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CONSTITUTIONAL STUDIES,

STATE AND FEDERAL.

W-OEKS OP PEOF. SOHOULEE,

A HISTORY OF THE UNITED STATES UNDER
THE CONSTITUTION. 5 vols., 8vo. Cloth.
$11.25.

THOMAS JEFFERSON. 12mo. Cloth. $1.00.

HISTORICAL BRIEFS, WITH BIOGRAPHY. 8vo.
Cloth. $2.00.

CONSTITUTIONAL STUDIES, STATE AND FED-
ERAL. 8vo. Cloth. $1.50.

DODD, MEAD AND COMPANY,

Publisliers.

CONSTITUTIONAL STUDIES,

STATE AND FEDERAL.

BY

JAMES SCHOULER, LL.D.,

PROFESSOR OF LAW, AND AUTHOR OF "HISTORY OF THE UNITED
STATES UNDER THE CONSTITUTION."

NEW YORK:

DODD, MEAD AND COMPANY.

1897.

A. ! o% \0<l

Copyright, 1897,
By James Schouler.

University Press :
John Wilson and Son, Cambridge, U.S.A.

PREFACE.

This volume contains the substance of lectures
delivered before the graduate students of Johns
Hopkins University during the years 1893-1896.
The author, pursuing his own investigation of the
primary documents, has sought to trace the origin
and progress of those political ideas which have be-
come dominant and fundamental in American gov-
ernment. His order of study embraces : (1) Early
colonial charters and the constitutions of the old
thirteen States ; (2) documents of Union, whose full
fruition is the Constitution of the United States ;
(3) State constitutions since the adoption of this full
Federal system. Such a study brings many important
facts into new relief which pertain to American de-
mocracy and its progression, 1 and should be found
both interesting and suggestive. Even in the more
trite and familiar analysis of our Federal Constitution,
the author has sought to impart some freshness of
treatment by employing historical illustration drawn
from the national experience of a century.

J. S.

August 10, 1897.

1 See, e.g., as to methods of constitutional adoption, p. 211 et seq.;
oral voting and the ballot, p. 231 et seq.

CONTENTS.'

PART I.

EARLY CHARTERS AND CONSTITUTIONS.

I.

Page

Introductory . . 1

Modern American Institutions. — The Common or Consue-
tudinary Law. — Legislative Enactment. — Fundamental
Charter or State Constitution. — Federal Constitution and
Pursuant Acts of Congress and Treaties.

II.

The Colonial Governments. 1607-1776 9

Thirteen Colonies classified. — Early Fundamental Charters.

— These Charters studied. — Structure of Colonial Govern-
ment. — Allegiance, Civil Eights, and Inter- Colonial Rights.

— Religious Toleration. — Trade and Business. — Land
Tenure.

III.

Revolutionary Bills of Rights. 1776-1783 ... 29
Bills or Declarations of Rights. — Virginia, Pennsylvania,
and Maryland in 1776. — Other Bills of Rights and their
Ideas. — Religious Features noticed.

IV.

Early State Constitutions. 1776-1789 45

Montesquieu Structure of Government. — Conventions with
Plenary Power. — Elective Franchise. — Legislature, Execu-
tive and Judiciary. — Miscellaneous Provisions.

viii CONTENTS.

PART II.

THE FEDERAL UNION.

I.

Page

Early Tendencies to Union. 1609-1764 70

E Pluribus Unum. — New England Confederacy. — Colonial
Boards of Commissioners. — Albany Convention of 1754
and Franklin's Plan of Union.

H.

Independence and Revolution. 1765-1780 .... 79
Stamp Act Congress of 1765. — Continental Congress (1774)
and Resistance. — Declaration of Independence. — Conti-
nuity of Union in these States.

III.

Articles op Confederation. 1781-1789 84

Revolutionary Government (1776-1780). — Adoption of Arti-
cles (1781). — Nature and Incomplete Scope of Confederacy.
— Congress and its Authority. — Delegated Power from
States.

IV.

The Federal Constitution; its Nature and Estab-
lishment. 1787-1789 93

Fatal Defects of Old Confederacy. — Convention of 1787 and
New Plan of Union. — New Government operating upon
the People.

Federal Constitution Analyzed; Structure and

Distribution of Powers; Legislature ... 99

Nature of Federal Government as to States. — Rules of Inter-
pretation. — Preamble and Purpose. — Congress and its
Structure. — Course of Legislation.

CONTENTS. ix

VI.

Page
Federal Constitution Analyzed; Fundamental

Powers of Congress 115

Fundamental Powers and Prohibitions, .State and Federal.

— Power to Tax. — To Borrow Money. — To Regulate
Commerce. — Naturalization and Bankruptcies. — Power
to Coin Money, and Regulate, etc. — Post-Offices and Post-
Roads. — Patents and Copyrights. — Federal Criminal
Offences. — War and Peace Power. — Armies and Navies.

— Calling forth the Militia. — Federal Capital and Sites
reserved.

vn.

Federal Constitution Analyzed; Federal and

State Prohibitions 148

Express Prohibitions upon Congress and the United States.

— Express Prohibitions upon States, together with the
United States. — Unqualified Prohibitions upon States. —
State Prohibitions unless Congress assents. — Implied
Prohibitions.

VIII.

Federal Constitution Analyzed; The Executive 156

Chief Federal Executive newly created. — President and
Vice-President. — How Chosen. — Term and Qualifica-
tions. — Powers and Duties, Domestic and Foreign. —
Conclusion.

IX.

Federal Constitution Analyzed ; The Judiciary . 169

Former Judicial Establishment Indistinct. — Independence
of Present Judiciary, and Permanence of Supreme Court.
— Tenure, Recompense, etc. — Functions exercised and
Jurisdiction. — Questions of Constitutional Conflict. —
Supreme Law of Land. — Jury Trial for Crime. — Treason
and Attainder. — Federal Crimes defined.

x CONTENTS.

X.

PAGE

Federal Constitution Analyzed ; Interstate and

Territorial Relations 178

Full Faith and Credit between States. — Privileges and Im-
munities. — Mutual Extradition. — Annexations to Union.
— Foreign Acquisitions. — Regulation of Domestic Terri-
tory. — Guaranty of Kepublican Government. — Protec-
tion against Invasion or Domestic Violence.

XI.

Federal Constitution Analyzed ; Adoption, Power

to Amend, and Federal Supremacy .... 185

No Direct Reference to People. — Modes of Future Amend-
ment. — Confederation Debts Binding. — Supreme Law
of Land. — Federal Oath. — No Religious Test of Office.

XII.

Federal Constitution Analyzed ; Subsequent

Amendments 190

Fifteen Amendments since 1 787. — Ten as a " Bill of Rights "
Addition proposed in 1789. — Eleventh restraining Judi-
cial Power against States. — Twelfth relating to Presi-
dential Elections. — Three Civil War Amendments.

PART III.
STATE CONSTITUTIONS SINCE 1789.

I.

Historical Sequence 203

Influence of Federal Constitution upon States. — The Present
Union. — Era of Federalism (1789-1801). — Republican
Era (1801-1815). — Era of Peaceful Development (1816-
1835). —Era of Strife (1836-1861).— Civil War and Re-
construction (1861-1877). — New Era (1877-1897).

CONTENTS. xi

II.

Page
Methods of Fundamental Adoption and Change . 211
Popular Reference of Convention Work. — Later Constitu-
tions, How Adopted. — Constitutional Amendments. —
Modern Constitution enacted at the Foils.

in.

State Fundamental Maxims 220

"Bills of Bights" since 1789. — Maxims of Political and
Personal Liberty. — No Imprisonment for Debt. — Exemp-
tions from Execution, etc. — Woman's Rights. — Educa-
tion and Religion.

IV.

The Elective Franchise 231

Federal Deference to States. — Voting Qualifications. —
Ballot and viva voce Mode. — Registration, Residence.

— Other Provisions. — Negro Suffrage Problem. — Plu-
rality Poll and Minority Representation. — Race and Sex
Restrictions, etc. — Increased Power of Choice.

V.

The Legislature 249

Modern Legislature Bicameral. — Senate and House. —
Distrustful Provisions. — Modern Organization and Modes
of Business. — Fundamental Restraints upon Legislation.

— Latest Reforms. — Public Supervision.

VI.

The Executive 267

Increased Dignity of State Governor. — Dependence upon
People rather than the Legislature. — Modes of Choice,
Term, and Qualifications. — Council, Lieutenant-Gov-
ernor. —Power to Pardon, Veto, and Appoint. — Chief
Subordinates of State.— Failure of Early Expedients. —
Popular Control Increasing.

xii CONTENTS.

VII.

Page
The Judiciary 283

State Judicial Establishments. — Modern Tenure for Years
with Popular Choice. — Other Constitutional Provisions.

— Court Officers. — Constitutional Interpretation by Judi-
ciary. — Conservators of Organic Law.

VIII.

Miscellaneous ; Conclusion 296

Impeachment and its Substitutes. — Modern Qualifications
for Office, etc. — State Capitals, and their Location. —
Commissions. — Education and Philanthropy. — Muni-
cipal Government. — Growth of the Popular Referendum.

— Anglo-Saxon Temperament prevails. — Eederal and
State Constitutions compared. — Strength of American
Democracy.

Constitution of the United States 309

Index 827

CONSTITUTIONAL STUDIES.

PART I.

EAELY CHARTEES AND CONSTITUTIONS.

I.

INTRODUCTORY.

If we examine the Revised Statutes of any well-
ordered commonwealth, — a work prepared and pub-
lished under authority of the legislature as the full
and systematized expression of written law at a given
date, — we shall find printed there the State constitu-
tion, followed or preceded by the great mass of gen-
eral enactments condensed and arranged by titles and
chapters. And the same may be said correspondingly
of the Revised Statutes of our Federal Union. In
such a huge bound volume, which exhibits only what
still remains enforceable in the community as a code,
we perceive that the constitution occupies but a few
pages comparatively, while perhaps nineteen-twen-
tieths of the whole bulk comprise public statutes, the
periodical efflux of legislation. Here and there, per-
haps, if the codifying work be scholarly, we shall find
citations from the judicial reports, indicating that this
vast array of mandatory text has received from time
to time the comment and construction of the courts
as to its fundamental force and meaning.

Sovereign precepts are in these modern days pub-
licly set forth; and from such an open book we

l

2 CONSTITUTIONAL STUDIES.

gather in detail the institutions of a modern Ameri-
can State, so far as the people's organic text, supple-
mented and expanded by the variable but consistent
enactments of popular representatives in the legisla-
ture from time to time, may display them at a certain
epoch. To the former, and more constant as well as
more comprehensive class of written institutions in
America, this volume will confine itself.

Charters and constitutions, the framework and
fundamental' expression of American government,
whether in a State or Federal sense, furnish, in fact,
the primary ideas of our political system, the organic
institutions to which legislation, and, indeed, the
whole practical conduct of public affairs, must be
purely subsidiary, like water conducted through some
prearranged channel. Every statute, every act of the
legislature, must conform to the basic mould of our
local constitution, else the judiciary, when invoked,
will check its operation. Not that American consti-
tutions and legislative acts progress historically to-
gether and change together, but that the constitution
of any given date acquires supremacy, and each con-
stitutional change is radical. Herein consists the
great difference between constitutional government
in the mother country and our own. In Great Brit-
ain the struggle of centuries has been between King
and Parliament, the predominance of executive or
legislature; in the United States of to-day, public
authority, whether of executive or legislature or
judiciary, is but representative in theory, an authority
of co-ordinate departments, and the people alone are
sovereign and predominant. Thus, men learned in
British law assert to-day that Parliament has at
length triumphed, by virtue of a representative pop-
ular authority irrevocable ; and that throughout the
realm of Great Britain no fundamental limit can be

INTRODUCTORY. 3

set to whatever Parliament may choose at any time
to ordain. Settlers from the old country, at an age
when the old struggle for royal prerogative merged
into civil war, regicide, and the protectorate of Crom-
well, our early American colonists ripened in the
belief that there existed, even in the parent country,
an English constitutional law, a " law of the land "
for the people, which such documents as magna
charta had formulated for individual protection in
life, liberty, and property, and which neither a mon-
arch nor Parliament could rightfully transgress.
Such views had been upheld at home by the sturdy
Coke, that Gamaliel of our pre-Revolutionary law-
yers. For America, for these United States, at all
events, no law, no system, can, since 1776, be deemed
obligatory in a commonwealth but what originates in
convention with the popular sanction ; and upon the
solid pillars of such law, such a system, rests the
whole fabric of sovereignty. A written constitution,
therefore, whether rigid or elastic in expression, de-
termines and defines the scope of all departments
of government, of all government. That idea sprang
from the primitive condition of American settle-
ments, which was settlement under the constraints
of a written charter.

It is fit, then, that those written institutions should
be studied and understood which are at the very
base of American life and manners. But equally
basic, by presumption, at least, in the spread of
the Anglo-Saxon race, is that accretion of customs,
shrouded as to origin in the darkness of the middle
ages, which Blackstone pronounces " the first ground
and chief corner-stone of the laws of England." 1
This English common law was brought from Great
i Bl. Com. 73.

4 CONSTITUTIONAL STUDIES.

Britain to America, and propagated by our early col-
onists wherever their settlements extended. Some
famous men of our Revolutionary era contended that
such consuetudinary law existed in these colonies
only by force of early colonial legislation which ex-
pressly recognized its operation ; others, with perhaps
the better reason, that as originally liege subjects of
Great Britain we brought that law to the new world,
subject only to such express changes as might after-
wards be found needful for adapting it to our new
condition. 1 But all have agreed that by the time
independence of Great Britain was declared in 1776,
the English common law, with some such local
variance and adaptation, had overspread the surface
of American society, for the presumptive regulation
of private rights ; and one great patriot, at least, is
said to have declared that he would never have drawn
sword against King George had he not believed that
the common law still remained his birthright. 2

Hence originates case-law, as it is termed, which, in
its mighty accumulation of judicial precedents his-
torically preserved for reference through the authentic
reports of England and America, constitutes the first
layer, so to speak, of our common State and Fed-
eral jurisprudence. Unwritten law, it was formerly
termed, as distinguished from the written law of
positive enactment, which we first discussed, —
unenacted, we should rather term it to-day, since in
modern times reports of the appellate courts are
nearly as accessible and as widely printed and circu-
lated as statutes or the organic constitution itself.
Modern reports are not, strictly speaking, the tech-
nical transcripts of court records ; but prepared in a
more readable shape, they supply, by way of narra-

l And see the language of colonial charters on this point, II post
3 A remark attributed to John Adams. '

INTBODUCTORT. 5

tive, a summary of the facts, in each decided case
(which narration is often the court's own statement
in the opinion rendered), together with a judicial
opinion at full length disclosing the grounds upon
which the decision was rendered. Leges et consuetu-
dines regni was the accepted title of the English com-
mon law in early times. No body of law can have
developed so easily and so smoothly as that founded
upon the customs of a homogeneous people by the
gradual accretion of precedents. Customs make
manners and shape manners. Custom or usage, in
business or the household, for determining private
rights and wrongs, precedes usually the law, though
fundamental maxims were earlier; a test case in the
courts determines the full scope and legality of such
usage ; and the precedent as recorded and published
gives force and expansion to the custom, or else de-
nies it on consideration of sound policy. Legislation,
to be sure, may interpose with more violence and
radical effect to change that custom, and with it the
existing course of judicial precedents or procedure ;
but, whether it be under court or legislative direc-
tion, innovation or its suggestion must have begun
usually in the ingenuity of society, feeling its own
way over the surface of human existence and among
the pitfalls of public sovereignty, towards some new
combination of circumstances where former analogies
are to be applied. And thus do judicial precedents,
which, by their sequence, confirm principles in the
course of an extended and novel application, come
to supply society with a jurisprudence so wise, so
tolerable, and so methodically progressive, that we of
England and the United States may well wonder
how civilized nations, professing popular institutions,
could ever have got on well without them. Scholars
have asserted that there was more of the a priori

6 CONSTITUTIONAL STUDIES.

assertion of law in the Roman methods of Justinian's
age ; but, be that as it may, our Anglo-Saxon system
prevails readily in modern application. Foreign jur-
ists tell us that in colonies such as Canada, which
have come from other nations under English influence
and authority, the English system of reporting judi-
cial cases and of developing the law from such re-
ports has come into easy predominance. So is it, we
might add, with Louisiana, Florida, Texas, and those
other annexations to the United States where the
law of continental France or Spain once shaped the
rights of society.

Precedents, like cobble-stones, pave the pathway of
our common law, and that pathway stretches far back
into time immemorial. So natural is the habit of
relying upon precedents for smoothing out consist-
ently the broadening avenue of human achievement
that we find them, not for judicial development alone,
but in ceremonial observances, in holiday celebrations
and memorials, whether as concerning the State, the
community of neighbors, or the family circle. Prece-
dents take strong lodgment in the simplest mind;
and the simpler the people, the more conclusive, as
well as irrational, becomes their expression. Sir
Frederick Pollock, in one of his essays on jurispru-
dence, observes how readily a young child will cite
precedents to justify conduct for which he is yet
unable to allege a sound motive. " Why, father (or
A) did so," is his excuse ; or, if pushed still more
closely for a plea, " I did so yesterday, and you let
me." Tribes and families living remote from civi-
lized society pursue their peculiar customs, because
such was the tribal or parental custom before ; as we
see in the quaint dress or festivities which keep up
old manners. With some simple village peasantry
who have seen little of the enlightened world, novel-

INTRODUCTORY. 7

ties find little favor ; such folk are content to bake
and brew and to pursue their sports as the genera-
tions did before them. Precedents thus relied upon
are of course not conclusively just and reasonable.
But those precedents which in our own mosaic-work
of the common law become established by the judg-
ment of some intelligent tribunal, learned in what
has been judicially established already, and skilful to
apply, — of a tribunal fairly and honestly disposed to
do justice according to the merits of each case, and
composed of men selected for their superior legal
wisdom and aptitude, who hear the arguments of both
sides before deciding, and who have power to enforce
the decision, — ought surely to carry the greatest
weight as authority for a custom in any specified
jurisdiction.

Of public institutions, therefore, in an American
modern State, any comprehensive study must take a
threefold range : (1) There is the common or consue-
tudinary law as the first stratum, that most particu-
larly which prevailed at the original colonization of
this country; (2) There is the legislative enactment
or positive statute which displaces such common law,
regulating and modifying so far as may be ; (3) There
is the further written fundamental State constitution,
primitive enough in charter origin to control com-
mon law at the colonial outset, which " as the act of
the people speaking in their original character " *
overrules and supersedes whatever in either custom
or contemporaneous statute law proves inconsistent
with its mandate, giving to local government and
society a new progression. To this may be added (4)
that the constitution of the United States and the
acts and" statutes of Congress and treaties pursuant

i 1 Kent Com. 449.

8 CONSTITUTIONAL STUDIES.

thereto are the supreme law of this land, and para-
mount in authority to custom, State statutes, or even
the State constitution itself. American institutions,
both State and Federal, we now proceed to examine
in their consecutive order so as to trace out American
ideas of government in their historical origin and
development, as embodied in these third and fourth
classes only of fundamental law. It should be ob-
served, however, in passing, that many of those ideas
which State constitutions usually put forward to-day
as fundamental have in certain other States, whose
organic law comprises less detail, worked into practi-
cal expression as the less positive fiat of a State legis-
lature, exercising its own unfettered discretion over
the subject.

II.

THE COLONIAL GOVERNMENTS.
1607-1776.

Blackstone has classified the governments of our
American colonies as follows : (1) Provincial ; (2)
Proprietary; (3) Charter Governments. 1 Such was
doubtless their condition when he published his
Commentaries, or shortly before the Revolution.
Seven of these colonies, and in fact the majority, were
of the first or Provincial class, — New Hampshire, New
York, New Jersey, Virginia, North Carolina, South
Carolina, and Georgia ; that is to say, in each of them
a royal governor who was appointed by the British
Crown served as royal deputy within the jurisdiction,
under instructions which usually accompanied or fol-
lowed his commission. Of Proprietary governments
there were Maryland, Pennsylvania, and Delaware;
and here some favored individual or family — that of
Lord Baltimore, in the first named, and of William
Perm in the other two — ruled with sub-royal
dominion and subordinate powers of legislation.
The Charter governments proper comprised at this
late period only Massachusetts, Connecticut, and
Rhode Island.

Historically speaking, however, most of these thir-
teen American colonies had been originally settled
and established under a fundamental charter or grant
of some sort from the British Crown, which served as
1 1 Bl. Com. 108; 1 Story Commentaries, § 159.

10 CONSTITUTIONAL STUDIES.

a parchment basis of government ; most of their in-
habitants had become habituated to a written funda-
mental polity to which all local legislation had to
conform, very much as in the by-laws of a chartered
business corporation of to-day; nor did the primitive
government in such cases differ very greatly from
that of our modern private corporation in committing
the main general management of affairs to a President
or Governor with a Board of Directors or Assistants,
all of whom, under the most favoring circumstances,
were chosen by the body of freemen or stockholders.
In fact, the complaint against the Winthrops and Dud-
leys of Massachusetts Bay and their followers had
been that what the Crown originally intended as a
mere civil corporation within the realm had been per-
verted across the ocean by the corporators into a full
political establishment. Proprietary governments,
moreover, were conducted by virtue of royal grants
or charters. During the eighteenth century and for
a long time prior to 1775, we find only Connecticut
and Rhode Island possessed of charters which con-
ferred a liberal authority upon the people, while
Massachusetts lived under a royal charter which
made its government scarcely less in practice of the
provincial sort than that of Virginia. Both Virginia
and Massachusetts had, in fact, experienced various
charter vicissitudes since their earliest settlement;
and the Massachusetts charter from William and
Mary, dated 1691, was reserved and cautious in its
allowance of self-government. On the other hand,
the charters of Connecticut and Rhode Island from
Charles II. — the one granted in 1662 and the other
in 1663 — were so manifestly liberal in popular privi-
leges that each served essentially through the Revo-
lution and even beyond the eighteenth century as
the fundamental constitution of an American State,

THE COLONIAL GOVERNMENTS. 11

though not democratic enough to stand long the pop-
ular test of this nineteenth century.

These early American charters afford a curious and
interesting study. In the earliest of them we shall
find ideas and expressions which have immensely
influenced the development of manners and politics
in this new world, not through the colonial era alone,
but for all time. The idiosyncrasies of the several
British monarchs who granted them appear moreover
in their composition. James I. leads the list of
grantors with that prolix, diffuse, and wordy style of
expression so common in his age, recounting mar-
vellous " providences " of a special cast ; Charles I.
follows with a more concise style, as befitted a mon-
arch of greater personal dignity ; through the times
of Cromwell and the Commonwealth we find these
colonies singularly neglected ; after which Charles II.,
— from whose reign, frivolous though he was, so much
excellent legislation takes its rise, — granted pres-
ently the most liberal, and indeed the only thoroughly
liberal and popular, American charters of this whole
colonial age. From the final expulsion of the Stuarts,
British policy held the American colonies well in
check, so as to afford a rich market for British manu-
factures and commerce, and, while encouraging colonial
resources, to repress all tendencies to independence or
disloyalty. All these charters or grants for American
colonization were English in expression, except for the
Maryland charter of 1632, which employed the Latin
tongue, — a royal recognition, most likely*' of rank
and scholarship in Lord Baltimore, the beneficiary of
Charles I., who was a devout Roman Catholic. 1

1 Sir George Calvert, first Lord Baltimore, was the applicant for
this charter, but, as he died before its execution, it was intrusted to
his son, Cecil Calvert, the second Lord Baltimore.

12 CONSTITUTIONAL STUDIES.

The first charter of Virginia, which James I. issued
in 1606, shortly before the primitive Jamestown set-
tlement, granted the lands along our northern Atlantic
coast to which Great Britain laid claim, between the
34th and 45th degrees of north latitude, to two dis-
tinct companies, one of which had its headquarters
at London and the other at Plymouth, in the mother
country. Organizing at once under this charter of
1606, the London Company sought and obtained by
1609 a new and enlarged charter as the " Virginia
Company," for prosecuting its practical work of
American settlement. Under the simple reign of
James I. there were three different charters granted
to this oldest of American colonies. The Plymouth
Company reorganized in 1620 for the more northerly
colonization of our American coast, and received that
year from James I. another charter for " the planting,
ruling, ordering, and governing of New England in
America." Under this " New England charter "
came the Pilgrims of the " Mayflower " to their new
Plymouth of Massachusetts Bay ; and the agreement
signed by them off Cape Cod before they came ashore
bound the new settlers by common consent into a
body politic, — a memorable transaction. Next came
the charter of Massachusetts Bay, granted in 1629
under Charles I., which by 1684, after the establish-
ment of a most thriving colony, was cancelled by the
English Chancery during the reign of James II., for
alleged infractions of the royal grant. The new
charter of "William and Mary in 1691, to which we
have alluded, annexed Plymouth finally to Massa-
chusetts Bay and erected Massachusetts into a single
colony. Unlike the previous Massachusetts charters,
that of 1691 designed a full political government.

The Pennsylvania colony, whose proprietary char-
ter to William Penn passed the seals in 1682, ex-

THE COLONIAL GOVERNMENTS. 13

hibits various fundamental documents which testify
to the prudent and thrifty management of this excel-
lent Quaker and his philanthropic and statesmanlike
views. By virtue of his legal supremacy, Penn as
Governor prescribed from time to time a frame of
government with increasing liberality, and under the
document of 1701 granted broad political powers
with the specific approbation of the Pennsylvania
General Assembly, and of the Governor's Council,
under an express proviso that no change should be
made in these fundaments without the joint assent of
the Governor and six-sevenths of the Legislature.
This famous document of 1701, known as Penn's
"Charter of Privileges," declared full liberty of
religious conscience, in an article pronounced inviol-
able and forever incapable of amendment. Among
other provisions it enlarged the English common law
by according to criminals the same privilege of wit-
nesses and counsel as their prosecutors, 1 and abolished
the common-law forfeiture which attached to suicides
and death by the "deodand." 2 William Penn's
charter of 1701 to Delaware is of a similar scope ;
and this latter domain which came to William Penn
as proprietor in 1682 and by quitclaim from the
Duke of York was known in early colonial times as -
" The Territories."

The first of the so-called Carolina charters — for
North and South Carolina were long colonially united
— antedates the permanent English settlement of
this Atlantic coast, having been granted to Sir
Walter Raleigh in 1584 by Queen Elizabeth. That
charter really constitutes the first step in the work of

1 See Article VI., amendments to the Constitution of the United
States, embodying this same feature.

2 This provision, in essentially the same language, found its way
into several early State constitutions.

14 CONSTITUTIONAL STUDIES.

British colonization in America ; and five voyages, all
of them unsuccessful in planting a colony, were made
under it. The charter of 1663 for Carolina was
granted by Charles II. to various English peers as
lords proprietors, and John Locke's fundamental con-
stitution, drawn up at the instance of these privileged
owners for the settlers, followed in 1669 to last only
for a brief and turbulent period. Although this
scheme of the broadest political philosopher of his
age proved a practical failure, as history has recorded,
setting prerogative, as it did, high above self-govern-
ment in the new world, seeking to establish a feudal
tenure in the primeval soil, avowing the absolute
power and authority of every freeman over his slaves,
and declaring the Church of England the orthodox
religion of the colony, it had some good points in
minor details. Probably much of this ill-adapted
constitution was made by its framer to order, and did
not embody Locke's personal views.

