  traitor's  property  of  every  kind  was  forfeited 
to  the  king,  so  that  his  innocent  family  suffered  with 
him.  Until  1862,  the  punishment  of  treason  in  this 
country  had  been  death  by  hanging.  Then,  at  Presi- 
dent Lincoln's  suggestion,  the  courts  were  authorized 
to  impose  either  the  death  penalty  or  imprisonment  at 
hard  labor  for  not  less  than  five  years,  a  fine  of  not  less 
than  $10,000,  and  loss  of  capacity  to  hold  any  public 
office  under  the  national  government. 

In  the  case  of  Bigelow  vs.  Forrest,^  decided  in  1869, 
the  justices  were  asked  to  construe  an  act  of  Congress, 
which  authorized  the  seizure  and  confiscation  of  the 
property  of  those  who  had  adhered  to  the  Confederacy. 
Under  this  law,  a  tract  of  land  in  Virginia  belonging  to 
French  Forrest,  an  officer  in  the  Confederate  navy, 
had  been  condemned  and  sold  by  order  of  court.  Mr. 
Forrest  had  died  in  1866;  and  his  son,  Douglas  Forrest, 
had  brought  this  action  to  recover  the  land  from  the 
purchasers  at  the  condemnation  sale.  The  son's  claim 
was  that  the  forfeiture  incurred  by  his  father  as  a 
penalty  for  treason,  did  not  extend  beyond  his  life- 
time and  that,  upon  his  death,  the  property  ought  to 
have  been  turned  over  to  his  heirs.  The  courts  of 
Virginia  had  ruled  that  the  forfeiture  incurred  by 
French  Forrest  had  ended  with  his  life,  and  had  given 
judgment  in  favor  of  the  son.  The  persons  in  possession 
of  the  land  had  then  appealed  to  the  Supreme  Court, 
and  had  again  been  defeated.  Justice  Strong,  in  his 
opinion  in  this  case,  said: 

'  9  Wallace's  Rep.,  339. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    407 

The  fifth  section  of  the'Confiscation  Act  of  July  17, 1862, 
enacted  that  it  should  be  the  duty  of  the  President  of  the 
United  States  to  cause  the  seizure  of  all  the  estate  and  prop- 
erty, moneys,  stocks,  credit,  and  effects  of  certain  persons 
described  in  six  classes,  and  to  apply  and  use  the  same  and 
the  proceeds  thereof  for  the  support  of  the  army.  To  one 
or  more  of  these  classes  French  Forrest  belonged.  That  it 
was  not  intended  that  the  mere  act  of  seizure  should  vest 
the  property  seized  in  the  United  States  is  plain  from  the 
provisions  of  the  seventh  section,  which  enacted  that  to  se- 
cure the  condemnation  and  sale  of  any  such  property,  after 
the  same  shall  have  been  seized,  proceedings  in  rem  should 
be  instituted  in  a  district  court,  and  that  if  it  should  be 
found  to  have  belonged  to  a  person  engaged  in  rebellion, 
or  who  had  given  aid  or  comfort  thereto,  it  should  be  con- 
demned as  enemy's  property,  and  become  the  property  of 
the  United  States,  and  that  it  might  be  disposed  of  as  the 
court  might  decree.  Concurrently  with  the  passage  of  this 
act.  Congress  also  adopted  a  joint  resolution  explanatory  of 
it,  whereby  it  was  resolved  that  no  punishment  or  proceed- 
ings under  the  act  should  be  so  construed  as  to  work  a  for- 
feiture of  the  real  estate  of  the  offender  beyond  his  natural 
life.  It  is  a  well  known  fact  in  our  political  history  that  this 
resolution  was  adopted  in  consequence  of  doubts  which  the 
President  entertained  respecting  the  power  of  Congress  to 
prescribe  a  forfeiture  of  longer  duration  than  the  life  of  the 
offender.  Be  this  as  it  may,  the  act  and  the  resolution  are 
to  be  construed  together,  and  they  admit  of  no  doubt 
that  all  which  could,  under  the  law,  become  the  property 
of  the  United  States,  or  could  be  sold  by  virtue  of  a  decree 
of  condemnation  and  order  of  sale,  was  a  right  to  the  prop- 
erty seized,  terminating  with  the  life  of  the  person  for 
whose  act  it  had  been  seized. 

Fourteenth  Amendment.  Sec.  3.  No  person  shall 
be  a  Senator  or  Representative  in  Congress,  or  elector 
of  President  and  Vice  President,  or  hold  any  office, 


408       AMERICAN  PLAN  OF  GOVERNMENT 

civU  or  military,  under  the  United  States,  or  under  any 
State,  who,  having  previously  taken  an  oath,  as  a  mem- 
ber of  Congress,  or  as  an  officer  of  the  United  States, 
or  as  a  member  of  any  State  legislature,  or  as  an 
executive  or  judicial  officer  of  any  State,  to  support  the 
Constitution  of  the  United  States,  shall  have  engaged  in 
insurrection  or  rebellion  against  the  same,  or  given 
aid  or  comfort  to  the  enemies  thereof.  But  Congress 
may,  by  a  vote  of  two-thirds  of  each  House,  remove 
such  disability. 

When  the  Civil  War  began  in  1861,  all  the  Senators 
and  Representatives  from  the  seceding  States  left  their 
seats  in  Congress,  and  during  four  years  did  their  best 
to  break  up  the  Federal  Union.  A  former  President  of 
the  United  States,  one  justice  of  the  Supreme  Court, 
several  members  of  President  Buchanan's  cabinet, 
many  officers  of  the  army  and  navy,  and  a  host  of 
minor  Federal  officials  engaged  actively  in  the  -service 
of  the  Confederacy  or  gave  it  all  the  aid  and  comfort 
they  could.  The  end  and  aim  of  this  clause  was  to 
prevent  the  return  of  such  men  to  public  life.  The 
section  is  no  longer  important  because  Congress,  in 
1898,  removed  all  disabilities  due  to  participation  in  the 
Civil  War. 

Queerly  enough,  the  Supreme  Court  has  ruled  in 
substance  that  the  disqualification  imposed  by  this 
clause  of  the  Constitution  is  the  only  punishment  which 
can  be  inflicted  upon  a  person  who  has  been  a  national 
officer  and  afterward  has  been  guilty  of  treason  "in 
levying  war  against  the  United  States."  The  defend- 
ant in  the  case  of  United  States  vs.  Davis,  ^  was  the  cele- 
brated Jefferson  Davis,  President  of  the  Confederate 

I  Chase's  Decisions,  84,  85,  124. 


JUDICIAL  GOVERNMENT  IN  THE  U.  S.    409 

States  of  America.  In  1868,  an  indictment  for  treason 
was  filed  against  him  in  the  United  States  Circuit  Court 
of  Virginia.  The  defense  offered  was  that  "prior  to 
such  insurrection  or  rebellion  and  in  the  year  1845,  the 
said  defendant  was  a  member  of  the  Congress  of  the 
United  States,  and  as  such  member  took  an  oath  to 
support  the  Constitution  of  the  United  States  in  the 
usual  manner  and  as  required  by  law  in  such  cases  and 
the  defendant  alleges  in  bar  of  any  proceedings  upon 
said  indictments  or  either  of  them,  the  penalties  and 
disabilities  denounced  against  and  inflicted  on  him  by 
the  Third  Section  of  the  Fourteenth  Article  of  the 
Constitution  of  the  United  States,  forming  an  amend- 
ment to  said  Constitution."  Mr.  Davis'  contention 
thus  was  that  no  penalty  except  disqualification  for 
Federal  office  could  be  inflicted  upon  a  Federal  office- 
holder who  afterward  had  committed  acts  of  treason 
against  the  United  States.  After  the  case  had  been 
argued  by  counsel  on  both  sides.  Chief  Justice  Chase 
announced  that  the  judges  could  not  agree  upon  the 
question.  A  proclamation  of  general  amnesty  soon 
afterward,  made  any  further  prosecution  of  this  case 
unnecessary;  hence  the  point  is  still  debatable.  Chief 
Justice  Chase,  however,  instructed  the  reporter  of  the 
case  to  record  him  as  having  been  of  the  opinion  "that 
the  indictment  should  be  quashed  and  all  further 
proceedings  barred  by  the  effect  of  the  Fourteenth 
Amendment  of  the  Constitution  of  the  United  States. " 


PART  VIII 
The  Federal  Compact 


411 


CHAPTER  XXIII 

CONSIDERATIONS  OF  THE  AGREEMENT  OF  UNION 

"Every  State  constitution,"  said  Chief  Justice  Jay 
in  his  opinion  in  Chisholm  vs.  Georgia, '  "is  a  compact 
made  by  and  between  the  citizens  of  a  State  to  govern 
themselves  in  a  certain  manner;  and  the  Constitution 
of  the  United  States  is  likewise  a  compact,  made  by  the 
•people  of  the  United  States  to  govern  themselves  as 
to  general  objects  in  a  certain  manner." 

The  Constitution  of  the  United  States,  at  bottom,  is  a 
contract  which  the  People  of  the  United  States  have 
made  with  the  States  of  the  United  States  in  order  to 
obtain  the  advantages  of  a  strong  united  government. 
By  that  Constitution,  the  People  of  the  United  States 
constituted  a  national  Congress  with  power  to  make 
laws  which  are  executed  by  a  national  President  under 
the  instructions  of  a  national  Supreme  Court.  By 
ratifying  that  Constitution,  the  States  of  the  United 
States  agreed  that  the  powers  of  government  which 
they  had  surrendered  to  the  nation  should  be  exercised 
by  these  three  great  departments  of  authority.  The 
constitutional  compact  so  made  is  valid  and  binding 
upon  the  contracting  parties,  the  People  of  the  United 
States  and  the  States  of  the  United  States,  because 
they  have  accepted  the  considerations  or  benefits  which 
it  provides. 

>2  Dallas'  Rep.,  419,  471. 

413 


414       AMERICAN  PLAN  OF  GOVERNMENT 

"To  every  contract  it  is  essential  that  there  should 
be  a  consideration,"  said  Judge  Birdseye,  in  the 
opinion  in  the  case  of  Roberts  vs.  City  oj  New  York,  * 
"which  .  .  .  must  not  be  illegal.  One,  and  perhaps 
the  broadest  and  best  definition  of  the  consideration 
for  a  contract,  is :  The  reason  which  moves  a  contract- 
ing party  to  enter  into  an  agreement.  .  .  .  Chitty 
{Contracts,  2']')  speaks  of  the  consideration  as  the 
motive  or  inducement  to  make  the  promise.  Parsons 
(i  Contracts,  355),  says  the  consideration  is  the  cause 
of  the  contract." 

Art.  IV.,  Sec.  i.  Full  Faith  and  Credit  shall  be 
given  in  each  State  to  the  Public  Acts,  Records,  and 
judicial  Proceedings  of  every  other  State.  And  the 
Congress  may  by  general  Laws  prescribe  the  Manner 
in  which  such  Acts,  Records  and  Proceedings  shall  be 
proved,  and  the  Effect  thereof. 

The  one  benefit  which  the  People  of  the  United 
States  hoped  to  obtain  by  means  of  the  Constitution 
was  a  chance  to  do  business  with  each  other  upon  equal 
terms.  To  this  end,  it  was  necessary  to  make  some 
provision  which  would  compel  each  of  the  States  to 
recognize  the  validity  of  laws  passed  by  the  legislatures 
of  the  other  States  and  the  binding  force  of  judgments 
of  the  courts  of  the  other  commonwealths. 

Full  Faith  and  Credit  shall  he  given  in  each  State  to 
the  Public  Acts,  Records,  and  judicial  Proceedings  oj 
every  other  State.  Each  State  must  accept  a  public 
act  of  any  other  State  for  what  it  is  worth  in  the  State 
where  it  is  made.  A  creditor  who  has  obtained  a 
judgment  in  one  State  cannot  be  compelled,  in  enforcing 

'  5  Abbott's  Practise  Rep.  (N.  Y.),  41,  49. 


THE  FEDERAL  COMPACT       415 

payment  in  another  State,  to  prove  for  a  second  time 
that  the  debtor  owes  the  amount  of  the  judgment. 
Upon  proof  in  an  action  upon  the  judgment,  that  it 
has  been  legally  obtained,  the  courts  of  the  second  State 
will,  upon  request,  issue  judgment  upon  the  first 
judgment  and  award  execution  against  the  debtor, 
because  each  State  is  bound  to  give  full  faith  and  credit 
to  the  judicial  proceedings  of  the  other  States.  If  the 
rule  were  otherwise,  a  debtor  could,  by  moving  across 
State  lines  whenever  prosecuted,  compel  his  creditor 
either  to  abandon  the  debt  or  carry,  wherever  the 
absconder  might  seek  refuge,  witnesses  to  the  validity 
of  the  claim. 

In  the  case  of  Mills  vs.  Duryea,  *  the  question  before 
the  Supreme  Court  was  whether  the  defendant  in  a 
suit  brought  in  a  Federal  Court  upon  a  judgment  of  a 
court  of  the  State  of  New  York  had  a  right  to  a  second 
trial  upon  questions  which  had  been  decided  in  the 
State  court.  In  other  words,  the  Supreme  Court  had 
to  say  whether  the  State  court  could  decide  finally  upon 
all  matters  of  fact  which  had  been  tried  out  before  it. 
The  Supreme  Court  ruled  that  the  judgment  of  the 
State  court  was  final,  because  otherwise  the  "full 
faith  and  credit"  clause  of  the  Constitution  would  not 
mean  anything.     Justice  Story  said: 

By  the  act  of  26th  May,  1790,  c  II.,  Congress  provided 
for  the  mode  of  authenticating  the  records  and  judicial 
proceedings  of  the  State  courts,  and  further  declared  that: 
"the  records  and  judicial  proceedings,  authenticated  as 
aforesaid,  shall  have  such  faith  and  credit  given  to  them  in 
every  court  within  the  United  States  as  they  have  by  law 
and  usage  in  the  courts  of  the  State  from  whence  the  said 
records  are  or  shall  be  taken."     It  is  argued  that  this  act 

'  7  Cranch's  Rep.,  481. 


4i6       AMERICAN  PLAN  OF  GOVERNMENT 

provides  only  for  the  admission  of  such  records  as  evidence, 
but  does  not  declare  the  effect  of  such  evidence  when 
admitted.  This  argument  cannot  be  supported.  The  act 
declares  that  the  record  duly  authenticated  shall  have  such 
faith  and  credit  as  it  has  in  the  State  court  from  whence 
it  is  taken.  If  in  such  court  it  has  the  faith  and  credit  of 
evidence  of  the  highest  nature,  namely,  record  evidence,  it 
must  have  the  same  faith  and  credit  in  every  other  court. 
Congress  have  therefore  declared  the  effect  of  the  record 
by  declaring  what  faith  and  credit  shall  be  given  to  it. 

The  "records  and  judicial  proceedings"  of  a  State, 
when  proved  to  be  true  by  the  certificates  of  the  proper 
public  officers,  are  conclusive  evidence  in  all  other 
States  as  to  the  truth  of  the  facts  they  set  forth.  Never- 
theless, a  person  against  whom  a  court  judgment  has 
been  given  in  one  State,  can  defend  himself  by  showing 
that  the  judgment  was  issued  by  a  court  which  had  no 
right  to  issue  it.  For  example,  in  the  case  of  Thompson 
vs.  Whitman,  *  it  was  shown  that  Sheriff  Thompson  of 
Monmouth  County,  New  Jersey,  had  seized  a  sloop 
upon  a  charge  of  dredging  clams  in  the  waters  of  Mon- 
mouth County  contrary  to  a  New  Jersey  law.  After 
making  the  seizure,  the  sheriff  had  laid  an  information 
against  the  sloop  before  two  justices  of  the  peace 
who  had  rendered  a  judgment  that  she  be  sold  under 
the  provisions  of  the  law.  Mr.  Whitman,  the  owner, 
had  then  sued  Sheriff  Thompson  for  the  value  of  the 
sloop  and  her  cargo  and  fittings  in  a  Federal  court  in 
New  York.  Thompson  answered  that  he  was  not 
liable  in  damages  because  the  vessel  had  been  con- 
demned and  sold  in  New  Jersey  pursuant  to  a  judicial 
proceeding  which  was  entitled  to  full  faith  and  credit 
in    New    York.     Whitman    rejoined    that    the    New 

» 1 8  Wallace's  Rep.,  457. 


THE  FEDERAL  COMPACT       417 

Jersey  court  had  had  no  right  to  render  this  judgment. 
Thus  the  question  which  the  United  States  Circuit 
Court  had  to  decide  first  of  all  was  whether  it  had  power 
to  inquire  into  the  jurisdiction  of  the  New  Jersey  court 
which  had  made  the  decree  of  condemnation.  The 
decision  was  that  the  inquiry  could  be  made;  and  the 
case  then  went  on  appeal  to  the  Supreme  Court,  where 
Justice  Bradley  wrote  the  decision  of  the  court  on  this 
point  as  follows: 

It  has  been  supposed  that  this  act  [prescribing  the  manner 
in  which  the  public  acts,  records,  and  judicial  proceedings 
of  a  State  shall  be  proved  and  their  effect],  in  connection 
with  the  constitutional  provision  which  it  was  intended  to 
carry  out,  had  the  effect  of  rendering  the  judgments  of  each 
State  equivalent  to  domestic  judgments  in  every  other  State, 
or  at  least  of  giving  to  them  in  every  other  State  the  same 
effect,  in  all  respects,  which  they  have  in  the  State  where 
they  are  rendered.  .  .  .  But  where  the  jurisdiction  of  the 
court  which  rendered  the  judgment  has  been  assailed,  quite 
a  different  view  has  prevailed.  Justice  Story,  ...  in  his 
Commentary  on  the  Constitution  (Sec.  13 13),  .  .  .  adds: 
"But  this  does  not  prevent  an  inquiry  into  the  jurisdiction 
of  the  court  in  which  the  original  judgment  was  given,  to 
pronounce  it;  or  the  right  of  the  State  itself  to  exercise 
authority  over  the  person  or  the  subject  matter.  The 
Constitution  did  not  mean  to  confer  [upon  the  States] 
a  new  power  or  jurisdiction,  but  simply  to  regulate  the 
effect  of  the  acknowledged  jurisdiction  over  the  persons 
and  things  within  their  territory. "...  On  the  whole,  we 
think  it  clear  that  the  jurisdiction  of  the  court  by  which  a 
judgment  is  rendered  in  any  State  may  be  questioned  in  a 
collateral  proceeding  in  another  State,  notwithstanding 
the  provision  of  the  fourth  article  of  the  Constitution  and 
the  law  of  1790,  and  notwithstanding  the  averments  con- 
tained in  the  record  of  the  judgment  itself. 
28 


41 8       AMERICAN  PLAN  OF  GOVERNMENT 

And  the  Congress  may  by  general  Laws  prescribe  the 
Manner  in  which  such  Acts,  Records  and  Proceedings 
shall  be  proved,  and  the  Effect  thereof.  The  Act  of  Con- 
gress of  1790,  which  provides  that  the  duly  authenticated 
record  of  a  public  act  or  judicial  proceeding  shall  have 
such  faith  and  credit  in  every  State  as  it  has  in  the 
State  from  which  it  is  taken,  only  makes  a  judgment  of 
a  State  court  evidence  of  what  that  court  has  actually 
done.  The  judgment  is  something  which  may  have 
to  be  proved  in  court  by  those  who  wish  to  use  it  in 
some  State  other  than  that  in  which  it  was  obtained. 
This  rule  of  our  law  has  stood  in  the  way  of  many 
married  people  seeking  divorces.  Marriage  and  divorce 
always  have  been  matters  of  local  morals  which  the 
States  have  regulated  in  the  way  each  of  them  has  seen 
fit.  In  some  States  it  is  almost  impossible  to  break 
the  marriage  tie,  while  in  others  divorce  is  very  easy. 
Therefore,  in  cases  of  unhappy  marriage,  the  husband 
or  wife  often  leaves  a  State  which  discourages  divorces, 
and  obtains  in  a  State  having  lax  divorce  laws,  a  decree 
which,  under  the  full  faith  and  credit  clause,  is  valid 
in  all  the  States.  However,  if  the  one  who  gets  the 
divorce  does  not  serve  full  legal  notice  of  the  divorce 
action  upon  the  other  partner  in  marriage,  the  decree 
is  not  entitled  to  full  faith  and  credit  except,  perhaps, 
in  the  State  which  granted  it.  Such  is  the  rule  laid 
down  by  the  Supreme  Court  in  the  case  of  Haddock 
vs.  Haddock.  ^ 

It  was  shown  to  the  Supreme  Court  in  this  case 
that  Mrs.  Haddock  had  sued  her  husband  for  a  separa- 
tion in  the  courts  of  New  York.  Mr.  Haddock  had 
filed  an  answer  in  which  he  said  that  his  wife  was  not 
entitled  to  a  separation  because  they  were  already 

'■  201  U.  S.  Rep.,  562,  572,  575,  581,  605. 