"With some of these colonial charters went out
spontaneously the good-will of the sovereign who
granted it. The grants of Charles II., in particular,
breathed loving-kindness to his beneficiaries. In the
charter to William Penn he recounts that love and
philanthropy of the latter to the native Indians
which his own royal ancestors had enjoined ; and the
monarch gave and confirmed the name "Pennsyl-
vania " to the colony after the family surname, — a
token of royal favor towards a private subject with-
out an American parallel. Charles II. had granted
the popular charters of Connecticut and Rhode
Island, nearly twenty years earlier, in affectionate
language. To our "loving subjects" is the ex-
pression of the Connecticut charter. In that of
Rhode Island (1663) the monarch makes special men-
tion that these settlers, Roger Williams and his com-

THE COLONIAL GOVERNMENTS. 15

panions, had been harshly treated for their religious
views by the other New England colonies ; he recog-
nizes " their peaceable and loyal minds," " their sober,
serious, and religious intentions," their self-exile, and
their prosperity and preservation " by the good Provi-
dence of God, from whom the Plantations have taken
their names." 1 And to these good subjects the King
plainly offers himself to be their champion, promising
to protect them against all molestation from their
neighbors ; and in all controversies between Rhode
Island and the other New England colonies which
might arise, this colony is specially invited to appeal
to the Crown for redress. 2

Emanating from the same national source, and
embodying a single national purpose, we may expect
to find these English colonial governments closely,
on the whole, resembling one another in essentials ;
at the same time that differences of local origin and
development give rise to local differences in their
public management.

1. As to the structure of colonial government.
There was not in these earlier days any marked sepa-
ration of fundamental powers such as Montesquieu
has inculcated. But the British monarchs after 1688
strongly favored the establishment of a strong royal
executive or vicegerent in each colony, with powers
commensurate for holding the settlers in allegiance
to Great Britain, and an appointment immediately
dependent upon the Crown. Such was the royal gov-
ernor in those provincial governments which consti-
tuted a majority of the American colonies ; and such,
too, regardless of her former usages, or of the favor

i " Rhode Island and Providence Plantations " was the early style
of this colony.

a See Poore's Charters and Constitutions, passim.

16 CONSTITUTIONAL STUDIES.

still accorded to her neighbors, Rhode Island and
Connecticut, was the governor imposed upon Massa-
chusetts under the William and Mary charter. Lieu-
tenant-Governor and Secretary were for Massachusetts,
and in most, if not all, such provinces as recognized
these lesser officials, appointed directly by the British
Crown; while in certainly eight colonies the King
commissioned the Governor, or chief executive, as
his own immediate representative or deputy, styling
him captain-general and commander-in-chief over the
jurisdiction, as well as chancellor, vice-admiral, and
ordinary. In our American provinces the Crown
also appointed, directly or indirectly, a " Council,"
whose chief function, resembling more or less that of
a board of directors, was to advise and assist the
Governor in his executive duties. This council held
secret sessions and possessed often a share in legisla-
tion, like an upper House. But the Massachusetts
charter of 1691 so far respected ancient local usage
as to permit the Council of that colony to be ap-
pointed annually from the representative assembly
(or " Great and General Court "), and thus operate
somewhat as a popular check upon the royal gov-
ernor's action. 1 With advice of Council, 2 a provin-
cial governor had usually the power to establish local
courts, and to appoint judges and other colonial
magistrates and officers ; and each provincial capital
tended to become the seat of a court ,and official
circle which reflected with paler brilliancy the cere-
monials of a London monarch. 3

1 The Governor had, however, a negative upon this choice of a
Council. 1 Story, Commentaries, § 171.

2 Under the Massachusetts charter (1691) all appointments by the
Governor required confirmation by the Council upon seven days' no-
tice, — a practice preserved in that State to this day.

8 See Poore's Charters and Constitutions; 1 Story, Commentaries
§ 159 and citations. '

THE COLONIAL GOVERNMENTS. 17

As a popular offset to all this, representative gov-
ernment and the legislature bloomed out early in each
American colony, and the British Crown made no
effort to eradicate it. On the contrary, the royal gov-
ernor's commission gave him authority usually to
convene, at stated times, a general assembly of repre-
sentatives of the freeholders and planters ; and under
such authority Provincial Assemblies, composed of
the Governor, the Council, and the Representatives,
were constituted; the Council serving perhaps as a
separate branch or upper house for such legislation,
while the Governor possessed a negative upon all leg-
islative proceedings, and very considerable latitude,
besides, to prorogue, adjourn, and dissolve the Legis-
lature, or to convene it whenever and wherever he
might think fit. 1

While colonial legislation would thus seem vested
usually in two houses, one body only, like the Eng-
lish House of Commons, came close to the heart of
the local constituency, — as in Virginia, for instance,
whose " House of Burgesses " struck the early chord of
revolution, reckless of governor and royal councillors
alike. That phrase, " General Court," so long applied
to this representative assembly in Massachusetts, did
not originate locally even in its earlier charters ; 2 but
for both Virginia and Massachusetts the old " General
Court " had its terms or sessions defined like those of
an English court of justice ; and in its operations it
blended judicial, legislative, and even executive au-
thority as a final appellate tribunal of the colony in
all matters. In Massachusetts, as in most other
colonies, the Legislature was authorized 3 to levy taxes,

1 See Poore's Charters and Constitutions ; 1 Story, Commentaries,
§ 159 and citations.

2 See Virginia charter of 1611-12, in Poore, 1905, which prescribes
a " General Court " for that primitive colony.

8 And so expressed under the charter of 1691.
2

18 CONSTITUTIONAL STUDIES.

and otherwise pass laws for the common interest;
and yet so great was her royal governor's power, on
the one hand, as specified in the charter of William
and Mary, and so ill-defined, on the other, that of the
" General Court," that two constitutional doubts had
to be resolved in 1726, by a supplementary charter
from George I. That sovereign did not incline
strongly to the side of the local colonists in this con-
troversy; for he ruled (1) that, as to choosing a
speaker, the General Court might make such choice
subject to the approval of the Governor, and (2) that,
as to its right to adjourn, the General Court might
adjourn for two days, but no longer, without the
Governor's consent. 1

In Connecticut and Rhode Island, however, the
two favored jurisdictions of royalty, legislation, the
choice of a governor, and the whole business of con-
stituting courts and bestowing official patronage were
confided fully by royal grace to the free settlers ; and
those two colonies, under their respective charters,
organized local government, as they were permitted
to do, upon a popular and republican basis. Here
the Governor, Council, and Assembly continued an-
nually chosen by the freemen down to the American
Revolution, and all other officers were appointed by
their authority. 2 Annual elections prevailed here as
elsewhere in America, so far as there were popular
elections at all, — whence the maxim, familiar a cen-
tury ago, that " wherever annual elections end tyr-
anny begins," — and the colonial assembly moreover
held annually its wonted sessions. But the circum-

1 Poore's Charters and Constitutions (Massachusetts).

2 1 Story, Constitutions, § 161, observes that while the Statutes of
7 and 8 William III. required that all governors appointed in charter
or proprietary governments should be approved of by the Crown, this
statute was, " if at all, ill observed," and produced apparently no
change in the colonial policy.

THE COLONIAL GOVERNMENTS. 19

stances of original settlement in Connecticut and
Rhode Island had produced the anomaly of double
capital towns and rivals ; so that under their respec-
tive charters the legislature regularly met twice a
year, rotating in the one colony from Hartford to
New Haven, and in the other, from Providence to
Newport, — a condition which long outlasted this
colonial era.

In the three proprietary governments — Maryland,
Pennsylvania, and Delaware — the grand proprietor
exercised his sub-royal prerogative of appointing
governors answerable to himself, as likewise of be-
stowing the colonial patronage, and defining legis-
lative authority. Hence we find Penn's " Charter of
Privileges " in 1701 proclaiming freely that hence-
forth there shall be an annual Assembly in Penn-
sylvania, with power to choose its own speaker and
other officers, to judge of the qualifications and elec-
tions of its own members, to prepare and pass bills,
to impeach criminals, to redress grievances, and to
exercise "all other powers and privileges of an as-
sembly according to the rights of the free-born sub-
jects of England, and AS is usual in any of the
King's Plantations in America." * And in certain
appointments to office, a compromising expedient is
set forth in that document, long traceable in the
fundamental law of Pennsylvania as a State, which
empowered the freemen to choose a double number,
leaving the Governor to select one or the other for
the office. Here, as in all our other American colo-
nies except Connecticut and Rhode Island, legislation
by the popular branch required the Governor's specific
approval, and his veto of a measure was absolute.

Some minor differences may be observed in respect
to the mode of enacting laws in the several colonies ;
1 Poore's Charters and Constitutions (Pennsylvania).

20 CONSTITUTIONAL STUDIES.

and yet the legislature, of which at least one branch
the people might freely choose to represent and de-
fend their collective interests, became early a palla-
dium of the American system inseparable from popular
liberty, though in the earliest of these American
charters no such provision was clearly set forth. For
free-born Britons were not likely to endure long the
exercise of arbitrary power by king or incorporators
in this new world. 1 By the eighteenth century, there-
fore, this right of colonists to participate by their
representatives in all local legislation was fairly con-
ceded by the home government ; but as to provincial
governments there continued a controversy. For pro-
vincial colonists contended that such representation
was a matter of right ; but the Crown and its legal
advisers, that representation was a privilege only,
subject to the pleasure of the parent government.
In the political struggles from time to time which
culminated under George III. in bloodshed, the royal
governor would harass the colonial legislature to the
extent of his ample authority, or would long neglect
to convene it, — practical mischiefs which our Declara-
tion of Independence boldly denounced, and which
many a bill of rights or constitution in the revolting
States of America took care to guard against for the
future. 2

1 Mr. Hutchinson, in his Colonial History of Massachusetts, 94
(cited 1 Story, Constitution, § 166), sketches admirably the progress
made in all these early colonies, except Maryland (whose charter made
express provision), before the reign of Charles II., in establishing a
representative legislature of some sort and forcing its recognition
upon the chartered proprietors or incorporators. "After the restora-
tion (1 688 )," he adds, " there is no instance of a colony settled without a
representation of the people, nor any attempt to deprive the colonies
of this privilege, except in the arbitrary reign of King James the
Second."

2 In the colony of New York (and semble in Virginia also) the
British Crown before the middle of the eighteenth century succeeded in

THE COLONIAL GOVERNMENTS. 21

The germ of popular government in the earlier
colonial charters consists, like that of all private guilds
or corporations at the common law, in bringing the
whole body of stockholders or those immediately con-
cerned with affairs into an annual meeting for the
election of managing officers. Such is the component
element of government in that admirable system of
New England towns, whose inhabitants came together
once a year to discuss and arrange local affairs and
to choose their selectmen. And to some extent any
colony newly planted and small in numbers might
conveniently assemble at stated times for the general
regulation and control of affairs ; but as new settlers
scatter over the territory and extend as well as local-
ize their interests and population, either the proxy or
the representative principle comes soon into play.
Representation serves the convenience of modern
civil government popularly conducted, as does the
proxy in private corporations. According to the
expression of the Connecticut charter of 1662, 1 an
option was given the settlers to hold either " a general
meeting " of the freemen or a representative assembly,
and the colonists naturally enough chose the latter.
But popular representation as sanctioned by Charles II.
and the seventeenth century was too crude to last,
based as it was in Connecticut upon precise town
equality ; while in Rhode Island, Newport was
allowed the permanent precedence over all other
towns of the colony, Providence included, which

establishing septennial assemblies, in imitation of the septennial Par-
liaments of the parent country, " which was a measure so offensive to
the people that it constituted one of their grievances propounded at
the commencement of the American Revolution." 1 Story, § 167.

i " A body corporate and politic by the name of the governor and
company of the English Colony of," etc., is the title employed in the
Connecticut and Rhode Island charters of Charles II., the best fruition
of these royal American charters.

22 CONSTITUTIONAL STUDIES.

were classed in political power by two set grades.
Some towns grow into great cities, while others de-
cline or become stagnant ; and such a fixed basis of
town representation, which left no chance to apportion
by population, doomed at length these most lasting
of all colonial charters more than any other defect in
them ; for being charters and royal ones, there was
left no chance to amend them. Representation by
towns instead of numbers was long the British fashion
on either side of the Atlantic ; but the Massachusetts
charter (1691) from William and Mary provided with
a wiser foresight that the colonial legislature might
alter later at its discretion the basis of town represen-
tation drawn up in the instrument. And, in fine, the
flexibility of provincial over charter governments in
all such fundamental matters was doubtless a reason
for preferring them upon experience in the colonial
policy of the parent country. 1

2. As to the fundamental safeguards of allegiance
to Great Britain. Besides the practical constraint
which any royal governor might have exerted while
clothed with the ample powers we have enumerated,
were certain fundamental expressions in these colo-
nial charters, which bound grantees and the colonists
to both legal and moral compliance. All thirteen of
these American colonies lived under fundamental re-
strictions that no laws should be made repugnant to
those of England, or that as nearly as convenient
the laws should be consonant with and conformable
thereto ; and either expressly or by necessary impli-
cation it was provided that the laws of England
should be in force in the colony so far as applica-

1 As already shown (p. 13), Penn's "Charter of Privileges"
(1701) was made capable of amendment under certain strineent
conditions. °

THE COLONIAL GOVERNMENTS. 23

ble. 1 In the latest and most liberal charters this
written reservation was still expressed, as in the early-
Virginian document of 1609.

Thus were our American colonists nurtured and
brought up in the knowledge of a fundamental re-
straint upon local legislation ; and this, aside from
that other written constraint upon local government
which the charter itself imposed. Some power ex-
ternal to the colonial legislature must have existed
for determining the validity of its enactments; and
that paramount power the parent government nat-
urally claimed as its own. Besides the royal gov-
ernor's vigilant exercise of a negative upon such
local colonial legislation, the British monarch re-
served his own right to approve or disapprove, — a
prerogative exercise from which Maryland, Connecti-
cut, and Rhode Island alone were exempt. 2 Pa-
rental supremacy was still further aided by the
judicial appeal which lay from the decisions of all
colonial courts to the English privy council, — a
practice which, on the whole, seems to have been
deemed by our colonists a privilege rather than a
grievance. 3 Except, however, for repugnant enact-
ments, the colonial legislatures in America exercised
a broad local authority, particularly in matters of

1 Such a declaration was conclusive and could not afterwards be
abrogated by the Crown, being a fundamental rule of the original
settlement. 1 Story, § 156.

2 " In all the other colonies [except Maryland, Connecticut, and
Rhode Island] the King possessed the power of abrogating them [the
laws], and they were not final in their authority until they had passed
under his review." 1 Story, § 171. See also statute 7 and 8 Wil-
liam III. c. 22, declaring expressly that all colonial laws, by-laws,
usages, and customs repugnant to any law of the kingdom, shall be
utterly void. 1 Story, § 164.

3 About the year 1680, Massachusetts, Rhode Island, and Con-
necticut inclined to dispute this right of appeal, but the contention
subsided.

24 CONSTITUTIONAL STUDIES.

local taxation. 1 Oaths of allegiance, finally, or the
" freeman's oath," were much relied upon for binding
a subject in conscience to his British sovereign, under
penalties of perjury.

3. As to civil rights. Except for Pennsylvania,
the charters under which these colonies were first,
settled are found to contain an express royal declara-
tion that all subjects and their children inhabiting
therein shall be deemed natural born, and shall enjoy
all the privileges and immunities of such subjects. 2
In some of them the King furthermore concedes ex-
pressly the right of his grantees to transport to the
new colony all such British subjects and strangers as
are willing to go. 3 The Virginia charter of 1606 set
the example of a royal guaranty of indemnity to all
English subjects and those of allied powers, against
robbery and spoliation by his colonists.

Under the Connecticut and Rhode Island charters,
self-government was freely committed to the "free-
men" of the colony; while other royal grants less
democratic confined suffrage to " freeholders " or
men of specified property among the colonists.

4. As to inter-colonial rights. All British dwellers
in the American colonies were fellow-subjects of
the mother country, and for many purposes were to
be deemed one people ; each one might lawfully in-
habit other colonies, or inherit lands in them by
descent. 4 Charters themselves, however, were gen-

1 For the issue of taxatioa as an inherent right in the colonial
legislatures (which more than any other provoked the American Revo-
lution) see 1 Story, Constitutional Law, §§ 166-170.

2 1 Story, § 156.

8 See, e. g., Massachusetts charter of 1629 ; Connecticut charter of
1662.

4 1 Story, § 178 ; Jay, C. J., in 2 Dall. 470.

THE COLONIAL GOVERNMENTS. 25

erally silent on such points ; but we find Charles II.,
out of his special solicitude for the persecuted Rhode
Islanders, asserting expressly in their charter of 1663,
that they may repass and trade with his other Eng-
lish colonies. Commercial intercourse, not, of course,
without some rivalry and collision, began very early
among these colonies ; 1 and the regulation of such
intercourse, as well as of extradition and other recip-
rocal conveniences, soon engaged their peculiar atten-
tion, as we shall show later. 2

5. As to religious freedom and philanthropy.
Colonies as to matters of faith differed both in
tenets and practice, being Protestant, however, in
the main, and imbued with the prevalent spirit of the
English Reformation. Liberal religion, or rather
the desire to escape conformity to church establish-
ments at home and to enjoy freedom of religious
faith in the new world after some new method,
operated as a powerful incentive to American emigra-
tion, even where the mind might not yet have been
open to full religious tolerance. Yet the genius of
these new world institutions tended unquestionably
to religious liberty, and in the Pennsylvania and
Rhode Island colonies guaranties for the rights of
conscience were already promulgated, very broad for
the age. " All confessing one God in any way shall
live unmolested," declares in substance Penn's Char-
ter of 1701, " and all professing belief in Christ shall
be capable of serving in office in the colony." In the
Massachusetts charter of 1691, on the other hand,
granted while the expulsion of a Roman Catholic
dynasty was fresh in the British mind, William and

1 See the arrival of a Maryland vessel in Massachusetts Bay, chron-
icled in Winthrop's Journal, October 14, 1634.
a See Tendencies to Union, Part II., post.

26 CONSTITUTIONAL STUDIES.

Mary gave direction that liberty of conscience be
allowed to all inhabitants " except Papists."

The Stuarts had cherished the laudable wish of
converting the American Indian to civilized arts and
Christianity; and James I., in his first charter to
Virginia (1606), zealously commended "so noble a
work" in the propagating of Christian religion to
such people as yet live in darkness and miserable
ignorance of the true worship of God, so as in time
to "bring the infidels and savages living in those
parts to human civility and to a settled and quiet
government." Little practical success, it is well
known, attended such humane efforts by the Anglo-
American except in Pennsylvania ; and philanthropic
sentiment towards the red race prevailed most strongly
in this colonial age among benefactors whose hearts
dilated at a safe distance.

6. As to trade and business occupation. British
policy towards these American colonies developed, as
history shows, in opening up on this western Atlantic
coast a grand market for home manufactures, while
stimulating the loyal and industrious settlers to cher-
ish and supply the natural productions of this new
region in return, thus giving scope to a lucrative
British commerce. That the southern colonies, with
their plantations of tobacco, rice, and indigo, were
fostered differently from the northern cannot be
doubted. Charters, to be sure, had little to promul-
gate for an economic policy ; but those of New Eng-
land, whose hardy inhabitants pursued the cod and
whale into distant waters, repeatedly commend and
encourage the " trade of fishing " towards the close
of the seventeenth century; the Rhode Island charter
in 1663 containing sundry royal details as to " the
business of taking whales."

THE COLONIAL GOVERNMENTS. 27

It is curious to observe that, in emulation of Spain,
these English charters of the seventeenth century,
beginning with Virginia, reserved specifically to the
crown one-fifth of all such gold and silver as the
chartered colony might produce. That of Massachu-
setts, in 1691, added one-fifth of all precious stones ;
while Penn's charter, which passed the seals ten years
earlier, required two beaver skins a year, besides the
talliage of gold and silver. Had the King levied
upon Pennsylvania coal and iron, it might have been
more to the purpose ; for the present exaction could
have yielded very little to the King's treasury.

7. As to land tenure. Under all our colonial
charters, — James I. setting for Virginia the earliest
example, — the new soil in America was to be held
from the Crown in free and common socage, com-
pletely divested of all feudal burdens such as con-
tinued to encumber land tenure in the mother country
until after the restoration of Charles II. An ines-
timable privilege this to America ; for it encouraged
these Atlantic settlers to become freeholders, owners
severally of the soil they cultivated in fee and inde-
pendently, without lease or manorial encumbrance at
all. 1 " Partly from the cheapness of land, and partly
from an innate love of independence," observed Judge
Story from his native standpoint, more than fifty
years ago, "few agricultural estates in the whole
country have at any time been held on lease for a
stipulated rent. The tenants and occupiers are al-
most universally the proprietors of the soil in fee-
simple. Strictly speaking, therefore, there has never

1 Manorial estates were permitted under some charters, as in New
York, but they soon faded into insignificance. The almost total
absence of leasehold estates in our colonial history is a remarkable cir-
cumstance. 1 Story, § 172.

28 CONSTITUTIONAL STUDIES.

been in this country a dependent peasantry." The
yeomanry, he adds, are absolute owners of the soil on
which they tread, and their character has from this
circumstance been marked by a jealous watchfulness
of their rights and by a steady spirit of resistance
against every encroachment. 1

Connected with such simplicity of tenure, a simple
real-estate system was seen to prevail in the Ameri-
can colonies from the earliest times, both with regard
to the language of the deed itself which made con-
veyance and the public record of land titles. We
find John Locke's charter of 1669 establishing in the
Carolinas a registry of deeds for each convenient
precinct ; and the same registry system sprang up so
spontaneously in the other colonies, north and south,
as to have become general here a century before
Blackstone was seen doubtfully commending a scheme
of public records for general adoption at home in
evincing real-estate title, in place of the time-honored
family chest crammed with old parchments. 2

1 1 Story, 173.

2 2 Bl. Com. 343. Pennsylvania's Frame of Government in 1683 is
seen (§§ 20-23) providing for an extensive registry system in the
colony, for wills, births, marriages, etc., as well as the record of
conveyances.

III.

REVOLUTIONAKY BILLS OF EIGHTS.

1776-1783.

When in 1776 these American colonies shook off
the British yoke and proclaimed independence, their
leading statesmen were familiar with the English
"Declaration" or "Bill of Rights," that glorious
enactment under which in 1689 the crown was settled
upon William and Mary to the final exclusion of the
Stuarts. These statesmen knew also the funda-
mental precepts of Magna Charta and of the " Peti-
tion of Right" and Habeas Corpus act, — documents
dear to a British ancestry that had contended stoutly
for individual freedom. Other maxims they formu-
lated by experience, and while brooding over Amer-
ica's immediate wrongs sustained in the vexation of
her colonial legislatures by the royal governors and in
the tyranny of standing armies imported to overawe
the people. Other shining truths of political govern-
ment had been embodied from early colonial times in
local codes and documents, such, for instance, as the
Massachusetts "Body of Liberties" of 1641. Mon-
tesquieu, whose " Spirit of the Laws " had lately been
translated into English and widely circulated, was
the new political oracle of an age not too far remote
from the times of Locke, Sidney, and Vane to
cherish their precious remembrance. Hence, with-
out the need of tracing back an origin to times or
countries more remote, those bosom truths of politics

30 CONSTITUTIONAL STUDIES.

which found expression, during this revolution of
the thirteen colonies, in what their several constitu-
encies were wont to style a "Bill of Rights," basic
as the structure of constitutional government itself.

" Bill of Rights " may be thought a less appropriate
phrase here than in England, to denote these fun-
damental maxims of life, liberty, and property, essen-
tial to civil liberty; for while the English "Bill of
Rights "is an act of legislation (or bill) proceeding
from the omnipotent Parliament (though not without
some special royal sanction), a " Bill of Rights " for
an American State originates in popular convention
and forms part of that written body of fundamental
law to which all legislative, all executive, and all
judicial authority must submit and be held subject.
Nor with America is it even a constitutional contract
(as in one sense perhaps was the English legisla-
tion of 1688) between sovereign and representatives
of the people, two great departments of government;
since the same people and their representatives in
convention who declare these rights may separate and
define at their discretion all the departments of all
the powers of government, whether executive, legis-
lative, or judicial, and clothe them with their several
functions. A "Declaration of Rights," like a "Dec-
laration of Independence," is for America the fitter
phrase; and both the United Colonies in Congress
and various individual colonies were seen in 1776
setting the precedent of declaring such primitive
and fundamental truths before essaying the more
formidable work of framing a practical scheme of
government.

Nor is this "Declaration" or "Bill of Rights"
easily distinguishable in all respects from that scheme
of practical government with which a written consti-
tution should be mainly occupied. Various leading

REVOLUTIONARY BILLS OF RIGHTS. 31

truths essential to liberty are enjoined among the
chartered particulars of government, which a philo-
sophic mind would look for rather in the blazing
introduction. When the Federal constitution, fresh
from Philadelphia, was opposed for its want of a
formal "Bill of Rights," several such safeguard
maxims were pointed out as they glittered among the
details of national authority proposed by that original
instrument. And State experience for more than a
century shows besides that, however well-drawn may
be our schedule of civil rights, other precious gen-
eralities, equally fundamental, appropriate, and obliga-
tory, are likely to be found scattered conveniently
enough among the main provisions of the charter.

Virginia, first in years and influence among these
American colonies, led off, that memorable year, in
preparing the platform of human freedom, after the
Continental Congress had given its momentous warn-
ing to the States that independence approached and
that self-government must be provided for. The
Virginia " Bill of Rights " (styled originally a Decla-
ration of Rights " pertaining to the people and their
posterity " as the basis and foundation of government)
preceded by nearly a month the "Declaration of
Independence " at Philadelphia, though framed for
concurrence and designing full harmony with Con-
gressional action anticipated. A representative con-
vention, comprising many members of the Virginia
House of Burgesses, met at Williamsburg, May 6,
1776, and unanimously adopted this Declaration of
Rights on the 12th of June, as preliminary to the
work of framing a State constitution. The instru-
ment was drawn up by that friend of freedom, the
illustrious George Mason, and the convention only
slightly amended it. Its preamble and introductory

32 CONSTITUTIONAL STUDIES.

clauses, taken from a draft which Jefferson had sent
from Philadelphia, where he was composing the more
famous document of these United Colonies, proclaim
those same immortal rights of life, liberty, and the
pursuit of happiness, in the individual, and that
same institution of all government for the benefit and
security of the governed, who have the unalienable
right to reform, alter, or abolish as may most con-
duce to the general weal.

All power, declared further the Virginia Bill of
Rights, is vested in and derived from the people, and
magistrates are their trustees and servants. No
man or set of men is entitled to exclusive emolu-
ments or privileges from the people, but in considera-
tion of public services, which are not descendible,
so that office should not be hereditary. Elections
of representatives ought to be free, 1 with a right of
suffrage here broadly stated; nor should those of
the community " be taxed or deprived of their prop-
erty for public uses without their own consent or
that of their representatives." 2 There should be
no suspension of laws or of their execution without
consent of the representatives of the people. 3 In all
criminal prosecutions, a man has a right to know the
cause and nature of his accusation, to be confronted
with the witnesses and accusers, to call for evidence
in his favor, and to be tried by an impartial jury of
the vicinage, without whose unanimous consent he
cannot be found guilty. He cannot be compelled to
give evidence against himself; nor can he be deprived
of his liberty except by the law of the land and the

1 From English Bill of Eights, 1689 (Right 8).

2 A protest against the colonial stamp and excige acts of Par-
liament.

8 From English Bill of Eights (Rights 1 and 2) ; and see abuses by
royal governors in these colonies, recited in Declaration of Independ-
ence.