THE  FEDERAL  COMPACT       419 

divorced.  In  proof  of  this  statement,  he  had  presented 
an  authenticated  copy  of  a  judgment  of  divorce  which 
he  had  obtained  some  years  before  in  Connecticut. 
Mrs,  Haddock's  lawyers  had  insisted  that  this  divorce 
decree  was  void  on  the  ground  that  the  Connecticut 
court  never  had  had  any  right  to  judge  the  case.  The 
record  of  the  Connecticut  court  showed  that  the  suit 
had  been  commenced  by  the  issuance  of  a  summons 
addressed  to  Mrs.  Haddock,  which  had  been  published 
in  a  newspaper,  but  had  not  been  delivered  to  her 
personally.  The  Connecticut  court  had  ruled  that 
this  was  a  sufficient  service  upon  Mrs.  Haddock,  and 
had  granted  the  divorce.  The  New  York  courts  had 
refused  to  recognize  the  Connecticut  divorce  and  had 
given  Mrs.  Haddock  a  decree  of  separation  with 
alimony.  Haddock  then  had  taken  the  case  to  the 
Supreme  Court  upon  the  contention  that  the  New 
York  courts,  by  the  full  faith  and  credit  clause  of  the 
Constitution,  ought  to  have  recognized  and  given 
effect  to  the  Connecticut  judgment.  The  Supreme 
Court  sided  with  Mrs.  Haddock  in  an  opinion  written 
by  Justice  White,  now  Chief  Justice  of  the  Court,  in 
which  he  said  in  part: 

The  case  reduces  itself  to  this:  whether  the  Connecticut 
court,  in  virtue  of  the  domicil  of  the  husband  in  that 
State,  had  jurisdiction  to  render  a  decree  against  the 
wife  under  the  circumstances  stated,  which  was  entitled  to 
be  enforced  in  other  States  in  and  by  virtue  of  the  full 
faith  and  credit  clause  of  the  Constitution.  .  .  .  No  one 
denies  that  the  States,  at  the  time  of  the  adoption  of  the 
Constitution,  possessed  full  power  over  the  subject  of 
marriage  and  divorce.  No  one,  moreover,  can  deny  that, 
prior  to  the  adoption  of  the  Constitution,  the  extent  to 
which  the  States  would  recognize  a  divorce  obtained  in  a 


420       AMERICAN  PLAN  OF  GOVERNMENT 

foreign  jurisdiction  depended  upon  their  conceptions  of 
duty  and  comity.  Besides,  it  must  be  conceded  that  the 
Constitution  delegated  no  authority  to  the  government  of 
the  United  States  on  the  subject  of  marriage  and  divorce. 
Yet,  if  the  proposition  be  maintained,  it  would  follow  that 
the  destruction  of  the  power  of  the  States  over  the  dissolu- 
tion of  marriage,  as  to  their  own  citizens,  would  be  brought 
about  by  the  operation  of  the  full  faith  and  credit  clause 
of  the  Constitution.  That  is  to  say,  it  would  come  to  pass 
that,  although  the  Constitution  of  the  United  States  does 
not  interfere  with  the  authority  of  the  States  over  marriage, 
nevertheless  the  full  faith  and  credit  clause  of  that  instru- 
ment destroyed  the  authority  of  the  States  over  the  marriage 
relation.  And  as  the  Government  of  the  United  States  has 
no  delegated  authority  on  the  subject,  that  Government 
would  be  powerless  to  prevent  the  evil  thus  brought  about 
by  the  full  faith  and  credit  clause.  Thus  neither  the  States 
nor  the  National  Government  would  be  able  to  exert  that 
authority  over  the  marriage  tie  possessed  by  every  other 
civilized  government.  .  .  . 

The  denial  of  the  power  to  enforce  in  another  State  a 
decree  of  divorce  rendered  against  a  person  who  was 
not  subject  to  the  jurisdiction  of  the  State  in  which  the 
decree  was  rendered  obviates  all  the  contradictions  and 
inconveniences  which  are  above  indicated.  It  leaves  un- 
curtailed  the  legitimate  power  of  all  the  States  over  a 
subject  peculiarly  within  their  authority,  and  thus  not  only 
enables  them  to  maintain  their  public  policy  but  also  to 
protect  the  individual  rights  of  their  citizens.  ...  It 
causes  the  full  faith  and  credit  clause  of  the  Constitution  to 
operate  upon  decrees  of  divorce  in  the  respective  States 
just  as  that  clause  operates  upon  other  rights — that  is,  it 
compels  all  the  States  to  recognize  and  enforce  a  judgment 
of  divorce  rendered  in  other  States  where  both  parties  were 
subject  to  the  jurisdiction  of  the  State  in  which  the  decree 
was  rendered,  and  it  enables  the  States  rendering  such 
decrees  to  take  into  view  for  the  purpose  of  the  exercise 


THE  FEDERAL  COMPACT       421 

of  their  authority  the  existence  of  a  matrimonial  domicil 
from  which  the  presence  of  a  party  not  physically  present 
within  the  borders  of  a  State  may  be  constructively  found 
to  exist.  .  .  . 

Without  questioning  the  power  of  the  State  of  Connecticut 
to  enforce  within  its  own  borders  the  decree  of  divorce 
which  is  here  in  issue,  and  without  intimating  a  doubt  as  to 
the  power  of  the  State  of  New  York  to  give  to  a  decree  of 
that  character  rendered  in  Connecticut,  within  the  borders 
of  the  State  of  New  York  and  as  to  its  own  citizens,  such 
efficacy  as  it  may  be  entitled  to  in  view  of  the  public  policy 
of  that  State,  we  hold  that  the  decree  of  the  court  of  Con- 
necticut rendered  under  the  circumstances  stated  was  not 
entitled  to  obligatory  enforcement  in  the  State  of  New  York 
by  virtue  of  the  full  faith  and  credit  clause. 

Art.  IV.,  Sec.  2.  The  Citizens  of  each  State  shall 
be  entitled  to  all  Privileges  and  Immunities  of  Citizens 
in  the  several  States. 

"The  great  object  to  be  attained  [by  the  equal  rights 
clause],"  said  Chief  Justice  Johns  of  Delaware  in  his 
opinion  in  the  case  of  Douglass  vs.  Stephens,^  "was  to 
prevent  a  citizen  of  one  State  from  being  considered 
an  alien  in  another  State." 

In  the  case  of  Ward  vs.  Maryland,  *  it  was  shown  to  the 
court  that  a  statute  of  Maryland,  enacted  in  1870,  had 
required  all  merchants  residing  in  that  State  to  take 
out  trading  licenses  for  which  they  had  to  pay  from 
$12  up  to  $150  a  year  according  to  the  value  of  their 
stock-in-trade.  One  section  of  this  law  declared 
that  all  non-residents  who  sold  goods,  wares,  and  mer- 
chandise in  Maryland,  should  pay  an  annual  license  fee 
of  three  hundred  dollars.     A  New  Jersey  man  named 

» I  Del.  Ch.  Rep.,  465.  » 12  Wallace's  Rep.,  418. 


422       AMERICAN  PLAN  OF  GOVERNMENT 

Ward,  who  had  sold  harnesses  by  sample  at  Baltimore 
without  having  taken  out  a  trading  license,  had  been 
convicted  and  fined  $400  in  the  State  court.  He  had 
then  taken  the  case  to  the  Supreme  Court,  which 
decided  that  the  Maryland  law  did  not  give  to  citizens 
of  other  States  the  same  privileges  in  Maryland  as  it 
did  to  residents.    Justice  Clifford  said: 

Imposed  as  the  exaction  is  upon  persons  not  permanent 
residents  in  the  State,  it  is  not  possible  to  deny  that  the  tax 
is  discriminating  with  any  hope  that  the  proposition  could  be 
sustained  by  the  court.  .  .  .  Comprehensive  as  the  power 
of  the  States  is  to  lay  and  collect  taxes  and  excises,  it  is 
nevertheless  clear,  in  the  judgment  of  the  court,  that  the 
power  cannot  be  exercised  to  any  extent  in  a  manner  for- 
bidden by  the  Constitution;  and  inasmuch  as  the  Constitu- 
tion provides  that  the  citizens  of  each  State  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the  several 
States,  it  follows  that  the  defendant  might  lawfully  sell,  or 
offer  or  expose  for  sale,  within  the  district  described  in  the 
indictment,  any  goods  which  the  permanent  residents  of  the 
State  might  sell,  or  offer  or  expose  for  sale,  in  that  district, 
without  being  subjected  to  any  higher  tax  or  excise  than 
that  exacted  by  law  of  such  permanent  residents. 

The  Citizens  of  each  State.  In  1821,  the  Supreme 
court  of  Kentucky,  in  the  case  of  Amy  vs.  Smith,  '^ 
defined  the  word  "citizen"  as  used  in  this  section  of  the 
Constitution.  A  colored  woman,  a  slave,  who  had  lived 
in  Pennsylvania,  asserted  that,  as  she  had  been  a 
citizen  of  a  free  State,  her  privileges  and  immunities 
had  been  violated  by  the  Kentuckian  who  claimed 
to  be  her  owner.  This  contention  brought  before  the 
court  the  question  whether  a  slave  woman,  by  residing 

'  1 1  Kentucky  Rep.,  326. 


THE  FEDERAL  COMPACT  423 

in  a  free  State,  might  become  entitled  to  all  the  privi- 
leges and  immunities  of  citizens  of  that  State.  The 
court  decided  that  she  was  not  a  citizen  of  a  State 
and  therefore  was  not  entitled  to  the  benefits  of  the 
Constitution.     The  court  said: 

The  term,  citizen,  is  derived  from  the  Latin  word,  civis, 
and  in  its  primary  sense  signifies  one  who  is  vested  with  the 
freedom  and  privileges  of  a  city.  At  an  early  period  after 
the  subversion  of  the  Roman  Empire,  when  civilization  had 
again  begun  to  progress,  the  cities  in  every  part  of  Europe, 
either  by  usurpation  or  concession  from  their  sovereigns, 
obtained  extraordinary  privileges,  in  addition  to  those  which 
were  common  to  the  other  subjects  of  their  respective 
countries;  and  one  who  was  invested  with  those  extraordi- 
nary privileges,  whether  he  was  an  inhabitant  of  the  city  or 
not,  or  whether  he  was  bom  in  it  or  not,  was  deemed  a 
citizen.  ...  In  England,  a  citizen  is  not  only  entitled  to 
all  the  local  privileges  of  the  city  to  which  he  belongs,  but 
he  has  also  the  right  of  electing  and  being  elected  to  parlia- 
ment, which  is  itself  rather  an  extraordinary  privilege  since 
it  does  not  belong  to  every  class  of  subjects.  ...  If  we  go 
back  to  Rome,  whence  the  term,  citizen,  has  its  origin, 
we  shall  find,  in  the  illustrious  period  of  her  republic,  that 
citizens  were  the  highest  class  of  subjects  to  whom  the 
jus  civitatis  (right  of  the  city)  belonged,  and  that  jus 
civitaiis  conferred  upon  those  who  were  in  possession  of  it, 
all  rights  and  privileges,  civil,  political,  and  religious. 
.  .  .  When  the  term  came  to  be  applied  to  the  inhabitants 
of  a  state,  it  necessarily  carried  with  it  the  same  significa- 
tion, with  reference  to  the  privileges  of  the  state,  which 
had  been  implied  by  it  with  reference  to  the  privileges 
of  a  city,  when  it  was  applied  to  the  inhabitants  of  the  city; 
and  it  is  in  this  sense,  that  the  term,  citizen,  is  believed 
to  be  generally,  if  not  universally,  understood  in  the  United 
States.  .  .  .  No  one  can,  ...  in  the  correct  sense  of  the 
term,  be  a  citizen  of  a  state,  who  is  not  entitled,  upon 


424       AMERICAN  PLAN  OF  GOVERNMENT 

the  terms  prescribed  by  the  institutions  of  the  state,  to  all 
the  rights  and  privileges  conferred  by  those  institutions 
upon  the  highest  class  of  society. 

The  Citizens  of  each  State  shall  he  entitled  to  all  Privi- 
leges and  Immunities  of  Citizens  in  the  several  States. 
In  1833,  Justice  Bushrod  Washington  took  pains  to 
say,  in  his  opinion  in  the  case  of  Corfield  vs.  Coryell,^ 
what  privileges  and  immunities  a  citizen  of  one  State 
has  in  the  other  States.  In  this  case,  a  number  of 
citizens  of  Pennsylvania  had  set  up  the  claim  that  their 
privileges  and  immunities  in  the  State  of  New  Jersey 
had  been  infringed  by  a  State  law  against  dredging  for 
oysters  in  New  Jersey  waters  during  a  closed  season. 
Justice  Washington  ruled  soUdly  against  the  Penn- 
sylvania oystermen  on  this  point,  saying: 

The  inquiry  is,  what  are  the  privileges  and  immunities 
of  citizens  in  the  several  States?  We  feel  no  hesitation 
in  confining  these  expressions  to  those  privileges  and  im- 
munities which  are,  in  their  nature,  fundamental;  which 
belong,  of  right,  to  the  citizens  of  all  free  governments;  and 
which  have,  at  all  times,  been  enjoyed  by  the  citizens  of 
the  several  States  which  compose  this  Union,  from  the  time 
of  their  becoming  free,  independent,  and  sovereign.  What 
these  fundamental  principles  are,  it  would  perhaps  be  more 
tedious  than  difficult  to  enumerate.  They  may,  however, 
be  all  comprehended  under  the  following  general  heads: 
protection  by  the  government;  the  enjoyment  of  life  and 
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 

'  4  Washington  C.  C.  Rep.,  380. 


THE  FEDERAL  COMPACT       425 

in,  any  other  State,  for  purposes  of  trade,  agriculture, 
professional  pursuits,  or  otherwise;  to  claim  the  benefit 
of  the  writ  of  habeas  corpus;  to  institute  and  maintain 
actions  of  any  kind  in  the  courts  of  the  State;  to  take, 
hold,  and  dispose  of  property,  either  real  or  personal;  and 
an  exemption  from  higher  taxes  or  impositions  than  are  paid 
by  the  other  citizens  of  the  State;  may  be  mentioned  as 
some  of  the  particular  privileges  and  immunities  of  citizens, 
which  are  clearly  embraced  by  the  general  description  of 
privileges  deemed  to  be  fundamental:  to  which  may  be 
added,  the  elective  franchise,  as  regulated  and  established  by 
the  laws  or  constitution  of  the  State  in  which  it  is  to  be 
exercised.  These,  and  many  others  which  might  be  men- 
tioned, are,  strictly  speaking,  privileges  and  immunities,  and 
the  enjoyment  of  them  by  the  citizens  of  each  State,  in 
every  other  State,  was  manifestly  calculated  (to  use  the 
expressions  of  the  preamble  of  the  corresponding  pro- 
vision in  the  old  articles  of  confederation),  "the  better 
to  secure  and  perpetuate  mutual  friendship  and  inter- 
course among  the  people  of  the  different  States  of  the 
Union." 

Art.  IV.,  Sec.  2  (continued).  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. 

Extradition,  nowadays  provided  for  in  all  treaties 
between  civilized  nations,  is  almost  an  American  inven- 
tion. In  old  times,  nations  which  happened  to  be  on 
unusually  friendly  terms  or  wished  to  be  obliging,  had 
at  intervals  surrendered  to  one  another  fugitive 
offenders.  But  there  had  been  no  regular  practise  on 
the  subject.     Chief  Justice  Taney,  in  the  case  of  Ken- 


426       AMERICAN  PLAN  OF  GOVERNMENT 

tucky  vs.  Dennison, '  traced  the  history  of  extradition, 
saying : 

It  is  manifest  that  the  statesmen  who  framed  the  Con- 
stitution were  fully  sensible  that,  from  the  complex  character 
of  the  government,  it  must  fail  unless  the  States  mutually 
^pported  each  other  and  the  general  government;  and  that 
nothing  would  be  more  likely  to  disturb  its  peace,  and 
end  in  discord,  than  permitting  an  offender  against  the  laws 
of  a  State,  by  passing  over  a  mathematical  line  which 
divides  it  from  another,  to  defy  its  process,  and  stand 
ready,  under  the  protection  of  the  State,  to  repeat  the 
offense  as  soon  as  another  opportunity  offered. 

Indeed,  the  necessity  of  this  policy  of  mutual  support, 
in  bringing  offenders  to  justice,  without  any  exception  as  to 
the  character  and  nature  of  the  crime,  seems  to  have  been 
first  recognized  and  acted  upon  by  the  American  colonies; 
for  we  find  by  Winthrop's  History  of  Massachusetts,  vol.  2, 
pages  121  and  126,  that  as  early  as  1643,  by  "Articles  of 
Confederation  between  the  plantation  under  the  govern- 
ment of  Massachusetts,  the  plantation  under  the  govern- 
ment of  New  Ply  mouth,  the  plantation  under  the  government 
of  Connecticut  and  the  government  of  New  Haven,  with 
the  plantations  in  common  therewith,"  these  plantations 
pledged  themselves  to  each  other  that,  "upon  the  escape 
of  any  prisoner  or  fugitive  for  any  criminal  cause,  whether 
by  breaking  prison,  or  getting  from  the  oflBcer,  or  otherwise 
escaping,  upon  the  certificate  of  two  magistrates  of  the 
jurisdiction  out  of  which  the  escape  was  made  that  he  was 
a  prisoner  or  such  an  offender  at  the  time  of  the  escape,  the 
magistrate,  or  some  of  them,  of  the  jurisdiction  where,  for 
the  present,  the  said  prisoner  or  fugitive  abideth,  shall 
forthwith  grant  such  a  warrant  as  the  case  will  bear,  for  the 
apprehending  of  any  such  person,  and  the  delivery  of  him 
into  the  hands  of  the  officer  or  other  person  who  pursueth 
him;  and  if  there  be  help  required  for  the  safe  returning 

» 24  Howard's  Rep.,  66. 


THE  FEDERAL  COMPACT       427 

of  any  such  offender,  then  it  shall  be  granted  unto  him  that 
craves  the  same,  he  paying  the  charges  thereof."  It  will 
be  seen  that  this  agreement  gave  no  discretion  to  the  magis- 
trate of  the  government  where  the  offender  was  found ;  but 
he  was  bound  to  arrest  and  deliver,  upon  the  production  of 
the  certificate  under  which  he  was  demanded. 