REVOLUTIONARY BILLS OF RIGHTS. 33

judgment of his peers. 1 Excessive bail ought not to
be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted. 2 General search-
warrants ought not to be granted, but only specific
ones. 3 Even in civil suits the ancient trial by jury
is the preferable mode, and ought to be held sacred.
Freedom of the press is one of the great bulwarks of
liberty. 4 A well-regulated militia is the natural and
safe defence of a free state ; standing armies in time
of peace are dangerous to liberty ; and in all cases the
military should be strictly subordinate to the civil
power. 5 People have the right to uniform govern-
ment, and no government separate from Virginia
ought to be erected within its limits. 6 No free gov-
ernment can be preserved, " but by a firm adherence
to justice, moderation, temperance, frugality, and
virtue, and by frequent recurrence to fundamental
principles." Of the sixteenth and final clause, advo-
cating religious toleration, we shall make further
mention presently.

Expressed in concise and admirable language, the
Virginia Bill of Rights (whose sixteen sections we
have thus condensed) was broad and universal in
sentiment, breathing the spirit of human brotherhood,
without a hint of race or class subjection. The

1 Last clause is from Magna Charta ( A. r>. 1215), the famous § 45,
whose general idea was aided by the recollection of wrongs under
George in. (see Declaration of Independence), in depriving colonists
of jury trial and transporting them to be tried across the seas.

a From English Bill of Eights, verbatim (Eight 10).

8 Recalling abuse of "writs of assistance" under George III.

* A new maxim in its present expression. But cf. English Bill of
Rights (Eight 9) as to freedom of speech in Parliament.

b See standing army grievances under the King recited m Declara-
tion of Independence, also English Bill of Rights W* 6 and 7).
Dependence upon a militia is more strongly asserted than hitherto.

8 This seems to have had a local and immediate reference to the
Revolution of 1776. The separation of West Virginia during 1861-65
suggests a thoughtful commentary.

34 CONSTITUTIONAL STUDIES.

declaration served well for example to the other
twelve States; and so proud of this instrument have
Virginians remained that they affixed it unchanged
to their new constitution of 1830, and, amending it
but slightly for the constitution of 1850, incorporated
it once more intact in the new framework of 1864.
With such further sections as civil war and, the for-
cible abolition of slavery next compelled (though not
for changing a single sentence) that " Bill of Rights "
remains to this day, permanent in its original
assertions.

Among other American "Bills of Eights" of the
Revolutionary era, that of Pennsylvania next deserves
attention. From the State and city whose liberty
bell proclaimed independence through all the land,
emanated, soon after the adjournment of our Con-
tinental Congress, a novel scheme of State govern-
ment, preceded by its own " Declaration of Rights. "
This was the work of a State convention which sat
from July 15 to September 28, 1776. The Pennsyl-
vania "Declaration," like that of Virginia, consisted
of sixteen articles, which adopted most of that earlier
document, with slight variations of language. " All
elections ought to be free " is the happier Pennsyl-
vania assertion, enlarging the English and Virginia
formulas ; 1 and all freemen having a common public
interest (the document adds) have the right to elect
or be elected to office. Again (improving upon the
Virginia expression) the accused in criminal prosecu-
tions " hath a right to be heard by himself and his
counsel." 2 Quaker sentiment is honored by an

1 Pennsylvania Declaration, No. 7. See supra, page 32.

2 Perm's Charter of Liberties, art. v. (1701) expressly concedes to
all criminals "the same privileges of witnesses and counsel as their
prosecutors," — a decided gain upon the common law of England.

REVOLUTIONARY BILLS OF RIGHTS. 35

express pecuniary exemption for such as are con-
scientiously scrupulous of bearing arms. That fre-
quent recurrence to fundamental principles which
Virginia enjoins is reinforced by a hortatory sentence
which does not add dignity to the article. In the
fifteenth and sixteenth Pennsylvania articles are
found new maxims which embody floating ideas of
the Revolution. The former claims for all mankind
the " natural inherent right " of going from one State
to another, and forming new States in vacant coun-
tries, — an idea which we have seen suggested through
royal favor in some early charters, 1 though not even
here stretched so far as to claim expatriation and the
renouncement of allegiance as a natural right of indi-
viduals. The latter and the unique article claims
the inherent right of the people "to assemble to-
gether, to consult for their common good," and to
instruct and petition the Legislature for redress of
grievances. This "right of petition " maxim is the
great glory of the Pennsylvania "Bill of Rights"
which seems to have formulated it first for the fun-
damental law of free America. 2 The suicide and
deodand clause from Penn's Charter of Privileges 3 is
here overlooked, but revolutionary New Jersey (and
perhaps Delaware) adopted it, and it reappeared in
the Pennsylvania constitution of 1790.

In the framework proper of this Pennsylvania con-
stitution occur various other provisions of a "bill of
rights " character, — a primary instance of the uncer-

1 See page 25.

2 This excellent clause, since so widely copied into American con-
stitutions, has a germ in the English Bill of Eights (Right 5 as to
petitioning the King). But this Pennsylvania expression gives the
maxim its fitter and more popular scope. Yet the idea was not new
in these colonies ; for in the Massachusetts " Body of Liberties "(1641),
in broad, though less forcible language, appears (No. 12) an assertion
of the right of petition.

8 See page 13.

36 CONSTITUTIONAL STUDIES.

tainty in classifying such political maxims. Excessive
bail and immoderate fines are there prohibited; 1
printing-presses are declared free to examine the
proceedings of the Legislature ; public offices of profit
are pronounced not useful, though reasonable com-
pensation may be allowed men called into the public
service; entails and perpetuities are discouraged;
penal laws are to be reformed, and punishments made
less sanguinary and more proportionate to the crimes.
So, too, imprisonment for debt after the debtor has
surrendered all his property is thus early denounced ;
and yet crimes not capital are to be punished by hard
labor for the public benefit, and the public moreover
shall be admitted to see the prisoners at work. By
way of general homily we further find in Pennsyl-
vania's first constitution liberality enjoined towards
foreigners ; law and good reason required for laying
taxes ; % private liberty granted to fowl and hunt in
seasonable times and to fish "in all boatable waters; "
and finally the pious encouragement of virtue and
the prevention of vice and immorality. 3

Maryland's "Bill of Rights," once more, formulated
early for the old thirteen States these maxims of lib-
erty. The convention which framed the first consti-
tution of Maryland sat at Annapolis from August 14
to November 11, 1776. The " Declaration of Bights "
for that instrument, which, together with the constitu-
tion, passed in convention on the 14th of August, con-
sisted of forty-two articles, and covered more ground
than Virginia and Pennsylvania had already occu-
pied, employing its own energetic paraphrase. 4 All

1 See supra, page 33.

2 No taxation except by Parliament. English Bill of Eights, No. 4 ;
and see supra, page 17.

8 Pennsylvania constitution of 1776. Poore's Constitutions.
4 Here, too, the " right of petition " is asserted, in different language
from that of Pennsylvania.

REVOLUTIONARY BILLS OF RIGHTS. 37

government, this Declaration asserted, originates of
right from the people, " is founded in compact only, " 1
and is instituted simply for the good of the whole.
Sole right to their internal government is claimed for
the people of Maryland, — a States' rights caveat, —
together with an inheritance of the English common
law with its trial by jury, and all local grants derived
under the Calvert charter. The doctrine of non-
resistance against arbitrary oppression is denounced
as " absurd, slavish, and destructive of the good and
happiness of mankind." Especial confidence is re-
posed in a legislative body as " the best security of
liberty and the foundation of all free government." 2
And besides frequently assembling, the Legislature
should meet at some fixed place unless some special
necessity prevents. Some vigorous idiosyncrasies
are observable in this Maryland instrument, such
perhaps as the headstrong Samuel Chase, a signer of
the Declaration of Independence, might have im-
pressed upon the convention. Levying a poll tax,
for instance, is declared grievous and oppressive;
paupers should not be assessed for support of the
government, but every other person should contribute
according to his actual worth. 8 The Virginian idea
of rotation in public office for executive and legisla-
ture 4 is emphasized by a special argument for exempt-
ing the judiciary, while plural offices and presents
from foreign potentates are condemned besides.

1 The same idea of "compact" is suggested in New Jersey's Revo-
lutionary constitution of July 2, 1776.

2 Most of our later State constitutions appear, upon experience, less
disposed to implicit confidence in this branch of government.

8 The disposition thus early to dogmatize upon taxation has char-
acterized Maryland constitutions to this day; and some of our later
States show an imitative tendency on this subject.

* See Virginia Declaration of Eights, No. 5; also Pennsylvania
ditto, No. 6.

38 CONSTITUTIONAL STUDIES.

Among rights not enumerated in either the Virginia
or Pennsylvania Declaration are several which Mary-
land must have led accordingly in proclaiming; such,
more especially, as freedom of speech in the Legisla-
ture, 1 frequent sessions of that body, the prohibition
of ex post facto laws, of biUs of attainder, and of
forfeiture for crime, 2 the exemption of civilians from
martial law, and a prohibition of all monopolies and
titles of nobility. 8

Three contiguous States — Virginia, Pennsylvania,
and Maryland — are thus seen setting for the Ameri-
can Union the first example of concrete expression in
axioms vital to civil liberty. Not perhaps that they
originated, but that at least they first formulated in
convention truths which these colonists held certainly
dear when the struggle for independence began, and
yet had never before reduced to written fundamental
law in the name of the people. Proceeding south-
ward, we next find North Carolina adopting a " Dec-
laration of Rights " together with its own framework
of government, on the 18th of December, 1776, — a
Declaration which, though tersely and tastefully
composed, drew its inspiration plainly from these
earlier conventions, adding nothing original. As for
South Carolina, impetuous and hasty, three constitu-
tions were instituted, one after another, between 1776
and 1790, of which the two earliest (in 1776 and
1778) were simply framed and put forth by the Legis-
lature, regardless of convention methods, and hence
must have been void in any sense of fundamental
obligation, as the judiciary of that State presently
decided. In neither of those two enactments do we

1 Originating in English Bill of Rights (1689), No. 9.

2 Vaguely stated as to forfeitures.

8 See Maryland constitution of 1776; Poore's Constitutions.

REVOLUTIONARY BILLS OF RIGHTS. 39

find a regular Declaration of Rights attempted,
though that of 1778 embodied at haphazard a few
appropriate maxims. 1 Georgia, in 1777, prepared
its own whirlwind constitution in convention; and
this was superseded in 1789, after the Federal consti-
tution had been ratified by the requisite number of
States, though before it went into operation. In
both of Georgia's constitutions are to be found a few
salutary provisions from the early Declarations we
have described, but no distinctive "Bill of Rights." 2
As for States to the northward, the fundamental
law of New York contained no express "Bill of
Rights," — a fact which Hamilton is seen to adduce
in defending the corresponding omission from our
Federal instrument. 8 New York's Revolutionary
constitution, framed by convention in 1776, but not
adopted until April, 1777, embodied, however, the
Declaration of Independence, and denounced "the
many tyrannical and oppressive usurpations of
the King and Parliament of Great Britain;" and
mingled with the framework of that fiery instrument
we find some of the recitals suitable to a Bill of
Rights. No attainder, it was proclaimed, should
work corruption of blood ; and yet bills of attainder
for that State were prohibited only after the pres-
ent war should end. 4 New Jersey's constitution
of 1776, secretly framed and hurriedly put forth
almost simultaneously with our Declaration of Inde-
pendence, uses the word "Colony," for which the
New Jersey Legislature in 1777 substituted "State."
Such " Bill of Rights " expressions as that instrument

1 Poore's Constitutions, South Carolina.

2 lb., Georgia.

8 See Federalist, No. 84.

4 Under an attainder act of 1779, the New York Legislature ban-
ished fifty-eight persons (three of whom were women) for adheriDg to
the enemy. Poore's Constitutions, New York, 1777, notes.

40 CONSTITUTIONAL STUDIES.

contained originated in Penn's old charter of 1701,
which probably had diffused its influence in colonial
times. 1 What Bill of Rights Delaware may have
adopted when assuming this full and formal title
under her constitution of September, 1776, is uncer-
tain; but an impressive article of that constitution
forbade all importation of African slaves into the
State. 2 For while the pulse of Revolution beat
highest, freedom had strong headway.

The New England colonies did not readily accept
Southern lead in formulating individual rights ; yet the
popular sentiment favorable to such announcements
seems to have compelled the public leaders in most
quarters to defer to their wishes. Connecticut and
Rhode Island sanctioned their several charters from
Charles II. as good and sufficient organic law for a
sovereign State ; and the General Court of Connecti-
cut, while legislating in 1776 to that effect, promised
expressly not to deprive the citizen of sundry Magna
Gharta rights " unless clearly warranted by the laws
of this State." In Massachusetts and New Hamp-
shire the people wrought out their will much more
effectually. Massachusetts, during this Revolution-
ary period, was for a while governed under its
colonial charter, adapted as might be to the emer-
gency; but the people of the State clamored for a
constitution, and the General Court accordingly sub-
mitted one in 1778, which was voted down at the
polls, chiefly because it contained no Declaration of
Rights. The sense of the voters having been taken

1 See Poore's Constitutions, New Jersey.

2 The constitution, inclusive of this clause, was superseded later.
See Poore's Constitutions, Delaware. Mr. Poore prints no Delaware
"Bill of Rights;" but § 30 of the printed constitution (1776) shows
that there must have been one.

REVOLUTIONARY BILLS OF RIGHTS. 41

once more in 1779, a formal State convention was
held, whose labors produced in 1780 a new and com-
plete charter of government; that charter was sub-
mitted to the people, and adopted as satisfactory by
an immense majority. 1 Of this written constitution,
never since superseded though greatly amended in
the course of a century or more, we shall speak here-
after concerning its practical distribution of powers ;
but here let us observe, as to the Declaration of
Rights which it embodied, that in more florid and
sonorous language popular rights were proclaimed
substantially the same that Virginia, Pennsylvania,
and Maryland, one or another, are seen to have put
forth nearly four years earlier. With greater insist-
ence upon public authority and discipline, the Mas-
sachusetts instrument employs largely the word
"subject" in preference to "men," "freemen," or the
"people." The preamble of this Massachusetts con-
stitution, which was the most perfect and deliberately
drawn of all State constitutions during our Revolu-
tionary period, asserts that the end of all government
is the benefit of the body politic ; and that the body
politic is the voluntary association of individuals, —
a " social compact by which the whole people cove-
nants with each citizen, and each citizen with the
whole people, that all shall be governed by certain
laws for the common good." 2 With an enlightened

1 It is said' that the Massachusetts constitution was largely the
product and inspiration of John Adams. However this may be, as to
an informal draft, Adams was abroad on the diplomatic service most
of the time that this Massachusetts convention was in actual session.

3 Poore's Constitutions, Massachusetts. See Maryland Declaration
(§ 1) here amplified. The "Mayflower charter" of the Pilgrims may
recur to memory in such a connection.

One important, and apparently the most important, maxim of a
"Bill of Rights" character which Massachusetts originated in this
constitution, consists in enlarging the Virginia Declaration (§ 6) that
one cannot be deprived of property for public uses without his consent

42 CONSTITUTIONAL STUDIES.

regard for public beneficence, this State constitution,
abounding as it does in homily as well as sound doc-
trine, commends the encouragement of literature and
the sciences, public schools and education, agricul-
ture, trade, commerce, manufactures, together with
the promotion of humanity and general benevolence,
industry and frugality, sincerity and good humor,
"and all social affections and general sentiments,
among the people." 1

New Hampshire pursued a similar experience in
this Revolutionary era ; its chosen convention submit-
ting in 1778 a fundamental constitution which the
people at their town meetings the next year rejected.
Here, as under the Revolutionary constitution of
1776 (which was a brief business-like instrument), all
Declaration of Rights was ignored, and the people
grew greatly dissatisfied. Finally, by 1783 a State
constitution, modelled closely upon that of Massa-
chusetts, was framed in convention, and in 1784
(just after the end of the Revolutionary War) adopted
by town meetings. With less redundancy perhaps
of expression, the Massachusetts general truths appear
formulated in this later State instrument. But as
to jury trials, New Hampshire adds the cautious
expression that none but qualified persons should
serve, and that they should be properly paid. Next
theorizing, in imitation of Pennsylvania upon the
evil of sanguinary laws, this State suggests further
that the true design of all punishments is " to reform,
not to exterminate, mankind." And, once more,
while discouraging pensions, the New Hampshire
instrument quaintly suggests that economy is "a

or that of the Legislature. To this idea the Massachusetts Declaration
adds (§ 10), that private property applied to public uses shall always
be upon "reasonable compensation." Cf. Constitution of United
States, 5th amendment.

1 Poore's Constitutions, Massachusetts.

REVOLUTIONARY BILLS OF RIGHTS. 43

most essential virtue in all States, especially in a
young one." 1

Religious liberty under these Revolutionary Bills
of Rights may claim a passing mention. Virginia
set forth a rule of toleration broad enough for all
time: "Religion, or the duty which we owe to our
Creator, and the manner of discharging it, can be
directed only by reason and conviction, not by force
or violence ; and therefore all men are equally entitled
to the free exercise of religion, according to the dic-
tates of conscience ; and it is the mutual duty of all
to practise Christian forbearance, love, and charity
towards each other." 2 Pennsylvania's fundamental
precept concerning religion was worthy of a State
whose colonial history breathed the best spirit of
philanthropy. North Carolina, too, clearly pro-
nounced for the "unalienable right" to worship God
according to the dictates of conscience. But the
Maryland Declaration of Rights used compromising
language on this subject, and while conceding the
right of any and all inhabitants to worship without
molesting others, favored religious taxation, with a
disposition to keep the Church of England foremost.
The Bible and the Christian religion continued,
there and generally elsewhere, a test for civil office ;
while Delaware, though fairly tolerating religious
worship, required a clear profession of belief in the
Trinity for the civil service. In general, there was
no religious test for mere voters.

1 Poore's Constitutions, New Hampshire.

2 Virginia Bill of Rights (No. 16). Broad and generous as this
expression undoubtedly was, Virginia still taxed dissenters for the sup-
port of an English church establishment ; nor was it until after the
general peace of 1783 that Jefferson's bill for religious freedom passed
the Virginia Legislature against a powerful and highly intelligent op-
position, and disestablishment became practical.

44 CONSTITUTIONAL STUDIES.

In a long and diffuse exposition of religious charity,
South Carolina's constitution of 1778 held fast to
Christian Protestantism for an established religion,
and denned the limits of public toleration. Both of
Georgia's constitutions (1777 and 1789) are seen to
provide for the free exercise of religion, at the same
time forbidding clergymen to hold political office.
The New York constitution of 1777 was of much the
same purport; 1 and Virginia, New York, Delaware,
and the Carolinas all manifested thus early that
repugnance for clerical politicians which we see to
this day exhibited in the fundamental law of so many
American States. New Jersey, though avowedly
tolerant, confined civil privileges to Protestants.
Finally, the Massachusetts constitution, copied in this
respect by New Hampshire, while conceding to every
one the right to worship without molestation provided
he does not disturb or obstruct others (a favorite
qualification of religious freedom), enjoined the gen-
eral right and duty to worship the Supreme Being;
and town taxation was further sanctioned to support
" Protestant teachers of piety, religion, and morality, "
at whose stated instructions attendance might be
compelled. 2 Parish congregational churches sup-
ported by local taxation, and a congregational clergy
of great learning and influential in all public affairs,
comprised the usual religious establishment of this
era in New England; nor, indeed, did the legal
equality of sects and a voluntary and self-supporting
system of religion become the practice of the United
States until this nineteenth century had run the first
quarter of its course.

1 Not, however, so that liberty shall become license or justify public
disturbance.

2 See Poore's Constitutions, passim.

IV.

EARLY STATE CONSTITUTIONS.

1776-1789.

Let us now consider the main structure of repub*
lican government comprised in those separate State
instruments which preceded in date our Federal con-
stitution. First and foremost in the design is seen
that fundamental threefold division of legislature,
executive, and judiciary, as departments which Mon-
tesquieu first of the modern sages announced should
be kept distinct and separated. 1 This Montesquieu
theorem appears and reappears in our American State
constitutions, onward from the Revolutionary period :
sometimes concisely stated as in Virginia's Bill of
Rights, 2 and again couched in the stately and resonant
expression of the Massachusetts constitution. 3 But
most political dogmas are of imperfect application;

1 "The celebrated Montesquieu is the oracle always consulted and
cited on this subject." Federalist, No. 47. Yet Aristotle in his " Poli-
tics," centuries earlier, distinctly denned the three appropriate depart-
ments of a Eepublic as the deliberative, executive, and judicial, — a
description imperfect only because legislation in a representative in-
stead of collective assembly (which is a modern contrivance) had not
then been invented.

2 Virginia Declaration, 1776 (No. 5) ; somewhat amplified, however,
in the Virginia constitution.

8 "The legislative department shall never exercise the executive
and judicial powers, or either of them ; the executive shall never exer-
cise the legislative and judicial powers, or either of them; the judicial
shall never exercise the legislative and executive powers, or either of
them ; to the end it may be a government of laws and not of men."
Massachusetts Declaration of 1780 (No\ 30).

46 CONSTITUTIONAL STUDIES.

and the practice of American government has con-
stantly been to so far connect and blend these sepa-
rate departments of a republic as to enable each to
exert a certain constitutional constraint upon the
others, so as to unify authority. Nor, as Madison
once suggested, does any mere parchment demarca-
tion of constitutional limits warrant against encroach-
ment and tyrannical concentration of power where
the governed fail in vigilance. 1 The British consti-
tution, admired by Montesquieu like an Iliad among
the epics, was defective in its separation of powers
during our colonial period, and so were the constitu-
tions of our original thirteen States, each of whom
had nourished colonial traditions which influenced her
new and independent condition.

New constitutions during this memorable war for
independence transform thirteen dependent colonies
into Republics. Virginia and Massachusetts charac-
terize with dignity this new establishment as a " Com-
monwealth;" Pennsylvania, quite ambiguously, as
a "Commonwealth or State;" the other ten as a
"State." For times thus early the "convention,"
composed, like any legislature, of chosen representa-
tives of the people, was the great and sufficient origi-
nator and sanction of government and fundamental
law. A de facto legislature, to be sure, would natu-
rally summon such a convention, and even determine
upon the basis for choosing its members ; and if that
legislative sanction had been wanting at the outset,
its subsequent sanction might be given afterwards to
the convention product. Indeed, the de facto legisla-
ture of certain revolted colonies, in 1776, that peril-
ous year of united defiance, had gone much farther.
It had in Connecticut (and probably too in Rhode
Island) given the colonial charter a prolonged and

1 Federalist, No. 48.

EARLY STATE CONSTITUTIONS. 47

indefinite survival ; in Massachusetts and New Hamp-
shire it had exerted a temporary sway; in South
Carolina it had even assumed authority to impose a
binding constitution upon the people, — an offence
repeated in 1778. But Virginia had set the example,
soon universally conceded in these States, of calling a
convention, as a fresh and immediate emanation from
the people. Each popular constituency chose its
own delegates, and such a convention revolutionized
political society at its own omnipotent discretion.

At the present day, the United States of America
regard a constitution and convention work as a
product properly submitted to the voters for their
express adoption before it can become fundamental
law. But, save for Massachusetts and New Hamp-
shire alone, such was not the implied fundamental
requirement of these earlier times. In those two
States, where the referendum in this respect may be
said to have originated for America, the voters in
town meetings are seen discussing at the outset the
rightful fundaments of constitutional government,
and not only sending representatives to a State con-
vention, but rejecting convention results which they
deem imperfect, and procuring a new convention;
deciding at length by their final suffrage, as a body
politic, to ratify the later framework as sufficient and
satisfactory to live under. Elsewhere, however,
among those thirteen Revolutionary States that
wrought out American independence in unison we
find no such popular test of adoption or ratification ;
but under the most favorable conditions for popular
expression what the convention once deliberately
concludes upon becomes the fundamental scheme of
government for that jurisdiction, the fundamental
declaration of individual rights. When by 1787 and

48 CONSTITUTIONAL STUDIES.

after a treaty of peace, came further the Philadelphia
general convention and its plan of a more perfect
Union of these States, no popular sanction of that
plan more direct was sought or obtained (next to that
of the Continental Congress) than the approval of a
State convention. In short, whether for State or
Federal fundamental law, the convention, except as
above stated, was throughout this Union its own self-
sufficient sanction and exponent of that popular will
in a community which alters, subverts, and erects
aDew.

The absence, as a rule, of all referendum test at
this period is further established when we look into
these earliest of our written constitutions to ascertain
how they could be superseded or amended. Upon
this vital point half of these constitutions, Virginia's
included, were silent, and yet every one of them
became in time supplanted. This was not because
those Revolutionary sires, illustrious in constractive
statesmanship, who devoted their best talents to such
work, were fatuous enough to suppose that alterations
of fundamental law would never be needed; but
because they reposed upon their own primary truth,
announced repeatedly in Bills of Rights, that the
people might amend, repeal, or substitute, at any
time later, — namely, in convention. American
experience, however, has taught that it is better
for a written constitution to be explicit in such
matters; and in some of these early constitutions,
that course, in fact, was pursued. Thus, Pennsyl-
vania's instrument of 1776 created a "Council of
Censors " from the people for every seventh year,
who should inquire into constitutional infractions
and abuses, and upon a two-thirds vote summon at
discretion a new convention, — a fortunate clause,
which enabled that immense State to throw off readily

EARLY STATE CONSTITUTIONS. 49

in 1790 its badly devised original scheme of self-
government, and substitute something more sensible.
Georgia, too, in her constitution of 1777, directed
the Legislature to call a new convention upon the
petition at any time of a majority of voters in each
county; and this provision, too, resulted by 1789 in
a new and better framework of practical State gov-
ernment. 1 Both Massachusetts and New Hampshire
expressly accorded a probationary period to their
slowly matured constitutions; and in consequence
the latter State, at the end of seven years, framed in
convention a new fundamental instrument, while the
former continued beyond her experimental term as
before. Some of these Revolutionary conventions —
those of Pennsylvania, Delaware, and North Carolina,
for instance 2 — are seen setting the example of declar-
ing certain fundamental law irrepealable, which
practice might suggest a discussion still deeper as to
the inherent right of ancestors in general to bind
their descendants and successors. 3 Pennsylvania's
constitution of 1777 expressly forbade the Legislature
to amend or infringe, which doubtless was appropriate
enough.

For simple amendment to the constitution a remedy
less drastic than calling a new convention is found
prescribed (a remedy now universal) in several of
these early States. Thus Maryland, in her consti-
tution of 17J6, put forward a plan of amendment,
by which one legislature might initiate and the next
legislature confirm a proposed alteration so as to give

1 Georgia's constitution of 1788 was framed in one convention, and
then ratified in 1789 by a new convention chosen quite curiously for
the express purpose of accepting or rejecting. Poore's Constitutions,
Georgia, note.

2 And see supra, page 1 3.

8 Such provisions fortunately relate for the most part to funda-
mental rights of the individual, which deserve to remain permanent.

4

50 CONSTITUTIONAL STUDIES.

it full effect, 1 — a favorite method of these later
times, though with the more democratic addition that
the amendment shall bear the final test of a submis-
sion to the voters.

The elective franchise under our early State consti-
tutions was bestowed with more or less favor, ac-
cording mainly to colonial practice and sentiment.
Colonies such as Rhode Island, Connecticut, Pennsyl-
vania, and Maryland had been treated by British
sovereigns with marked liberality in this respect. In
general the voter was to be a male inhabitant,
twenty-one years of age or more; and "freemen" or
"free white men" was a convenient term to employ
thus in the written systems of States, nearly all of
whom still recognized to some extent, in 1776, the
colonial institution of negro slavery. " Freeholders, "
or real-estate owners, were specially designated for
the suffrage in South Carolina, and further in
Virginia, New York, and North Carolina, as to cer-
tain privileged elections at least; Massachusetts, as
under her royal charter, and Maryland, fixed a prop-
erty qualification in either lands or personalty ; while
the most liberal of these United States, like Pennsyl-
vania and Georgia, conferred the suffrage upon all
tax-payers. 2 Georgia, in her earliest constitution,
made a futile effort, as some colonial legislatures
had done, to punish a voter's absence from the polls
without good excuse by imposing a penalty. Bribery
at the polls was punishable under Pennsylvania's
constitution, yet rather lightly. 3

1 For certain changes, a two-thirds vote was a pre-requisite ; other-
wise a majority was sufficient. Maryland constitution (1776), § 59.

2 Sons of freeholders, though cot paying taxes, had also the right
to vote in Pennsylvania. Georgia favored mechanics.

3 New Hampshire's constitution (1784) makes conviction of bribery
an utter disqualification from office, etc.

Under the Revolutionary constitution of New York, the "elector"

EARLY STATE CONSTITUTIONS. 51

As for the appropriate method of voting, while Mas-
sachusetts, New Hampshire, Pennsylvania, and Geor-
gia pronounced thus early for the written ballot, other
States (by more or less positive expression) showed
some adhesion still to the old English mode of an
oral or viva voce vote. 1 Indeed, the New York con-
stitution of 1777 indicates a disposition to try the
written ballot simply as a novel and experimental sub-
stitute for the customary viva voce method and sub-
ject to the final discretion of the legislature; and
that instrument notes as a prevalent opinion " among
divers of the good people" that voting by ballot
" would tend more to preserve the liberty and equal
freedom of the people" than the oral mode. 2

The image of State government in America, with
its threefold distribution of fundamental powers, is
visible in the public structure of these thirteen
colonies, developing apart for a century or more
under the parental supervision of Great Britain.
And accordingly, when filial ties were severed, the
omnipotence of a local legislature and local represen-
tatives was the fact most palpable in continental self-
establishment. For the local assembly of the people
had long been the bulwark and resource of these
various colonies in concerting against parental oppres-
sion; and the election of that representative assembly
— or, in other words, of the single popular branch of
each colonial legislature — had chiefly, and, except
for Rhode Island and Connecticut, almost solely
occupied the franchise and immediate attention of

at the polls might be required to take an oath of allegiance to the
State. Under that of Delaware, soldiers were forbidden to approach
the polls on election day.

1 Connecticut to some extent kept up viva voce voting in State elec-
tions, — a system which town meetings naturally favor.

2 Poore's Constitutions, passim, 1776-1784.

52 CONSTITUTIONAL STUDIES.

colonial voters. Thus continued it long after inde-
pendence had been declared, in most of those
struggling States which have set the pattern for
this new world. But thoughtful statesmen marked
quickly the tendency of republican governments to
aggrandize the Legislature at the expense of all other
departments; and the dangers of legislative abuse
and encroachment were conspicuously manifest in
Pennsylvania before this first stage of experimental
self-government had run its course. The closer to
the people nominally, the more audacious is such
aggression apt to be.

Since, however, a single representative house had
borne in America the symbols of popular confidence
and affection for so many years, we find, not strangely,
that Pennsylvania and Georgia, as free republics,
essayed at once the plan of a legislature which
should consist of a single house. The experiment
was unsatisfactory, producing speedily such public
turbulence, discord, and caprice that by the time
that a Congress of the United States, consisting of
two houses, went into national operation, both
Pennsylvania and Georgia, remodelling completely
their State constitutions, established a corresponding
change. As no other State but the new Vermont
(strong admirer and copyist at the outset of Pennsyl-
vania's first constitution) ever tried again this one-
chambered legislature, and that trial failed, though
with a simple rural people most favorable for such a
system, we may fairly infer that the friction of two
distinct and deliberative houses, is upon the whole
highly salutary to republican government; since,
after all, it is better to continue under defective laws
than to change them on impulse and crude discussion.

The larger and more popular branch of the State
legislature came ready-made to independent America.

EARLY STATE CONSTITUTIONS. 53

As for a smaller branch, the joinder in authority of
a provincial or charter council, which, like a lesser
House of Lords, had exercised some sort of concur-
rent authority in passing colonial laws, was readily
made over in most of these new States, so as to serve
as an upper and more aristocratic House, secret in its
proceedings as formerly according to the usual prac-
tice, and curbing the mettlesome propensity of the
more popular branch. Massachusetts in her matured
constitution (followed presently by New Hampshire)
pursued a peculiar course in this respect; the old
colonial "council," with such executive functions as
pertained to it, was transferred to the governor, as
an advisory appendage ; while a Senate was specially
created, so that the Legislature might consist regu-
larly of two co-ordinate branches each with a nega-
tive on the other. 1

The popular branch of the American legislature
was made three or four times as numerous as the
other, with members to be annually chosen on the
representative plan. 2 No such happy adjustment of
interests could be contrived in the States for the two
separate chambers as the Federal constitution hit
upon later for Congress ; nobility and life tenure were
surely unfit for what freemen disliked to style an
upper House ; and yet with more strenuous qualifica-
tions of age and property in its membership, longer
terms, and in some States a remote method of choice,
something approximating a conservative or even
aristocratic second branch was shaped out. In Mas-
sachusetts and New Hampshire, while annual elec-

1 This State " council," a Massachusetts contrivance in so special
a sense, prevails to this day in Massachusetts, New Hampshire, and
Maine, but in no other part of the Union. See pages 16, 17.

2 New York (1777) prescribes clearly a census to be taken every
seven years (after the war ends) for reapportioning the popular
branch. Cf. Pennsylvania (1776).

54 CONSTITUTIONAL STUDIES.

tions for either branch were insisted on, the Senate
was based upon public taxation or property, and the
House upon polls or numbers. New York's original
Senate consisted simply of freeholders to be chosen
by the body of freeholders. The Maryland plan, a
singular one, seems to have foreshadowed the elec-
toral college scheme of 1787 for choosing a President
of the United States, so admirable in theory and yet
so contemptible in practice ; for electors of the Mary-
land Senate were to be chosen every fifth year by the
general voters, with power to meet in mass at a
stated time and place, and elect a suitable number
of "men of the most wisdom, experience, and
virtue," to fill that dignified branch of the Legisla-
ture. 1 Classification was an expedient at once applied
to the State Senate in Virginia, New York, and
Delaware, as a special means of securing for that
body stability and experience; whence came that
periodical rotation of a certain fraction as each legis-
lature convenes, whose most conspicuous example is
furnished in our United States Senate to this day. 2
For in these earliest days of constitutional framework
more effort was shown to create a positive basis of
difference between the two houses of an American
State legislature, aside from larger or smaller repre-
sentative areas, than political philosophy takes to
heart in this nineteenth century.

"General Court," the legacy of colonial times, was
the title retained in Massachusetts and New Hamp-
shire for this bicameral legislature ; 3 but " Assembly "
was the early preference in most States out of New
England. New York at once applied to its own
department the modern term "Legislature," giving

1 This Senate electoral plan lasted in Maryland until 1837. Cf.
Poore's Constitutions.

2 Poore, ib. 8 See page 17.

EARLY STATE CONSTITUTIONS. 55

the name "Assembly," as also did New Jersey and
Delaware, to its popular branch. "Assembly" in
Pennsylvania and Georgia meant, however, in these
earlier years, a one-chambered legislative body.
" House of Representatives, " as a style of the popular
branch, South Carolina and Massachusetts made fash-
ionable; but "House of Delegates" (no longer
" Burgesses ") Virginia called it, seconded by Mary-
land; "House of Commons" was the name first
given in North Carolina. " Senate " became at once
in leading States the favorite designation for the
smaller and more conservative branch of the leg-
islature; but New Jersey, Delaware, and South
Carolina clung for a few years to the old style of
"Council." 1

As for the qualifications of a legislator, under
these earliest constitutions, if a State required prop-
erty or a freehold in order that one might vote at all,
much more was that rule imperative for service in
the Legislature, and most of all to the honorable
incumbent of a State Senate. Freehold or property
qualifications for a legislator were in these years
waived in Pennsylvania alone. Age and length of
residence afforded suitable tests, as they always do ;
to which were usually superadded religious quali-
fications, though ministers of the gospel, as we have
seen, were in various States excluded from politics.
Pennsylvania forbade public service in its single
assembly for more than four years out of seven, and
required each member to swear fidelity to the public
interests, besides taking oath of his belief in God
and the inspiration of the Bible. 2

1 See Poore, passim; supra, page 17.

2 This legislator's oath (rather an indefinite one, after all) is to the
effect that he will not propose or assent to any bill "which shall appear
to me injurious to the people," nor consent to any act or thing that

56 CONSTITUTIONAL STUDIES.

The first constitutions of Pennsylvania and New
York severally ordained that each House should sit
with open doors, except where the public welfare
required secrecy. And in various States we see old
Parliamentary privileges expressly accorded: there
should be freedom of speech in the Legislature ; and
debates and proceedings could not be questioned else-
where ; ] no member could be arrested or held to trial
while going, attending, or returning. 2 Each branch,
moreover, should choose its own officers, determine
its own rules, judge of the returns, elections, and
qualifications of its members, and at its sole discre-
tion expel any member for misbehavior. Much of
this Parliamentary law of England had doubtless
been recognized and asserted in the several colonies
while owning allegiance to the King. So, too, the
power of brief adjournment was free to each branch,
but in general the agreement of both Houses was
essential for any considerable or final adjournment;
and the Executive might convene on an emergency
or prorogue when the two Houses were unable to
agree. Some of these State constitutions fixed the
requisite number for a quorum. Seven States ex-
pressly insisted that money bills should originate in
the House, — a provision natural enough while that
body continued in a State the only really popular
one. 3 Virginia's constitution declared that all bills

shall tend to abridge their constitutional privileges ; but that he mil
to the best of his ability conduct himself "as a faithful, honest repre-
sentative and guardian of the people." New Jersey prescribed an oath
somewhat similar, for preventing the repeal of constitutional provis-
ions. See Poore, passim.

1 -Supra, page 38 ; and English Bill of Rights, 1689 (No. 9).

2 See Massachusetts and New Hampshire constitutions.

8 Thus we find the early constitutions of New Hampshire, Massa-
chusetts, New Jersey, Delaware, Maryland, Virginia, and North Caro-
lina expressed ; that of New York being silent. Nor can the Senate
amend, but it must assent or reject. Virginia and North Carolina.

EARLY STATE CONSTITUTIONS. 57

must originate in the popular branch. . Some State
constitutions are seen entering quite minutely into
other details of legislative practice which elsewhere
reposed, no doubt, upon colonial or Parliamentary
usage: as, for instance, the consent of both Houses
should be given to a bill; bills should be read three
times before final passage ; yeas and nays might be
entered on request ; a journal should be kept and its
proceedings periodically printed ; and upon disagree-
ment there should be a conference committee. South
Carolina ordained that a bill rejected by either House
should not be brought up again at the same session
without special leave and notice. In New Jersey's
constitution is traceable the first clear suggestion of
a constraint upon legislation which in one way or
another many constitutions of this nineteenth century
employ, — that no law shall finally pass except by
majorities of all elected to each branch.

No enumeration of legislative powers was needful
in these primitive State constitutions, inasmuch as a
State legislature might exercise all powers over the
domestic, social, and business relations of its inhabit-
ants except such as were expressly delegated to the
Union or clearly prohibited otherwise, which at this
date of course amounted to very little; yet various

The rule of the English House of Commons aa to money bills is said
to date back nearly to 1400. Colonial practice doubtless fortified this
rule for America.

Maryland's constitution made special effort to prevent the abuse of
this " money bill " origination in the House . It forbade the House under
any pretence to annex to or blend with a money bill other extraneous
matter ; and it defined as a " money bill " every bill assessing or apply-
ing taxes or supplies for the support of government, or the current
expenses of the State, or appropriating money in the treasury. No
bill, it states, is a money bill which imposes duties or customs for the
mere regulation of commerce, or which inflicts fines or enforces the
execution of laws, though an incidental revenue might arise. Mary-
land Constitution, 1776, § 11.

58 CONSTITUTIONAL STUDIES.

special expressions of legislative authority are found
in these early instruments. Constraints, too, were
stated, such as a "Bill of Rights" might specify, or
upon entails, primogeniture, and the like encum-
brances upon political equality. The "wages" of
legislators, as of all civil officers, were commonly
made payable from the State treasury; but New
Hampshire undertook the peculiar experiment (soon
abandoned) of making the several towns pay their
representatives, while the State appropriated simply
for mileage. 1

The American Executive was an inheritance from
colonial subjection ; and colonial experience fortified
the inclination of State Revolutionary framers to
curb and constrain its deputed functions. For more
than twenty years previous, executive independence
had been nearly synonymous on this American soil
with executive tyranny. And yet, excepting the
charter governments of Massachusetts, 2 Rhode Island,
and Connecticut, the selection of this American chief
magistrate, dispenser of public honors and patronage,
had been so far removed from the immediate choice
of the people, that the leaders of these newly fledged
States dreaded a young democracy.

" Governor " became at once the usual style of this
chief magistrate, as under the colonial dispensation ;
but Pennsylvania and Delaware in their constitu-
tions of 1776 called him "President." As for a

1 The first Pennsylvania constitution, though liberally devised,
abounded in loose and precatory language, and badly planned a frame-
work of practical government. Laws "for the encouragement of
virtue and prevention of vice " were to be made and kept constantly
in force. And, by way of a general check upon hasty legislation, it
provided quite ambiguously that bills of a public nature, "except on
occasions of sudden necessity, shall not be passed into laws until the
next session of assembly," after they are read and printed.

2 Before 1691.

EARLY STATE CONSTITUTIONS. 59

ceremonious title, Massachusetts and New Hamp-
shire dubbed him "His Excellency;" but the other
States kept such designations out of their funda-
mental law, though Georgia appears to have bestowed
the title " Honorable " in 1777, dropping it out of her
second constitution in 1789. The term of this
supreme executive was made annual for the most
part. South Carolina, however, set the example of
two years, while New York and Delaware promptly
fixed a three years' term.

The choice of an American governor, as a compari-
son of these primitive constitutions will show us,
was confided originally to the State Legislature in
eight States out of thirteen, — a preponderance of
opinion all the more remarkable when one recalls
that two out of the other five, in conceding a choice
by the people, merely suffered their own favored
charters to work on as before. New York took up
the singular experiment of a choice by freeholders
alone. 1 Wherever the Legislature in the preponder-
ating States consisted of two houses, the ballot of
both, separate or concurrent, was made requisite;
but Pennsylvania, with her single house, invented
an odd method of combining the Assembly with
an executive council on a joint ballot for chief
magistrate. Here the supreme executive power was
lodged not in an individual, but in a sort of Directory,
styled "President and Council; " the people in their
respective districts chose this "Council" of twelve
after a scheme which rotated one-third of that num-
ber annually; and both President and Vice-President
of the State had to belong to this " Council " in order
to be eligible. The last quarter of the eighteenth
century and the first quarter of the nineteenth com-

1 The same favored class whose right, as we hare seen, was to
choose State senators. Supra, page 54.

60 CONSTITUTIONAL STUDIES.

prised the era of strict "majority rule " in a republic.
In New York alone among American States was a
plurality choice (here by the freeholders) sanctioned
thus early; while, on the other hand, both in Massa-
chusetts and New Hampshire, 1 the voters, by failing
at the polls on one trial to give some candidate for
governor the clear majority, threw the election con-
sequently into the Legislature, which body would
then proceed, after a prescribed mode, to elect at
discretion from among the highest candidates. 2 The
convenience of concluding the choice, once and for
all, in favor of the person whose number at the polls
was greatest, whether he had received an actual
majority of the votes or not, fructified but slowly in
State fundamental law, and that, too, after a rigorous
experience.

As for qualifications, our American Executive was
at the outset required by the majority of States to be
a freeholder to a considerable amount. 3 But the
earliest instruments of Virginia, Pennsylvania, New
Jersey, and Delaware, were silent in this respect.
"A wise and discreet freeholder," enjoins the New
York constitution; "some fit person within the
State," says that of New Jersey; "a person of wis-
dom, experience, and virtue " is the language of
Maryland. Ripeness of age (as, for instance, twenty-

1 Semble in Connecticut and Rhode Island, too, under charter rules.

2 This eventual choice of Chief Executive by the Legislature, on
failure of a popular majority, continues a feature of the Federal con-
stitution, though almost obsolete as concerns State practice. See post,
Part it. As for members of the Legislature at this period (and for
Congressmen still later) if no one received a majority of the votes for
representative, the contest at the polls was repeated until a majority
was reached.

8 This freehold qualification of £1000 under the Massachusetts
constitution of 1780 was abolished but a few years ago, and at the
instance of Governor William E. Russell. The requirement had long
escaped public notiee.

EARLY STATE CONSTITUTIONS. 61

five years) was quite commonly prescribed; so, too,
residence within the State for a certain length of
time; and finally the Protestant faith in religion.
Restrictions upon re-election were a favorite precau-
tion in most States to the southward. 1

A Lieutenant-Governor (in Pennsylvania a Vice-
President) was provided under various constitutions,
agreeably to colonial practice, while six States ignored
such an office. 2 The incumbent served as executive
head of the State for great emergencies. In New
York he was designated to preside over the State
Senate, giving his casting vote in case of a tie, but
otherwise not voting. Georgia, on the other hand,
named the President of the Council as next in suc-
cession to the Governor; and so too did Delaware.
This " Council " (styled sometimes a " Privy Council,"
or " Council of State ") began in 1776 as a great
encumbrance upon executive independence, blending
in many instances the legislative functions of an upper
house. Tacked upon the chief magistracy, this
Council would give its "advice and consent" to the
most important executive acts; while in Pennsyl-
vania it formed as a pure Directory a constituent
part of the Executive itself. In the President and
Directors of a private corporation to this day we
trace the semblance of a common charter origin.
Members of this Council were elected in various
ways at State discretion ; in Massachusetts and New

1 One was re-ineligible to the office, e. g., for four years after serv-
ing three in succession. See constitutions of Delaware, Maryland,
Virginia, North Carolina, and South Carolina.

2 Massachusetts, New York, New Jersey, Pennsylvania, and South
Carolina established such an office by fundamental law ; the Lieuten-
ant-Governor in the first-named State holding the second official rank
with the ceremonious title of " His Honor." No such office was recog-
nized in New Hampshire, Delaware, Maryland, Virginia, North Caro-
lina, or Georgia.

62 CONSTITUTIONAL STUDIES.

Hampshire, for instance, the people annually chose
Senators and Councillors together, and then the
Senate thus composed would select the Councillors ; J
but unless Pennsylvania be thought an exception to
the early American rule, 2 there was as yet no truly
direct choice of Councillors by the people. The idea
of an executive " Council " is ere this nearly exploded
in the United States; but, considering the regular
State practice in 1787, our Federal constitution must
have had a narrow, as well as fortunate escape, from
a Cabinet capable of tying up our President's hands,
unless, as appears most likely, the States themselves
had concluded to turn their own councils into sen-
ates, with powers more purely legislative than before. 3
The absorption of executive powers by the legisla-
tive department was very great in these times, as we
have already seen, and the Governor had little of
either personal independence or patronage, save,
perhaps, as commander-in-chief in some military
emergency. Even the dignity of a council detracted
from his authority. Nevertheless, he might con-
vene and adjourn the Legislature, — not arbitrarily,
as in 1775, but to much the same extent as denned
and copied later in the Federal constitution for a
President of the United States. He had no absolute
veto, 4 such as provincial governors had exercised,
and generally the States were at present indisposed
to grant him a veto power at all ; but Massachusetts

1 Here, as already shown, the Council was purely an executive
appendage.

2 Supra, page 59.

8 Massachusetts, Maine, and New Hampshire are seen to furnish to
modern America the only real instance of executive " Privy Coun-
cils ; " and councillors, moreover, are now chosen in these States di-
rectly by the people. Pennsylvania and Georgia dropped the " Council "
out of their new constitutions of 1789-90.

' South Carolina's hasty and temporary instrument of 1776 con-
ferred such power.

EARLY STATE CONSTITUTIONS. 63

by 1780 set the precedent for our Federal constitu-
tion and future State practice by conferring a quali-
fied veto which the Legislature by a two-thirds vote
might override. 1 The Governor had usually the
pardoning power, subject perhaps to the advice of his
Council, and with some stated exceptions. 2 He sent
messages and recommendations to the Legislature. 3
Usually with consent of his Council he appointed
the lesser State officials ; but New York, unduly fear-
ful of the one-man power, vested all such public
patronage in a "Council of Appointment," or Direc-
tory, where the Governor, as a single individual,
might be outvoted. 4 Indeed, for such high officers
as Secretary or Treasurer (for judges, too, as we
shall see presently) and often in military appoint-
ments, the Legislature kept sedulously the selection
to itself, as the true representative of the people;
not unfrequently adding such small county appoint-
ments as were not left to the local voters. 5 Massa-
chusetts and New Hampshire, on the other hand,
allowed the Governor a considerable patronage, sub-
ject, however, to "the advice and consent of the
Council," which, if comprising any year a majority
of political opponents, might of course obstruct his
wishes. As commander-in-chief of the army and

i The qualified veto was given by the constitution of New York to
a special " Council of Revision," or a directory, which consisted of the
Governor, the Chancellor, and the judges of the highest court.

2 Except for impeachments. Massachusetts and New Hampshire.
No pardon before conviction. New Hampshire, New York. In treason
and murder he may reprieve and then report to Legislature. New York.

3 New York, 1777.

4 See New York constitution (1777) as defined in 1801. Pennsyl-
vania's constitution of 1776 vested the public patronage in its directory
of President and Council.

6 In Maryland the Legislature was to choose one Treasurer for the
eastern shore and another for the western. No Treasurer can sit in the
Legislature until he has settled his accounts. North Carolina.

64 CONSTITUTIONAL STUDIES.

navy and of all the military forces of the State
"by sea or land," the Governor had various powers
thus early which were enumerated with much pomp-
ous phraseology; he was authorized to embody the
militia and direct it when embodied; he might
assemble and conduct such forces in martial array,
" encounter, repel, and resist " the enemy by sea or
land; "kill, slay, or destroy if necessary, and con-
quer. " x The forts and garrisons of the State were
subject to his supervision, and he might lay temporary
embargoes or prohibit exportation ; but his power to
commence war or conclude peace was kept subordi-
nate to the will of the Legislature. 2 In fine, the
Governor was to " take care that the laws were faith-
fully executed; " 3 and to exercise all other executive
powers of government, limited and restrained by the
laws of the State. 4

The Judiciary was recognized in the old thirteen
States as an important bulwark of free government;
though the scope of its remarkable power in subject-
ing acts of legislation to the written constitution had
yet to be tested. But how to appoint the judges of
a free republic was an instant and difficult problem.
In general, the local Legislature claimed at once the

1 This quaint language, still unchanged in the Massachusetts con-
stitution, originates in the expression of the old royal charters, as far
back even as that of Virginia in 1609. But under the Pennsylvania
constitution (1776) the Governor could not take personal command
without approval of the Council.

2 Much of this authority (especially as to commercial powers and a
navy) was practically superseded when our Federal constitution went
into operation in 1789!

8 See New York constitution of 1777. Money (as voted by the
Legislature) was to be drawn from the treasury on his warrant. Mas-
sachusetts, New Hampshire, North Carolina. But no money could be
drawn from the treasury without legislative assent. South Carolina,
1778.

* North Carolina, 1776.

EARLY STATE CONSTITUTIONS. 65

right to participate at least in so precious a selection.
Six out of thirteen States conceded the choice accord-
ingly without reserve; 1 Georgia set a dubious rule
which developed into a peculiar selection by these
representatives of the people; 2 Delaware united
Executive and Legislature in the choice. Maryland,
Massachusetts, and New Hampshire alone permitted
the Governor to appoint the judges with consent of
Council ; a special Directory, or " Council of Appoint-
ment," absorbed such functions in New York; and
lastly in Pennsylvania (if permitted by the Legisla-
ture), that general Directory of "President and
Council." 3 The English rule of stable and perma-
nent tenure had usually been in high favor among
these colonies ; hence good behavior was the judicial
term originally adopted by a majority of States. 4
" Ability rather than wealth " being always a maxim
of the legal profession, property qualifications for
this judicial station were dispensed with. 5 But the
less dignified justices of the peace who monopolized
more than they do now the petty jurisdiction of local
magistrate, were vested usually with a moderate
term of office. 6 Courts were left commonly to ap-

1 New Jersey, Virginia, North Carolina, South Carolina ; as also
Rhode Island and Connecticut under charter practice.

2 See constitution of 1789, under which the House chose three can-
didates, one of whom the Senate finally selected.

8 Pennsylvania's constitution of 1776, ambiguously drawn, seems to
have given the Assembly much latitude in drawing all such patronage
to itself.

* But New Jersey and Pennsylvania preferred a term fixed at seven
years for the highest tribunal, with a right of reappointment. New
York already prescribed a limit when the incumbent reached sixty
years of age. Georgia, a State which long disfavored a regular judi-
ciary as compared with business referees, or " courts merchant," set a
three-years limit.

6 " Fixed and adequate," " moderate/' etc., salaries were sometimes
enjoined; as in Virginia, 1776.

6 Three, five, or seven years was the usual prescribed limit; the
5

66 CONSTITUTIONAL STUDIES.

point their own clerks, and in some States the district
attorneys, marshals, and sheriffs besides. All such
court officials, and even the Attorney-General (where
such a State officer was recognized at all), enjoyed a
safe and stable tenure in these days.

Colonial usage would determine largely in each
free State the scope of the judicial establishment.
Outside of New England, separate equity powers as
distinct from the common law had considerable
range, and sometimes the Governor, though more
fitly a Chancellor, conducted that branch of jurisdic-
tion. The sudden stoppage in 1776 of judicial ap-
peals to King and Council caused much perplexity.
Maryland's constitution set the prompt example of a
specific Court of Appeals by way of substitute, for all
cases whether in common law, chancery, or admiralty;
but in most other State constitutions of this era we
perceive bewilderment, confusion, and a disposition
to mix Executive and Judiciary together for a last
resort, somewhat as before. New York for both law
and equity set up a Court of Errors which (to copy a
British House of Lords) consisted of the Senators,
the Chancellor, and the Supreme Court Judges; in
New Jersey, Delaware, and one or two other States,
the Governor and Council constituted a final tribunal ;
Georgia, with her bald judicial system, comprising a
superior but no supreme court, left appellate powers
by 1789 to the Legislature. The constitutions of
Virginia, Pennsylvania, and North Carolina con-
tained nothing very explicit. 1 Massachusetts and
New Hampshire, while trusting the Legislature for

Massachusetts constitution reciting as a reason, " that the people may
not suffer" from the long continuance of incumbents who fail in fidel-
ity or ability. In a few States only the tenure of such magistrates was
good behavior.

1 Pennsylvania's constitution gave certain chancery powers to the
common-law courts.

EARLY STATE CONSTITUTIONS. 67

a permanent system, left probate appeals and matri-
monial matters temporarily with the Governor and
Council. We may further observe here that in
Massachusetts the Governor or Legislature might
require the solemn opinion of the justices of the
Supreme Court, — an expedient for times of per-
plexity which some other States have since adopted.
Judges in Massachusetts and New Hampshire were
removable by the Governor (with consent of Council)
on address of the two houses, — a summary means
for disposing of men upon the bench personally and
politically obnoxious; 1 but in Maryland, a judge
could be removed only for misbehavior on conviction
in a court of law. All officers of the State, includ-
ing those of judicial station, might be impeached, as
various constitutions prescribed, and expelled accord-
ingly; the House of Representatives constituting
the body of grand inquest and prosecution, while the
Senate or Council (or some such mixed tribunal as
the New York Court of Errors a might afford) tried
and determined the cause, and gave sentence upon
conviction. 3

As for miscellaneous provisions of these early con-
stitutions worth mentioning, the Legislature was
empowered in some States not only to impeach, as
above, or to expel its own members in either house,
but also to punish persons who were not members for

1 " Shall be removed." South Carolina. Removable by the Legis-
lature for misbehavior. Pennsylvania.