When  the  thirteen  colonies  formed  a  confederation  for 
mutual  support,  a  similar  provision  was  introduced,  most 
probably  suggested  by  the  advantages  which  the  planta- 
tions had  derived  from  their  compact  with  one  another. 
But,  as  the  colonies  had  then,  by  the  declaration  of  independ- 
ence, become  separate  and  independent  sovereignties, 
against  which  treason  might  be  committed,  their  compact 
is  carefully  worded,  so  as  to  include  treason  and  felony 
— that  is,  political  offenses — as  well  as  crimes  of  an  inferior 
grade.     It  is  in  the  following  words: 

"If  any  person,  guilty  of  or  charged  with  treason,  felony, 
or  other  high  misdemeanor,  in  any  State,  shall  flee  from 
justice,  and  be  found  in  any  other  of  the  United  States, 
he  shall,  upon  demand  of  the  governor  or  executive  power 
of  the  State  from  which  he  fled,  be  delivered  up  and  removed 
to  the  State  having  jurisdiction  of  his  offense." 

And  when  these  colonies  were  about  to  form  a  still 
closer  union  by  the  present  Constitution,  but  yet  preserving 
their  sovereignty,  they  had  learned  from  experience  the 
necessity  of  this  provision  for  the  internal  safety  of  each 
of  them,  and  to  promote  concord  and  harmony  among  their 
members;  and  it  is  introduced  in  the  Constitution  substan- 
tially in  the  same  words,  but  substituting  the  word  "crime" 
for  the  words  "high  misdemeanor,"  and  thereby  showing 
the  deliberate  purpose  to  include  every  offense  known  to  the 
law  of  the  State  from  which  the  party  charged  had  fled. 

The  treasons,  felonies,  or  other  crimes,  for  which  a 
fugitive  from  justice  may  be  removed  from  one  State 
to  another,  according  to  Watson  on  the  Constitution,' 

'ii.,1234. 


428       AMERICAN  PLAN  OF  GOVERNMENT 

"embrace  every  offense  of  every  character,  which  is 
known  to  the  law  of  the  State  from  which  an  accused 
person  has  fled  and  consequently  are  to  be  given  the 
broadest  signification  and  construction."  These  words 
even  include  a  crime  committed  in  one  State  while  in 
another  State.  If,  for  example,  as  was  decided  in  the 
case  of  State  vs.  Hull,  ^  a  man  standing  in  North  Carolina 
near  the  Tennessee  line  shoots  and  kills  a  man  in  the 
latter  State,  it  would  be  the  duty  of  the  governor  of 
North  Carolina  to  surrender  him  on  the  demand  of  the 
governor  of  Tennessee.  The  presumption  in  such  a  case 
is  that  the  murderer  accompanied  the  bullet  across  the 
border  and  "was  constructively  present  when  the 
fatal  wound  was  actually  inflicted." 

"Treason"  against  a  State  is  any  attempt  forcibly 
to  overturn  its  government.  This  definition  was  given 
in  the  case  of  People  vs.  Lynch, '  in  which  the  following 
facts  appeared:  In  1814,  during  a  crisis  in  the  second 
war  with  Great  Britain,  Michael  Lynch  and  some 
other  New  York  gentlemen  were  called  upon  to  defend 
themselves  in  the  Court  of  General  Sessions  of  the 
Peace  upon  a  charge  of  treason  against  the  State  of 
New  York,  committed  by  furnishing  provisions  to  the 
British  ship  of  war  Bulwark.  The  court  ruled  that  this 
was  treason  against  the  United  States  and  not  against 
the  State  of  New  York,  but  indicated  in  the  course 
of  the  opinion  that  there  was  such  a  crime  as  treason 
against  a  State.     The  court  said: 

For  there  can  be  no  doubt  but  such  a  state  of  things 
might  exist,  as  that  treason  against  the  people  of  this 
State  might  be  committed.     This  might  be,  by  an  open  and 

'  115  North  Carolina  Rep.,  8il. 
'II  Johnson's  N.  Y.  Rep.,  549. 


THE  FEDERAL  COMPACT       429 

armed  opposition  to  the  laws  of  the  State,  or  a  combination 
and  forcible  attempt  to  overturn  and  usurp  the  government. 

A  fugitive  from  justice,  according  to  the  opinion  of 
Justice  Harlan  in  the  case  of  Appleyard  vs.  Massachu- 
setts,'^ is  a  person  who  commits  a  crime  in  one  State 
and  then  goes  to  another  State.  In  this  case,  a  man 
who  had  been  indicted  on  a  charge  of  crime  in  Buffalo, 
New  York,  insisted  that  he  ought  not  to  be  extradited 
from  Massachusetts  because  he  had  left  Buffalo  of  his 
own  accord  and  without  any  idea  that  he  was  running 
away  from  a  charge  of  crime.     Justice  Harlan  said: 

A  person  charged  by  indictment  or  by  affidavit  before  a 
magistrate  with  the  commission  within  a  State  of  a  crime 
covered  by  its  laws,  and  who,  after  the  date  of  the  commis- 
sion of  such  crime,  leaves  the  State — no  matter  for  what 
purpose  or  with  what  motive,  nor  under  what  belief — 
becomes  from  the  time  of  such  leaving  and  within  the 
meaning  of  the  Constitution  and  the  laws  of  the  United 
States,  a  fugitive  from  justice,  and  if  found  in  another 
State  must  be  delivered  up  by  the  Governor  of  such  State 
to  the  State  whose  laws  are  alleged  to  have  been  violated, 
on  the  production  of  such  indictment  or  affidavit,  certified 
as  authentic  by  the  Governor  of  the  State  from  which  the 
accused  departed. 

The  Supreme  Court  has  often  been  appealed  to  in 
cases  in  which,  for  one  reason  or  another,  a  State 
governor  has  refused  to  order  the  extradition  to  another 
State  of  a  person  charged  with  crime.  The  court  al- 
ways has  declined  to  interfere.  For  instance,  after  the 
murder  of  State  Senator  William  Goebel  of  Kentucky, 
in  1899,  ex-Governor  Taylor  of  that  State  took  refuge 

» 203  U.  S.  Rep.,  222. 


430       AMERICAN  PLAN  OF  GOVERNMENT 

in  Indiana.     The  governor  of  the  latter  State  stoutly 
refused  to  order  his  extradition. 

The  rule  that  interstate  extradition  is  largely  a  matter 
of  interstate  courtesy  was  established  in  i860  in  the 
case  of  Kentucky  vs.  Dennison.^  In  this  case,  an 
application  had  been  made  by  the  Kentucky  authorities 
to  William  Dennison,  governor  of  Ohio,  for  the  extra- 
dition of  one  Willis  Lago,  who  had  been  indicted  on  a 
charge  of  assisting  in  the  escape  of  a  runaway  negro 
slave.  Governor  Dennison,  knowing  how  strong  anti- 
slavery  sentiment  was  in  his  State,  had  refused  to 
order  the  delivery  of  Lago  to  the  Kentucky  authorities. 
Thereupon  they  had  asked  the  Supreme  Court  for  a 
court  order  commanding  him,  as  governor  of  Ohio, 
to  sign  the  proper  warrants.  When  the  case  came  up, 
the  State  of  Ohio  denied  the  power  of  the  Supreme 
Court  to  judge  the  question  involved.  Chief  Justice 
Taney,  in  giving  the  decision,  said : 

The  act  of  Congress  declares  that  "it  shall  be  the  duty 
of  the  executive  authority  of  the  State"  to  cause  the  fugi- 
tive to  be  arrested  and  secured,  and  delivered  to  the  agent 
of  the  demanding  State.  The  words,  "it  shall  be  the 
duty,"  in  ordinary  legislation,  imply  the  assertion  of  the 
power  to  command  and  to  coerce  obedience.  But,  looking 
to  the  subject-matter  of  this  law,  and  to  the  relations  which 
the  United  States  and  the  several  States  bear  to  each  other, 
the  court  is  of  opinion,  the  words  "it  shall  be  the  duty" 
were  not  used  as  mandatory  and  compulsory,  but  as  declara- 
tory of  the  moral  duty  which  this  compact  created,  when 
Congress  had  provided  the  mode  of  carrying  it  into  execu- 
tion. The  act  does  not  provide  any  means  to  compel  the 
execution  of  this  duty,  nor  inflict  any  punishment  for  neglect 
or  refusal  on  the  part  of  the  executive  of  the  State;  nor  is 
there  any  clause  or  provision  in  the  Constitution  which 

'  .'24  Howard's  Rep.,  66. 


THE  FEDERAL  COMPACT       431 

arms  the  government  of  the  United  States  with  this  power. 
Indeed,  such  a  power  would  place  every  State  under  the 
control  and  dominion  of  the  general  government,  even  in 
the  administration  of  its  internal  concerns  and  reserved 
rights.  And  we  think  it  clear,  that  the  federal  govern- 
ment, under  the  Constitution,  has  no  power  to  impose  on  a 
State  officer,  as  such,  any  duty  whatever,  and  compel  him 
to  perform  it;  for  if  it  possessed  this  power,  it  might  over- 
load the  officer  with  duties  which  would  fill  up  all  his  time, 
and  disable  him  from  performing  his  obligations  to  the 
State,  and  might  impose  on  him  duties  of  a  character 
incompatible  with  the  rank  and  dignity  to  which  he  was 
elevated  by  the  State. 

The  Supreme  Court  has  decided  that  a  State  can 
try  a  person  extradited  from  another  State  for  a  crime 
or  on  a  charge  other  than  that  upon  which  he  has  been 
extradited.  This  is  importantly  different  from  the 
rule  in  cases  of  extradition  from  foreign  countries  in 
which  trial  may  be  had  only  on  the  charge  which  the 
prisoner  has  been  brought  here  to  answer.  In  the  case 
of  Lascelles  vs.  Georgia,^  a  plausible  rogue,  named 
Lascelles,  also  known  as  Walter  G.  Beresford,  had  been 
extradited,  in  1891,  from  New  York  to  Georgia  to 
answer  to  an  indictment  charging  him  with  being  a 
common  cheat  and  swindler.  He  had  been  put  to 
trial  and  found  guilty  in  Georgia  on  a  charge  of  "larceny 
[or  stealing]  after  trust  delegated."  He  had  appealed 
from  the  judgment  of  conviction  to  the  Supreme  Court 
of  Georgia,  and  then  had  taken  the  case  to  the  national 
Supreme  Court  on  the  ground  that  he  had  been  tried 
"for  a  separate  and  different  offence  from  that  for  which 
he  was  extradited  from  the  State  of  New  York  to  the 
State  of  Georgia,  without  being  allowed  a  reasonable 

'  148  U.  S.  Rep.,  537. 


432       AMERICAN  PLAN  OF  GOVERNMENT 

opportunity  to  return  to  the  State  of  New  York." 
Justice  Jackson,  in  giving  the  decision  of  the  latter 
Court,  said : 

If  the  fugitive  be  regarded  as  not  lawfully  within  the 
limits  of  the  State  in  respect  to  any  other  crime  than  the 
one  on  which  his  svurender  was  effected,  still  that  fact 
does  not  defeat  the  jurisdiction  of  its  courts  to  try  him  for 
other  offences,  any  more  than  if  he  had  been  brought  within 
such  jurisdiction  forcibly  and  without  any  legal  process 
whatever. 

Art.  IV.,  Sec.  2  (continued).  No  Person  held  to 
Service  or  Labour  in  one  State,  under  the  Laws  thereof, 
escaping  into  another,  shall  in  Consequence  of  any 
Law  or  Regulation  therein,  be  discharged  from  such 
Service  or  Labotur,  but  shall  be  delivered  up  on  Claim 
of  the  Party  to  whom  such  Service  or  Labour  may  be 
due. 

This  provision  for  the  delivery  to  their  owners  of 
slaves  who  might  escape  to  the  free  States  was  one  of 
the  special  considerations  which  induced  the  Southern 
States  to  ratify  the  Constitution. 

In  the  case  of  Prigg  vs.  Pennsylvania,  ^  it  was  shown 
to  the  Supreme  Court  that  a  man  named  Prigg  had 
been  convicted  in  the  courts  of  Pennsylvania,  under  a 
local  law  against  kidnapping,  of  having  abducted  a 
negro  woman  from  York  County,  Pennsylvania. 
The  jury  had  found  that  the  negress  was  a  slave  owned 
by  one  Margaret  Ashmore  of  Maryland;  that  she  had 
run  away  in  1832;  that  Prigg,  acting  as  agent  for  Mrs. 
Ashmore,  had  caused  the  apprehension  of  the  negress 
on  a  magistrate's  warrant,  and  had  taken  her  before 

» 16  Peters'  Rep.,  539. 


THE  FEDERALCOMPACT  433 

the  magistrate,  who  had  refused  to  order  her  to  be 
returned  to  her  owner.  Thereupon  Prigg  had  taken  it 
upon  himself  to  take  the  woman  back  to  Maryland. 
Justice  Story  stated  in  his  opinion  in  this  case  that 
the  kidnapping  law,  under  which  Prigg  had  been  con- 
victed, was  unconstitutional  because  inconsistent  with 
the  fugitive  slave  clause  of  the  Constitution.     He  said : 

Historically,  it  is  well  known  that  the  object  of  this 
clause  was  to  secure  to  the  citizens  of  the  slaveholding 
States  the  complete  right  and  title  of  ownership  in  their 
slaves,  as  property,  in  every  State  in  the  Union  into  which 
they  might  escape  from  the  State  where  they  were  held  in 
servitude.  The  full  recognition  of  this  right  and  title  was 
indispensable  to  the  security  of  this  species  of  property  in 
all  the  slaveholding  States;  and,  indeed,  was  so  vital  to  the 
preservation  of  their  domestic  interests  and  institutions, 
that  it  cannot  be  doubted  that  it  constituted  a  fundamental 
article  without  the  adoption  of  which  the  Union  could  not 
have  been  formed.  Its  true  design  was  to  guard  against  the 
doctrines  and  principles  prevalent  in  the  non-slaveholding 
States,  by  preventing  them  from  intermeddling  with,  or 
obstructing,  or  abolishing  the  rights  of  the  owners  of  slaves. 

Art.  IV.,  Sec.  3.  New  States  may  be  admitted  by 
the  Congress  into  this  Union;  but  no  new  State  shall 
be  formed  or  erected  within  the  Jurisdiction  of  any 
other  State ;  nor  any  State  be  formed  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. 

iVew  States  may  be  admitted  by  the  Congress  into  this 
Union.  This  part  of  the  clause  providing  for  the 
formation  of  new  States  gave  Congress  power  to  carry 
into  effect  an  article  in  the  Ordinance  of  1787  establish- 


434       AMERICAN  PLAN  OP  GOVERNMENT 

ing  the  Northwest  Territory,  which  declared  that 
not  less  than  three  nor  more  than  five  States  should  be 
formed  out  of  that  immense  public  domain.  Under 
it,  Congress  has  established  all  the  States  formed  from 
the  territorial  areas  of  the  Louisiana  Purchase,  ceded 
in  1804,  Spanish  Florida,  ceded  in  18 19,  and  the  Mexican 
Cession,  taken  over  in  1848,  and  has  admitted  by  a 
merging  process  in  1845  the  independent  State  of  Texas. 

Many  troublesome  political  questions  disturbed  the 
councils  of  Congress  when  the  acts  for  the  admission  of 
States  carved  out  of  ceded  territory  were  under  con- 
sideration. The  United  States  of  1787  included  only 
the  area  between  the  Atlantic  Ocean  and  the  Mississippi 
River,  bounded  on  the  north  by  British  America  and 
on  the  south  by  Spanish  Florida.  Many  of  the  leading 
public  men  of  the  era  before  the  Civil  War  always 
insisted  that  the  provisions  of  the  Constitution  applied 
only  to  the  United  States  for  which  it  had  been  made; 
that  all  territory  subsequently  acquired  by  purchase, 
conquest,  or  annexation  was  subject  to  the  national 
government,  but  not  entitled  to  become  a  part  of  the 
United  States.  Hence  arose  those  fierce  debates  in 
Congress  which  began  in  181 1,  when  the  act  for  the 
admission  of  Louisiana  was  under  consideration,  and 
were  renewed  from  time  to  time  until  the  act  for  the 
admission  of  Texas  had  been  adopted. 

No  new  State  shall  be  formed  or  erected  within  the 
Jurisdiction  of  any  other  State.  Notwithstanding  this 
positive,  unqualified  prohibition,  the  State  of  West 
Virginia,  admitted  to  the  Union  in  1863,  was  formed 
wholly  "within  the  jurisdiction  of"  the  State  of  Vir- 
ginia. Virginia  had  seceded  in  1861,  and  the  majority 
of  the  members  of  its  legislature  were  at  Richmond 
doing  all  they  could  to  break  up  the  Union.     On  June 


THE  FEDERAL  COMPACT       435 

II,  1 861,  the  members  from  the  western  part  of  the 
State  assembled  at  Wheeling  and  chose  men  loyal  to 
the  Union  for  State  officers  in  place  of  the  officials  who 
had  cast  in  their  lot  with  the  South.  "They  did  not 
assume,"  says  Mr.  Blaine  in  his  Twenty  Years  of 
Congress,^  "to  represent  a  mere  section  of  the  State, 
but  in  the  belief  that  the  loyal  people  were  entitled 
to  speak  for  the  whole  State,  they  declared  that  their 
government  was  the  government  of  Virginia."  On 
August  20,  1 861,  the  new  State  government,  if  it  can 
be  so  called,  adopted  an  ordinance  providing  "for  the 
formation  of  a  new  State  out  of  a  portion  of  the  territory 
of  this  State."  This  action  was  approved  by  popular 
vote  in  the  parts  of  Virginia  where  such  a  vote  could  be 
taken.  A  State  constitution  was  framed  by  a  conven- 
tion and  ratified  by  a  similar  vote.  Congress  had  no 
other  authority  for  the  act  making  West  Virginia  a 
State.  It  was  a  war  measure  adopted  solely  for  the 
purpose  of  crushing  the  rebellion. 

Nor  [shall]  any  State  be  formed  by  the  Junction  of 
two  or  more  States.  The  framers  of  the  Constitution 
seem  to  have  thought  that,  in  time  to. come,  new  States 
might  be  formed  by  the  amalgamation  of  existing 
States.  Thus  far  in  American  history  nothing  of  the 
kind  has  happened. 

Nor  {shall\  any  State  be  formed  by  the  Junction  of 
.  .  .  Parts  of  States,  without  the  Consent  of  the  Legis- 
latures of  the  States  concerned  as  well  as  of  the  Congress. 
The  territorial  area  known  as  the  New  Hampshire 
Grants,  afterward  erected  into  the  State  of  Vermont, 
was  claimed  by  both  New  York  and  New  Hampshire 
at  the  time  when  the  Federal  Convention  was  in  session. 
The  territory  which  is  now  the  State  of  Kentucky  was 

« VoL  I.,  p.  458. 


436       AMERICAN  PLAN  OF  GOVERNMENT 

then  a  part  of  Virginia.  South  Carolina  owned  a  pan- 
handle strip  extending  westward  to  the  Mississippi 
River  in  the  southern  part  of  what  is  now  Tennessee. 
The  rest  of  Tennessee  belonged  to  North  Carolina. 
The  greater  part  of  what  afterward  was  divided  up 
between  the  States  of  Alabama  and  Mississippi  was  an 
outlying  section  of  Georgia.  Each  of  the  proprietor 
States  insisted  upon  its  rights  over  its  wilderness 
domains.  The  Constitution  makers,  therefore,  were 
obliged  to  insert  this  clause  which  required,  in  advance 
of  any  act  of  Congress  forming  new  States  out  of 
parts  of  States,  the  consent  of  the  States  owning  great 
territorial  areas. 