2 Supra, page 66. And see South Carolina, 1778.

" In Pennsylvania one might be impeached either while in office or
after his resignation or removal, and the President and Council tried
the case. Persons when out of office might also be impeached in Vir-
ginia; and here the trial of impeachments was left undefined, but
" forever disabled " from holding office was made a suitable penalty
Banishment was a permitted penalty in Maryland.

68 CONSTITUTIONAL STUDIES.

disorderly or contemptuous behavior, by an imprison-
ment of not more than thirty days. 1 Oaths for mem-
bers of the Legislature and for officials were plentiful
in several of these instruments, the framers thus
founding a prosecution for perjury as well as more
direct criminal proceedings against the offender.
There was the oath of allegiance to be taken, which
abjured Great Britain and acknowledged the State
as "free, sovereign, and independent;" the oath to
faithfully serve as officer or representative ; the oath
of religious belief which conformed to Christian tests ;
and the oath of owning the requisite property. 2

Jealousy of an office-holding class was manifest
beyond the " Bill of Rights" denouncement of inherited
station. 3 Constitutional provisions are seen in a
majority of States against a plurality of public offices,
or the holding of more than one lucrative office at a
time. Judges, sheriffs, and registers were in various
States expressly forbidden to sit in the Legislature ;
so also were delegates and others in the Continental
service, military officers, and army or navy contract-
ors ; 4 and ministers of the gospel, as already stated,
were placed under a special ban in various States, so
far as political station was concerned, while Massa-
chusetts applied secular exclusion rather to all in-
structors at Harvard College. 5

1 Maryland, Massachusetts, and New Hampshire.

2 Maryland and Pennsylvania presorihed under penalty various
special oaths ; as, for instance (in the former State), not to participate
in the profits of office or of any public contracts ; to vote impartially
and for the public welfare, without having promised one's vote, etc.

8 Supra, page 32.

" Delaware and North Carolina.

5 The South Carolina instrument of 1778 forbade the father or
brother of the Governor for the time being to sit in the Council.

Upon office-holding generally, the constitution of Pennsylvania
(1776) observes that, as every freeman, to preserve his independence,
ought to have some profession, calling, trade, or farm for his honest

EARLY STATE CONSTITUTIONS. 69

The Pennsylvania instrument of 1776 — odd and
rather fanciful, as we have seen, in its scheme of
popular government, though framed by a convention
over which the great Franklin presides — was much
given to homily and didactic exposition ; and so, too,
was that of Massachusetts. Greatly as the two com-
monwealths differed on the question of religious
polity at this date, they were alike in announcing a
broad scheme of secular instruction such as might
place self-government securely upon the sound basis
of public intelligence and virtue. Massachusetts,
peculiarly proud of her Harvard College as the crown
and capstone of a liberal education, confirmed that
institution in all its franchises, lands, and endow-
ments, and gave it at once a State association by
placing the chief dignitaries of the Commonwealth ex
officio upon its board of government, — a connection
which lasted far into the nineteenth century. Public
and grammar schools in the various towns were
generously fostered besides by the fundamental law
of Massachusetts; and protection was promised to
private and public institutions, with rewards and
immunities for the arts and sciences. 1 Pennsylvania,
too, exhorted her Legislature to encourage one or
more universities of useful learning, and to establish
schools in each county for the convenient instruction
of children, with such public salaries to the mas-
ters "as may enable them to instruct youth at low
prices." 2

subsistence, "there can be no necessity for, nor use in, establishing
offices of profit, the usual effects of which are dependence and servility
unbecoming freemen." But whoever is called into public service to
the prejudice of his private affairs, " has a right to a reasonable com-
pensation ; " and whenever an office becomes so profitable that many
compete for it, the Legislature ought to lessen its profits.

1 Massachusetts, 1780.

2 Pennsylvania, 1776.

part n.

THE FEDEBAL UNION".

I.

EARLY TENDENCIES TO UNION.
1609-1764.

Next to the voyage of Columbus and the disclosure
of a New World to civilized Europe, the most preg-
nant event for the advancement of this western
hemisphere, in the North American portion at least,
was the planting of thirteen English colonies, adja-
cent to one another, on our northern Atlantic coast.
That grand origination of law-loving liberty occupied
most of the seventeenth and eighteenth centuries;
and had England, the mother country, ruled her
offspring ever so kindly, independence and union
must sooner or later have resulted. Most fortunate
was it for America that Europe had gained since
1492 more than a hundred years' headway in liberal
ideas before this British transplantation commenced ;
nor can we deem it inauspicious for the coming age
that the thirteen settlements, chaotic to some extent
in population, yet overwhelmingly British, should,
with all their zeal for reformed Christianity and all
their inborn love of freedom, have originated apart
and developed striking differences of tastes and habits
of life in their several colonial confines.

E pluribus unum — the " one from many " — is a
clear epitome, forever historical, stated in the most
concise phrase possible, of the origin and structure of

EARLY TENDENCIES TO UNION. 71

the present United States of America. The E pluri-
bus fundamentals have already been discussed; and
unum now demands our continuous attention. The
immense predominance of the Anglo-Saxon element
from the very start in these American settlements
guaranteed to the soil a people bound by those endur-
ing ligaments of a common history, a common lan-
guage and literature, common political institutions,
and a common jurisprudence. Whatever might have
been their differences in colonial origin and affilia-
tions, they were unified in loyalty to a common line
of sovereigns, whose policy, however differing with
individual rulers, embraced essentially one conti-
nental scheme for all. There were traits, moreover,
in their common isolation from the old world which
naturally induced contiguous colonies to enter into
mutual leagues and compacts. Arms and succor had
to be provided against the Indians, their common foe,
where philanthropy could not pacify ; reciprocal trade
and commerce needed occasional adjustment, as did
also the reciprocal right to settle, purchase lands,
and inherit, and the extradition of criminals; and
the old royal grants were soon seen to have defined
colonial boundaries with so little precision that
whenever the time should come to push American
settlement westward into the Mississippi valley, the
conflicting claims of our earlier jurisdictions must
needs have merged for the good of the whole people
in a common territory with a common pre-emption
from the red tribes, and a common and comprehen-
sive policy to pursue towards all the frontier foes of
American progress. For behind these untamed chil-
dren of nature, the aboriginal occupants of the
American wilderness, stood France and Spain. Still
more instant for adjustment between particular colo-
nies were Atlantic problems of coast and harbor

72 CONSTITUTIONAL STUDIES.

jurisdiction, and disputes among adjacent colonies
over the use of such navigable waters as the Con-
necticut, Delaware, and Potomac rivers, and the
New York, Delaware, and Chesapeake bays. King
and Parliament might arbitrate such disputes for the
first century or two of rapid growth and expansion ;
but the time was sure to come, not many generations
distant, when a government remote beyond the seas
and monarchical would prove incompetent for a task
so immense that Union with home rule could alone
achieve it.

That these tendencies to Union existed early in
the American colonies, without any clear conscious-
ness of disloyalty or forecast of a coming separation
from the mother country, appears from various
leagues or compacts of the colonial era, chief and
earliest among which should be mentioned that of the
"New England Confederacy." Massachusetts, Ply-
mouth, Connecticut, and New Haven, colonies singu-
larly homogeneous in origin and character, formed
in May, 1643, what they styled a "perpetual con-
federation," — "a firm and perpetual league" for
themselves and posterity under the name of the
"United Colonies of New England." The "sad
distractions " of civil war in the mother country,
which drove these neighboring colonies to their own
resources for mutual succor and advice, furnished the
ostensible and perhaps a sufficient motive for so dar-
ing an assumption of sovereignty and self-govern-
ment. This instrument of sectional Union disclosed
religious as well as political designs; for which
reason it happened, most probably, that Rhode
Island, whose free religious tenets found little favor,
was refused admission. Mutual offence and defence
against native tribes and the Dutch were here sought

EARLY TENDENCIES TO UNION. 73

most of all; and under the united auspices of this
league the colonies who made the name " New Eng-
land " lastingly native, fought together unaided the
Pequod and King Philip wars. Mutual reception
of settlers and the mutual extradition of " servants " 1
and of fugitives from justice were other objects of
the alliance distinctly provided for.

This New England Confederacy, jealously exclusive
and sectional in character, and stipulating expressly
that without a unanimous assent no other colony
should share its benefits, respected scrupulously the
autonomy of each sovereign member of the Union
and all reserved rights. Its management of confeder-
ate affairs was in the nature of a joint representative
board, or committee. Eight commissioners compris-
ing the board, with an equality of representation, 2
and chosen two each from the several colonies, were
to manage the common concerns, meeting once a year
by rotation in Boston, Hartford, New Haven, and
Plymouth, and on extraordinary occasion at con-
venience. Six out of eight might determine the
common business, "not intermeddling with the gov-
ernment of any of the jurisdictions;" and if six
commissioners could not agree, the subject was to be
referred to the four colonial legislatures for conclu-
sion. No provision was made for amending these-
Articles of Confederation ; but for any infraction of
the league, commissioners of the other unoffending
jurisdictions should consider and order for the peace-
ful preservation of this Union inviolate. The charge
of all just wars offensive or defensive was to be
borne by a poll or census enumeration, each colony
rating for itself ; and all booty or conquered territory
was to be ratably divided. Any of these confederated

1 Cf . Constitution of United States, Art. IV. § 2.

2 Two from each colony, and " all in church fellowship with us."

74 CONSTITUTIONAL STUDIES.

colonies "invaded by any enemy whatsoever" was
to call upon the others for assistance. 1

Boards of commissioners, mutually chosen on the
principle of co-ordinate sovereignty, were found in
various other instances a convenient mode of nego-
tiating differences among the colonies or planning
concerted action. Thus did the navigation of the
Chesapeake and Potomac waters engage Maryland
and Virginia from time to time; and disputed
boundary rights were elsewhere a cause of irritat-
ing collision, demanding a mutual conference for
adjustment.

After the New England Confederacy had finally
disappeared, various plans were proposed for a more
comprehensive union of all the British colonies in
North America, which might insure unanimity of
action, more especially against the French and
Indian allies who menaced their general safety. One
such plan was considered at London by the Board of
Trade, but the peace of Ryswick caused it to be for-

1 See Bowen's "Documents of the Constitution," 79, for these
" Articles of Confederation." This was indeed a daring document for
recognized subjects of the British Crown to frame and carry into effect
without a submission, so far as appears, to the home government or
the procurement of home authority. Some writers have thought that
these New England colonists intended a sectional rebellion ; but we
need not strain the natural purport of the league, which (though styled
" perpetual ") aimed to provide for immediate needs while Great Britain
was absorbed in her own struggle for existence. These New England
settlers inclined strongly from the first to resolve all political doubts of
authority in their own favor ; and there were contingencies certainly,
in the English civil war and under Cromwell's usurpation, which might
have wrought out a premature colonial independence in America prior
to a continental union. To take such contingencies into account was
neither rebellion nor disloyalty. This New England Confederation
kept its vigor and efficacy for some forty years, and until after the
accession of Charles II. ; and Hutchinson says that it received Eng-
lish countenance and acknowledgment from its beginning until the
Restoration.

EARLY TENDENCIES TO UNION. 75

gotten. Half a century later, under the new pressure
of French and Indian hostilities which threatened to
expel British influence from the continent, came two
significant tokens of confederate union (1) in the
assembling of a Convention (or Congress) of colonial
delegates at Albany in 1754, and (2) in the adoption
and proposal by that convention of a plan of union
which Benjamin Franklin, as a leading delegate, had
drafted. 1 Seven colonies north of the Potomac were
here represented, the Board of Trade having sum-
moned the convention in view of impending war;
and being thus assembled, the delegates, in addition
to the Indian treaty business which was the main
concern, discussed the weightier subject of union and
confederation for the general interests of these North
American colonies in peace as well as war. Among
other plans accordingly presented, Franklin's was
preferred, and after a protracted debate adopted
either unanimously, or with the dissent of a single
State. But outside of the convention this plan met
but little favor. It was rejected presently by all the
colonial assemblies which considered it at all, while
the Board of Trade declined even to recommend it
to the King's notice. As Franklin says, "The
assemblies all thought there was too much prerogative
in it, and in England it was thought to have too
much of the democratic." Indeed, the obvious effort
of this instrument to please all parties, and to recon-
cile dutiful allegiance with home rule, produced its
natural result.

In Franklin's plan of 1754, as supplied from his
posthumous papers, the various items of proposed
government are set forth with annotated reasons and

1 As Postmaster-General of these colonies by appointment of the
British Crown, Dr. Franklin had ample opportunity to consider later
the advantage of a closer system of continental union.

76 CONSTITUTIONAL STUDIES.

motives for each of them. Its preamble, in choice
and deferential language, proposed petitioning for an
Act of Parliament which might establish one general
government for these American colonies, under a
reservation that each colony should retain its existing
constitution except in the particulars set forth. The
scheme proper is styled, " Plan of Union of the British
American Colonies ; " thus discreetly avoiding any
style savoring of independence, such as the New
England Confederacy had employed, or claiming to
last as perpetual. A Grand Council was created,
after the familiar pattern of a Board of Commis-
sioners, but with this new step in advance, sure to
provoke resistance, that colonies were not to be
coequal in composing it; council representation, in
other words, being based upon a sort of money
apportionment, which proposed taking always into
account the relative contributions of the thirteen
colonies to the general treasury, and under its
preliminary schedule placed Massachusetts, Virginia,
and Pennsylvania distinctly foremost. Such par-
tiality must have provoked the jealousy of smaller
States, while on the other hand compromising theo-
retically the sound democratic doctrine of apportion-
ing by numbers. Then, as if to disconcert the
representative authority of these colonies, a Presi-
dent-General, made after the image of the familiar
provincial governor, was to be appointed by the
Crown to carry into execution with very ample dis-
cretionary powers the acts of the Grand Council.
Without his assent their representative decrees were
to be of no avail whatever. Indian peace or war,
and Indian treaties, this President-General might
determine with the advice of the Grand Council;
while as concerned appointments, he was to nominate
all military officers to them, and they were to nomi-

EARLY TENDENCIES TO UNION. 77

nate ^11 civil officers to him. This common govern-
ment of the colonies was to raise soldiers, build forts,
and equip vessels to guard the coast and protect
commerce; and for the purposes delegated it was
to levy duties, imports, or taxes at convenience, and
appoint a general Treasurer. One pregnant power
was that of purchasing lands from the Indians and
regulating and governing new settlements in the pur-
chased territory until the Crown should see fit to
form them into particular governments. For, as Dr.
Franklin argued, a single purchaser, in the name
of the Crown or the Union, and a single authority
for developing new colonies, was preferable to many.
No money should issue, however, but by joint
order of the President-General and Grand Coun-
cil; and (as in most of the individual colonies) all
laws passed by their concurrence were to be trans-
mitted to the King in council, subject to his approval
or disapproval. 1

On the whole, this Franklin plan of continental
union, though a sagacious emanation for the times,
projected too difficult a political experiment, in
harnessing so closely King and colonies, prerogative
and people, for a general direction of affairs which
each must have felt better competent to under-
take alone, — an experiment which, proposing co-
operation, was more likely to end in distraction.
That spirit, too, of self-sacrifice and subordination,
which so many equal jurisdictions would have to in-
voke when delegating authority for the sake of union,
needed some clearer incentive. The conclusion of
the colonists was wise, therefore, to wait for some
more solemn exigency, when union and home govern-
ment might more readily coincide. Yet the scheme

1 See Bowen's Documents, 87, for " Franklin's Plan."

78 CONSTITUTIONAL STUDIES.

proposed by. America's most distinguished son and
statesman of that early day, and the discussion over
its adoption, undoubtedly prepared the minds of
American colonists for the genuine continental union
which took definite shape a generation later.

II.

INDEPENDENCE AND REVOLUTION.

1765-1780.

During the first sixty years of the eighteenth cen-
tury these transatlantic colonies maintained peace-
ful relations with the mother country, joining as loyal
sons of Great Britain in the prosecution of the French
and Indian War, and rejoicing over the crowning
conquest of Quebec as their common glory. As
Burke observed in 1775, America owed little to any
care by Great Britain, but had gained "through a
wise and salutary neglect." But there had been early
causes for discontent in particular colonies; and
when Parliament, with arbitrary pride, undertook to
lay the burden of taxation for that war upon the
colonists, — asserting what a minority so aptly styled
" the right to shear the wolf, " — colonial resistance
became universal. This French expulsion from the
northwestern frontier had strongly developed both
the martial hardihood and the co-operative inclination
of our colonists; and a dispute, formerly languid,
touching the legal status of their several colonial
assemblies, and the abstract right of Parliament to
levy taxes in America without the assent of local
representatives, blazed at once into a continental
issue vital to colonial liberty itself.

-The colonial Stamp Act, which passed the British
Parliament in 1763, gave America the first rude
alarm; the tax itself being slight enough, to be sure,

80 CONSTITUTIONAL STUDIES.

but the principle of levying it most obnoxious, and
the precedent one which might foster other distant
impositions. United protest and resistance, almost
spontaneous, resulted. As co-ordinate colonies had
sent delegates to a convention in 1754 on the King's
summons, so now they summoned a convention of
their own, which met in New York City in October,
1765. This was the assembly historically known as
the " Stamp Act Congress ; " and so ominous was the
spectacle of such a body that Parliament and the
Crown receded a short while from the new endeavor,
and early the next year this Stamp Act was repealed.
But Parliament still claimed the unqualified para-
mount right to legislate for the colonies on all sub-
jects whatsoever; and under the influence of the
stubborn George III. the policy of arbitrary taxation
for the colonies was resumed in a new mode, and
with vexatious accompaniments for humbling Massa-
chusetts, whose rebellious temper, fomented by
earlier differences, singled her out for discipline.
Our thirteen colonies resolved unitedly that the
oppression of one jurisdiction should be deemed the
oppression of all; and a Continental Congress was
once more convoked; this time, as events compelled,
to become the prime agent of unified revolution and
of a new unified confederacy. At Philadelphia met
the first Continental Congress, September 17, 1774,
followed by the second in May, 1775, after bloodshed
had begun. Events forced what might have been
otherwise a temporary assembly into a permanent
one. In this second Congress a commander-in-chief
was appointed for all the colonies, continental troops
were enrolled, and quotas of men and money were
assigned. At the third Congress of 1776, with
delegates chpsen for the year as before from the
several colonies, the war for independence swept like

INDEPENDENCE AND REVOLUTION. 81

a torrent all scrupulous sense of allegiance, and on
the 4th of July of that year the immortal Declara-
tion went forth to the world.

This great body of the American people had taken
up arms not to vindicate abstract rights, but to
redress practical wrongs; and revolution and inde-
pendence came to them, in the main, as the logical
and unpremeditated result of a hostile domestic
resistance. For after a resort to the arbitrament of
violence, victory can seldom rest with wiping out the
temporary wrong, leaving the opportunity as before
to inflict new ones. 1 In reading over this Declara-
tion of Independence, with its earnest indictment of
grievances against Great Britain, one perceives that
the whole denunciation was concentrated upon the
King in person, while Parliament received but an
indirect and contemptuous allusion. The "self-
evident" truths which this instrument asserted by
way of preface are long since familiar to Americans
as household words, and doubly cherished as among
the fundamental rights of each new State constitu-
tion. And one should observe, moreover, that this
" Declaration of Independence " recognized thus
primarily the composite nature of the political system
into which henceforth the old colonies were to be
welded; for its solemn announcement to the world is
not that these several colonies, but that "these
United Colonies " are, and of right ought to be, "free
and independent States;" and independence is here
published and declared by "the Representatives of
the United States of America, in General Congress
assembled," and expressed "in the name and by the
authority of the good people of these Colonies." 2

1 Cf. 7 Jefferson's Works, 74.

2 Cf. Instrument, Bowen's Documents, 102.

82 CONSTITUTIONAL STUDIES.

In short, the United States of America never con-
sisted of States wholly sovereign and apart from one
another, and capable each of independent, separate,
and distinct action. As for most of those jurisdic-
tions at present comprising the American Union,
their origin, subsequent to the adoption of our
present Federal constitution, placed them severally
in a filial and subordinate relation; each was nur-
tured and reared on the national territory, under
national regulations, and, when adult, admitted upon
fundamental terms prescribed by Congress as a full
State and fellow-member of the Supreme Federal
Union. Of foreign annexations to the United States,
Texas, as a de facto republic, but not formally recog-
nized as such by Mexico, adopted the constitutional
conditions held out by Congress, while Louisiana
and Florida served first a territorial probation. No
members whatever of this Federal Union have had
the historical right to be considered sovereign and
independent in more than a secondary sense, except
the old historical thirteen, who together dissolved
allegiance with Great Britain, conquered their united
independence, and formed for themselves a confeder-
ate league, and then, as ordained by the people, a
closer union. But even they, until absolved in 1776
from allegiance to the mother country, were all ruled
severally as offspring and dependencies of the British
Crown; and from that subject condition they each
and altogether passed at once into a new subordina-
tion to the continental union symbolized by their own
Congress. Simultaneously, indeed, with independ-
ence, articles of permanent Federal union which
should have a delegated operation were contemplated ;
and during the delay of formulating that new plan,
the Continental Congress, without more explicit
credentials than necessity and public opinion might

INDEPENDENCE AND REVOLUTION. 83

have conceded to that body, guarded by the annual
choice of delegates in each State through convention
or legislature, raised a common army and a navy,
contracted common debts, apportioned State quotas
of money, men, and supplies, carried on foreign rela-
tions as a single sovereign power, and assumed plenary
powers of war and peace. From Articles of Con-
federation, styled perpetual, and so accepted by
them, these thirteen States emerged into the better
Union devised by our still operative constitution of
1787. Through all such fundamental changes in
Anglo-American institutions there was not a moment
when any of these Atlantic communities could be
deemed sovereign, independent, and free from a
supervising political authority in a legal and practical
sense, except, perhaps, for Rhode Island and North
Carolina, during the year or two following 1788 that
they refused to ratify the new Federal constitution,
while the other States, choosing Washington for
President, and rallying to the united support of his
first administration, entered upon the new era of
national existence without them.

III.

ARTICLES OP CONFEDERATION.

1781-1789.

The original United States of the Revolution were,
for five years following July, 1776, held together by
a sort of de facto alliance, and by the practical dele-
gation of common authority to Congress by the old
thirteen States without a strictly formal sanction.
Some legal writers of unquestioned repute consider
that first continental government of this Union as
strictly revolutionary in character. 1 Yet the impor-
tant historical circumstance should not be overlooked
that a written and formal plan of permanent confed-
erated union was meant by the Continental Congress
to be essentially contemporaneous with the Declara-
tion of Independence itself; that the Declaration by
its own language indicates that purpose ; and that not
only in the Congressional debates which preceded the
British separation, but as one of the formal resolves
which prefaced that momentous action, a plan of con-
federated union was, June 11, 1776, to be drawn up
for formal adoption. Thus, while one committee
prepared the instrument of independence, another
was engaged upon that of union, reporting it for
debate only eight days after the famous July 4th.
Discussed by Congress during the same July in com-
mittee of the whole, this plan of union suffered
further delay, as such plans are likely to while war

1 000167*8 Elements of Constitutional Law, 9.

ARTICLES OF CONFEDERATION. 85

absorbs men's minds; but at length, agreed to in
Congress, November 15, 17T7, with some unimpor-
tant amendments, the scheme of Confederation went
out to the States for their formal and separate sanc-
tion. A few of the smaller States, however, deferred
ratifying, nor was it until 1781 that Maryland, after
gaining an important concession to the Confederacy
independently of the instrument, made the compact
and sanction of continental Union complete. 1 Yet
through the whole intervening period Congress had
exercised for the emergency its contemplated powers,
as though formally clothed with them, while the
American people acquiesced because such had been
their own fundamental intent. A continental army
fought meantime for independence under a continental
commander-in-chief, obedient to this unempowered
Congress, and in the name and under the flag of the
Confederacy; and on behalf, moreover, of the new
"United States of America" were sought foreign
recognition in Europe, foreign loans, and foreign
alliances.

At length, under the ratified and completed Articles
of Confederation, and as a fully legitimated parch-
ment government, Congress reassembled, March 2,
1781, for its usual business, making no special recog-
nition of its new status; but rather as though to
navigate for the future with a chart where they had
been piloting as best they might without one.
Examining these Articles of Confederation, we see
that the main design, agreeably to their origination,

1 Maryland's delay was not without good purpose ; which waa to
force large States like Virginia, having claims in the unsettled north-
west territory beyond the Appalachian range, to cede their individual
rights in favor of the common Union. See monograph (1878) of Dr.
H. B. Adams. The Articles of Confederation expressly provided that
" no State shall be deprived of territory for the benefit of the United
States." Articles, IX. 2.

86 CONSTITUTIONAL STUDIES.

was simply to invest this representative Continental
Congress of the thirteen States with such powers as
naturally and of necessity pertained to a continental
and united exercise of public authority, and as public
opinion already upheld. 1

The general scope, then, of these "Articles of
Confederation," as we gather by a study of the
adopted instrument, coincides with that of the ex-
temporized and preliminary Revolutionary govern-
ment of the Union ; jealous provision being quickly
applied to constrain and limit those formidable
powers, by reserving expressly that each State shall
retain "its sovereignty, freedom, and independence,
and every power, jurisdiction, and right, which is
not by this Confederation expressly delegated to the
United States in Congress assembled." 2 Except,
indeed, for what Maryland is seen to have finally
gained in behalf of the common territory, the changes
wrought out by time and discussion in Congress
after the plan was first reported from committee, seem
to have been mostly in the cautious direction of cir-
cumscribing this new Federal supremacy; nor was
Maryland's happy gain, out of which grew our grand
system of public land settlement and the procreation
of new States westward, in the nature of an amend-
ment to those Articles, but rather so as to induce

1 The committee appointed, June 11, 1776, to prepare a form of
Confederation consisted of one member from each colony. John
Dickinson appears to hare had the chief hand in drafting the com-
mittee's instrument ; but the work was most likely a composite one,
seeking to formulate a scheme which Congress was already develop
ing into action. Little is really known concerning the details of these
"Articles of Confederation" as the composition took its final and
historical form.

Dickinson's draft of 1776, as well as one which Franklin had pre-
pared in 1775, proposed ampler powers than the final Articles granted.
Story, Constitution, § 284.

2 Articles, II.

ARTICLES OF CONFEDERATION. 87

legislation by the old Continental Congress of doubt-
ful constitutional warrant, as Articles were expressed,
though justified by the terms of Virginia's voluntary
cession.

In these Articles, the chief fact that confronts us
is that the Montesquieu idea of a distinct separation
of powers for well-ordered government is wanting.
Such government was thought to answer for States
at the outset, but not for the Union. We find, then,
no distinct Executive nor distinct Judiciary provided ;
but all common powers of the Confederacy, as they
were first laid off, vested in that general Legislature
styled the Continental Congress. Nor was this
Congress a fully developed legislative body. It con-
sisted of but a single house ; its members were chosen
in practice not by individual voters, but by a State
legislature ; 1 members did not vote on questions as
representatives chosen upon a poll or property basis,
but simply as a State delegation or unit. All States
were coequal and alike in that body, no matter what
the relative number of soldiers they might supply or
the relative sums poured out in the costly struggle
for freedom ; and it was the noble self-denial of the
greater States, not the urgency of the smaller, that
first made continental union possible. In fine, the
advance of political construction from the old pro-
jected Committee, or Grand Council, of colonial times
had not been so very great for this first fundamental
government of the American Union.