The  proud  old  commonwealths  which  established  the 
Union  may  look  down  condescendingly  upon  the  new 
States  but  the  fact  remains  that  the  new  States  have 
the  same  rights  as  the  others.  This  point  was  made 
by  Justice  McKinley  in  his  opinion  in  the  case  of 
Pollard's  Lessee  vs.  Hagan,^  in  which  the  question  to 
be  decided  was  whether  the  United  States  retained  any 
right  or  title  to  the  soil  under  the  navigable  waters 
of  Alabama  after  the  admission  of  that  State  on 
December  14,  1819.     He  said: 

When  Alabama  was  admitted  into  the  Union,  on  an  equal 
footing  with  the  original  States,  she  succeeded  to  all  the 
rights  of  sovereignty,  jurisdiction,  and  eminent  domain 
which  Georgia  possessed  at  the  date  of  the  cession,  except 
so  far  as  this  right  was  diminished  by  the  public  lands 
remaining  in  the  possession  and  under  the  control  of  the 
United  States,  for  the  temporary  purposes  provided  for 
in  the  deed  of  cession  and  the  legislative  acts  connected 
with  it.  Nothing  remained  to  the  United  States,  according 
to  the  terms  of  the  agreement,  but  the  public  lands. 

,'  3  Howard's  Rep.,  212. 


THE  FEDERAL  COMPACT       437 

Art.  IV.,  Sec.  3  (continued).  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  Pre- 
judice any  Claims  of  the  United  States,  or  of  any 
particular  State. 

The  makers  of  the  Constitution  thought  it  better  to 
give  Congress  rather  than  the  President  the  right  to 
control  and  manage  the  property  of  the  United  States. 
In  Europe,  the  rule  always  had  been  to  vest  the  owner- 
ship of  national  property  in  the  king.  The  plan  of 
government  which  the  members  of  the  Constitutional 
Convention  worked  out,  provided  for  a  sovereign  people 
rather  than  a  sovereign  individual.  Therefore,  it  was 
more  natural  to  give  this  sovereign  power  to  the  People's 
representatives  in  the  law-making  body,  than  to  the 
President,  who,  by  an  indirect  method  of  election,  had 
been  made  somewhat  independent  of  the  People. 

The  rules  and  regulations  which  Congress  has  pro- 
vided for  the  government  of  the  insular  possessions  of 
the  United  States — Porto  Rico  and  the  Philippines 
— are  framed  upon  the  theory  that  the  inhabitants  of 
territory  acquired  by  the  United  States  do  not  become 
citizens  when  their  country  is  annexed.  This  point 
was  strongly  put  by  Justice  Brown  in  his  opinion  in 
the  case  of  Dowries  vs.  Bidwell,^  in  which  the  legal 
relations  of  Porto  Rico  to  the  United  States  after 
annexation  were  defined.  The  question  in  this  case 
was  whether  the  collector  of  customs  of  the  port  of 
New  York  in  1900  could  lawfully  compel  the  payment 
of  duties  upon  a  shipment  of  oranges  from  Porto  Rico. 

» 182  U.  S.  Rep.,  245. 


438       AMERICAN  PLAN  OF  GOVERNMENT 

The  decision  was  that  he  could,  because  the  island  of 
Porto  Rico  had  become  territory  appurtenant  to  and 
belonging  to  the  United  States,  but  not  a  part  of  the 
United  States  within  the  meaning  of  the  revenue 
clauses  of  the  Constitution.     Justice  Brown  said: 

We  are  ...  of  opinion  that  the  power  to  acquire  terri- 
tory by  treaty  implies  not  only  the  power  to  govern  such 
territory,  but  to  prescribe  upon  what  terms  the  United  States 
will  receive  its  inhabitants  and  what  their  status  [political 
condition]  shall  be  in  what  Chief  Justice  Marshall  termed 
the  "American  Empire."  There  seems  to  be  no  middle 
ground  between  this  position  and  the  doctrine  that  if  their 
inhabitants  do  not  become,  immediately  upon  annexation, 
citizens  of  the  United  States,  their  children  thereafter  born, 
whether  savages  or  civilized,  are  such,  and  entitled  to  all 
the  rights,  privileges,  and  immunities  of  citizens.  If  such 
be  their  status,  the  consequences  will  be  extremely  serious. 
Indeed,  it  is  doubtful  if  Congress  would  ever  assent  to  the 
annexation  of  territory  upon  the  condition  that  its  inhabi- 
tants, however  foreign  they,  may  be  to  oiu:  habits,  tradi- 
tions, and  modes  of  life,  shall  become  at  once  citizens  of  the 
United  States. 

The  Supreme  Court,  in  the  case  of  Kansas  vs.  Colo- 
rado ^^  decided  in  1906,  laid  down  the  rule  for  all  con- 
troversies in  which  the  absolute  power  of  Congress  over 
Federal  reservations  and  other  property  of  the  United 
States,  located  within  the  borders  of  a  State,  comes  in 
conflict  with  the  equally  absolute  power  of  each  State 
to  make  laws  for  the  government  of  all  of  its  territory. 
Such  conflicts  between  the  national  and  local  govern- 
ments do  not  often  arise,  because  no  one  disputes  the 
right  of  the  United  States  to  make  whatever  rules  and 
regulations  it  chooses  for  the  management  of  national 

» 206  U.  S.  Rep.,  46. 


THE  FEDERAL  COMPACT       439 

parks,  forest  reservations,  forts,  post  offices,  custom 
houses,  and  bonded  warehouses;  nor  does  any  one 
doubt  for  a  moment  that  each  State  has  the  same  power 
over  its  own  public  lands,  state  roads,  state  parks, 
asylums,  hospitals,  capitol  buildings,  and  other  prop- 
erty of  similar  character.  But  such  controversies  do 
arise  when  one  of  the  States  makes  such  use  of  its 
public  property  as  directly  or  indirectly  affects  the 
value  or  usefulness  of  property  of  the  United  States 
located  within  its  borders;  or  vice  versa,  when  the 
United  States  makes  some  use  of  its  property  within 
a  State  which  affects  the  value  of  the  public  property 
of  that  State.  In  the  Kansas-Colorado  case,  the 
original  controversy  grew  out  of  a  claim  that  certain 
irrigation  improvements  undertaken  by  the  State  of 
Colorado,  by  diverting  the  waters  of  the  Arkansas 
River  which  had  supplied  the  needs  of  Kansas  farmers, 
would  injuriously  affect  the  latter  State.  Hence  the 
State  of  Kansas  had  brought  in  the  Supreme  Court 
an  action  in  equity  in  which  it  asked  that  the  State  of 
Colorado  be  restrained  from  continuing  the  erection  of 
the  irrigation  improvements.  The  Attorney  General 
of  the  United  States  had  asked  the  Supreme  Court  to 
permit  the  national  government  to  be  made  a  party  to 
this  action  upon  the  ground  that  legislation  for  the 
reclaiming  of  arid  lands  throughout  the  United  States 
was  the  duty  of  the  nation,  and  that  the  rights  of  the 
States  in  that  particular  field  of  public  endeavor  were 
subordinate  to  the  rights  of  the  general  government. 
Justice  Brewer,  in  giving  the  decision  of  the  Supreme 
Court  in  this  case,  said  that  Congress  had  no  power 
to  control  the  reclamation  of  arid  lands  within  the 
borders  of  a  State,  unless  the  navigability  of  the  navi- 
gable waters  of  the  United  States  would  be  affected  by 


440       AMERICAN  PLAN  OF  GOVERNMENT 

the  carrjring  out  of  the  project.    He  stated  the  law  as 
follows: 

The  ftill  scope  of  this  paragraph  [Art.  IV.,  Sec.  3]  has 
never  been  definitely  settled.  Primarily,  at  least,  it  is  a 
grant  of  power  to  the  United  States  of  control  over  its 
property.  That  is  implied  by  the  words  "territory  or  other 
property."  It  is  true  it  has  been  referred  to  in  some  de- 
cisions as  granting  political  and  legislative  control  over  the 
Territories  as  distinguished  from  the  States  of  the  Union. 
It  is  imnecessary  in  the  present  case  to  consider  whether 
the  language  justifies  this  construction.  Certainly  we  have 
no  disposition  to  limit  or  qualify  the  expressions  which 
have  heretofore  fallen  from  this  court  in  respect  thereto. 
But  clearly  it  does  not  grant  to  Congress  any  legislative 
control  over  the  States,  and  must,  so  far  as  they  are  con- 
cerned, be  limited  to  authority  over  the  property  belonging 
to  the  United  States  within  their  limits.  ...  As  our 
national  territory  has  been  enlarged,  we  have  within  our 
borders  extensive  tracts  of  arid  lands  which  ought  to  be 
reclaimed,  and  it  may  well  be  that  no  power  is  adequate 
for  their  reclamation  other  than  that  of  the  National  Govern- 
ment. But  if  no  such  power  has  been  granted,  none  can  be 
exercised.  It  does  not  follow  from  this  that  the  National 
Government  is  entirely  powerless  in  respect  to  this  matter. 
These  arid  lands  [belonging  to  the  United  States]  are  largely 
within  the  Territories,  and  over  them  by  virtue  of  the  second 
paragraph  of  Section  3  of  Article  IV.  heretofore  quoted,  or 
by  virtue  of  the  power  vested  in  the  National  Government  to 
acquire  territory  by  treaties.  Congress  has  full  power  of  leg- 
islation, subject  to  no  restrictions  other  than  those  expressly 
named  in  the  Constitution,  and,  therefore,  it  may  legislate 
in  respect  to  all  arid  lands  within  their  limits.  As  to  those 
lands  within  the  limits  of  the  States,  at  least  of  the  Western 
States,  the  National  Government  is  the  most  considerable 
owner  and  has  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  its  property.    We  do  not 


THE  FEDERAL  COMPACT       441 

mean  that  its  legislation  can  override  State  laws  in  respect 
to  the  general  subject  of  reclamation.  While  arid  lands 
are  to  be  found,  mainly  if  not  only  in  the  Western  and 
newer  States,  yet  the  powers  of  the  National  Government 
within  the  limits  of  those  States  are  the  same  (no  greater 
and  no  less)  than  those  within  the  limits  of  the  original 
thirteen,  and  it  would  be  strange  if,  in  the  absence  of  a 
definite  grant  of  power,  the  National  Government  could 
enter  the  territory  of  the  States  along  the  Atlantic  and 
legislate  in  respect  to  improving  by  irrigation  or  otherwise 
the  lands  within  their  borders.  .  .  . 

Congress  can  make  whatever  rules  and  regulations 
it  hkes  for  the  government  of  the  Territories.  In  the 
case  of  Murphy  vs.  Ramsey,  *  the  Supreme  Court  sus- 
tained the  vahdity  of  an  act  of  Congress  passed  in  1882 
which  required  persons  who  wished  to  vote  in  the 
Territory  of  Utah,  when  applying  for  registration, 
to  take  an  oath  that  they  were  not  Uving  in  polygamy. 
This  law  had  been  challenged  on  the  ground  that  it 
deprived  the  inhabitants  of  their  constitutional  right  to 
vote.  Justice  Matthews,  therefore,  stated  at  length  in 
his  opinion  the  power  of  Congress  over  the  Territories : 

In  ordaining  government  for  the  Territories,  and  the 
people  who  inhabit  them,  all  the  discretion  which  belongs  to 
legislative  power  is  vested  in  Congress;  and  that  extends, 
beyond  all  controversy,  to  determining  by  law,  from  time 
to  time,  the  form  of  the  local  government  in  a  particular 
Territory,  and  the  qualification  of  those  who  shall  ad- 
minister it.  It  rests  with  Congress  to  say  whether  in  a 
given  case,  any  of  the  people,  resident  in  the  Territory, 
shall  participate  in  the  election  of  its  officers  or  the  making 
of  its  laws;  and  it  may,  therefore,  take  from  them  any 
right  of  suffrage  it  may  previously  have  conferred,   or 

» 114U.  S.  Rep.,  15. 


442       AMERICAN  PLAN  OF  GOVERNMENT 

at  any  time  modify  or  abridge  it,  as  it  may  deem  expedient. 
The  right  of  self  government,  as  known  to  our  system  as  a 
constitutional  franchise,  belongs,  under  the  Constitution, 
to  the  States  and  to  the  people  thereof,  by  whom  that 
Constitution  was  ordained,  and  to  whom  by  its  terms  all 
power  not  conferred  by  it  upon  the  government  of  the 
United  States  was  expressly  reserved.  The  personal  and 
civil  rights  of  the  inhabitants  of  the  Territories  are  secured 
to  them,  as  to  other  citizens,  by  the  principles  of  constitu- 
tional liberty  which  restrain  all  the  agencies  of  the  govern- 
ment. State  and  National ;  their  political  rights  are  franchises 
which  they  hold  as  privileges  in  the  legislative  discretion 
of  the  Congress  of  the  United  States.  .  .  .  Certainly  no 
legislation  can  be  supposed  more  wholesome  and  necessary 
in  the  founding  of  a  free,  self-governing  commonwealth, 
fit  to  take  rank  as  one  of  the  co-ordinate  States  of  the 
Union,  than  that  which  seeks  to  establish  it  on  the  basis 
of  the  idea  of  the  family,  as  consisting  in  and  springing  from 
the  union  for  life  of  one  man  and  one  woman  in  the  holy 
estate  of  matrimony;  the  sure  foundation  of  all  that  is 
stable  and  noble  in  our  civilization;  the  best  guarantee 
of  that  reverent  morality  which  is  the  source  of  all  benefi- 
cent progress  in  social  and  political  improvement.  And  to 
that  end,  no  means  are  more  directly  and  immediately 
suitable  than  those  provided  by  this  act,  which  endeavors 
to  withdraw  all  political  influence  from  those  who  are 
practically  hostile  to  its  attainment. 

Art.  IV.,  Sec.  4.  The  United  States  shall  guarantee 
to  every  State  in  this  Union  a  Republican  Form  of 
Government,  and  shall  protect  each  of  them  against 
Invasion;  and  on  Application  of  the  Legislature,  or 
of  the  Executive  (when  the  Legislature  cannot  be 
convened)  against  domestic  Violence. 

"By  the  Constitution  of  the  United  States,"  said 
Chief  Justice  Fuller,  in  his  opinion  in  the  case  of  In 


THE  FEDERAL  COMPACT       443 

re  Duncan,^  "a  republican  form  of  government  is 
guaranteed  to  every  State  in  the  Union,  and  the 
distinguishing  feature  of  that  form  is  the  right  of  the 
people  to  choose  their  own  officers  for  governmental 
administration,  and  pass  their  own  laws  in  virtue  of  the 
legislative  power  reposed  in  their  representative  bodies, 
whose  legitimate  acts  may  be  said  to  be  the  acts  of  the 
people  themselves." 

But  who  is  to  say  whether  the  form  of  government 
which  exists  in  any  State  is  or  is  not  "a  republican  form 
of  government,"  that  is,  one  under  which  the  people 
govern  themselves?  This  puzzling  question  was  an- 
swered by  the  Supreme  Court  in  its  decision  in  the  case 
of  Luther  vs.  Borden.*  The  militia  officers  who  were 
defendants  in  that  case  had  asked  the  Court  to  rule 
that  their  acts  were  justifiable  because  done  by  the 
orders  of  the  State  government  under  the  old  royal 
charter  of  1663,  which  remained  the  constitution  of 
Rhode  Island  until  1843.  The  plaintiffs  had  asserted 
that  this  was  not  a  good  defense;  for,  under  that  charter 
the  right  to  vote  being  given  only  to  owners  or  lessees 
of  real  estate,  the  State  of  Rhode  Island  did  not  have 
the  republican  form  of  government  guaranteed  by  the 
Constitution  of  the  United  States,  and,  therefore,  could 
not  prosecute  persons  who  attempted  to  upset  an 
illegal  State  constitution.  Chief  Justice  Taney  de- 
clared that  the  Supreme  Court  had  nothing  to  do  with 
such  political  questions  as  this  contention  brought 
up.    He  said: 

Under  this  article  of  the  Constitution  [Art.  IV.,  Sec.  4], 
it  rests  with  Congress  to  decide  what  government  is  the 
established  one  in  a  State.     For  as  the  United  States 

» 139  U.  S.  Rep.,  449,  461.  » 7  Howard's  Rep.,  i. 


444       AMERICAN  PLAN  OF  GOVERNMENT 

guarantee  to  each  State  a  republican  government,  Congress 
must  necessarily  decide  what  government  is  established  in 
the  State  before  it  can  determine  whether  it  is  republican 
or  not.  And  when  the  senators  and  representatives  of  a 
State  are  admitted  into  the  councils  of  the  Union,  the 
authority  of  the  government  under  which  they  are  ap- 
pointed, as  well  as  its  republican  character,  is  recognized 
by  the  proper  constitutional  authority.  And  its  decision 
is  binding  on  every  other  department  of  the  government, 
and  could  not  be  questioned  in  a  judicial  tribunal. 

The  United  States  .  .  .  shall  protect  each  of  them 
[the  States]  against  Invasion;  and  on  Application  of  the 
Legislature,  or  of  the  Executive  {when  the  Legislature 
cannot  be  convened)  against  domestic  Violence.  At  the 
outbreak  of  the  Civil  War,  Southern  statesmen  said 
flatly  that,  inasmuch  as  no  foreign  army  had  invaded 
the  United  States,  there  had  been  no  such  invasion  as 
would  permit  the  United  States  to  intervene.  They 
insisted  also  that  the  United  States  could  not  send 
armies  against  the  seceding  States  to  protect  them 
against  domestic  violence,  because  none  of  their  legisla- 
tures or  governors  had  made  application  for  protection. 
Such  arguments  counted  little  with  President  Lincoln, 
who  knew  his  rights  and  powers  under  the  constitutional 
provision  that  directed  him  to  "take  care  that  the 
laws  be  faithfully  executed." 

President  Cleveland  was  no  less  resolute  in  the  per- 
formance of  the  same  duty  when,  in  1894,  the  public 
mails  were  obstructed  by  rioters  during  the  Pullman 
Car  Strike  at  Chicago. 

The  Supreme  Court  decided  in  1877,  in  the  case  of 
Insurance  Company  vs.  Boon,^  that  the  operations  of 
Confederate  soldiers  in  Missouri,  which  had  adopted  a 

» 95  U.  S.  Rep,,  1 17. 


THE  FEDERAL  COMPACT  445 

secession  ordinance  but  never  actually  had  been  part 
of  the  Confederacy,  amounted  to  an  invasion  of  a  State. 
On  October  15,  1864,  the  town  of  Glasgow,  Mo.,  then 
occupied  by  a  Federal  force  guarding  military  stores, 
had  been  attacked  and  taken  by  the  Confederates. 
Colonel  Harding,  in  command  of  the  Union  soldiers, 
had  set  fire  to  the  military  stores  before  abandoning  the 
town,  and  this  fire  had  destroyed,  in  a  local  store,  a 
stock  of  goods  which  had  been  insured  against  fire. 
The  storekeeper  had  sued  the  insurance  company, 
which  had  defended  its  refusal  to  pay  the  insurance 
by  citing  a  clause  in  the  policy  which  provided  that  the 
company  should  not  be  required  to  make  good  any  loss 
or  damage  by  fire  which  might  happen  by  means  of  any 
invasion,  insurrection,  riot,  or  civil  commotion,  or  of  any 
military  or  usurped  power.  Mr.  Boon  had  insisted 
that  a  fire  set  by  Federal  soldiers,  who  were  there  to 
protect  him  against  the  rebels,  had  not  been  caused 
by  an  invasion.  Justice  Strong,  however,  holding  that 
the  Southern  troops  had  invaded  the  State  of  Missouri, 
defined  the  word  "invasion"  as  follows: 

During  the  battle,  and  when  the  government  troops  had 
been  driven  from  their  exterior  lines  of  defense,  it  became 
apparent  to  Colonel  Harding  that  the  city  could  not  be 
successfully  defended,  and  he  thereupon,  in  order  to  prevent 
the  said  military  stores  from  falling  into  the  possession  of 
the  rebel  forces,  ordered  Major  Moore,  one  of  the  officers 
under  his  command,  to  destroy  them. 