This Continental Congress all the more resembled
a colonial Board of Commissioners, or Grand Coun-
cil, from its choice to sit constantly as a secret body,
publishing no report of its debates, and gaining neither

1 Yet delegates were nominally to be appointed in such manner as
each Legislature should direct, and hence might have been popularly
chosen. Articles, V.

88 CONSTITUTIONAL STUDIES.

buoyancy nor direct guidance from public opinion.
Delegates, not less than two nor more than seven
from each State, made up the quorum that voted as a
State unit, thus diminishing still further all sense of
individual responsibility to constituents ; and it was
provided that no person could serve more than three
in any term of six years. Each State paid the recom-
pense of its own delegation, 1 and might at any time
recall a delegate and send another in his place. And
thus did it become matter of familiar remark, after
the first impulse of patriotic energy had subsided,
that the ablest of Revolutionary civilians gave their
talents, in preference, to the service of their respective
States, leaving Congress to shift as it might in the
continental conduct of affairs, often without a quorum
of delegates at all to represent the State on an impor-
tant issue.

Congress was invested with authority to appoint a
" Committee of the States," consisting of one delegate
from each State, to sit in the recess ; but this expe-
dient did not work well. It had authority, more-
over, to appoint a presiding officer; yet the President
of Congress was scarcely more than a ceremonial
functionary. 2 Seven out of these thirteen States,
coequal in voting, might, despite all such obstruc-
tions, have proved by their majority competent for
conducting affairs, had not these Articles, as though
fearful of efficiency, made the affirmative assent of
nine States present and voting by a quorum of their
respective delegations needful in all the most impor-
tant public business. For without such affirmative
assent of nine out of thirteen States, Congress was
forbidden to engage in war, enter into treaties or
alliances, coin money and regulate its value, ascer-
tain money quotas, emit bills, borrow or appropriate
1 Articles, V. 2 Articles, IX. 5 ; X.

ARTICLES OF CONFEDERATION. 89

money on the credit of the United States, agree upon
the number of land or naval forces to be raised, or even
appoint a commander-in-chief of army or navy. 1

However fairly one may construe this government
with reserved State sovereignty as a confederated
league, he should observe that whatever general
powers were actually given by this instrument were
given as though permanently and forever; for these
Articles were styled " Articles of Confederation and
Perpetual Union." They expressly invited the
further accession of Canada, and provided (with the
assent of nine States) for the possible admission of
other colonies ; and they made solemn stipulation to
abide severally by the constitutional determinations
of Congress, and that the Articles " shall be inviolably
observed by every State, and the Union shall be per-
petual." 2 The American people well understood
already that in union there was strength, and with-
out it sure disaster. But the practical defect of the
whole primitive system of union, and that which
finally ruined it was, as history shows us, the want
of a practical amending power; for no alteration in
these Articles could ever be made, as the instrument
prescribed, unless (1) agreed to in Congress, which
was proper enough, and (2) confirmed afterwards by '
the Legislature of every State. 3 But this latter pre-
requisite proved at the crucial test impossible.

Vast, undoubtedly, were the original powers thus
delegated to the Union, had the several States but
bestowed them in a manner to permit of their efficient
exercise. For the nominal authority of these " United
States in Congress assembled," under the sanction of
the "firm league," now entered- into, was sole and
exclusive (with some minor reservations) in determin-
ing peace and war; in foreign intercourse and foreign

1 Articles, IX. 6. a Articles, XI., XIII. 8 Articles, XIII.

90 CONSTITUTIONAL STUDIES.

alliances ; in regulating captures and prizes, or grant-
ing in times of peace letters of marque and reprisal ;
in "appointing courts" for the trial of piracies and
felonies committed on the high seas, and for deter-
mining captures ; in regulating the value of coin and
the standard of weights and measures; in managing
all trade and affairs with the Indians ; in establishing
and regulating post-offices; in appointing all army
and navy officers in the service of the United States,
excepting regimental officers of the land service ; and
generally in regulating and directing all warlike
operations. 1 Congress was further empowered to
ascertain, appropriate, and apply such sums as might
be needful for the public expenditure; to borrow
money or emit bills on the credit of the United
States, transmitting its accounts half-yearly to the
States ; to build and equip a navy ; to make requisi-
tions on the several States for quotas of troops appor-
tioned on a basis of white population. 2 All charges
of war and other expenses " for the common defence
and general welfare " were to be defrayed out of a
common treasury which the several States were to
supply in proportion to the value of lands and
improvements in each jurisdiction, as Congress might
estimate from time to time. The States themselves,
under direction of their several Legislatures, were to
levy and collect their several portions of the common
tax ; 3 and thus, as experiment proved, States became
delinquent in supplying their contributions, while
the delinquency of one State prompted the delin-
quency of others. All bills of credit emitted, all
money borrowed, and all debts contracted by Con-
gress before these Articles of Confederation went
formally into operation were declared solemnly bind-
ing upon the United States.

1 Articles, IX. 1-4. 2 Articles, IX. 5. » Articles, VIII

ARTICLES OF CONFEDERATION: 91

Coupled with such grant to Congress of general
powers which initiate much of the sovereignty still
exercised by our Federal government under a far
better sanction, were various prohibitions upon the
individual States. They were not to hold independ-
ent foreign intercourse nor make independent treaties
regardless of Congress ; they were not without con-
sent of Congress to enter into alliances or confedera-
tions among themselves; they were not to keep up
armies and navies of their own in time of peace, but
to rely locally upon a well regulated and disciplined
militia; they were not at their own instance to en-
gage in war nor to issue letters of marque and reprisal
in time of peace unless invaded or in imminent
danger. 1 When raising land forces for common de-
fence, each State was still to appoint its own regi-
mental officers. 2

The interstate advantages of a consociation like
this were at once appreciated, as they have been ever
since, and as the New England Confederacy had
prized them. Articles of Confederation declared the
free inhabitants of each State entitled to all privi-
leges and immunities of free citizens in the several
States. The free right of ingress and egress was
conceded to or from different States, together with
reciprocal privileges of trade and commerce, so far as
the new and imperfect system might reasonably
afford them; the interstate surrender of fugitives
from justice was stipulated ; and full faith and credit
was to be given in each State to the records, acts,
and judicial proceedings of every other State. 8

But restraints upon restriction made the original
grant of delegated powers to this Union so parsimo-
nious, after all, in some particulars, that only a minute

» Articles, VI. 2 Articles, VII. 3 Articles, IV.

92 CONSTITUTIONAL STUDIES.

study of the text itself can enable us to apprehend
the true limits. Comparison, therefore, with the
broader transfer of Federal powers to our later con-
stitution will be useful when analyzing that more
perfect instrument. But it is worthy of final mention
here, as showing the league character of our " Articles
of Confederation," and the alliance of quasi-soveieign
States, that the mode of State ratification kept up
sedulously the idea of a delegated authority to the
new government. Congress, as the single delegated
council of these thirteen coequal States, framed the
Articles, and then proposed them, not to conventions,
but to the several State Legislatures for adoption.
These State Legislatures, as representative agents
each of the State and its inhabitants, authorized duly
their several delegations in Congress to sign the
Articles "on the part and behalf of the State." All
was done by compact and power of attorney, high
above the heads of the common people, and without
direct reference in the least for their fundamental
approval. Not a word or suggestion of a State con-
vention fresh from the inhabitants, nor of immediate
and authoritative sanction derived from them, appears
in the whole solemn establishment as if by treaty of
this common government of the United States ; and
yet each State delegation in Congress, while ratify-
ing, as a unit, these Articles of Confederation, "by
virtue of the power and authority " given for that
purpose, as their signatures recited, solemnly and
expressly pledged and engaged the faith of its State
constituents to abide by the "perpetual" Union
thereby established. 1

1 See Articles, ratifying clause at the close.

IV.

THE FEDERAL CONSTITUTION; ITS NATURE AND
ESTABLISHMENT.

1787-1789.

It is matter of familiar American history that the
Articles of Confederation, feeble enough for their
amplest and most essential exercise of supremacy
during the long and exhausting struggle for a com-
mon independence, failed utterly as the efficient
instrument of peace and recuperation. Their radical
defect consisted in attempting ,to operate upon States
in a collective capacity, and to exert an authority
whose sinews depended upon a co-sovereign supply.
Under the unexampled stress and strain of State
necessity, the common government of this Union
found but a careless heed to its wants, notwithstand-
ing the solemn pledge and obligation to relieve them.
Abstractly, to be sure, and as a matter of funda-
mental right, Congress might have summoned all the
military forces of the Union to compel the money
quota of a delinquent sovereign; practically, how-
ever, any attempted compulsion of the kind could
only have hastened anarchy. And thus did the
Union, projected nobly in the very sublimity of
patriotic passion, sink contemptuously into a govern-
ment of exhortation, not command; and as one
writer said of its Congress, with reference to the
delegated supremacy which they sought to exercise,
"they may declare everything, but do nothing."

94 CONSTITUTIONAL STUDIES.

History teaches that the last hope of saving the old
Confederacy from irresistible wreck was to gain an
amendment to existing Articles which might make
Congress potent to collect a modest impost duty for
general purposes during a moderate and specific
length of time. The positive refusal of a single
State bent on self-aggrandizement defeated that
amendment, and the doom of the Confederacy was
sealed.

How, then, could the American people escape
national calamity ? Only by resorting to their own
final remedies for self-preservation, — their own inhe-
rent right, in fact, which the Declaration of Inde-
pendence had so boldly asserted, to alter or abolish a
form of government destructive of its own rightful
ends, and to institute a new one. They still wished
the United States perpetual, as first proclaimed ; and
they set in operation a representative engine, new in
a national, but old enough in a State, application,
that of "Convention." 1 With popular credentials
superior to any such partial agency of government
as a legislature, men met in convention at Philadel-
phia in 1787, and prepared a renovated plan of con-
tinental union, comprehensive and efficient as never
before, and rightly purporting to emanate as an ordi-
nance of the people. Its reference for adoption and
a practical establishment was not to State legisla-
tures, but to State conventions. There was this
element of revolution — happily a peaceful one — in
the new scheme, that so soon as nine conventions
should ratify and commit their respective States to
it, the new Union would start out on its new career,
leaving the old league, misnamed "perpetual," to
perish with its obstinate remnant. Revolution was
thus far inseparable from the crisis, from " the grind-

1 See supra, page 46.

THE FEDERAL CONSTITUTION. 95

ing necessity," as John Quincy Adams has styled it,
which had compelled an ampler Federal government
as the only escape from anarchy. Persuasion accom-
plished the work of conviction; ten States ratified,
and stubborn New York acceded as the eleventh;
after which safe alliance the perilous situation of
Khode Island and North Carolina, widely separated
as they were, and their own returning sense of
national sisterhood, brought them as the last loi-
terers into the fold, and the new United States of
America stood re-created.

But if this dissolution of the old confederate league,
or rather its supersedure by a new and more efficient
Union, is to be styled revolutionary at all, it was
only so in a partial sense. The Articles had ex-
pressly forbidden the confederation or alliance of two
or more States, " without the consent of the United
States in Congress assembled ; " and aside from any
application here of such a clause, it was impolitic
and unfair to ignore the rightful repository of Federal
power when promulgating the new Philadelphia plan.
Nor did the framers of 1787 propose any such diso-
bedience. No sooner was their finished scheme put
forth at Independence Hall than they hastened to
procure, first of all, the sanction of the Continental
Congress, then in session at New York. That sanc-
tion, which permitted the free proposal of this new
plan to the several State conventions, was given,
and given speedily, before a single State took action
upon the instrument.

Any notion that our Federal constitution of 1787
was a spontaneous birth must be a false and fanciful
one. Our brief exposition of the facts has shown
that it was a gradual conception; in other words,
that it ripened as the matured fruit of political expe-

96 CONSTITUTIONAL STUDIES.

rience. Two leading influences are traceable in its
composition: (1) the American Confederacy, formu-
lated, defined, and sanctioned by the Articles adopted
in 1781, but, in point of fact, originating several
years earlier in united Revolutionary resistance to
the mother country; (2) the written constitutions,
already in full operation, of thirteen individual
States. From the former came that mass of dele-
gated Federal powers, which upon experiment were
found to need enlargement and addition; from the
latter, outlined in bold relief, the main elements
essential to a stable and well-ordered government on
the Montesquieu plan of a threefold division, inclu-
sive of a bicameral legislature, and also (by the
time the plan became modified by the first ten amend-
ments) of a declaration of rights. But the applica-
tion of existing models to a new and difficult piece of
workmanship which excelled them all, was a marvel-
lous creation.

The main change here effected from the former
confederate government consisted in replacing the
league of co-sovereign States by a national, or,
rather, it should be said, a federo-national govern-
ment, which should operate largely upon the people
as individuals, and not upon States collectively;
and this made an immense remedial difference. But
the several States were still left with great dis-
cretionary powers in united concerns; as, for in-
stance, in appointing Presidential electors, and in the
voting qualifications needful for choosing Represen-
tatives to Congress. When the Federal constitution
first went into operation, our States had still the
crust of British aristocracy ; and the constitution of
the United States, as concerned its own structure,
permitted of quite an aristocratic operation, had
States so willed it; but the contrary happened, and

THE FEDERAL CONSTITUTION. 97

American institutions, both State and Federal, be-
came gradually democratized through the irresistible
genius of popular self-government. Most fortunate
was it for the general happiness of America that this
instrument of union, so rigid in its textual mould
and so difficult to alter, left its political scope so free
for circumstances to shape. That the new scheme
meant, however, that Federal power should be exerted
more independently and effectively than before, and
within a wider range of supreme action, whether
this or that set of men might happen through State
selection to control its exercise, is obvious, not only
from a general survey of the constitution itself, but
from certain specific expressions compared with those
of the superseded Articles. It is no longer the States
that "severally enter into a firm league," 1 but "we,
the people," who "ordain and establish." Perpetual
in intent as before, the new purpose is to establish
permanency by suitable means for the people and
their posterity. The word," Confederacy " disappears
forever from the style of " United States of America."
A "more perfect union" is one of the main objects
stated in the new preamble; and even when State
jealousy pressed an immediate amendment expressive
of reserved rights not delegated to the Union, the
text of that amendment expressed such reservation
not to States alone, as in the Articles of Confedera-
tion before, but to " the States respectively or to the
people." 2 In the instrument as originally drawn up
and formally adopted was no allusion to reserved
rights at all. <

i Articles, III.

2 Cf. Articles, TL, and Constitution, Amendments, X. The letter
of the Philadelphia convention, which in 1787 submitted the new in-
strument for the consideration of the Continental Congress, avowed as
the object of the new scheme and the greatest interest of every true
American, "the consolidation of our Union."

7

98 CONSTITUTIONAL STUDIES.

Not a member of that glorious assembly at Phila-
delphia approved in all respects our original Federal
constitution when they signed it. By a very close
majority in some of the State conventions did it se-
cure an unqualified ratification at all ; and that only
upon the assurance of amendments such as the first
Congress under our new government at once sent
forth, and whose adoption quickly followed. 1 But
here, as always, how best actually to secure the good
and remedy the evil was the problem of the times ; for
all good institutions come by accretion ; and as Burke
has wisely observed, "Government is a practical
thing made for the security and happiness of man-
kind, and not to please theorists."

1 See Constitution, first ten amendments, proposed in 1789 and
declared adopted in 1791.

FEDERAL CONSTITUTION ANALYZED; STRUCTURE
AND DISTRIBUTION OF POWERS ; LEGISLATURE.

Let us now examine in detail the constitution of
the United States under which we live, and which
has preserved American liberties for more than a
century; an instrument rather inflexible in form, as
any written constitution must be whose change is not
readily brought about, and yet within that form
capable of giving the nation a splendid development.
The exceeding brevity of its expression, its pragmatic,
concise language, enumerating powers rather than
denning them, and avoiding all " glittering generali-
ties " and the disposition to dogmatize, despite some
notable examples among contemporary States of 1787,
have elicited the admiration of scholars and statesmen
of the old world. 1 It may be that the bitter humilia-
tions which the proud, primitive Union was then
undergoing made the present framers indisposed to
high-sounding abstractions, since their assembled
purpose was to check lawless liberty and teach citizens
to obey; and practical, moreover, in pushing their

1 Mr. Bryce, who is fond of impressive comparison, observes that
our Federal constitution with its amendments may be read aloud in
twenty-three minutes ; that it is about half as long as St. Paul's first
Epistle to the Corinthians, and only one fortieth part as long as the
Irish Land Act of 1881. "History shows few instruments," he adds,
" which in so few words lay down equally momentous rules on a vast
range of matters of the highest importance and complexity." 1 Bryce,
Commonwealth, 363.

100 CONSTITUTIONAL STUDIES.

plans, they knew it was best to go forth to the States
with an instrument which avoided interpretation and
left something to be imagined. Articles of Confed-
eration had been similarly brief, though often far
more involved and obscure in statement.

The new Federal government, as thus arranged,
was composite; in strictness neither national nor
confederate, but a composition of both. "In its
foundation," explains Madison in the "Federalist,"
" it is federal, not national ; in the sources from which
the ordinary powers of the government are drawn, it
is partly federal and partly national; in the operation
of these powers it is national, not federal; in the
extent of them again, it is federal, not national ; and
finally, in the authoritative mode of introducing
amendments, it is neither wholly federal nor wholly
national." 1 The justice of this contemporary expo-
sition will appear more fully as our analysis of the
text proceeds. To borrow, again, the demonstration
of a century's experience, the constitution of the
United States is an instrument of government, agreed
upon and established in the several States by the
people through their empowered representatives pri-
marily in convention, to be operative upon the people
individually and collectively, and within the sphere
of its just powers upon the government of the States
also. 2 Furthermore, the Union thus established is
an indissoluble one, in continuance and confirmation
of that which the States had in the nature of a per-
manent league established previously. If ever there
was ground at all for the interpretation which our
Calhoun school of statesmen once put upon it, —
namely, that States still reserved a sovereign and
paramount right to nullify and to withdraw from the

1 Federalist, No. 39.

2 Story's Commentaries, § 31 1, Judge Coolers note.

FEDERAL CONSTITUTION ANALYZED. 101

Union, — that theory was quenched in the civil strife
and bloodshed of 1861-65, so that the very States
which in its advocacy provoked the agonizing test
were overwhelmingly defeated. Their State consti-
tutions now repudiate all such dogmas in language
unequivocal. Indeed, the ties of common fraternal
intercourse, woven with tenfold more complexity
than before into the intimate fabric of Union, render
this reunited government irresistibly and permanently
— short of such unhappy fate as the sword of suc-
cessful revolt may compel in some remote and un-
foreseen contingency — " an indestructible Union of
indestructible States." 1 Long, in fact, before civil
war and the immense sacrifice of blood and treasure
which it cost to vindicate this establishment of the
whole people as permanent, the whole irresistible
tendency of national policy had been to advance the
national glory and influence against all rivalry of
individual States; and some of the Presidents of the
old era, such as Jefferson, Jackson, and Polk, who
most protested against encroaching upon State au-
thority, did most, by acquiring foreign territory
or otherwise, to consolidate the strength of the
Union.

Inexplicit as was our Federal constitution on
many points which public policy might historically
determine, that policy or national usage, developed
from precedents long acquiesced in by the people,
tends to efface all constructive doubt and fix per-
manently the rule of the constitution. But when
interpreting any written constitution, we should
gather its sense from the general tenor of its lan-
guage, from the whole scope of the instrument, and

i Chief Justice Chase for the Supreme Court of the United States,
in 7 WaU. 100.

102 CONSTITUTIONAL STUDIES.

not from particular terms. 1 We should construe
according to the just intendment of the instrument,
neither too literally nor too freely; giving to the lan-
guage used its reasonable and natural sense. 2 We
should interpret, furthermore, in the light of the law
as existing when the constitution or its particular
phrase was adopted, and as reaching out not for new
guaranties so much as for guaranties already recog-
nized. 3 And we should so construe as, if possible,
to give proper efficiency to powers which are nominally
granted. 4

To enter now upon our analysis of the text, the
constitution of the United States is seen to begin
with a striking preamble. Preambles in documents
of a law-making character are not usually of prime
importance, being little more than explanatory of the
purpose in changing and of the ills to be overcome ;
they do not apart confer or take away fundamental
powers. But the present preamble is virtually an
adaptation from the third of the Articles of Confed-
eration. 5 There it was said that the States " severally
enter into a firm league of friendship with, each

1 Thus, to take the preamble alone, it has been argued that " we
the people ... do ordain and establish this constitution" sufficiently
proves the government national and popular. Yet, when we see among
various other provisions that (Article VII.) the ratification of the con-
ventions of nine States shall establish this constitution between the
ratifying States, we find that a composite or " f edero-national " govern-
ment is its true character.

2 158 U. S. 618.
8 156 U. S. 237.

4 "As men whose intention requires no concealment generally em-
ploy the words which most directly and aptly express the ideas they
intend to convey, the enlightened patriots who framed our constitu-
tion, and the people who adopted it, must be understood to have em-
ployed words in their natural sense, and to have intended what they
have Baid." Marshall, C. J., in 9 Wheat. 1, 188.

6 Articles, III.

PREAMBLE TO CONSTITUTION. 103

other;" but here that "we the people ... do
ordain and establish this constitution," — a profound
and highly suggestive difference. Three of the
objects stated in that article are here repeated with
slight variation : namely, (1) to provide for the com-
mon defense ; (2) to promote the general welfare ; l
and (3) " to secure the blessings of liberty to our-
selves and our posterity. " 2 But three new objects
are added, hinting at former imperfections now to be
remedied : (4) to form a more perfect union ; (5) to
establish justice ; 3 and (6) to insure domestic tran-
quillity. 4 An ancient philosopher urges that, as in
musical composition, every great act of legislation
should have its lofty and appropriate prelude; and
many a document of Revolutionary origin, many a
Revolutionary statute which embodies some grand
reform, is prefaced by a high-sounding preamble;
that, however, which made this Union efficient, chose
only the dignity of a compressed recital.

The first three articles which follow this preamble
in the text distribute the powers of government con-
formably to Montesquieu's maxim, as the States had
already done; but without dogmatic announcement,
and far more appropriately in some respects than any
State had heretofore seen fit to apply the precept.
The executive independence here accorded was really
remarkable, in view of prevalent State practice,
which hampered that department so greatly, though
it is possible that the rude experience of some of

1 " Their mutual and general welfare." Articles, III.

2 "The security of their liberties." Articles, III. In securing " to
ourselves and our posterity," the "perpetual" intent of the Union is
maintained as before.

8 A real Federal judiciary had been wanting under the old system.
4 In special allusion, apparently, to the Shays insurrection and
other State disturbances, which induced the convention of 1787.

104 CONSTITUTIONAL STUDIES.

those young sovereignties had already bred a general
discontent with the tyrannous tendencies of the
Legislature. "The accumulation of all powers,
legislative, executive, and judiciary, in the same
hands," says the "Federalist," in that momentous
canvass of 1788, " whether of one, a few, or many,
and whether hereditary, self-appointed, or elective,
may be justly pronounced the very definition of a
tyranny." 1 But the accumulation of Federal power
under the Confederation had been contemptible
enough; and we still find the line of division some-
times indefinitely drawn, so that the Legislature, by
formulating action, retains the advantage. 2

Article L, which defined and set forth the legisla-
tive power of the United States, was, however, the
foremost and the longest in the whole new compact;
and here, with a reforming spirit which by this time
pervaded the whole Union, the convention of 1787
transformed the single Congress into a body con-
sisting of two chambers, a Senate and a House of
Representatives. By a compromise most admirable
the spirited contest between larger and smaller States
over a basis of representation was so settled that the
new Senate symbolized the equality of States, as in
Congress heretofore, while the new House of Repre-
sentatives was based upon population of the Union
as apportioned under a census to be taken every ten
years. Senators were to be chosen by the legisla-
tures of the respective States, just as delegates to
the Continental Congress had usually been; while
members of the House were to be elected " by the
people of the several States." Under a further com-

1 Federalist, No. 47. This paper styles Montesquieu "the oracle,
if not tlie author," of the precept of separated powers.

2 "Legislative power deals mainly with the future; executive
with the present; while judicial power is retrospective." Cooley's
Elements, 42.

THE FEDERAL LEGISLATURE. 105

promise — obsolete in effect since the final abolition
of slavery — poll representation under the census was
to be modified by an allowance of three-fifths in each
State for such persons as were held in bondage. 1 As
against existing State and Confederate practice,
which favored annual elections, members of the
House were to be chosen every second year, while
those of the Senate were to serve six years, a consid-
erable term which approached in length the nominal
septenary of the British House of Commons. No
constraint upon re-elections to Congress, as under
the old articles, was imposed for the future. 2

That peculiar feature of choosing to the House
which left the actual qualification of electors (or
voters) in each State to depend upon the State rule
for electors to its own " most numerous branch " of
the Legislature, has already been noticed. 3 Through-
out the Union this rule tends steadily towards full
manhood suffrage regardless of property; though
with reasonable exceptions of crime or . pauperism,
and in a very few States of illiteracy besides, — excep-
tions which our latest Federal amendments declare
shall operate no denial to vote on account of race,
color, or previous condition of servitude. 4 As to
requisite qualifications of those chosen to either
House of Congress, a liberal advance upon State
policy was at once made in our Federal instrument;
for no tests were set up but those of a reasonable

i This was the real intendment of the expression " all other per-
sons," the word " slave " being judiciously kept out of the text. Con-
stitution, I. §§ 2, 3. Under Amendment XIV. § 2 (1866), the rule of
apportionment is restated so as to meet the new condition of national
freedom; " Indians not taxed " being still excluded from the reckoning
as before. See more fully, post.

2 See Article V., page 88.

8 Supra, page 96.

* Amendments XTV, XV. (1866-69).

106 CONSTITUTIONAL STUDIES.

limit of age beyond majority, a length of citizenship
varying slightly for the two branches, and residence
when elected as an inhabitant of the State in which
one was chosen. Religious and property distinctions
cease wholly to apply, and no State has the right to
impose them in any national candidacy. 1 Nothing,
however, in the text of the constitution forbids the
choice of all representatives for any State upon a
general ticket ; and such really was the earlier method
of choice in most States and the long-continued prac-
tice in certain of them; but by 1872 Congress
required uniformity, and the election of members of
the House must now be, as State usage prefers, " in
districts of contiguous territory." 2

The times, places, and manner of holding elections
for senators and representatives shall be provided in
each State (so the constitution declares) by the Legis-
lature thereof ; but Congress may by law at any time
make or alter such regulations, except as to the
places of choosing senators. 3 Hence we find further
national enactments by way of judicious regulation :
elections (once scattered through the calendar year
most inconveniently) are to take place uniformly on
the Tuesday next after the first Monday of Novem-
ber; 4 all votes for representatives in Congress must
be by written or printed ballot; 6 and for the election
of United States senators by a State legislature the
time and mode of choice are definitely prescribed. 6

1 See Story, Commentaries, §§ 624-629, Cooley's ed.

2 Art. I, § 2; Rev. Stat. U. S. § 23. No Federal provision
insists that members of the House shall be residents of their several
districts.

8 Const., Art. I, § 4.
* Rev. Stat. U. S. § 25.

5 lb., § 27.