In  obedience  to  this  order  to  destroy  the  said  stores,  and 
having  no  other  means  of  doing  so,  Major  Moore  set  fire  to 
the  city  hall,  and  thereby  the  said  building,  with  its  contents, 
was  consumed.  Without  other  interference,  agency,  or 
instrumentality,  the  fire  spread  along  the  line  of  the  street 
aforesaid  to  the  building  next  adjacent  to  the  city  hall,  and 


446       AMERICAN  PLAN  OF  GOVERNMENT 

from  building  to  building  through  two  intermediate  build- 
ings to  the  store  of  the  plaintiffs,  and  destroyed  the  same, 
including  the  goods  insured.  .  .  .  During  this  time,  and 
until  after  the  fire  had  consumed  such  goods,  the  battle 
continued;  and  no  surrender  had  taken  place,  nor  had  the 
forces  of  the  rebels,  nor  any  part  thereof,  obtained  the 
possession  of  or  entered  the  city. 

In  view  of  this  state  of  facts,  .  .  .  the  inquiry  is,  whether 
the  rebel  invasion  or  the  usurping  military  force  or  power 
was  the  predominating  and  operative  cause  of  the  fire.  .  .  . 

The  conclusion  is  inevitable,  that  the  fire  which  caused 
the  destruction  of  the  plaintiff's  property  happened  or  took 
place,  not  merely  in  consequence  of,  but  by  means  of,  the 
rebel  invasion  and  military  or  usurped  power. 

The  words  "domestic  violence"  in  this  section  mean 
insurrection.  Judge  Grosscup  of  the  United  States 
District  Court  of  Illinois,  in  his  charge  to  the  grand 
jury  ^  concerning  the  Pullman  Strike  of  1894,  defined  the 
word  "insurrection"  as  follows: 

Insurrection  is  a  rising  against  civil  or  political  authority, 
— the  open  and  active  opposition  of  a  number  of  persons 
to  the  execution  of  law  in  a  city  or  state.  Now,  the  laws 
of  the  United  States  forbid,  under  penalty,  any  person 
from  obstructing  or  retarding  the  passage  of  the  mail,  and 
make  it  the  duty  of  the  officers  to  arrest  such  offenders 
and  bring  them  before  the  court.  If,  therefore,  it  shall 
appear  to  you  that  any  person  or  persons  have  willfully 
obstructed  or  retarded  the  passage  of  the  mails,  and  that 
their  attempted  arrest  for  such  offense  has  been  opposed 
by  such  a  number  of  persons  as  would  constitute  a  general 
uprising  in  that  particular  locality,  and  as  threatens  for 
the  time  being  the  civil  and  political  authority,  then  the 
fact  of  an  insurrection,  within  the  meaning  of  the  law, 
has  been  established. 

» 62  Federal  Rep.,  828,  830. 


CHAPTER  XXIV 

STIPULATIONS  OF  THE  AGREEMENT  OF  UNION 

The  Constitution  of  the  United  States  was  drafted 
mainly  by  lawyers.  Either  consciously  or  uncon- 
sciously, they  modelled  it  after  the  forms  of  the  legal 
documents  with  which  they  were  familiar.  Indeed 
the  Constitution  makers  seem  to  have  followed  the 
form  of  a  title  deed  to  real  estate  from  the  beginning  to 
the  end  of  their  work.  The  Preamble,  like  the  introduc- 
tory clause  of  a  title  deed,  states  that  the  People  of  the 
United  States  are  doing  a  specified  act,  which,  in  this 
case,  is  the  establishment  of  the  Constitution.  In  the 
first,  second,  and  third  articles,  the  People  of  the 
United  States,  by  this  Constitution,  grant  legislative, 
administrative,  and  judicial  powers  to  three  great 
departments  of  the  general  government,  just  as  a 
person  selling  a  house  and  lot  gives  or  grants  to  the 
buyer  a  right  or  title  of  possession.  The  fourth  article 
contains  a  statement  of  the  benefits  which  the  people 
of  the  States  of  the  United  States  are  to  obtain  from 
the  general  government — benefits  constituting  the 
good  and  valuable  considerations  which,  then  as  now, 
had  to  be  stated  in  every  valid  and  binding  deed  of 
real  estate.  Such  a  title  deed  of  power  to  a  general 
government  could  not  be  expected  to  last  forever. 
Plans  of  public  administration  have  to  be  made  to 

447 


448       AMERICAN  PLAN  OF  GOVERNMENT 

meet  existing  social  and  economic  conditions.  There- 
fore, just  as  in  a  title  deed,  the  framers  of  the  Constitu- 
tion wisely  inserted  a  reversionary  clause  under  which 
the  People  of  the  United  States  can  take  back,  for 
purposes  of  alteration  or  improvement,  the  rights  and 
powers  deeded  to  the  general  government.  Moreover, 
a  deed  by  which  an  owner  of  real  estate  grants  a  title 
or  right  of  possession  to  another  person  is  a  contract 
or  agreement  in  which  all  sorts  of  stipulations  may  be 
placed.  In  old  times,  for  example,  title  deeds  often 
stipulated  that  the  buyer  should  pay  a  specified  sum  of 
money  every  year  to  the  seller  for  so  long  as  he  should 
live.  The  framers  of  the  Constitution  in  like  manner 
inserted  provisions  which  made  the  public  debt  incurred 
during  the  Revolution  an  obligation  upon  the  proposed 
new  government,  and  declared  that  the  Constitution, 
laws,  and  treaties  of  the  United  States  should  be  the 
supreme  law  of  the  land.  Furthermore,  they  followed 
the  form  of  a  title  deed  in  the  "conditional  clause"  of 
the  Constitution  which  declared  that  the  new  plan  of 
government  should  not  be  considered  established  until 
ratified  by  conventions  of  nine  States.  Finally  they 
wrote  the  last  paragraph  of  the  Constitution  almost 
exactly  in  the  form  of  the  attestation  clause  of  a  title 
deed,  in  which  the  witnesses  sign  the  statement  that 
the  document  has  been  executed  in  their  presence. 

Art.  V.  The  Congress,  whenever  two  thirds  of 
both  Houses  shall  deem  it  necessary,  shall  propose 
Amendments  to  this  Constitution,  or,  on  the  Applica- 
tion of  the  Legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  Convention  for  proposing  Amend- 
ments, which,  in  either  Case,  shall  be  valid  to  all 
Intents  and  Purposes,  as  Part  of  this  Constitution, 


THE  FEDERAL  COMPACT       449 

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  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. 

The  reversionary  clause  in  the  title  deed  of  power 
called  the  Constitution  of  the  United  States,  is  the  Fifth 
Article,  which  states  the  way  and  manner  in  which  the 
People  of  the  United  States  may  resume  their  supreme 
powers  in  order  to  amend  or  change  the  rights  and 
powers  of  the  general  government. 

"The  term  reversion,"  said  Judge  Porter  of  the 
New  York  Court  of  Appeals  in  the  opinion  in  the  case  of 
Clute  vs.  N.  Y.  C.  &  H.  R.  R.  Co.,^  "signifies  a  return  to 
a  pre-existing  or  former  state  or  place." 

The  government  of  the  United  States  differs  from  all 
other  political  systems,  past  or  present,  in  this :  that  by 
the  reversionary  clause  giving  the  power  of  amendment 
the  People  of  the  United  States  keep  the  supreme  power 
in  their  own  hands.  Under  the  political  system  which 
had  prevailed  in  England  prior  to  the  Puritan  Revolu- 
tion, supremacy  of  power  had  vested  in  the  king.  In  the 
Ship  Money  Case  against  John  Hampden,  tried  in  the 
Exchequer  Chamber  in  1637,  twelve  judges  united  in 
deciding  that  "no  statute  [of  parliament]  can  bar  the 
king  of  his  regality;  that  statutes  taking  away  his  royal 
power  in  the  defence  of  his  kingdom  are  void ;  and  that 

^_*  120  N.  Y.  Rep.,  267,  272. 
•9 


450       AMERICAN  PLAN  OF  GOVERNMENT 

the  king  has  an  absolute  authority  to  dispense  with 
any  law  in  case  of  necessity,  and  of  this  necessity  he 
must  be  the  judge."  By  the  Revolution  of  1688, 
however,  supreme  power  in  England  was  given  over  to 
parliament.  The  People  of  the  United  States,  under 
their  Constitution,  stand  in  the  place  which  the  king 
of  England  had  occupied  in  the  old  era,  and  which  the 
parliament  of  Great  Britain  now  holds. 

The  article  providing  for  amendments  was  a  pre- 
cautionary measure.  "That  useful  alterations  will 
be  suggested  by  experience,  could  not  but  be  foreseen, " 
said  James  Madison  in  The  Federalist.'^  "It  was 
requisite,  therefore,  that  a  mode  for  introducing  them 
should  be  provided.  The  mode  preferred  by  the 
Convention  seems  to  be  stamped  with  every  mark  of 
propriety.  It  guards  equally  against  that  extreme 
facility,  which  would  render  the  Constitution  too 
mutable;  and  that  extreme  difficulty,  which  might 
perpetuate  its  discovered  faults.  It,  moreover,  equally 
enables  the  general  and  the  State  governments  to 
originate  the  amendment  of  errors,  as  they  may  be 
pointed  out  by  experience  on  one  side,  or  on  the  other. 
The  exception  in  favor  of  the  equahty  of  suffrage  in  the 
Senate  was  probably  meant  as  a  palladium  to  the 
reserved  sovereignty  of  the  States,  implied  and  secured 
by  that  principle  of  representation  in  one  branch  of  the 
legislature;  and  was  probably  insisted  on  by  the  States 
particularly  attached  to  that  equahty." 

The  value  of  the  amending  provision  has  been  ques- 
tioned during  recent  years.  It  has  been  urged  that  the 
slow  methods  of  the  fundamental  law  obstruct  the 
reform  of  political  abuses.  *  *  Professor  Munroe  Smith, '  * 
says  Mr.  Herbert  Croly,  in  his  Progressive  Democracy^ 

*  No.  42. 


THE  FEDERAL  COMPACT  451 

"is  justified  in  declaring  that  the  first  article  of  any 
sincerely  intended  progressive  program  must  be  the 
amendment  of  the  amending  clause  of  the  Constitu- 
tion." The  new  machinery,  according  to  Mr.  Croly, 
"must  make  the  Constitution  alterable  at  the  demand 
and  according  to  the  dictates  of  a  preponderant  pre- 
vailing public  opinion.  Instead  of  requiring  the  assent 
of  two-thirds  of  Congress  and  the  legislatures  of  three- 
tourths  of  the  States,  the  power  of  revision  should  be 
possessed  by  a  majority  of  the  electorate.  The  only 
limitations  placed  on  this  power  should  be  a  method  of 
procedure  which  allowed  sufficient  time  for  delibera- 
tion and  a  certain  territorial  distribution  of  the  prevail- 
ing majority." 

The  more  conservative  element  in  the  community 
dissents  from  these  radical  proposals  upon  the  ground 
that  the  Constitution  is  the  law  formulated  and  main- 
tained by  and  for  the  People  of  the  United  States,  of 
yesterday,  of  today,  and  of  tomorrow.  These  conserva- 
tives insist  that  the  difference  between  the  People's 
Law,  which  is  permanent,  and  the  representative-made 
laws  of  legislative  bodies,  which  meet  each  public  need 
as  it  arises,  ought  to  be  maintained.  In  amending  the 
Constitution,  the  majorities  necessary  for  the  sub- 
mission of  amendments  to  the  States  and  the  number  of 
States  whose  consent  is  required  for  their  adoption 
ought  to  be  so  great  as  to  make  sure  that  they  reflect 
the  will  of  the  People,  not  that  of  a  bare  temporary 
majority  of  voters. 

Art.  VI.,  Subd.  i.  All  Debts  contracted  and  Engage- 
ments entered  into,  before  the  Adoption  of  this  Con- 
stitution, shall  be  as  valid  against  the  United  States 
under  this  Constitution,  as  under  the  Confederation. 


452       AMERICAN  PLAN  OF  GOVERNMENT 

Fourteenth  Amendment.  Sec.  4  (first  sentence). 
The  validity  of  the  public  debt  of  the  United  States, 
authorized  by  law,  including  debts  incurred  for  pay- 
ment of  pensions  and  bounties  for  services  in  suppress- 
ing insurrection  or  rebellion,  shall  not  be  questioned. 

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.  A  stipulation  that  the  public 
debt  incurred  during  the  Revolution  should  be  as 
valid  under  the  new  constitutional  government  as  it 
had  been  under  the  Articles  of  Confederation  signified 
little  more  than  the  opinion  of  the  framers  of  the 
Constitution  that  the  revolutionary  debts  ought  to  be 
paid  by  the  United  States.  Massachusetts,  Connecti- 
cut, Pennsylvania,  and  one  or  two  other  States  had 
paid  nearly  the  whole  cost  of  the  War  for  Independence 
upon  a  very  distinct  understanding  that  all  the  States 
would  eventually  pay  their  fair  shares  of  an  expense 
which  had  been  incurred  for  the  common  good. 

Alexander  Hamilton,  when  Secretary  of  the  Treasury, 
took  the  matter  up  with  the  First  Congress  under  the 
Constitution,  and  carried  through  a  political  trade 
under  which  the  capital  of  the  United  States  was  located 
on  the  Potomac  to  please  the  Southern  States,  and  the 
revolutionary  debts  incurred  for  the  common  benefit 
were  assumed  by  the  United  States  to  please  the 
Northern  commonwealths. 

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.  Dur- 
ing the  years  immediately  after  the  Civil  War,  many 


THE  FEDERAL  COMPACT  453 

American  statesmen  feared  that  the  Southern  States, 
once  re-established  in  their  political  rights,  would 
regain  their  old  ascendency  in  the  national  councils, 
and  would  be  able  to  repudiate  the  immense  public 
debt  which  had  been  incurred  in  suppressing  the  re- 
bellion and  in  rewarding  those  who  had  risked  their 
lives  that  the  Union  might  be  preserved.  For  that 
reason,  it  seemed  wise  to  the  leaders  of  the  nation  to 
insert  in  the  Fourteenth  Amendment  a  positive  pro- 
hibition of  any  possible  legislation  by  which  the  validity 
of  any  part  of  the  public  debt  of  the  United  States  could 
be  questioned. 

Art.  VI.,  Subd.  2.  This  Constitution,  and  the 
Laws  of  the  United  States  which  shall  be  made  in 
Pursuance  thereof;  and  all  Treaties  made,  or  which 
shall  be  made,  imder  the  Authority  of  the  United 
States,  shall  be  the  supreme  Law  of  the  Land;  and 
the  Judges  in  every  State  shall  be  boimd  thereby, 
any  Thing  in  the  Constitution  or  Laws  of  any  State 
to  the  Contrary  notwithstanding. 

This  Constitution^  and  the  Laws  of  the  United  States 
which  shall  be  made  in  Pursuance  thereof;  and  all  Treaties 
made  .  .  .  under  the  Authority  of  the  United  States, 
shall  be  the  supreme  Law  of  the  Land.  "America," 
said  Chief  Justice  Marshall  in  his  opinion  in  the  case 
of  Cohens  vs.  Virginia,^  "has  chosen  to  be,  in  many 
respects,  and  to  many  purposes,  a  nation;  and  for  all 
these  purposes  her  government  is  complete;  to  all  these 
objects,  it  is  competent.  The  people  have  declared, 
that  in  the  exercise  of  all  powers  given  for  these  objects, 
it  is  supreme.     It  can,  then,  in  effecting  these  objects, 

» 6  Wheaton's  Rep.,  264. 


454      .AMERICAN  PLAN  OF  GOVERNMENT 

legitimately   control   all  individuals  or  governments 
within  the  American  territory." 

In  the  case  of  Ex  Parte  Siebold,  *  the  validity  of  the 
act  of  Congress  of  1870  for  regulating  national  elections 
was  challenged  by  a  number  of  Baltimore  men,  who  had 
been  convicted  upon  indictments  charging  them  with 
complicity  in  election  frauds.  The  defendants  asserted 
that  they  ought  not  to  have  been  put  to  trial  under  the 
Federal  statute  because  the  election  had  been  carried 
on  under  the  laws  of  Maryland.  Their  contention, 
therefore,  was  that  the  Federal  law  providing  for  super- 
vision of  a  national  election  was  subordinate  to  the 
local  law  under  which  that  election  had  been  held. 
Justice  Bradley  overruled  this  defense  upon  the  ground 
that  a  law  of  the  United  States  made  in  pursuance  of 
the  Constitution  was  the  "supreme  law  of  the  land." 
He  said: 

The  true  doctrine,  as  we  conceive,  is  this,  that  whilst  the 
States  are  really  sovereign  as  to  all  matters  which  have  not 
been  granted  to  the  jurisdiction  and  control  of  the  United 
States,  the  Constitution  and  constitutional  laws  of  the 
latter  are,  as  we  have  already  said,  the  supreme  law  of  the 
land;  and  when  they  conflict  with  the  laws  of  the  States, 
they  are  of  paramount  authority  and  obligation.  This  is 
the  fundamental  principle  on  which  the  authority  of  the 
Constitution  is  based ;  and  unless  it  is  conceded  in  practise, 
as  well  as  theory,  the  fabric  of  our  institutions,  as  it  was  con- 
templated by  its  founders,  cannot  stand. 

The  clause  of  the  Constitution  which  provides  that 
treaties  made  under  the  authority  of  the  United  States 
shall  be  the  supreme  law  of  the  land,  gives  our  govern- 
ment a  special  law-making  power  that  every  sovereign 

» 100  U.  S.  Rep.,  371. 


THE  FEDERAL  COMPACT       455 

State  must  have  in  order  to  rank  with  other  sovereigns. 
The  rules,  regulations,  provisos,  and  agreements  that 
the  political  departments  of  the  government  insert 
in  treaties  with  other  nations  are  the  laws  of  the  United 
States  quite  as  much  as  are  the  laws  enacted  by  Con- 
gress and  approved  by  the  President. 

In  the  case  of  Ware  vs.  Hylton,^  decided  by  the 
Supreme  Court  in  1796,  it  was  shown  that  the  defend- 
ants, on  July  7,  1774,  had  given  to  a  subject  of  Great 
Britain  their  bond  for  the  payment  of  £2,976  lis.  6d., 
of  good  British  money.  On  October  20,  1777,  the 
Virginia  legislature  had  enacted  a  law  to  sequester 
British  property,  one  section  of  which  provided  that  a 
citizen  of  Virginia,  owing  money  to  a  subject  of  Great 
Britain,  might  make  payment  to  the  loan  office  of  the 
State  and  obtain,  from  the  loan  commissioner,  a  certifi- 
cate in  the  name  of  the  creditor  which  should  discharge 
him  from  so  much  of  the  debt  as  had  been  so  paid  to 
the  loan  office.  On  April  26,  1780,  the  defendants 
had  paid  into  the  loan  office  the  sum  of  $3,111  1/9, 
equal  to  £934  14s.  Virginia  currency,  and  obtained  a 
certificate  discharging  the  debt  in  question. 

Being  sued  on  the  bond  which  they  had  given,  the 
defendants  had  pleaded  the  payment  to  the  loan 
office  as  a  defence  to  so  much  of  the  debt.  The  plain- 
tiffs had  then  urged  that  this  plea  was  not  a  good  defence 
because  the  treaty  of  peace  with  Great  Britain,  made 
September  3,  1783,  contained  an  article  in  these  words: 
**It  is  agreed  that  creditors,  on  either  side,  shall  meet 
with  no  lawful  impediment  to  the  recovery  of  the  full 
value,  in  sterling  money,  of  all  bona  fide  debts  heretofore 
contracted."  The  question  before  the  court,  therefore, 
was  whether  the  claim  that  a  payment  had  been  made 

'  3  Dallas'  Rep.,  199,  244. 


456       AMERICAN  PLAN  OF  GOVERNMENT 

to  the  Virginia  loan  office,  was  a  lawful  impediment 
to  the  recovery  of  the  debt  on  the  bond,  which  by  the 
treaty — a  part  of  the  supreme  law  of  the  United  States 
— ^it  had  been  agreed  that  no  creditor  should  meet. 
Justice  Chase,  in  giving  the  opinion  of  the  court,  over- 
ruled the  plea  that  the  payment  to  the  loan  office  had 
extinguished  so  much  of  the  debt  as  had  been  paid, 
saying : 

As  creditors  can  only  sue  for  the  recovery  of  their  debts 
in  courts  of  justice;  and  it  is  only  in  courts  of  justice  that  a 
legal  impediment  can  be  set  up  by  way  of  plea  in  bar  of 
their  actions ;  it  appears  to  me  that  the  courts  are  bound  to 
overrule  every  such  plea,  if  contrary  to  the  treaty.  .  .  . 
In  all  these,  and  similar  cases,  it  appears  to  me,  that  the 
courts  of  the  United  States  are  bound  by  the  treaty  to 
interfere.  ...  I  am  satisfied  that  the  words,  in  their 
natural  import  and  common  use,  give  a  recovery  to  the 
British  creditor,  from  his  original  debtor,  of  the  debt 
contracted  before  the  treaty,  notwithstanding  the  payment 
into  the  public  treasuries,  or  loan  offices,  under  the  authority 
of  any  State  law. 

Justice  Chase,  in  the  course  of  the  same  opinion, 
also  said : 

A  treaty  cannot  be  the  supreme  law  of  the  land,  that  is, 
of  all  the  United  States,  if  any  act  of  a  State  legislature  can 
stand  in  its  way.  If  the  constitution  of  a  State  (which  is 
the  fundamental  law  of  the  State,  and  paramount  to  its 
legislature),  must  give  way  to  a  treaty,  and  fall  before  it, 
can  it  be  questioned  whether  the  less  power,  an  act  of  the 
State  legislature,  must  not  be  prostrate?  It  is  the  declared 
will  of  the  people  of  the  United  States  that  every  treaty 
made  by  the  authority  of  the  United  States,  shall  be  superior 
to  the  constitution  and  laws  of  any  individual  State,  and 
their  will  alone  is  to  decide. 


THE  FEDERAL  COMPACT  457 

Art.  VI.,  Subd.  3.  The  Senators  and  Representa- 
tives 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  reUgious  Test 
shall  ever  be  required  as  a  Qualification  to  any  Office 
or  public  Trust  under  the  United  States. 

The  meaning  and  purpose  of  this  stipulation  that  the 
chief  legislative,  executive,  and  judicial  officers  of  the 
United  States  and  of  the  States  shall  be  required  to 
declare  imder  oath  or  affirmation  their  allegiance  to  the 
Constitution,  was  summed  up  by  Judge  Peyton  in  the 
case  of  Thomas,  Sheriff,  vs.  Taylor,  *  heard  and  decided 
in  the  High  Court  of  Errors  and  Appeals  of  the  State 
of  Mississippi  in  1869.  At  the  close  of  the  Civil  War, 
the  provisional  government  of  Mississippi  had  levied 
a  tax  on  cotton  at  the  rate  of  two  dollars  per  bale. 
Mr.  Taylor,  the  defendant,  had  offered  to  pay  the  tax  on 
fifty  bales  by  tendering  a  State  treasury  note  for 
$100,  which  had  been  issued  under  a  State  law  passed 
on  December  19,  1861,  after  Mississippi  had  seceded 
from  the  Union.  The  sheriff  had  refused  to  accept  the 
note.  His  refusal  put  squarely  before  the  court  the 
question  whether  a  law  made  by  the  Mississippi 
legislature  in  1861  after  the  State  had  seceded  from  the 
Union  was  valid  and  binding.  The  answer  was  that 
the  law  was  not  valid  because  the  members  of  the 
legislature  which  had  enacted  it,  had  not  taken  the 
oath  prescribed  by  the  Constitution.   Judge  Pe5rton  said : 

The  great  question  presented  by  the  record  is,  whether 
the  State  of  Mississippi  and  the  rightful  authority  which 

'  42  Mississippi  Rep.,  651. 


458       AMERICAN  PLAN  OF  GOVERNMENT 

now  controls  her  people  are  bound  by  the  acts  and  engage- 
ments of  the  government,  which  was  organized  under  the 
ordinance  of  secession  in  1861,  and  finally  overthrown 
by  the  military  forces  of  the  United  States  in  1865.  .  .  . 
The  constitution  of  the  State  of  Mississippi  as  one  of  the 
Confederate  States,  and  the  constitution  of  the  Confederate 
States,  both  require  that  the  members  of  the  legislature 
shall,  before  they  enter  upon  their  duties,  take  an  oath  or 
affirmation  to  support  the  constitution  of  the  Confederate 
States.  The  members  of  the  [Mississippi]  legislature  of 
that  year  [1861J,  if  they  took  any  oath  at  all,  must  have 
taken  an  oath  or  affirmation  to  support  the  constitution 
of  the  confederate  States  of  America,  according  to  the 
requirements  of  said  constitution.  The  legislation  of 
Mississippi,  from  the  date  of  the  ordinance  of  secession  to 
the  surrender  of  the  Confederate  armies,  was  done  either 
without  the  sanction  of  an  oath,  or  under  an  oath  to  support 
a  constitution  adopted  in  violation  of  the  Constitution  of 
the  Union,  and  for  the  express  purpose  of  subverting  the 
government  of  the  United  States;  either  of  which,  we  think, 
would  be  sufficient  tb  invalidate  the  legislation.  .  .  . 
The  Constitution  of  the  United  States  provides  that  the 
senators  and  representatives  in  Congress,  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  that 
Constitution.  We  cannot  think  that  so  important  a 
provision  in  the  paramount  law  of  the  land  was  intended  to 
be  merely  directory,  and  not  absolutely  necessary  to  be 
complied  with. 

On  June  i,  1789,  Congress  passed  an  act  prescribing 
the  following  form  of  oath  or  affirmation : 

I,  A  .  .  .  B  .  .  .,  do  solemnly  swear,  or  affirm,  that  I 
will  support  the  Constitution  of  the  United  States. 


THE  FEDERAL  COMPACT       459 

In  1862,  when  the  Civil  War  was  raging,  the  form  was 
changed  in  order  to  exclude  from  the  public  service 
those  who  had  been  disloyal  to  the  Union.  The  "iron- 
clad" test  oath  then  adopted  was  as  follows: 

I,  A  .  .  .  B  .  .  .,  do  solemnly  swear,  or  affirm,  that  I 
have  never  voluntarily  borne  arms  against  the  United 
States  since  I  have  been  a  citizen  thereof;  that  I  have 
voluntarily  given  no  aid,  countenance,  counsel,  or  encourage- 
ment to  persons  engaged  in  armed  hostility  thereto;  that  I 
have  neither  sought,  nor  accepted,  nor  attempted  to  exer- 
cise the  functions  of  any  office  whatever,  under  any  au- 
thority, or  pretended  authority,  in  hostility  to  the  United 
States;  that  I  have  not  yielded  a  voluntary  support  to  any 
pretended  government,  authority,  power,  or  constitution 
within  the  United  States,  hostile  or  inimical  thereto.  And  I 
do  further  swear,  or  affirm,  that,  to  the  best  of  my  knowledge 
and  ability,  I  will  support  and  defend  the  Constitution  of 
the  United  States  against  all  enemies,  foreign  and  domestic, 
that  I  will  bear  true  faith  and  allegiance  to  the  same,  that  I 
take  this  obligation  freely  without  any  mental  reservation 
or  purpose  of  evasion,  and  that  I  will  well  and  faithfully 
discharge  the  duties  of  the  office  on  which  I  am  about  to 
enter,  so  help  me  God. 

On  July  II,  1868,  Congress  prescribed  the  following 
oath  in  order  to  insure  the  loyalty  of  public  officers 
who,  having  been  disqualified  for  office  by  taking  part 
in  the  rebellion,  had,  by  the  removal  of  their  disa- 
bilities, again  become  eligible  for  national  and  State 
offices : 

I,  A  .  .  .  B  .  .  .,  do  solemnly  swear,  or  affirm,  that  I 
will  support  and  defend  the  Constitution  of  the  Unitbd 
States  against  all  enemies,  foreign  and  domestic;  that  I 
will  bear  true  faith  and  allegiance  to  the  same;  that  I 
take  this  obligation  freely  without  any  mental  reservation  or 


46o       AMERICAN  PLAN  OF  GOVERNMENT 

purpose  of  evasion;  and  that  I  will  well  and  faithfully 
discharge  the  duties  of  the  ofiSce  on  which  I  am  about  to 
enter,  so  help  me  God. 

One  provision  of  the  Fourteenth  Amendment,  which 
became  a  part  of  the  Constitution  on  July  28,  1868, 
provided  that  persons  who  had  held  certain  national 
and  State  offices  and  had  taken  an  oath  to  support  the 
Constitution,  and  afterward  had  been  disloyal,  should 
not  be  Senators  or  Representatives  in  Congress,  or 
presidential  electors,  or  hold  any  office  under  the  United 
States  or  under  any  State.  This  clause,  it  was  thought, 
excluded  from  office  only  a  very  small  number  of  those 
who  had  taken  part  in  the  rebellion.  Therefore,  on 
February  15,  1 871,  Congress  passed  an  act  requiring 
all  persons  elected  or  appointed  to  office,  who  might 
be  unable  to  take  the  oath  required  by  the  act  of  1862 
that  they  had  never  "borne  arms  against  the  United 
States, "  etc.,  to  take  the  oath  of  loyalty  prescribed  by 
the  act  of  July  11,  1868,  which  had  been  enacted 
three  weeks  before  the  adoption  of  the  Fourteenth 
Amendment. 

On  May  13,  1884,  Congress  passed  an  act  requiring 
all  persons  in  the  civil,  military,  or  naval  service  of  the 
United  States,  except  the  President,  whose  oath  of 
office  is  prescribed  in  the  Constitution  (Art.  II.,  Sec.  i, 
Subd.  7),  to  take  the  oath  of  loyalty  prescribed  by 
the  act  of  1868,  known  usually  as  Section  1757  of  the 
Revised  Statutes  of  the  United  States. 

Art.  Vn.  The  Ratification  of  the  Conventions  of 
nine  States,  shall  be  sufficient  for  the  Establishment 
of  this  Constitution  between  the  States  so  ratifying 
the  Same. 


THE  FEDERAL  COMPACT       461 

This  statement  of  the  condition  upon  which  the 
Constitution  of  the  United  States  was  to  become  effective 
is  nearly  in  the  form  of  the  conditional  clauses  which  in 
old  times  were  often  inserted  in  title  deeds. 

"This  article  speaks  for  itself,"  said  Hamilton  in 
The  Federalist.^  "The  express  authority  of  the  people 
alone  could  give  due  validity  to  the  Constitution.  To 
have  required  the  unanimous  ratification  of  the  thirteen 
States,  would  have  subjected  the  essential  interest 
of  the  whole  to  the  caprice  or  corruption  of  a  single 
member.  It  would  have  marked  a  want  of  foresight 
in  the  convention,  which  our  own  experience  would  have 
rendered  inexcusable. 

"Two  questions  of  a  very  delicate  nature  present 
themselves  on  this  occasion:  i.  On  what  principle 
the  Confederation,  which  stands  in  the  solemn  form  of  a 
compact  among  the  States,  can  be  superseded  without 
the  unanimous  consent  of  the  parties  to  it?  2.  What 
relation  is  to  subsist  between  the  nine  or  more  States 
ratifying  the  Constitution,  and  the  remaining  few  who 
do  not  become  parties  to  it? 

"The  first  question  is  answered  at  once  by  recurring 
to  the  absolute  necessity  of  the  case;  to  the  great 
principle  of  self-preservation;  to  the  transcendent  law 
of  nature,  and  of  nature's  God,  which  declares  that  the 
safety  and  happiness  of  society  are  the  objects  at  which 
all  political  institutions  aim,  and  to  which  all  such 
institutions  must  be  sacrificed.  Perhaps,  also,  an 
answer  may  be  found  without  searching  beyond  the 
principles  of  the  compact  itself.  It  has  been  heretofore 
noted  among  the  defects  of  the  Confederation,  that 
in  many  of  the  States  it  had  received  no  higher  sanction 
than   a   mere   legislative    ratification.     The   principle 

»No.43. 


462       AMERICAN  PLAN  OF  GOVERNMENT 

of  reciprocality  seems  to  require  that  its  obligation  on 
the  other  States  should  be  reduced  to  the  same  standard. 
A  compact  between  independent  sovereigns,  founded 
on  ordinary  acts  of  legislative  authority,  can  pretend 
to  no  higher  validity  than  a  league  or  treaty  between 
the  parties.  It  is  an  established  doctrine  on  the 
subject  of  treaties,  that  all  the  articles  are  mutually 
conditions  of  each  other;  that  a  breach  of  any  one 
article  is  a  breach  of  the  whole  treaty;  and  that  a 
breach,  committed  by  either  of  the  parties,  absolves  the 
others,  and  authorizes  them,  if  they  please,  to  pro- 
nounce the  compact  violated  and  void.  Should  it 
unhappily  be  necessary  to  appeal  to  these  delicate 
truths  for  a  justification  for  dispensing  with  the  consent 
of  particular  States  to  a  dissolution  of  the  federal  pact, 
will  not  the  complaining  parties  find  it  a  difficult  task 
to  answer  the  multiplied  and  important  infractions, 
with  which  they  may  be  confronted?  The  time  has 
been  when  it  was  incumbent  on  us  all  to  veil  the  ideas 
which  this  paragraph  exhibits.  The  scene  is  now 
changed,  and  with  it  the  part  which  the  same  motives 
dictate. 

"The  second  question  is  not  less  delicate;  and  the 
flattering  prospect  of  its  being  merely  hypothetical 
forbids  an  over-curious  discussion  of  it.  It  is  one  of 
those  cases  which  must  be  left  to  provide  for  itself. 
In  general,  it  may  be  observed,  that  although  no  political 
relation  can  subsist  between  the  assenting  and  dis- 
senting States,  yet  the  moral  relations  will  remain 
uncancelled.  The  claims  of  justice,  both  on  one  side 
and  on  the  other,  will  be  in  force,  and  must  be  fulfilled ; 
the  rights  of  humanity  must  in  all  cases  be  duly  and 
mutually  respected;  whilst  considerations  of  a  common 
interest,    and,    above    all,    the    remembrance   of   the 


THE  FEDERAL  COMPACT       463 

endearing  scenes  which  are  past,  and  the  anticipation  of 
a  speedy  triumph  over  the  obstacles  to  reunion,  will,  it 
is  hoped,  not  urge  in  vain,  moderation  on  one  side,  and 
prudence  on  the  other." 

Done  in  Convention  by  the  Unanimous  Consent  of 
the  States  present  the  Seventeenth  Day  of  September 
in  the  Year  of  our  Lord  one  thousand  seven  hundred 
and  Eighty  seven  and  of  the  Independence  of  the 
United  States  of  America  the  Twelfth.  In  Witness 
whereof  We  have  hereunto  subscribed  our  Names. 

The  closing  paragraph  of  a  deed  of  real  estate  is  a 
certificate  of  witnesses  that  the  instrument  has  been 
executed  by  the  persons  who  are  declared  to  have 
made  it.  In  the  same  way,  the  Constitution  of  the 
United  States  closes  with  a  certificate  signed  by  General 
Washington,  who  presided  over  the  Constitutional 
Convention,  and  thirty-eight  other  notables  of  the 
United  States,  in  which  they  assert  the  genuineness  of 
the  instrument  of  government  which  they  were  about 
to  propose  to  the  States  of  the  United  States.  The 
attestation  clause,  according  to  Bouvier's  Law  Diction- 
ary, is  "that  clause  wherein  the  witnesses  certify  that 
the  instrument  has  been  executed  before  them,  and 
the  manner  of  the  execution  of  the  same." 

Some  of  the  most  influential  and  respectable  members 
of  the  Convention  refused  to  sign  the  Constitution  as 
di^afted.  Colonel  Mason,  Mr.  Wythe,  and  Governor 
Randolph  of  the  Virginia  delegation  were  men 
whose  adverse  opinion  might  have  been  fatal,  if 
Washington  had  not  been  on  the  other  side.  Patrick 
Henry  opposed  its  adoption.  Hamilton  alone  of  the 
New  York  delegation  favored  it.     Samuel  Adams  of 


464       AMERICAN  PLAN  OF  GOVERNMENT 

Massachusetts  gave  his  adhesion  only  at  the  last  mo- 
ment and  because  he  thought  that  if  it  were  rejected, 
the  work  of  the  Revolution  would  be  undone.  The 
People  of  the  United  States,  as  a  whole,  seem  not  to 
have  cared  very  much  whether  there  was  a  new  form  of 
government  or  not.  What  they  wanted  and  meant  to 
have  was  good  security  for  certain  personal  rights, 
which  according  to  their  notions  ought  to  be  guar- 
anteed by  the  new  central  government.  For  that 
reason,  a  very  distinct  understanding  was  arrived  at  in 
each  of  the  ratifying  State  Conventions  that  a  bill  of 
rights,  which  should  in  substance  cover  all  the  matter 
afterward  stated  in  the  first  ten  amendments,  should  be 
proposed  in  the  First  Congress  under  the  Constitution, 
and  thereafter  sent  to  the  legislatures  of  the  different 
States  for  ratification.  This  understanding  was  carried 
through  according  to  program;  and,  when  Rhode 
Island  and  North  Carolina  had  ratified  the  Consti- 
tution, the  constitutional  United  States  equaled  in 
number  the  original  States  which,  in  Congress  as- 
sembled, had  declared  the  independence  of  the  United 
States  of  America. 


INDEX 

(Titles  of  legal  decisions  and  names  of  hooks  are  in  italics.  Italic  "J." 
after  the  name  of  a  person  means  Justice  of  the  U.  S.  Supreme  Court;  "  C. 
J."  Chief  Justice  of  that  court.  Judges  of  inferior  U.  S.  Courts  are  denoted 
by  the  word  "  Fed. ";  judges  of  State  courts  by  the  names  of  their  States.) 