6 On the second Tuesday after the meeting and organization of the
Legislature which next precedes the expiration of a senatorial term
such Legislature shall proceed to elect; and at least one ballot shall

THE FEDERAL LEGISLATURE. 107

Vacancies occurring in either branch are specifically-
provided for. 1

No longer dependent upon their several States for
a precarious recompense, members of Congress were
henceforth to be paid out of the treasury of the
United States at a rate of remuneration to be ascer-
tained by law. 2 As under the old articles, and in
State fundamental law, they were to be privileged
from arrest while in attendance on the Legislature
or while going and returning, except for treason,
felony, or breach of the peace ; and freedom of speech
and debate was still assured to them. 3 Office-holding
under the United States was, as before, pronounced
incompatible with a seat in Congress; and appoint-
ment to a Federal office created or with emoluments
increased during such service in Congress was further
to a stated extent forbidden. 1

The doubles-house or bicameral feature has proved
in Congress as elsewhere of vast advantage to public
stability, introducing delay, afterthought, and the
opportunity of correction, all the more salutary wher-

be taken daily during the rest of the session until some one, if possible,
is chosen. Kev. Stat. TJ. S. §§ 14-17.

1 Const., Art. I., §§ 2, 3.

2 lb., § 6. Cf. Articles, V., supra, page 88. Congress has by-
law changed from time to time the method and rate of compensa-
tion, — sometimes fixing a per diem, but latterly establishing a stated
salary. Mileage has also been allowed so as to better equalize the
common recompense, since travel from their respective homes to the
capital varies with membership so widely. Increase of compensation
should be prospective, if possible, for constituents have invariably re-
buked a Congress which assumed to raise its own pay. At the outset
of Federal government, the Senate undertook to assert a superior
dignity, claiming higher pay as an incident ; but the House resisted
all such pretensions and compelled an equal compensation for both
branches.

3 Const., Art. I., § 6, and cf. Articles, V., supra.

* lb. As to State example on such points, see supra, page 56.
The venal and insidious influence upon Parliament of a British min-
istry served as a warning to Americans in those early times.

108 CONSTITUTIONAL STUDIES.

ever the two branches combine public influence differ-
ently,- nor can venality gain its ends so readily under
such double adjustment. Public bodies always tend
strongly to tyrannize and accumulate force; and
while friction ought not to be so great as to block
business or dishearten great reforms, deferred legis-
lation is better than crude and unwise enactment.
Each branch of our American Congress has a rational
and not adventitious basis of its own, — a basis which
in a certain sense is popular ; and were it not for two
faults in our present Federal system, the Senate, de-
spite its exasperating defiance sometimes of national
opinion, would prove an excellent bulwark for con-
servatism. These faults are : (1) the too great facility
for creating new States by the concurrence in Con-
gress of bare majorities, so that older States, im-
mense in numbers, wealth, and intelligence, become
overborne permanently in the Senate by wild and
drifting communities at the remote west who seize
upon political power, while yet the elements of state-
hood are raw and unassimilated ; (2) the election of
all senators by a legislature, which at least is a
method of choice quite out of date with a progressive
democracy, and has favored in many States an insid-
ious and underhand manipulation. 1 Designedly, and
under favoring conditions in full effect besides, the
Senate of the United States — far less even now in
numbers than the French Senate or English House
of Lords, though more readily, perhaps, commanding
an attendant majority — is a deliberative body of

1 While our Federal constitution continues unchanged in this re-
spect, the best recourse of States and the people is — as Illinois has
exemplified on two memorable occasions — to project the candidacy
of rivals for Senator into the popular canvass which precedes the
choice of legislators, and thus pledge the latter in effect as Presidential
electors are pledged.

THE FEDERAL LEGISLATURE. 109

great dignity and stability, and might command at
all times the most talented and virtuous of the whole
people, if only the State would summon such men;
it is rightfully the forum of national eloquence and
the palladium of political wisdom. Our House of
Representatives, though a much smaller body than
the British House of Commons and the French
and Italian chambers which correspond to it abroad,
proves less the arena of debate than of action, and
under the operation of rules lapses into a huge intel-
lectual machine for the achievement of business ; and
feeling so quickly, moreover, and so constantly, the
passing moods of popular opinion, its members, sub-
missive each under compulsion to his own constituency,
allow their own independence to be shackled, or else
assert it at the sacrifice of a precarious public agency.
In this there are doubtless advantages to the people
themselves. But the courtesy, quiet, and freedom
of the Senate has been contrasted with the turbulence
of the House of Representatives ever since both
bodies occupied with open doors the same building.
And to make the Senate all the more stable by com-
parison, with an experienced element in its member-
ship inseparable from deliberation, the classified
system of rotation already in vogue in certain States *
was here applied, so that one-third of this Federal
chamber, and no more, should vacate their seats for
successors every second year, or as each new House
of Representatives came into power. 2 On the other
hand, the right of popular district constituencies in
the States to choose biennially to the House has kept
the whole people alert in public vigilance, and capa-
ble of holding one branch, at least, of the Federal
Legislature directly amenable to their will.

Congress, as thus constituted, was directed to
i Supra, page 54. 2 Const., Art. I., § 3.

110 CONSTITUTIONAL STUDIES.

assemble at least once in every year; namely, on the
first Monday in December, unless they should appoint
by law a different day. 1 The House of Representa-
tives were to choose their own Speaker and other
officers; but over the Senate the Vice-President of
the United States was designated to preside ex officio,
while the Senate chose their other officers, including
a President pro tempore for all contingencies of a
vacancy. The fundamental distinction has wrought
out great divergence in the practice of the two
houses; for the Speaker of the House, invested by
consent with the patronage of all committee appoint-
ments in that popular branch, has become a national
personage of vast consequence, over whose choice a
closely divided house has fought many a hard battle
at its first gathering; but in the permanent Senate,
organization is almost automatic, the subordinate
places are quietly filled and committees arranged or
rearranged as may seem fit to any existing majority
of the members, who thus control their own patron-
age, while the Vice-President of the United States
occupies the chair, unable to vote except in an equal
division; and the equilibrium of States, each repre-
sented by two members, continues for most of the
time unimpaired. 2

Methods of procedure are defined in the consti-
tution by various rules, some of which State in-
struments had prescribed already; both State and
Congressional usage in America being largely derived,
however, from the Parliamentary common law of our
colonial era, here set forth in considerable detail.
Each house was to judge of the elections, returns,
and qualifications of its own members ; and a majority
of each should constitute a quorum to do business,
while a smaller number might compel under penalties

1 Const., Art. I., § 4. 2 Art. I, §§ 2, 3.

THE FEDERAL LEGISLATURE. Ill

the attendance of absent members. 1 Each house was
to determine the rules of its proceedings, punish its
members for disorderly behavior, and with a two-
thirds concurrence resort, if so disposed, to expul-
sion. 2 Each house was to keep its appropriate journal,
and publish the record from time to time, entering
the yeas and nays of members on any question, at
the desire of one-fifth of those present. Neither
house could adjourn during the session for more than
three days without the consent of the other, nor to
any other place. 3 All bills for raising revenue were
to originate in the House; but the Senate might
propose or concur with amendments as on other bills. 4
The method of passing all bills, orders, resolutions,
or votes to which a concurrence of the two houses
was needful (except on a question of adjournment)
involved submission to the President of the United
States for his approval : if approving, he signed, and

1 See similar State provisions, supra, page 56. A majority is the
usual quorum for business in a deliberative body ; but, regarding the
practical difficulty of securing regular attendance, a less number is
prescribed as sufficient in many assemblages. Thus, in the English
House of Lords three lords constitute a quorum, and in the House of
Commons (a body of some six hundred members) forty-five may suffice
for the despatch of business. Story, Constitution, § 834. That less
than a quorum should be empowered to adjourn or to compel attend-
ance is a salutary rule. Under the Articles of Confederation the want
of some such power produced great mischief, for attendance was often
very dilatory, at the same time that more than a majority of States
was requisite for all important transactions.

We have no external tribunal competent for deciding contested
elections, such as England now provides.

2 Censure or expulsion is the usual punishment. Members of the
House have sometimes resigned when censured, and then returned to
their seats vindicated by a re-election. As to punishing contempt
shown by persons who are not members, see 103 U. S. 168.

8 See State provisions, supra, page 56.

4 lb. The English rule requires all revenue bills to originate in
the House of Commons. May, Const. Hist., c. 7. See also debates
in Congress on this subject in 1872. And see pages 56, 57.

112 CONSTITUTIONAL STUDIES.

thus gave the measure its full validity and effect;
but if disapproving, he might interpose his veto, which
could only he overcome by a two-thirds recorded vote
in each branch of Congress. Silent retention of
such bill or resolution by the President for ten days
without returning it, unless Congress by adjourning
had prevented its return, gave to such measure the
same effect as his formal approval. 1 In most of
these particulars, the text of the constitution is
plainly enough expressed, and wherever doubt may
arise, our courts incline to leave the Federal Legis-
lature to its own chosen procedure. 2

In addition to legislative functions, which work
out a distinct routine, while based fundamentally
upon common English usage, Congress, like many of
our State legislatures, and after much the same
fashion, 3 is vested with the Parliamentary powers of
a high court of impeachment, to whose jurisdiction
all civil officers of the United States, not excepting
the President himself nor the Vice-President, are
answerable. The House, as grand accuser and prose-
cutor for the people, is invested with sole power to
impeach; while the Senate alone, sitting specially
upon oath or affirmation, tries the case, renders judg-
ment, and upon concurrence of not less than two-
thirds of the members present, may convict the

1 The executive veto is further considered, post. As to State and
colonial usage in this respect, see supra, page 62.

2 In 144 U. S. 1, the Supreme Court refused to treat a Speaker's
new rule of counting a quorum as an unconstitutional one. Acts of
Congress enrolled, officially attested by the Speaker and President of
the Senate, and deposited in the State Department with the President's
signature, are unimpeachable in the courts for alleged verbal errors.
143 U. S. 649. Nor does our judiciary incline to question the discre-
tion of Congress in passing laws and appropriations. 159 U S 590'
163 U. S. 427.

8 Supra, page 67.

THE FEDERAL LEGISLATURE. 113

person impeached, and award the sentence. At the
trial of a President of the United States, the Chief
Justice, and not the Vice-President, whose interest
in the succession is immediate, shall preside. Treason,
bribery, "or other high crimes and misdemeanors,"
furnish cause of impeachment by the House; and
while sentence by the Senate cannot extend beyond
removal from office and his further disqualification
to hold and enjoy any office of honor, trust, or profit
under the United States, the convicted party is
nevertheless made further liable to prosecution and
punishment in the courts of law like any other
criminal. 1

1 Const., Art. I., §§2, 3 ; Art. II., § 4. These impeachment pro-
visions apply only to " civil officers ; " for military and naval officers
of the United States are subject to summary trial and sentence by
court-martial, whether in time of war or peace. 158 U. S. 109. Mem-
bers of Congress (to accept the ruling of the Senate in 1799, when
Blount, a Senator, was impeached) are not "civil officers" in this
constitutional sense; and there are sound political reasons why a
legislature in one or the other branch should be confined to such
punishment of its own members, including expulsion, as the funda-
mental law elsewhere prescribes. While some States before 1789 (as
seen supra, page 67) were clear in declaring that an officer might be
impeached while out of office, the text of the Federal constitution is
not explicit, and an instance occurred under President Grant where,
after a Cabinet officer's resignation had been hastily accepted by the
Executive, the House desisted from impeachment upon some such
scruple; and yet, with the sentence of prospective disqualification
recognized in the text of the constitution, a plenary power might
perhaps have been inferred. " High crimes and misdemeanors " is
rather a vague offence in common-law interpretation, nor perhaps
would Congress consider its own impeachable discretion limited by
any common-law barrier.

Impeachment by the Legislature has not been fonnd a satisfactory
mode of prosecution and punishment in our American practice. It
is a cumbersome process, after all, and political bias is very apt to
influence the result. The adverse course of State constitutions in
this respect will be traced hereafter (Part III., post) ; and as to onr
still unaltered Federal mode, it has been found, upon a century's test,
best adapted to judicial incumbents whose misconduct provokes no
clear issue of political partisanship. A few such persons have been

8

114 CONSTITUTIONAL STUDIES.

quietly convicted and removed from office; but in the case of a Su-
preme Court judge, obnoxious to the party majority for his politics,
impeachment was once deemed too drastic a remedy to prevail by a
two-thirds vote ; and so, again, with that of a President of the United
States.

VI.

. FEDERAL CONSTITUTION ANALYZED; FUNDA-
MENTAL POWERS OF CONGRESS.

The great fundamental powers of the new Union
are seen detailed for the most part in the latter part
of Article I. and more especially in its eighth section.
True philosophical description would perhaps have
stated those powers as belonging to the government
of the United States, instead of to Congress, as the
text puts it. But Congress had hitherto and for
nearly fifteen years personified in fact the whole
dignity and authority of the Union, and this, more-
over, was the epoch when a representative legislature
still stood among American States as the peculiar
aegis of a Republican people. The drafting of chief
Federal powers, as so much to be detracted henceforth
from State sovereignty, was the noblest accomplish-
ment of the whole constitution, as it proved for appli-
cation the most delicate and difficult. The discussion
to which each important phrase has given rise, in
courts and the forum of political debate, the defini-
tions and re-definitions as between State and Federal
authority which have become needful, are familiar to
Americans. And here the brief text of enumeration
has been inundated by copious commentary and expo-
sition. Contests over the constitutional construction
of these powers in and out of court have at times
bred political parties and agitated the whole country;
giants in intellect and eloquence have been the oppos-

116 CONSTITUTIONAL STUDIES.

ing champions, and sovereignty, State and Federal,
have fought for the mastery.

As to fundamental powers, in this complex political
establishment of ours, some propositions developed
from the long discussion may be stated as well estab-
lished. Powers are sometimes (1) exclusive in the
United States; sometimes (2) concurrent in the
United States and the several States ; and sometimes
(3) exclusive in the States, those several depositories
of all residuary public influence. Exclusive powers
in the State need no enumeration, for they comprise
all undelegated functions of government, such, for
instance, as divorce and the probate of wills. Of
exclusive powers in the United States, import duties
and the regulation of foreign commerce serve for
example; while among plainly concurrent powers are
those of general taxation and borrowing money.
But in connection with enumerated powers in our
Federal constitution, and for their better confine-
ment, we find enumerated prohibitions which are
positively expressed; and these prohibitions may be
(1) to the United States alone, 1 though rarely amount-
ing to more than the qualification of some power
expressly given ; (2) to the States ; 2 (3) to both State
and United States governments. 3 Of powers which
are expressly vested in the United States, and yet
not in terms exclusively so, some are permissively
exerted by the several States until Congress legislates
and Federal supremacy prevails for the time being. 4

1 E.g. As to slave-trade suppression before 1808, taxation on
exports, etc. Const., Art. I, § 9.

2 Art. I., § 10.

3 Such as bills of attainder, ex post facto laws, and the grant of titles
of nobility. Art. I., §§ 9, 10.

4 As in bankrupt and insolvent systems, which States have regu-
lated thus far in our history more constantly than the United States.
" It is not the mere existence of national power but its exercise which

FEDERAL POWERS DEFINED. 117

Of express prohibitions to the States some are
unqualified in language, while some are simply pro-
nounced subject to the consent of Congress. 1 Sundry
powers and prohibitions in this constitution have
direct relation not to Congress, but rather to some
other department of Federal government. 2 As be-
tween States severally and the United States, each
government, unless collision occurs, is entitled to
complete independence and sovereign exercise within
its own legitimate sphere of action; but where such
mutual exercise provokes collision, it is the Union
that should prevail as supreme. 3 For the present
exercise of Federal powers a generous interpretation
of the constitution with its amendments may fairly
be claimed, to the extent of rendering the Union
adequate for great emergencies, and equal at all
times to the efficient conduct and preservation of its
momentous trust on behalf of the whole people ; and
yet, on the other hand, the Federal government
should not by misconstruction of the language used
in the great charter whence national authority is
derived, nor by unwarranted enlargement of its
manifest expression, destroy or even encroach upon
the States and their rightful autonomy; since to each
State still belong the intimate concerns of all local
inhabitants, save as voluntarily surrendered by fun-
damental consent given under constitutional forms.

Under the Articles of Confederation we see Con-
gress (then the sole embodiment of Federal authority)
vested at once and expressly with " sole and exclu-
sive" rights and powers for various purposes, and
express prohibitions correspondingly laid upon the

is incompatible with the exercise of the same power by States.''
Cooky's Elements, 34.

i Cf. different clauses in Art. I., § 10.

2 See President's power of making treaties, etc., Art. II., § 2.

» See 139 U. S. 240; 158 IT. S. 98.

118 CONSTITUTIONAL STUDIES.

States. 1 And in the more perfect Union, as was
done under the imperfect one, Federal government
should, avoiding "the falsehood of extremes," steer
safely between disintegration on the one hand and
centralization on the other. To this intent, and not
for donating by a sweep powers not elsewhere enu-
merated, does our constitution of 1787 aid all specific
authority by the fit supplementary clause that Con-
gress may make all laws which shall be "necessary
and proper" for carrying into execution all the
powers vested by that instrument in the government
of the United States or in any department or officer
thereof. 2

I. The first power specifically given to Congress
is that of taxation, as operating upon the whole
Union and its inhabitants, and not, as before, upon
sovereign States merely, — that power which, if even
stingily bestowed before 1787 by the thirteen States
themselves, would probably have postponed indefi-
nitely the convention and its new plan of Union. 3
The power here conferred is "to lay and collect
taxes, duties, imposts, and excises, to [i. e., in order
to] pay the debts and provide for the common de-
fense and general welfare of the United States." 4
We thus observe (1) that the discretionary choice in
Congress is large as between the various kinds of
taxes; at the same time that an indirect duty laid
upon foreign imports has constantly proved the most
popular and indispensable source of national revenue,
to which excises (the internal indirect tax), and

1 See Art. VI. Where constitutionally an act of Congress is
passed or a treaty effected, this becomes the supreme law of the land.

2 Art. I., § 8, final clause.
8 Supra, page 94.

4 Art. I., § 8, first clause.

FEDERAL POWER TO TAX. 119

direct taxation are but secondary. 1 And (2) that all
Federal taxation has its proper enumerated objects,
and Congress has no unqualified right to impose it.
Taxation by Congress, for some avowedly private or
extra-constitutional purpose, would be void. 2 All
duties, imposts, and excises must be uniform, or so
that the same articles shall bear the same rate of
taxation throughout the United States, thereby pre-
venting any Congressional preference of one State
over another. 3 Furthermore, for lessening the sac-
rifice required of our original States in permitting
this Federal network to be spread over them and
surrendering so many sources of their own revenue,
the constitution provides that direct taxes shall be
apportioned among the States according to the
popular basis of numbers adopted for the choice of
Representatives. 4 Finally, no tax or duty can be laid

1 An income tax may be laid on the principle of a direct tax ; and
so may a tax npon lands or polls. See 158 TJ. S. 601. Under the
immense war pressure of 1813 and 1862-1865, the greatest variety of
taxes were imposed by Congress.

2 To "pay the debts" of the United States constitutionally con-
tracted must always be a chief object of Federal taxation. As to
giving "the common defense and general welfare" » plenary and
indefinite interpretation there was great controversy in former times,
but opinion seems to have settled upon a moderate and confined inter-
pretation of that clause. See Story, c. 14, and Cooley's notes at length.
Those phrases are seen to have been used (in doubtless a limited sense)
in Articles of Confederation as well as the present instrument. Supra,
page 90.

8 Art. L, § 8, first clause; 102 U. S. 123. Diversity of taxation,
either as to the amount or species of property, is perfectly consistent
with uniformity and equality. 142 U. S. 339.

4 Art. I., § 2, third clause ; an adaptation from the older method
of making requisitions. The meaning of " direct taxes " is now con-
sistently explained by the courts as including any income tax levied
upon individuals, as well as taxes on polls or real estate. See 158
U. S. 601, explaining 3 Dall. 171 ("carriage tax") and other former
cases. This " apportionment " method of taxation has never been of
much practical avail, though the offspring of a very important com-
promise in the convention of 1787.

120 CONSTITUTIONAL STUDIES.

upon articles exported from any State, 1 so that our
customs revenue system is, after all, one-handed for
effectiveness. The power to tax involves when
unconstrained the power to destroy; and Federal
taxation where rightfully applied is sovereign and
paramount. 2

II. The power to borrow money on the credit of
the United States 3 is an obvious and indispensable
function of sovereignty, which, as concerns our
Union, the Articles of Confederation had already
recognized. 4 This Federal power to borrow cannot
be controlled by the States; no State taxation of
national securities is permissible; but States may
still borrow at discretion for their own purposes.
The borrowing capacity of the Union should properly
be confined to the same just limitations of constitu-
tional purpose as the taxing power. Large public
borrowing comes usually in special emergencies,
while for ordinary needs money is often borrowed by
way of anticipating for convenience the regular
revenue. All debts contracted by Congress on behalf
of the Revolutionary Confederacy were made obliga-
tory upon the United States by the original Articles,
with a solemn pledge of the public faith ; and similarly

1 Art. I., § 9, fifth clause. See 92 U. S. 372. This constraint was
procured by jealous staple-raising States for their own immunity.

2 Thus State bank circulation was wiped out by Federal taxation,
so as to be replaced by that of national banks. 8 Wall. 533. But
States cannot tax conversely. 4 Wheat. 316.

8 Articles, IX., clauses 5 and 6, which also expressly granted the
right to "emit bills of credit," — a power here omitted, but unfortu-
nately not positively forbidden to the Union. Const., Art. IV., § 8,
second clause.

4 Public debts seem sometimes inseparable from modern govern-
ment. The constant settled aim of this Union has been to get free
from debt; but once only, and for a brief time about 1835, was that
happy goal reached. Government may borrow money either by issu-
ing long bonds or by temporary loans.

REGULATION OF COMMERCE. 121

all debts of the United States under the old Confed-
eration were declared equally binding under the
constitution. 1

III. The power to regulate commerce was a national
innovation, and one of the grandest gains for consoli-
dating national influence which the Federal constitu-
tion proposed. If the petty commercial warfare of
thirteen jurisdictions proved intolerable in 1787,
what would now be that of forty or more? The
want of some supreme power over navigation con-
joined with that of levying uniform customs had most
hindered the United States from taking rank in
Europe as a nation competent to make a commercial
treaty, and degraded the Confederacy fatally in the
estimation of its own people. This new power was
conceded therefore in the convention of 1787 without
opposition or even a division. 2 But the meaning and
true extent of this power has occasioned constant con-
troversy and litigation ever since our constitution was
adopted, and in no respect is the arbitrament of the
Supreme Court more delicate. By "commerce," as
it is ruled, the constitution means not traffic alone,
but navigation in its amplest sense ; hence Congress
has passed laws from the beginning, such as favor
American enrolled and licensed vessels, command
respect for our national flag on the high seas, and
employ freely the weapons of reciprocity and favor,
on the one hand, and on the other, embargo, non-
intercourse, and retaliation, in aid of America's
commercial relations with the world. The rights of
American seamen, moreover, are thus regulated,
lighthouses and buoys are erected, the coast sur-
veyed, and (not exclusive altogether of State policy)

i Cf. Articles, XII. ; Const., Art. VI.
3 Art. I., § 8, third clause.

122 CONSTITUTIONAL STUDIES.

quarantine, pilotage and wrecks provided for. Under
an exercise of the same power by Congress the im-
portation of an undesired foreign population may be
hindered or suppressed. 1

All such matters relate especially to American
commerce with foreign nations, the first branch
specified in the grant of power. The second branch
comprises commerce "among the several States,"
whether by land or water. This second specification
blends often with the first, applying the same general
doctrine. It has led to the important "interstate
commerce act" of 1887, which regulates all transpor-
tation over the surface of the United States by rail-
way and other carriers which is not limited strictly
to a State's own confines. 2 The third specification
embraces commerce with Indian tribes; and here a
regulating power in Congress harmonizes with the
uniform policy of the Union, which places such of
the red aborigines as have not become civilized citi-
zens under the full and immediate control and disci-
pline of the general government, whether as subjects
fit for treaty relations or as mere wards. 3

Much of this Federal exercise of power comes, of
course, into conflict with State authority ; and as the
language of our constitution appears ambiguous on
the point of Federal exclusiveness, the supreme
tribunal of the Union has been forced to define and
apply the rule of constitutional intent in many perplex-

1 See among other Supreme Court decisions relating to foreign
commerce, 13 How. 515 ; 9 Wheat. 1 ; 7 How. 238 ; 91 U. S. 275.

2 This important enactment by Congress, including the establish-
ment of a Federal commission, followed the decision of the Supreme
Court in 118 U. S. 557.

3 Cf. under our Confederacy the confused though not dissimilar
expression of Articles, IX., fourth clause. See also Const., Art. I.,
§ 2, third clause, excluding from representation all " Indians not
taxed."

REGULATION OF COMMERCE. 123

ing instances of State and national collision. Wher-
ever genuine conflict thus arises, it is the State that
must yield to the supreme and sufficient potency of
the Union. 1 Congress, of course, cannot interfere
with the commerce which is confined to one State
exclusively ; the ordinary trade and traffic of a State
pursued among its own inhabitants, local buying,
selling and exchange, local contract transactions, for
the regulation of local travel and communication,
are all at the discretion of the individual State. In
short, the commerce of a State which Congress may
control must be in some sense and at some essen-
tial stage of its progress extra-territorial. As to all
extra-territorial, interstate, or foreign trade and com-
merce, however, a State has no right to legislate at
all so as practically to interfere with the United
States; and wherever the national sovereignty, dig-
nity, and efficiency would be necessarily impaired in
consequence, no matter whether the State so intended
it or not, such local legislation is an encroachment
upon the powers of the Union. 2 Thus, the regula-
tion of commerce on a stream whose navigable waters
are exclusively within the limits of a State belongs
properly to that State; but where a river, by itself or
by uniting with a lake or other connecting waters,
forms a continuous highway over which commerce
may be directly carried on with other States or with
foreign countries, such commerce becomes properly
subjected to the regulation of Congress. 3

The same distinction holds good of analogous land
traffic by railway or canal. Where the State of New

1 139 U. S. 240; 158 U. S. 98.

2 138 XJ. S. 78.

» 14 How. 568; 10 "Wall. 557. The test of "navigable waters" in
the United States is not, as in England, the ebb and flow of the tide,
bnt their navigable capacity. 10 Wall. 557.

124 CONSTITUTIONAL STUDIES.

York granted to Robert Fulton and his associates,
by way of bounty for the valuable invention of the
steamboat, an exclusive right to navigate by steam
the waters of that State for a series of years, the act
was held void as concerned all highways of foreign
and interstate commerce. 1 A State may not safely
authorize the construction of a bridge across a navi-
gable harbor or river so as to impede foreign and
interstate commerce, without some sort of Congres-
sional sanction j 2 and the power of the Federal gov-
ernment to improve navigable waters is exclusive of
States, as well as paramount, whenever called into
exercise. 3 A State cannot impose tolls, nor fix a
tariff for railways, so far as concerns the traffic which
passes into the State from outside or through the
State into some other State or country. 4 In general
it may be said that no State has the right to lay a tax
or imposition on interstate or foreign commerce in
any form, whether by way of duties levied on the
transportation of the subjects of that commerce, or
on the receipts derived from that transportation, or
on the occupation or business of carrying it on, for
the reason that such taxation is a burden on that
commerce, and amounts to a meddlesome regulation of
it. 5 Indeed, in all matters of consequence within the

1 9 Wheat. 1.

2 13 How. 518; 18 How. 421; 123 U. S. 288; 125 U. S. 1; 154
U. S. 204.

3 Congress may create a corporation for erecting such a bridge.
153 U. S. 525.

* 118 V. S. 557.