Adams,  John,  103,  308,  334 
Administration  of  Justice  Act,  8, 

9 

Admiralty  and  Maritime  jurisdic- 
tion, 379 
Albany  Conference,  5 
Aliens,  exclusion  of,  170,  341 
Allegiance,  oath  of,  459 
Allgeyer  vs.  Louisiana,  35 
Ambassadors,  appointment  of,  330 
judicial   power  over  foreign, 

377-379,  389 

Amendment  of  U.  S.  Constitution, 
448-451 

American  Basttle,  The,  182 

American  School  of  Magnetic  Heal- 
ing vs.  McAnnulty,  134 

Amy  vs.  Little,  45 

Amy  vs.  Smith,  422 

Anarchists,  248 

Anderson  vs.  Myers,  297,  298 

Andrews'  Manual  of  the  Constitu- 
tion, 15, 124 

Appleyard  vs.  Massachusetts,  429 

Apportionment  of  Representa- 
tives and  direct  taxes,  51-56,  57 

Appropriations,  196 

Arms,  right  to  keep  and  bear,  249 

Army,  155,  317-322,  396 

Arrest,  warrants  for,  259 

Arsenals,  162 

Articles  of  Confederation,  13,  29, 
30,  31.  33,  39,  121,  124,  235, 
324,  452 

Attainder,  bills  of,  177,  185,  186, 
202,  204,  405 

30  465 


Attestation   Clause  of   Constitu- 
tion, 463,  464 
Attorney  General  vs.  Taggart,  314 


B 


Bail,  280-283 

Baldwin,  J.,  opinions,  235,  381 
Bank  of  the  U.  S.,  96,  167,  364 
Bankruptcy,  125,  127,  207,  208 
Barbier  vs.  Connolly,  220,  226 
Barron    vs.   Baltimore,    175,  199, 

241 
Barron  vs.  Burnside,  365 
Battle,  J.  (N.  C),  opinion,  187 
Beasley,  J.  (N.  J.),  opinion,  357 
Bennett,  /.  (Ky.),  opinion,  247 
Bigelow  vs.  Forrest,  406 
Bill  of  Rights,  of  First  Continen- 
tal Congress,  4,  9 
of  U.  S.  Constitution,  35,  175, 
198-236,  237,  240 
Bills  of  Attainder,  177,  185,  186, 

202,  204,  405 
Birdseye,  J.  (N.  Y.),  opinion,  414 
Blaine,  Twenty  Years  of  Congress, 

435 
Blatchford,  7.,  opinions,  166,  219, 

257 
Blockade,  rights  of  neutrals,  320- 

322 
Bloomer  vs.  Todd,  373 
Boston  Port  Bill,  8,  0 
Boston  "Tea  Party, '^'  7 
Boyd  vs.  Nebraska,  125 
Boyd  vs.  U.  S.,  252 
Bradley,    J.,  opinions,  245,.  252, 

290,  379.  417,  454 


466 


INDEX 


Brewer,  /.,  opinions,  73,  171,  192, 

271.  393,  439 
Brown,  /.,  opinions,  12,  136,  269, 

438 

Brown  vs.  Maryland,  34,  364 

Brown  vs.  U.  S.,  153 

Brown,  Wrisley,  Essay  on  Im- 
peachments, 68 

Buchanan,  James,  125 

Burr,  Aaron,  260,  275,  308,  401, 
402 


Cadwallader,  /.   (Fed.),  opinion, 

132 
Callan  vs.  Wilson,  399 
Callanan  vs.  Judd,  360 
Campbell,    /.    (Mich.),    opinion, 

283 
Cannon,  J.  G.,  62 
Capitol  Traction  Co.  vs.  Hof,  278 
Cases,   admiralty  and   maritime, 
379-380 
affecting    ambassadors,    etc., 

377-379, 389 
definition  of,  358 
in  equity,  360,  361,  383 
in  law,  359,  361,  383 
under  the  Constitution  and 

laws,  362-375 
under  treaties,  375-377 
Census,  53,  186,  188 
Charles  River  Bridge  vs.   Warren 

Bridge,  213 
Chase,   C.  J.,  opinions,  99,   189, 

318,  322,  369,  409 
Chase,  Salmon  P.,  Secretary,  188 
Chase,  Samuel,  J.,  opinions,  58, 

456 
Chicago   M.   6"   St.   P.   Rwy.   vs. 

Minnesota,  218 
Chinese,  200 

citizenship  of,  45,  46 
exclusion  of,  45,  337-342 
Chinese  Exclusion  Case,  337 
Chisholm  vs.  Georgia,  17,  26,  31, 

382-383,  413 
Citations  of  Cases,  explanation,  20 
Citizens,  definition,  45,  423 

of    States,    equal    rights    of, 

421-425 
of  the  U.  S.,  28 
Civil  Rights  Cases,  290 
Clark,  J.  (Fed.),  opinion,  274 


Cleveland,  Grover,  444 
Clifford,  /.,  opinions,  131,  422 
Clute  vs.  N.  Y.  C.  &  H.  R.  R.  Co., 

449 
Clyatt  vs.  U.  S.,  171 
Coates  vs.  Mayor,  221 
Cobb,  J.  (Ga.),  opinion,  179 
Cohens  vs.  Virginia,  384,  391,  453 
Commerce,  foreign,  regulation  of, 
104, 105 
interstate,  regulation  of,  105- 

120 
with  Indians,  regulation  of, 
120-123 
Committees  of  Correspondence,  7 
Common  defence,  31,  95 
Common  law,  277-280,  356 
Commonwealth  vs.  Fitzpatrick,  260 
Congress,  39 

of  Confederation,  16 

First  Continental,  4,  8, 39, 238 

Second  Continental,   10,    12, 

13,32,39,  154 
Congress  of  the  U.  S.,  enactment 

of  laws,  82 
oath  of  members,  457-460 
power  to  borrow  money,  98- 

102 
power   to    coin    money  and 

regulate  its  value,  128-129 
power  to  establish  post  offices 

and  post  roads,  131,  132 
power    to    establish     lower 

courts,  146 
power  to  issue  paper  money, 

98-102 
power   to  issue  patents  and 

copyrights,  139-144 
power  to  levy  taxes,  88-98    1 
power   to   make  bankruptcy 

laws,  127-128 
power  to  punish  crimes,  130, 

147-152       , 
power  to  regulate  commerce, 

103-123 
power  to  regulate  naturaliza- 
tion, 125-127 
power   over   public   domain, 

437-442  , 
privileges  of  members,  72 
self-government  of,  74-76 
sessions  of,  72,  333,  335 
war  power  of,  1 52-1 61 

Consideration  of  a  contract,  414 

Constitution,  18,  413 


INDEX 


467 


Constitution  of  the  XJ.  S.,  amend- 
ment of,  448 
attestation  clause,   463,   464 
Bill  of  rights,  35,  175,   198- 

236,  237,  240 
implied  powers,  138 
ratification  of,  460-463 
reversionary  clause,  449 
similarity  to  title  deed,  447 
supremacy  of,  453-456 
Constitutional     Convention,     see 

"Federal  Convention. " 
Constitutionality  of  State  Laws, 

33.  34.  365-373 
Constitutions,  colonial,  3 
Contracts,  definition,  203,  205,  206 

obligation  of,  203-215 
Controversies,  definition,  358 

involving  foreign  States  and 

their  citizens,  388,  389 
involving    States    and    their 

citizens,  381-388 
involving  the  U.  S.,  380 
Cooley,  Constitutional  Limitations, 

397 
Copyright,  history,  139-143 
Corfield  vs.  Coryell,  424 
Counselman  vs.  Hitchcock,  257 
Counterfeiting,  131 
Court,  definition,  350 
Courts  of  the  U.  S.,  courts-martial, 

157,  396 

criminal  procedure  in,  393-409 

inferior,  389 

powers  of,  356-392 

Supreme,  349-350 
Craig  vs.  Missouri,  201,  202 
Cranch,  J.  (Fed.),  opinions,  259, 

260,  282 
Crimes,  393,  425-432 

capital,  394 

infamous,  394 
Criminal    procedure    in    U.     S. 

Courts,  393-409 
Criminals,  civil  disabilities  of,  46, 

47 
Croly,  Progressive  Democracy,  450 
Crowley  vs.  Christensen,  268 
Cummings  vs.  Missouri,  185 


Daniel,  J.,  opinions,  105,  128 
Dartmouth  College  vs.   Woodward, 
208,  362 


Davis,  J.,  opinion,  183 
Davis,  Jefferson,  408 
Davis  vs.  Packard,  378 
Deady,  J.  (Fed.),  opinion,  131 
Debts  of  United  States,  94,  451- 

453 
Declaration  of  Independence,  xo, 

II,  12,  39,  124,  239 
Defence,  common,  31,  95 
Dent,  /.  (W.  Va.),  opinion,  350 
Dingley  Tariff  Bill,  95 
Diplomatic  Correspondence  of  U.  S., 

47 
Direct  taxes,  53,  58,  59 

apportionment  of,  54,  56,  57, 

58 
history  of,  57,  58 
District  of  Columbia,  50,  162,  399, 

452 
Divorces,  418-421 
Dixon  vs.  State,  56 
Dobbins  vs.  Erie  County,  365 
Doe,  J.  (N.  H.),   opinions,  237, 

314 

Domain  of  U.  S.,  437-442 

Domestic  tranquillity,  31 

Domestic  violence,  446 

Done  vs.  People,  284 

Douglass  vs.  Stephens,  421 

Downes  vs.  Bidwell,  437 

Dred  Scott  vs.  Sanford,  27,  41,  366, 

368 
Drew,  sheriff,  vs.  Thaw,  178 
Due  process  of  law,  217,  262-269 
Dunn  vs.  The  People,  233 
Duties,  definition,  90 
Duval,  J.  (Fed.),  opinion,  405 
Dynes  vs.  Hoover,  157 


E 


Edwards  vs.  Kearzey,  203 
Elections,  71 
Electors,  55,  56 

presidential,  305-310 
Electors  vs.  Bailey,  50 
Eleventh  Amendment,  383,  384 
Employers'  Liability    Cases,   372- 

373 
English  Bill  of  Rights,  238 
Equal  protection  of|the  laws,  220- 

230 
Ernst,  Christian,  125-127 
"Establish  justice,"  31 
Excise,  91,  93 


468 


INDEX 


Ex  parte  BoUtnan:  Swarlwout,  i8o, 

401 
Ex  parte  Garland,  322 
Ex  parte  Hennen,  331 
Ex  parte  Jackson,  133 
Ex  parte  McClusky,  395 
Ex  parte  Merryman,  181,  337 
Ex  parte  Milligan,  183,  318 
Ex  parte  Morgan,  11 
Ex  parte  Ryan,  282 
Ex  parte  Siebold,  454 
Ex  parte  Stanley,  396 
Ex  parte  Yarbrough,  42 
Expatriation,  47-50 
Export  taxation,  191 
Ex  post  facto  laws,  177,  185,  186, 

202, 204 
Extradition,  342-344 
history  of,  426 
interstate,  425-432 


Fairbank  vs.  U.  S.,  192 

Federal  Convention,   16,  31,  41, 

70,  307,  312,  368,  387 
Federal  courts,  lower,  history  of, 

146,  147 
Federal    government,    supremacy 

of,  453-456 
Federal  Trade  Commission,  116 
Federalist,  The,  66,  83,  197,  246, 

307,  325.  330,  450,  461 
Felonies  on  the  high  seas,  149-151 
Felony,  263 

Fertilizing  Co.  vs.  Hyde  Park,  223 
Field,  /.,  opinions,  133,  164,  186, 

220,  226,  268,  323,  338,  403 
First  Continental  Congress,  4,  8, 

39.  238 
Fish,  Hamilton,  47,  48 
Fifteenth   Amendment,    56,    294, 

296 
Fines,  283,  284 
Fleming  vs.  Page,  318 
Fletcher  vs.  Peck,  199,  204 
Fort  Leavenworth  R.  R.  vs.  Lowe, 

163 
Forts  and  arsenals,  162 
Foster  vs.  Neilson,  375 
Fourteenth  Amendment,  36,  42, 
.    45»  47,  54.  55.  56,  293,  297,  407- 

409,  452-453.  460 
Frank,  Leo  M.,  266 
Frank  vs.  Mangum,  266 


Franklin,  Benjamin,  5,  196,  235, 

303 
Fraud  orders,  postal,  134-137,269 
Freedom,  of  the  press,  241,  242 

of  speech,  246-248 

of  religion,  243-246 
Fugitives  from  justice,  429 
Fuller,  C.  J.,  opinions,  191,  285, 

343,  371.  442 
Fulton,  Robert,  106 


G 


Gallatin,  Albert,  65 
Garcia  vs.  Territory,  284 
Gardner  vs.  Hall,  187 
"General   Welfare,"    32-34,    95, 

96 
Gibbons  vs.  Ogden,  107,  230,  232, 

.233 
Gittings  vs.  Crawford,  390 
Gladstone,  W.  E.,  17 
Gordon  vs.  Longest,  386 
"Grandfather"  Clause,  296-299 
Grant  vs.  Raymond,  144 
Gray,  J.,  opinions,  46,  102,  170, 

261,  278,  305,  394 
Green,  J.  (N.  Y.),  opinion,  278 
Grier,  J.,  opinions,  130,  159,  320 
Grosscup,  /.  (Fed.),  opinion,  446 
Guinn  vs.  U.  S.,  298 


H 


Habeas  Corpus,  177-184 
Haddock  vs.  Haddock,  418 
Hamilton,  Alexander,  66,  83,  167, 
312,  325,  330,  452,  461 
Report  on  Manufactures,  96 
Hammond,  J.  (Fed.),  opinion,  263 
Harlan,  J.,  opinions,  25,  117,  225, 
229,  240,  267,  381,  398,  399,  429 
Hawley,  J.  (Fed.),  opinion,  286 
Hayburn's  Case,  40 
Head  Money  Cases,  97,  376 
Henry,  Patrick,  243 
Hepburn  vs.  Griswold,  99,  368 
Hepburn  vs.  Ellzey,  50 
Hepburn  Law,  112,  114 
High  Seas,  definition,  151 
Hipolite  Egg  Co.  vs.  U.  S.,  118 
Hoke  and  Economides  vs.  U.  S.,  119 
Hollingsworth  vs.  Virginia,  384 
Holmes,  J.,  opinion,  228 
Hopi  vs.  Utah,  267 


INDEX 


469 


House  of  Representatives,  appor- 
tionment of  members,  51- 
56 

compensation,  78 

election  of  members,  42,  43, 
70,  72 

enforcement  of  treaties,  327, 
328 

Journal,  76 

limitations  on  members,  81 

officers,  59 

powers,  60,  74,  75,  76,  81, 307, 
327.  328 

privileges  of  members,  79,  80 

quorum,    72-74 

qualifications  of  members,  43, 

^44,45 

Reed  rules,  75 

vacancies,  59 
Houston  vs.  Moore,  160 
Howard,  J.  (Ind.),  opinion,  53 
Hughes,  J.  (Fed.),  opinion,  399 
Huntington  vs.  Cast,  52,  53 
Hurtado  vs.  California,  265 
Hylton  vs.  U.  S.,  54,  58, 187 


Immigration,  170,  341 
"Immunity  bath,"  259 
Impeachments,    60,    67-69,    354, 

355,  393 
Imposts,  91 
Income    taxation,   92,   189,    371, 

372 
Indentured  servants,  53,  55 
Indictment,   262,   264,   265,   393, 

394 
Information, "  criminal,  262, 264, 

265 
Inhabitant,  definition,  50 
In  re  Duncan,  443 
In  re  Farrow,  332 
In  re  Green,  305 
In  re  Jackson,  166 
In  re  Kemmler,  285 
In  re  Parrott,  200 
In  re  Rosdeitscher,  398 
Inspection    laws     (States),    231, 

232 
Instrument  of  Government,  238 
Insular  possessions  of  U.  S.,  437, 

438 
Insurance  Co.  vs.  Boon,  443 
Internal  revenue,  92 


"Invasion"  of  a  State,  445 
Involuntary  servitude,  289-293 


Jackson,  J.,  opinion,  432 
Jackson,  President,  122,  282 
Jackson  vs.  Twentyman,  388,  389 
Jackson  vs.  U.  S.,  286 
Jacobson  vs.  Massachusetts,  25 
Jaeger  vs.  U.  S.,  121 
Japanese  Immigrant  Case,  169 
Jay,  C.  J.,  opinions,  17,  413 
Jefferson,  Thomas,  96,  243,  308, 
310,  335 
Manual  for  Senate,  75 
Jeopardy,  260,  261 
Johns,  C.  J.  (Del.),  ojainion,  421 
Johnson,  /.,  opinion,  87 
Jones,  C.  J.  (Wash.  Terr.),  opin- 
ion, 373,  374 
Jones,  J.  (Fed.),  opinion,  291 
"Judge,"  264 

Judges  of  U.  S.  Courts,  appoint- 
ment, 330 
compensation,  354,  355 
tenure  of  office,  354 
Judicial  decisions,  how  cited,  20 
Judicial  power,  349 

cases   affecting  ambassadors, 

etc.,  377-379,  389 
cases  in  law  and  equity,  358- 

380 
cases  under  Constitution  and 

laws,  363-373 
cases  under  treaties,  375-377 
cases  of  admiralty  and  mari- 
time jurisdiction,  379,  380 
controversies  involving  States 

and  citizens,  381-388 
controversies    involving    for- 
eign   States  and  subjects, 

388,389 
controversies  to  which  U.  S.  is 
a  party,  380 
Juilliard  vs.  Creenman,  loi 
Jurisdiction,  357 

appellate,  390-392 
original,  389-392 
Jurisprudence,  definition,  356 
Jurors,  359 
Jury,  grand,  262, 264, 393, 394,  395 

petit,  262,  264 
Justice,  how  established  in  U.  S., 
31 


470 


INDEX 


Kansas  vs.  Colorado,  438 
Kent,  Chancellor  (N.  Y.),  opin- 
ion, 106 
Kentucky  vs.  Dennison,  425,  430 
King,  Rufus,  16 
King  vs.  McLean  Asylum,  358 
Koonce  vs.  Doolitlle,  350 
Kurtz  vs.  Moffi.lt,  396 


Lancaster  vs.  Richardson,  283 

Langford  vs.  U.  S.,  345 

Lascelles  vs.  Georgia,  431 

Law,  definition,  359 

Law  of  Nations,  149,  151 

Laws  of  U.  S.,  construction  and 
interpretation,    373-375 
enactment  of,  82 
enforcement  of,  337-344 
supremacy  of,  453-456 

Legal  Tender  Act,  100 

Legal  Tender  Cases,  100,  129,  370 

Letters  of  Marque  and  Reprisal, 

Lewis,  J.  (Nev.),  opinion,  396 

Liberty,  35,  36 

Lincoln,  Abraham,  31,  159,  180, 

320,  406,  444 
Lottery  Case,  117 
Louisiana  Purchase,  27,  434 
Luther  vs.  Borden,  443 

M 

McCabe,  J.  (Ind.),  opinion,  349 

McCall,  S.  W.,  63 

McCulloch  vs.  Maryland,  167,  287, 

363. 366 
McKenna,  J.,  opinions,  119,  120 
McKinley,  J.,  opinion,  436 
McLean,  J.,  opinions,   108,   140, 

386 
McMaster's  History  of  the  People 

of  the  U.  S.,  33 
Mackin  vs.  U.  S.,  394 
Madison,  James,  84,  98,  242,  450 
Madison's  Works,  63,  192 
Madison's  Journal,  15,  29,  79,  103, 

104, 149, 196 
Magna  Carta,  237 
Mails,  misuse  of,  132-137,  269 
Marbury  vs.   Madison,  335,  354, 

365,  368,  391 


Marshall,  C.  J.,  opinions,  34,  49, 
50,  107,  122,  125,  153,  168,  175, 
180,  199,  202,  204,  206,  207, 
209,  230,  232,  233,  241, 275,  "287, 
335.  362,  364,  366,  376,  377, 
384,  391,  402,  403,  453 

Massachusetts  Government  Act,  9 

Massachusetts  provincial  govern- 
ment, 9 

Matter  of  Davies,  40 

Matthews,  /.,  opinions,  265,  441 

Maxwell  vs.  Dow,  240 

May's  Law  and  Usage  of  Parlia- 
ments, 80 

Messages,  executive,  333-335 

Miantonomi,  The,  130 

Militia,  158,  160,  249,  317,  318, 
396 

Miller,  J.,  opinions,  43,  70,  90, 
97,  145,  176,  216,  222,  244,  270, 
330,  344-  345,  376 

Miller,  On  the  Constitution,  76,  77, 

335 
Mills  vs.  Duryea,  415 
Minnesota  vs.  Barber,  229 
Minor  vs.  Happersett,  43 
Misdemeanor,  263 
Missouri  Compromise,  27,  366 
Money,  87,  128,  129 
Monongahela    Navigation    Co.    vs. 

U.  S.,  271 
Monroe  Doctrine,  329 
Monroe,  James,  329 
Monloya  vs.  U.  S.,  12 
Moore,  American  Diplomacy,  330 
Moore,  Digest  of  International  Law, 

125,  320 
Mormon  Church  vs.  U.  S.,  245 
Morris,  J.  (Fed.),  298 
Mugler  vs.  Kansas,  224 
Munday  vs.  Vail,  357 
Murphy  vs.  Ramsey,  441 
Murray  vs.   Schooner  "Charming 

Betsey,"  49 


N 


Nation,  definition,  12 

National  banks,  188 

National  Hollow  Brake  Beam  Co. 

vs.  Interchangeable  Brake  Beam 

Co.,  144 
Naturalization,  125-127 
Navy,  157 
Negroes  as  citizens,  42 


INDEX 


471 


Neilson  vs.  Garza,  232 

Nelson,  J.,  opinions,  109, 193,  194, 

349 

New  England  Union,  235 

New   England   Insurance    Co.   vs. 

Dunham,  379 
New  Jersey  vs.  Wilson,  206 
New  York,  first  constitution  of, 

239 
Noble  Bank  vs.  Haskell,  228 
Non-Intercourse  Act,  49 
North  American  Review,  75 
Northwest  Territory,  16 

0 

Obligation  of  Contracts,  203-215 
Officer  of  U.  S.,  appointment,  324, 

.   330-333,  335 

impeachment  of,  344-346 

oath,  408,  457-460 
Opden  vs.  Saunders,  201 
Olmsted,  Gideon,  351 
Ordinance  of  1787,  16,  239 
Orr  vs.  Quimby,  237 
Osborn  vs.  U.  S.,  323 
Osborn  vs.  U.  S.  Bank.,  125,  377 


Pacific  Insurance  Co.  vs.  Soule,  89 
Paine,  J.  (Wis.),  opinion,  361 
Panama  Canal,  139 
Paper  money,  32,  98-102,  368- 

370 
Pardons  and  reprieves,  322-324 
Parker,  /.  (Fed.),  opinion,  11 
Parker,  C.  J.  (Mass.),  opinion,  93 
Parker,  /.  (Fed.),  opinion,  395 
Parsons  vs.  Bedford,  279,  280 
Passenger  Cases,  169,  195,  365 
Patents,  144 
Paterson,  J.,  opinions,  18,  54,  59, 

187,  363 
Pawlet  vs.  Clark,  387 
Peckham,/.,  opinions,  35,  94,  1 11, 

112 
Penhailow  vs.  Doane,  352 
Pennsylvania    vs.     Wheeling    etc. 

Bridge  Co.,  108,  193,  194 
Peonage,  171,  291 
Peonage  Cases,  291-293 
People  of  the  States,  41 
People  of  the  U.  S.,  18,  26,  28,  41, 
42,  295, 296 
reserved  rights,  286-288 


People    vs.     Compagnie    Gencrale 

Transatlantique,  1 76 
People  vs.  Kemmler,  285 
People  vs.  Lynch,  428 
People  vs.  Randolph,  278 
Perkins  vs.  Rogers,  152 
Petition  of  Right,  238,  239 
Peyton,  J.  (Miss.),  opinion,  457 
Pierce's  Federal  Usurpation,  180, 

182 
Piracy,  147-149 
Pitney,  /.,  opinion,  267 
Pitt,  Earl  of  Chatham,  250 
Pocket  veto,  84 

Police  power,  1 16-120,  220-230 
Pollard's  Lessee  vs.  Ilagan,  436 
Pollock    vs.    Farmers'   Loan    and 

Trust  Co.,  190,  371 
"Pork  Barrel,"  137-139 
Porter,  J.  (La.),  356 
Porter,  J.  (N.  Y.),  449 
Portland  Bank  vs.  Apthorp,  92 
Postal     fraud     orders,     134-137, 

269 
Post  office,  misuse  of  mails,  134- 

137,  269 
Post  offices  and  post  roads,  131- 

134, 138 
Preamble,  25 

"Presentment,"  262,  264,  265 
Presentment  or  indictment,  393, 

394 
President  of  U.  S.,  compensation, 

315 

duties,  317-344 

election,  304-310 

electors  of,  304-311 

impeachment  of,  344-346 

oath  of  office,  316 

qualifications,  31 1-3 12 

succession,  312-315 

term  of,  304 
Presidential  elections,  304-311 

disputed  elections,  308,  310 

electors,  30^-311 
Presser  vs.  Illinois,  249 
Prigg,  vs.  Pennsylvania,  432 
Privateers,  153,  1 54 
Privileges   and   immunities,    ii6, 

421-425 
Prize  Cases,  159,  320 
"Probable  cause,"  260,  262 
Public  Clearing  House  vs.  Coyne, 

135.  268 
Pumpelly  vs.  Green  Bay  Co.,  269 


472 


INDEX 


Punishments,  cruel  and  unusual, 

284-286 
Pure  Food  and  Drug  Act,  118 
Putnam,  J.  (Fed.),  opinion,  358 


Q 


Quebec  Act,  9 
Quorum,  72-74 


R 


Railroad   Commission   Cases,   217 
Railroad  rates,  regulation  of,  iio- 

112 
Randolph,  Edmund,  15 
Ratification  of  Constitution,  460- 

463 
Reed,  Speaker,  75 
Reed  rules,  75 

Religious  liberty,  241,  242-246 
Religious  tests  forbidden,  457 
Representatives      in      Congress, 
apportionment,  51-56 

compensation,  78 

election  of,  42,  70-71 

privileges,  79,  80 

qualifications,  43-45,  50 
Reservations  of  U.  S.,  438-441 
Restraint  of  Trade,  110-116 
"Reversion,"  449 
Revolution    of     1688     (English), 

450 
Rhode    Island    vs.    Massachusetts, 
'    234,  381 

Rights,  Bill  of,  of  First  Continen- 
tal Congress,  4,  9 
Rights,  of  assembly,  242,  248,  249 

of  bearing  arms,  249 

of    defendants    in    criminal 
cases,  251-268,  272-276 

of  petition,   242,  248,  249 

of  property,  269-272 

of  religious  liberty,  241,  242- 
246 

of  suffrage,  294-299 

of  trial  by  jury,  276-280 
Riley  vs.  Lee,  246 
River  and  harbor  improvements, 

139 

Roberts    vs.    City    of    New    York, 

414 
Robison  vs.  Minor,  283 
Roosevelt,  Theodore,  334 


Sanborn,  J.  (Fed.),  opinion,  144 
Saul  vs.  His  Creditors,  357 
Sawyer,  J.  (Fed.),  opinion,  200 
Schick  vs.  U.  S.,  393 
Scott,  J.  (Ills.),  opinion,  233 
Searches  and  Seizures,  252-257 
Second  Continental  Congress,  10, 

12,  13,  32,  39,  154 
Senate,  adjournments,  77 

court  of  impeachment,  67 
election  of  members,  61,  63, 

65 

equal  representation  of  States, 
61,  62,  450 

journal  of,  76 

limitations  upon,  81 

membership,  61,  62,  63,  64 

organization,  63 

powers,  325-331 

quorum,  72 

officers  of,  66,  67 

self-government  of,  74,  75,  76 
Senators,  compensation,  78 

election,  61,  63,  65 

privileges,  78,  79,  80 

qualifications,  65,  66 

term  of  office,  61,  62 
Seventeenth  Amendment,  61,  64, 

65 

Shays 's  Rebellion,  31 

Sherman    (anti-trust)    law,    no, 
111,114 

Ship  Money  Case  (English),  .449 

Ships  of  War,  States  forbidden  to 
have,  233 

Simmons  vs.  Georgia  Iron  etc.  Co., 
178 

Slaughter  House  Cases,  216,  222 

Slavery,  16,  27,  54,  175,  177,  432 

"Speedy  trial,"  396 

Speer,  J.  (Fed.),  opinion,  292 

Springbok  Case,  320-322 

Springer  vs.  U.  S.,  189,  371 

Stamp  Act  Congress,  6,  39,  238 

Standard  Oil  Co.  vs.  U.  S.,  115 

"State,"  II,  50 

constitutions,  18 

State  Freight  Tax,  Case  of,  88 

State  vs.  Hull,  428 

States,  admission  of,  433-436 
comity  between  414,  425 
commercial  equality  of,  193- 
196 


INDEX 


473 


Federal    protection    of,    442, 

444-446 
inspection  laws  of,  231-233 
oath  of  legislators  of,  457-460 
powers  surrendered  by,  198- 

236 
republican   form   of   govern- 
ment, 442-444 
unconstitutional  laws  of,  33, 

363-365 
Story,  J.,  opinions,  148,  151,  279, 

280,  388,  415,  433 
Story,  On  the  Constitution,  67,  95, 

307,  312,  316 
Strong,  J.,  opinions,  89,  100,  129, 

406, 445 
Sturgis  vs.  Crowninshield,  207 
Subpoena,  275 

duces  tecum,  275 
Suffrage,  294,  299,  373 
Supreme    Court,    annulment    of 
unconstitutional  laws,  363- 

373 
appointment  of  judges,  330 
Swayne,  J.,  opinions,  90,  190,  203, 
224 


Taney,  C.  J.,  opinions,  28,  181, 

214.  3I9»  337,  367,  390,  430,  443 

Taxation,  apportionment  of  direct, 

53-57 

capitation,  186-191,  296 

definition,  89 

direct,  186-191 

export,  191,  192 

tariffs,  95 

uniformity  rule,  97 
Terlinden  vs.  Ames,  342 
Territories,  437-442 
Texas  vs.  White,  29 
Thomas,  Sheriff,  vs.  Taylor,  457 
Thomas  Gibbons,  The,  154 
Thompson,  /.,  opinions,  273,  331, 

378 
Thompson  vs.  Utah,  398 
Thompson  vs.  Whitman,  416 
Titles  of  legal  decisions.  Prefatory 

Note,  xiii,  xiv 
Titles  of  nobility,  196,  197,  202 
Tolls,  89 

Tonnage  duties,  233 
Trade,  restraint  of,  110-116 
Trade-mark  Cases,  144 


Treason,  400-409,  425,  428 

Treaties,  199 

cases  arising  under,  375-377 
power  to  make,  325-330 
supreme   law  of   land,   453- 
456 

Trial,  by  jury,  393-400 
public,  396,  397 
speedy,  396 

Troops,  States  forbidden  to  keep, 

233 
Turner  vs.  Am.  Baptist  Missionary 

Union,  2,2^ 
Twelfth  Amendment,  308-310 


U 


Union,  definition,  30 

United  Colonies  of  New  England, 

4 

U.  S.  vs.  AngeU,  274 

U.  S.  vs.  Arjona,  151 

U.  S.  vs.  Ball,  261 

U.  S.  vs.  Ballin,  73 

U.  S.  vs.  B oilman,  259 

U.  S.  vs.  Burr  {Aaron),  275,  403 

U.  S.  vs.  Coppersmith,  263 

U.  S.  vs.  Cruikshank,  249 

U.  S.  vs.  Davis  {Jefferson),  408 

U.  S.  vs.  D.  &  H.  R.  R.  Co.,  1 13 

U.  S.  vs.  Greathouse,  403 

U.  S.  vs.  Harris,  296 

U.  S.  vs.  Hartwell,  330 

U.  S.  vs.  Hodges,  404 

U.  S.  vs.  Holmes,  149 

U.  S.  vs.  Hudson  and  Goodwin,  87 

U.  S.  vs.  Joint  Traffic  Association, 
III 

U.  S.  vs.  Kochsperger,  132 

U.  S.  vs.  Lawrence,  281 

U.  S.  vs.  Libby,  176 

U.  S.  vs.  McClellan,  292 

U.  S.  vs.  Marigold,  128 

U.  S.  vs.  Mills,  273 

U.  S.  vs.  Oley,  131 

U.  S.  vs.  Peters,  350 

U.  S.  vs.  Rauschcr,  344 

U.  S.  vs.  Realty  Co.,  93 

U.  S.  vs.  Reese,  294 

U.  S.  vs.  Ross,  150 

U.  S.  vs.  Smith,  148 

U.  S.  vs.  Texas,  380 

U.  S.  vs.  Trans- Missouri  Associa- 
tion, no 

U.  S.  vs.  Wong  Kim  Ark,  45 


474 


INDEX 


United  States,  forbidden  to  grant 
titles  of  nobility,  196,  197 
police  powers  of,  1 16-120 
unconstitutional  laws  of,  365- 
373 


V 


Van  Home  vs.  Dorrance,  18,  363 
Vann,  J.  (N.  Y.),  opinion,  40 
Veazie  vs.  Moor,  104 
Veazie  Bank  vs.  Fenno,  188 
Verdict,  262 
Veto,  84 

Vice-President  of  U.   S.,  duties, 
66,  67,  305,  313 

election,  305-310 

impeachment  of,  344-346 

qualifications,  310 

term  of  office,  304 
Virginia,  first  charter,  238 
Voters,  55,  56 

W 

Waite,   C.  J.,  opinions,  44,   127, 

151,  217,  249,  294 
Wallace,  J.  (Calif.),  opinion,  282 
War  power  of  Congress,  1 52-1 61 
Ward  vs.  Maryland,  421 
Ware  vs.  Hylton,  455 
Ware  vs.  U.  S.,  131 


Washbume,  U.  S.  Minister,  47 
Washington,   Bushrod,   J.,   opin- 
ions, 150,  160,  201,  424 
Washington,  George,  33,  303,  308, 

334 
Watson,  On  the  Constitution,  14, 

39,  60,  65,  66,  80,  138,  139,  235, 

252,311,427 
Watson  vs.  Jones,  243 
Wayne,  /.,  opinions,  158,  196 
Weights  and  Measures,  129,  130 
West  Virginia,  admission  of,  434 
Whiskey  RebelUon,  31,  91 
White   County   Commissioners   vs. 

Civin,  349 
White,  C.  J.,  opinions,  113,  114, 

298,  299,  373,  419 
White  vs.  Hart,  294 
White  Slave  Act,  119 
Wilkerson  vs.  Utah,  284 
Wilkes,  John,  254 
Williams,    J.    (Pcnna.),    opinion, 

260 
Wilson,  J.,  opinions,  26,  31 
Wilson,  Woodrow,  334,  335 
Witnesses,  immunity  of,  259 
Woman  suffrage,  43,  44 
Woodbury,  J.  (Fed.),  opinion,  176 
Woodruff  vs.  Parham,  90 
Woods,  /.,  opinions,  232,  250,  332 
Worcester  vs.  Georgia,  121 
Worthen  vs.  Prescott,  281 
Writs  of  Assistance,  251 


Ji  Selection  from  the 
Catalogue  of 

G.  P.  PUTNAM-S  SONS 


Complete  Catalogues  seat 
on  application 


"  The  best  summary  at  present  available  of  the  political 
history  of  the  United  States."— Frank  H.  Hodder,  Professor  of 
American  History  in  the  University  of  Kansas. 


American  Political  History 

1763-1876 
By  Alexander  Johnston 

Edited  and  Supplemented  by 

James    Albert  Woodburn 

Professor  of  History  and  Political  Science,  Indiana  University ; 

Author  of  "  The  American  Republic,"  "Political 

Parties  and  Party  Problems  in  the 

United  States,"  etc. 

Itt  tTvo parts,  each  complete  in  itself  and  indexed.    Octavo.    Each,  net,  $2.00 

1.  The  Revolution,  the   Constitution,  and  the  Growth 
of  Nationality.    1763-1832. 

2.  The    Slavery    Controversy,  Secession,  Civil    War, 
and  Reconstruction.    1820-1876. 

These  volumes  present  the  principal  features  in  the  political  history  of  the 
United  States  from  the  opening  of  the  American  Revolution  to  the  close  of  the 
era  of  the  Reconstruction.  They  give  in  more  convenient  form  the  series  of 
articles  on  "American  Political  History"  contributed  to  Lalor's  "Cyclopedia 
of  Political  Science,  Political  Economy,  and  Political  History,"  by  the  late 
Professor  Alexander  Johnston. 

"  These  essays,  covering  the  whole  field  of  the  political  history  of  the 
United  States,  have  a  continuity  and  unity  of  purpose  ;  introduced,  arranged, 
and  supplemented  as  they  have  been  by  Professor  Woodburn  (who  contributes 
a  very  necessary  chapter  on  the  Monroe  Doctrine)  they  present  a  complete  and 
well-balanced  history  of  the  politics  of  the  United  States." — Hartford  Courant. 

G.  P.  PUTNAM'S  SONS 

New  York  London 


A 

History  of  Mediaeval 

Political  Theory  in 

the  West 

By  R.  W.  Carlyle,  C.  I.  E.,  and 
A.  J.  Carlyle,  M.  A. 

Vol.  Ill  (Completing  the  Series)  8°  $3.50 

This  treatise  will  be  found  by  stu- 
dents of  mediaeval  history,  and  of  the 
evolution  of  political  science,  a  com- 
panion volume  to  such  works  as  Bryce's 
**Holy  Roman  Empire,"  Giercke's 
"Theory  of  the  State,'*  and  to  all 
mediaeval  history. 

Volume  I  considered  the  period  from 
the  Second  Century  to  the  Ninth; 
Volume  II,  Political  Theory  of  the 
Roman  Lawyers  and  Canonists,  10th- 
13th  Centuries.  This  volume,  the 
record  from  that  point. 

G.  P.  Putnam's  Sons 

New  York  London 


Comparative 
Administrative  La-w 

Jln  Analysis  of  the  Administrative  Systems, 

National  and  Local,  of  the  United  States, 

England,  France,  and  Germany 

By 
FRANK  J.  GOODNOW,  A.H.,  LL.B. 

Professor  of  Administrative  Law  in  Columbia  University 

Student's  Edition,    Tsro  volumes  in  one 
Octavo,  net.  $3.00 


"  His  volumes  are  remarkably  alike  for  analytical  power 
and  lucidity  of  method.  His  style  is  as  luminous  as  bat  of 
Sir  Henry  Maine,  and  his  general  literary  method  not  unlike 
that  great  author's — and  there  can  be  no  higher  praise — in  its 
orderliness  of  arrangement,  precision  of  state'nent,  and  true 
scientific  spirit.  The  w^rk  is  unique  and  of  permanent 
excellence.  It  fills  a  vacant  place  in  the  library  shelves,  and 
is  a  permanent  addition  of  very  great  value  to  the  science  of 
comparative  law." — N.  Y.  Tribune, 


"  We  regard  this  work  as  the  most  impoitant  contribution 
to  political  science  .  .  .  which  has  been  published  in  this 
country,  we  will  not  undertake  to  say  for  how  long." — T?u 
Independent. 

9  9  9 

G,  P.  PUTNAM'S  SONS 

Ne-w  YorK  I^ondon 


By 

Arthur    Twining    Hadley 

(Ptendent  of  Yak  Univerdqr) 

Economics 

An  Account  of  the  Relations  between 
Private  Property  and  Public  Welfare. 

Octavo,  gilt  top,  net^  $2.50. 

**  No  higher  compliment  can  be  paid  this  work  than  to 
say  that  it  is  hard  to  determine  whether  the  epithet 
judicial  or  judicious  would  more  appropriately  character- 
ize it.  .  .  .  As  a  whole,  we  do  not  hesitate  to  affirm 
that  the  results  reached  by  Professor  Hadley  will  com- 
mend themselves  to  candid  thinkers  as  true.  .  .  . 
It  will  not  only  be  found  invaluable  by  readers  at  large, 
but  will  also  at  once  command  the  attention  and  ad- 
miration of  economists  the  world  over." — Nation. 

**  It  is  difficult  to  exaggerate  the  wealth  of  thought 
and  the  keenness  of  analysis  contained  in  these  chapters. 
Each  one  is  crammed  full  of  matter,  presented  in  an  at- 
tractive manner,  illustrated  by  references  to  historj'  and 
to  contemporary  business  methods,  and  often  summed 
up  in  some  phrase  or  some  statement  of  likeness  or 
unlikeness  that  is  pregnant  withsuggestiveness." — Prof. 
Richmond  Mayo-Smith,  in  Political  Science  Quarterly, 

G.  P.  Putnam's  Sons 

New  Y<wk  Londob 


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