6 See Fuller, C. J., in 135 IT. S. 161 ; 136 IT. S. 104 ; 147 U. S. 396.
Thus, a State cannot levy a special license tax upon peddlers, " drum-
mers," etc., from other States. 153 TJ. S. 289. But to require all
peddlers, etc., to take a license, not discriminating as to those from
other States, is not unconstitutional. 156 IT. S. 296. And see 141
XI. S. 47. Nor is a State debarred from taxing all traffic from one point
to another point within the State. 145 U. S. 192. And see 155 U. S.

REGULATION OF COMMERCE. 125

present Federal power of Congress, its own inaction
does not excuse States from transgressing in order to
impose regulations of their own ; for the only effect
of such inaction must be to leave such extra-territorial
commerce free and untrammelled, and subject to the
unregulated operation of domestic law. 1

On the other hand, in applying the extremely
delicate limitations of this regulating power, States
are readily permitted by our Federal judiciary to
impose any tax which is in effect a burden upon local
internal commerce alone, or even a tax upon com-
merce coming in from outside, so long as it is a
burden equally shared by local commerce, and in no
sense a discrimination upon external commerce. 2
And so, too, the regulation of each State's internal
police is left to the State with equal exclusiveness
so far as the rule operates only internally, even
though foreign and interstate commerce may be
indirectly affected by it. 3 Many State enactments
which justly amount to no more than equal and just
police and inspection regulations, stand thus the test
of the constitution; 4 and, in fact, that instrument
expressly recognizes the right of any State to levy
such impost or duty on imports or exports for the

688. It is the State discrimination against what goes to or arrives
from without its confines, that the court here condemns as repugnant.
A State may levy a tax on its own proportion of railroads, telegraphs,
etc., which operate in other States. 141 U. S. 18, 40.

1 91 U.S. 275; 120 U. S. 489.

2 141 U. S. 18, 40; 163 U. S. 1; 155 U. S. 688. But taxation upon
external traffic alone is void. Supra, page 124, 141 U. S. 47. There are
some very nice distinctions in the later decisions. See 142 U. S. 217.

8 A State may require returns to be filed. 153 IT. S. 446. And see
154 U. S. 362; 162 U. S. 565.

* 9 Wall. 41 ; 93 U. S. 99; 136 U. S. 313; 163 U. S. 299; 16 Wall.
36. But nominal inspection acts (as, e. g., for slaughtered meats) which
apply only to such articles as come from without are void as a discrimi-
nation against external commerce. 138 U. S. 78. An oleomargarine
State statute is an inspection regulation. 155 U. S. 461.

126 CONSTITUTIONAL STUDIES.

execution of its own inspection laws as may be abso-
lutely necessary. 1 Competent State regulations have
been made concerning liquor traffic, so as to embrace
imported merchandise whose bulk has been broken,
but not whole packages as they arrive. 2 There are
valid State laws of long standing, applicable to pilot-
age and quarantine in local harbors, which Congress
has not, as probably it might, seen fit to supersede;
valid State regulations of local fisheries also and the
plying of a local carrier trade. 3 In general every
State establishes, controls, regulates, and improves
its own highways, whether of land or water traffic;
besides allowing ferries to be established, railroads
constructed, and bridges built after a considerable
discretion ; and yet, where the interests to be imme-
diately affected are not local, but may prove directly
injurious to other States or to a foreign country as a
continuous highway beyond the State, the assent of
Congress is always desirable if not indispensable,
since otherwise the United States might interpose
its superior regulation and control. 4

An important restriction upon the power of Con-
gress to regulate foreign and interstate commerce,
as well as upon the power to tax, is found in the
express provision that " no preference shall be given
by any regulation of commerce or revenue to the
ports of one State over those of another; nor shall

1 Art. I., § 10, second clause. This clause has reference to foreign
commerce only. 114 U. S. 622; 8 Wall. 123.

2 5 Wall. 462.

3 12 How. 299; 2 Wall. 450; 118 U. S. 455. But such statutes
must not discriminate against other States. 118 U. S. 90. As to State
fisheries, see 152 U. S. 133.

4 Supra, page 122 ; 102 U. S. 691 ; 124 U. S. 465 ; 154 U. S. 204. The
line of Supreme Court decisions on this whole important subject, not
always distinctly traceable by a layman, need not be here defined more
closely. The professional reader may consult at greater length, Story,
Comm., ch. 15, with latest notes by Cooley and others.

NATURALIZATION AND BANKRUPTCY. 127

vessels bound to or from one State be obliged to
enter, clear, or pay duties in another." 1 The jealous
heed in 1787 that no State should derive substantial
advantage over another nor receive special favor
under the reformed Federal government explains this
clause sufficiently.

IV. National uniformity (1) in naturalization, and
(2) on the subject of bankruptcies, is the object pro-
posed by the next power detailed in the present sec-
tion; and the corresponding discretion vested in
Congress is ample. 2 But only in the former respect
has that discretion been amply exerted; and in the
convention which framed our instrument the latter
grant of power appears to have been an after-thought.
Under the earlier Confederacy, States retained sole
power to naturalize, and complications resulted which
obviously needed reform. 3 Seizing at once and occu-
pying this new province of Federal authority, Con-
gress has practically excluded the States from its
exercise, ever since the constitution went into effect;
while at the same time the law recognizes as still
existing on the part of our people a certain citizen-
ship as to the State demanding State allegiance, sub-
ordinate, however, to citizenship of the United States
and national allegiance, which continue paramount
and supreme. 4 The naturalization laws of Congress,
with their peculiar bearing upon the admission of
foreigners to a full American status, have varied
somewhat with the changing policy of the majority
in power; 6 but a moderate term of residence within

1 Art. I., § 9, sixth clause. And see 18 How. 421.

2 Const., Art. I, § 8, fourth clause.

8 For under Articles, IV. free inhabitants of the Union were ac-
corded many interstate rights. See supra, page 91.
4 See 16 Wall. 36.
6 The present and usual term of residence is fire years ; and declara-

128 CONSTITUTIONAL STUDIES.

the United States and of probation after one's decla-
ration of intent, suffices usually to confer all privi-
leges and immunities of a full status such as the
Federal constitution at this day doubly warrants and
secures. 1 A citizen, in the full legal acceptation of
that term, may be said to be a member of the civil
state or community entitled to all its privileges ; 2 and
there is a clear legal distinction in privilege between
citizens and resident aliens. In many American States,
to be sure, some of those distinctions are by this date
largely abolished, in favor, more especially, of such
aliens as have by declaring their intention become
prospective citizens of the United States. 3 But an
alien is judicially considered, from our national point
of view, as resident in the United States by sufferance
only, where he takes no steps to become a citizen.
Congress has full power to expel or exclude all such
persons, or to exclude some and admit others, or even
to punish those who attempt to violate its enactments. 4

tion of intent is followed in two years by a full admission. TJ. S. Rev.
Stats., §§ 2165-2174. In 1798 the term was raised to fourteen years,
but that illiberal extension did not long prevail.

1 See Const., Art. IV., § 2. "All persons born or naturalized in the
United States and subject to the jurisdiction thereof are citizens of the
United States and of the State wherein they reside," and no State can
abridge such privileges and immunities. lb., 14th Amendment, § 1.

2 Cooley, Elements, 79.

* Thus the common-law disqualification to hold real estate is largely
removed by State provisions, so that aliens may freely hold, convey,
and transmit such property. And see Part III., post. American native
policy in such respects has always been consistent and enlightened.
One of the charges made against George III. in the Declaration of
Independence was that of endeavoring " to prevent the population of
these States " by obstructing the laws for naturalization of foreigners.

4 130 U. S. 581 ; 142 U. S. 651 ; 149 U. S. 698 ; 150 U. S. 476 (ap-
plied in the case of imported Chinese laborers). Nor need the courts
intervene in such a policy ; for Congress may confide enforcement of
its will to the Executive. All this (which has been but recently de-
cided) seems to justify, as to constitutional legality, the celebrated
"alien act" of John Adams's Presidency.

COINAGE, WEIGHTS, AND MEASURES. 129

The treaty power of the United States enlarges
Federal control of this whole subject in its diplomatic
and international bearings. 1

As for a uniform bankruptcy system throughout
the Union, public opinion appears historically to
have thus far considered the aggrandizement of a
Federal judiciary at the loss of State local tribunals,
a disadvantage outweighing its promised advantage
for any permanent establishment. In special in-
stances, however, and chiefly for the temporary
advantage of desperate debtors whose creditors were
scattered among various States, have bankruptcy
laws for national and uniform operation been enacted
by Congress ; nor have such experiments given clear
satisfaction. 2 While, therefore, this constitutional
power in the Union remains unexercised, States and
State courts continue apart their own insolvent
systems, and give local preferences to creditors as
State legislatures may determine.

V. Federal power is next given to coin money,
regulate the value thereof, and of foreign coin, and
fix the standard of weights and measures. 3 The
latter power has always remained dormant in the
Union, because of the popular indisposition to change
old customs of traffic ; but for the coinage of money
the admirable French decimal standard supplanted

1 Under the former Confederacy the United States was forbidden
to make treaties of commerce restraining the respective States from
" imposing such imposts on foreigners as their own people are subjected
to." What is called " head-money " may now be imposed by the
United States alone as a tax upon immigration. 112 U. S. 580.

2 Cf. United States bankruptcy acts, 1800, 1841, and 1867. Perse-
vering efforts have been latterly made to induce Congress to establish
a permanent national bankruptcy system, but hitherto success has not
followed.

s Const., Art. I., § 8, fifth clause.
9

130 CONSTITUTIONAL STUDIES.

British pounds, shillings, and pence, in earlier days
of the old Confederacy. Our American "dollar"
mode of reckoning, by this time perfected in practice,
is the best that ever a nation could invent; and exact
science the world over gains gradual familiarity with
a like convenient standard for weights and measures.
Under Articles of Confederation the United States
derived originally the sole and exclusive authority
of fixing a standard in both respects; but States
were not forbidden to coin money, nor was heed
given to regulating foreign coinage. 1 An absolute
prohibition of coinage or bills of credit to the States
confirmed the Federal power in this new grant of
1787 ; 2 and States were forbidden moreover by that
later instrument to make anything but gold and silver
coin a tender in payment of debts. 3

Here let us add that as a result of the rulings of
our supreme tribunal since the Civil War, Congress
and the United States are to be deemed under no
such constitutional constraint as the States with
regard to coinage and a currency. The ills of irre-
deemable paper money which sovereign fiat invests
with the deceptive potency of a legal tender for
debts were so widely felt in the old Revolutionary
age, both in continental and State currency, that the
present constitutional prohibition resulted in 1787, —
universal, one would have thought, so far as Ameri-
can experience had supplied an argument. And
such appears to have been the prevalent belief down
to our Civil War; "bills of credit" having, neverthe-
less, the restricted sense of a currency intended to

1 Articles, IX., fourth clause. " The sole and exclusive right and
power of regulating the alloy and value of coin struck by their own
authority, or by that of the respective States ; fixing the standard of
weights and measures throughout the United States."

2 Const., Art. I., § 10.
a lb.

FEDERAL MONET POWER. 131

circulate fully as money, and emanating directly from
the sovereign as its responsible source and creator. 1
But under the tremendous stress of conflict, and
while the Union was in imminent peril, Congress, by
the Act of February, 1862, and later statutes, author-
ized the issue of notes amounting to four hundred
million dollars, as a currency to be issued on the
credit of the United States for general circulation,
and with the inherent quality of a legal tender for
private debts. After the bloody strife had ended,
and the Union, vindicated in its national supremacy,
sought to recuperate its financial strength, the Supreme
Court of the United States sustained, not without a
struggle, the full legality of a national paper tender
currency for peace or war ; concluding at length that
the express prohibition of bills of credit and a non-
metallic currency to the several States carried no
implied prohibition to the United States, and, in short,
that Congress was unrestrained in its constitutional
discretion upon the whole subject of a national cur-
rency standard, whether for making paper money, or
gold and silver coin, or coin of either metal alone, a
legal tender. 2

The constitutionality of a national bank, a doctrine
which the Supreme Court has constantly maintained

1 Where a State creates a bank which issues notes on its own credit,
there is no such prohibition, though the State should own all the stock.
13 How. 12; 11 Pet. 311 ; 1 Schoul. Pers. Prop., § 349.

2 For these decisions, which many sound statesmen must deplore in
the sweeping force of their latest judicial utterance, see 110 U. S. 421 ;
also 12 Wall. (1871), overruling 8 Wall. 603 (1870) ; 1 Schoul. Pers.
Prop. § 345, etc. The " greenback " or paper-money craze which made
about the time of those decisions an exciting issue in national politics,
was succeeded years later by a new agitation in favor of silver mono-
metallism as against the world's gold standard. The Presidential
election of 1896 seems to have decided the issue unfavorably to those
who desire to lower the money standard of the Union by legitimizing
a cheaper substitute.

132 CONSTITUTIONAL STUDIES.

in this and other connections, is another issue over
which American parties have contended at different
epochs of our national existence. 1

The next enumerated power, to provide punish-
ment for counterfeiting the securities and current coin
of the United States, is an added constitutional grant
which flows readily from the preceding one. 2

VI. The power to establish post-offices and post-
roads was novel only in respect to the latter; for the
post-office, as conducted on a continental footing,
originated under the King in colonial times, and Ar-
ticles of Confederation had simply sanctioned and con-
tinued a " sole and exclusive right and power " in the
Union, recognized long before as of great general
utility. 3 An establishment dating back to ancient
history and ancient nations, as one for sovereign con-
venience, proves in our modern times an institution
conducted equally for popular benefit, though still
under sovereign direction. Concerning that power
newly added to establish post-roads, the " Federalist,"
in 1788, described it deprecatingly as "harmless,"
and "perhaps productive of great conveniency, " when
judiciously managed. 4 Considering the customs and
character of mail transportation when our constitution

1 See 1 Schoul. Pers. Prop., § 350; 4 Wheat. 316. Instead of the
siDgle corporate bank with State branches, that odious institution of
our government in former days, we now have local banks brought
within the scope of a national system and subjected to a prudent
national supervision.

2 Const., Art. I., § 8, sixth clause. States are allowed, in further-
ance of the national power over the coinage, to punish such crimes in
their own tribunals. See further as to judiciary, post, ix.

3 "Establishing and regulating post-offices from one State to an-
other, throughout the United States, and exacting such postage on the
papers passing through the same as may be requisite to defray the
expenses of the said office." Articles, IX., fourth clause.

i Federalist, No. 42.

PATENTS AND COPYRIGHTS. 133

was adopted, nothing more was probably meant here
than to empower Congress to designate what local
roads should be mail routes with an appropriate right
of way; but no such narrow construction is in this
day favored; and during the present century many
have argued from this clause a comprehensive power
in Congress to make, establish, and repair independent
national highways, and even to buy up and control
at discretion all railway and telegraph systems through-
out the country on behalf of the Union. 1 The power
to establish post-offices doubtless includes everything
which may be essential to a complete postal system
under Federal control and management, including
the power to protect and carry all mails without local
hindrance or obstruction. 2

VII. The power to grant patents and copyrights.
"To promote the progress of science and useful arts "
is the announced purpose of this next grant to Con-
gress ; and the announced method is " by securing for
limited times to authors and inventors the exclusive
right to their respective rights and discoveries." 3
But an exclusive right to registered trade-marks is
not comprehended within this power of Congress to

1 See 158 TJ. S. 564. Interstate commerce and otlier stated powers
are cited in furtherance of this authority. Practical difficulties arise,
however, under our constitutional and complex system of government
when such projects are put in practice. The great " national road "
which Congress began constructing with enthusiasm in the era follow-
ing the War of 1812 cost about $6,670,000; but doubts were presently
raised as to whether Federal power existed for collecting tolls or assess-
ing local taxes for keeping the grand highway in repair, and finally
the whole stupendous undertaking was abandoned, and the road was
donated to the several States in which the various sections lay.

2 158 TJ. S. 564. Lottery or other immoral matter may be excluded
from the mails at Congressional discretion. 96 TJ. S. 727 ; 143 TJ. S.
110, 207.

8 Const., Art. I., § 8, eighth clause.

134 CONSTITUTIONAL STUDIES.

legislate for individual monopoly. 1 The utility of
some national system of patent and copyright protec-
tion is not questioned, and much of the marvellous
development of America in authorship and invention,
adding immensely to the wealth and dignity of the
whole people, is due to its stimulating influence.
The mother country had educated America to such a
system ; but the whole subject prior to 1787 was left
when independence was declared to separate State
policy and regulation. Popular institutions, it is
true, do not greatly favor the idea of monopolies to
individuals for their private benefit, nor has public
sentiment in the United States yielded readily our
cheap reprints of foreign books in favor of interna-
tional copyright protection, 2 such as treaty and
reciprocal legislation now secure. An effort failed in
the Convention of 1787 to enlarge the scope of the
present clause so as to permit of special national
rewards and immunities to persons engaged in agri-
culture, manufactures, and commerce. But as con-
cerns domestic patents and copyrights throughout the
United States alone, the power here conferred upon
the Union is ample and effectual as well as popular,
nor has Congress hesitated to take and keep control
of the subject. It is wholly discretionary with that
body to make general or special grants or extensions,
to either authors or inventors, in this connection. 3

1 100 TJ. S. 82. See 111 U. S. 53.

2 See Act, March 3, 1891, c. 565; 8 Pet. 591.

8 See at length 1 Schoul. Pers. Prop., §§ 518-541. As a subject of
judicial expositiou the law of Patents and Copyrights is interesting
and fruitful. Under our present acts of Congress patents for inven-
tions (based upon novelty and utility) are regularly granted for the
term of seventeen years. U. S. Rev. Stats., §§ 4883-4936. Copyrights
are limited to twenty-eight years, with the further right of extension
in specified instances for fourteen years. States may regulate as an
exercise of police power the use of patented articles, but they cannot
semble restrict the sale of patent rights. See 97 V. S. 501.

PIRACIES AND FELONIES. 135

VIII. Passing over the Federal power to constitute
tribunals inferior to the Supreme Court, — a topic to
be considered in a later connection, 1 — we come to
that of denning and punishing " piracies and felonies
committed on the high seas and offenses against the
law of nations." 2 This, too, has its appropriate root
in a Federal judicial establishment, vested with full
admiralty jurisdiction; but the grant itself is a
corollary of those vast powers of war, foreign rela-
tions, and ocean commerce and navigation which we
at length find fully committed to the Union by the
present instrument. Criminal jurisdiction of the
United States harmonizes with Federal responsibility
on the high seas; and by "high seas" is meant not
the ocean only, but all tide-waters along the coast
below low-water mark. 3 Piracy is a well-understood
offence, by the law of nations, corresponding with
robbery on land, which also is forcible and not seldom
accompanied by murder or personal violence. By
felony is meant at common law a foul crime, more
heinous than a misdemeanor; and the power of Con-
gress to define as well as punish piracy, felony, and
offences against the law of nations, confers unques-
tionably a flexible discretion over all infamous crimes
whatever, when perpetrated not on land but the high
seas. 4

1 Const., Art. I., § 8, ninth clause. See Judiciary, post, ix.

2 Const., Art. I., § 8, tenth clause.

8 5 Wheat. 76, 184. There is divisum imperium, as between the
Union and individual States, over the coast between high and low-
water mark. As to a guano island, see 137 XJ. S. 202.

4 A crime on the high seas committed upon a foreign ship by a
foreign subject is not within the jurisdiction of the United States.
3 Wheat. 610.

Articles of Confederation (IX., first clause) gave Congress the power
of " appointing courts for the trial of piracies and felonies committed
on the high seas;" but as no clear and efficient judiciary for the
Union was ordained by those Articles, the grant was of little practical
gain.

136 CONSTITUTIONAL STUDIES.

IX. " To declare war, grant letters of marque and
reprisal, and make rules concerning captures on land
and water," is the next power enumerated in order. 1
And here in unreserved and unambiguous terms was
that vast obligation finally placed upon the Union
which it had exercised by common consent on behalf
of the States and the whole people from the very
first initiation of hostile resistance to Great Britain.
This war power is rounded out fully in the five
clauses which follow. 2 War with Great Britain, we
should remark, was hardly a war in the international
sense, but rather the gradual enlargement of rebellion
into a revolution. But Articles of Confederation,
recognizing the permanent necessity of union for
measures offensive or defensive, gave to the United
States, as grand representative in all foreign relations,
" the sole and exclusive power " in Congress assembled
"of determining on peace and war," except so far
as States might engage single-handed in war under
specific emergencies. 3 So, too, Congress was invested
by those Articles with sole and exclusive power of
granting letters of marque and reprisal in times of
peace, 4 a hostile proceeding nearly tantamount to
beginning war, — as also of making, after a feeble
fashion, its own general rules concerning captures on

1 Const., Art. I., § 8, eleventh clause. See corresponding prohibi-
tion on States, § 10, third clause, post, page 155.

2 Const., Art. I., § 8, twelfth through sixteenth clauses, to be con-
sidered in due order.

3 Articles, IX., excepting VI. That exception resembled in the
main that of our present Const., Art. I., § 10.

4 Articles, IX., first clause. Under the Confederation, States might,
under Congressional regulation, grant letters of marque and reprisal
against the public enemy in time of war (Articles, VI., fifth clause) ;
but that right was wholly taken away by the present constitution.
(Const., Art. I., § 10.) Under the Confederation, a State might, if
infested by pirates, fit out vessels of war against them for the occasion,
or at least until Congress should determine otherwise. Articles, VI.,
fifth clause.

FEDERAL WAR POWER. 137

land or water. 1 The later constitution allows Con-
gress to declare war or grant letters of marque and
reprisal by the simple majority of a quorum or by
two-thirds over a Presidential veto, after the usual
course of legislation ; but under the earlier Confedera-
tion no such hostile step could be taken, without the
affirmative consent in Congress of nine out of the
thirteen State delegations. 2 On the other hand, the
power of our Confederate Congress embraced clearly
the determination of both war and peace, while that
of the Congress of our constitution is in expression
confined to war alone, since the full treaty-making
power is lodged by the latter instrument (which
makes no mention of declaring peace at all) with
that new branch of government, the Executive, sub-
ject to a two-thirds ratification in the Senate. 3 Such,
indeed, is executive discretion, as ordained in 1787
for war and diplomatic dealings, that the initiation
or prosecution of foreign war becomes a sort of co-
ordinate trust to which the concurrence of President
and Congress is essential for preventing public dis-
aster and disgrace. As imposing a salutary check
upon precipitate folly and unrighteousness in either
branch of government, this is perhaps of real national
advantage. For if President and Congress are at
issue upon the desirableness of immediate war with
any foreign power, each may thwart the other unless
public sentiment irresistibly forces a joint decision.

1 There was no potent Federal judiciary under the Confederation ;
yet Congress was permitted in express terms, more verbose than in our
present constitution, to establish rules for deciding " what captures on
land and water shall be legal," and in what manner prizes taken by
land or naval forces in the service of the United States should be di-
vided ; and had also power for " establishing courts for receiving and
determining finally appeals in all cases of captures." Articles, IX.,
first clause.

2 Supra, page 88.

8 ConBt, Art. II., § 2.

138 CONSTITUTIONAL STUDIES.

In Great Britain, the Crown has the exclusive
power to declare war; and usually the earlier prac-
tice of nations has regarded the determination of war
or peace, like the prosecution of hostile or pacific
foreign intercourse, an executive function. Such is
not American precedent; though beginning with
entire Congressional sovereignty in things national,
our people transferred a large share of that sover-
eignty to the Executive, when other departments of
government were added to the Legislature. Presi-
dent Polk in 1846, and President Lincoln in 1861,
gave proof that though the power to declare formal
hostilities may reside in Congress and the legislative
branch, the opportunity to lead up to war is inci-
dental rather to executive policy. President Madison,
in 1812, yielded perhaps to the passionate eagerness
of young leaders in Congress by sanctioning the
declaration of a second war against Great Britain,
after having first exhausted all honorable means of
adjustment with that country. But in all instances
hitherto a President of the United States has initiated
war measures, and his message to Congress recom-
mending hostilities has preceded the concurrent
action of that body and roused the popular passion.
Despatch and secrecy, no less than open energy, are
found ingredients in the successful conduct of a war,
and only an executive can manage and negotiate in
detail, or be clearly cognizant of the real drift of
foreign relations. Congress holds the purse-strings,
to be sure, and is capable of regulating considerably
by favorable or unfavorable legislation. Congress
may even by impeachment install the next Executive
in succession; but it is the President after all who
rightfully expends the money, selects all subordi-
nates, directs military operations, and arranges a
settlement. Concurrence of Executive and Congress

FEDERAL WAR POWER. 139

is therefore indispensable in war measures, sooner or
later, to save from disaster.

War is said to be "that state in which a nation
prosecutes its right by force;" 1 a definition fair
enough if we further allow that one or another of
two belligerents is likely to be in the wrongs while
the only arbitrament of right is violence with a
mutual appeal to God and mankind to witness and
aid the vindication. War, or at least a state of
hostilities, may practically exist in advance of its
declaration and announcement by Congress and legis-
lative provision, through invasion of some foreign
power, or because of armed insurrection on a scale
which menaces the safety of the Union, whereupon
the President as commander-in-chief of the army and
navy may at once recognize and repel as befits the
emergency. 2 When war exists, this government pos-
sesses and may exercise all those vast, extreme, and
often despotic powers that any belligerent sovereignty
wields under the rules of war currently recognized
among civilized nations ; among which are powers to
acquire territory either by conquest or treaty, to
seize and confiscate an enemy's property on sea or
land, to create military commissions, and to establish
provisional military governments and provisional
courts in each conquered jurisdiction. 3 But where
the State civil courts are discharging their usual
functions, and are capable of enforcing the usual
authority, the government of this Union cannot, as

1 2 Black. 635, 666.

2 2 Black. 635, 668. Congress and the President in declaring the
Mexican War in 1846 put it artfully as already existing by the act of
Mexico. In 1861 the President pursued his chosen course in dealing
•with armed rebellion at the south for months before Congress could
convene and legalize hostilities. In 1798 Congress authorized partial
hostilities against Prance.

8 9 Wall. 129.

140 CONSTITUTIONAL STUDIES.

to its own civil inhabitants who dwell outside the
area of active warlike operations, displace them by
courts-martial. 1

As for making and declaring peace, the power, as
already observed, pertains no longer to Congress,
but is lodged for negotiation and conclusion in the
President. But every treaty with a foreign govern-
ment requires the concurrence of two-thirds of our
Senate ; 2 and the House of Representatives has some-
times claimed, not without reason, that if a money
appropriation or the relinquishment of pubbc terri-
tory should' be involved in any treaty to end or
prevent war, its own practical concurrence by a
majority should not be ignored. 3

X. The next power stated, " to raise and support
armies," is in direct furtherance of the war power
conferred in the preceding clause. More than this,
the Federal power to raise and support armies is not
only indispensable to foreign war or the suppression
of domestic insurrection, but a needful precaution
for preserving peace at all times. " Join or die " was
the motto of the Revolution, not for those times
alone ; and the league or combination of force under
union and united direction has been fundamental in
all military operations on this continent from the first
' era of colonial settlement. 4 But under Articles of
Confederation and throughout the conduct of our
war for independence, the Union was much hampered
by the restrictions which State jealousy had placed.
The Continental Congress raised its continental
army; not immediately, however, but by making

1 4 Wall. 2. 2 Const., Art II, § 2.

8 Fortunately the United States has waged no war thus far which
ended m the relinquishment of public territory or the payment of an
indemnity to the adversary.

4 See New England Confederation, supra, page 73.

FEDERAL ARMY AND NA VT. 141

requisitions on the various States from time to time
for their several quotas, and this only by the vote of
nine States in that body. 1 For past experience had
given these rebellious colonists great dread of a
standing army. Under our constitution we have by
usage (1) the regular army raised and maintained by
and for the Union, but small in numbers when on a
peace footing ; (2) in great emergencies of war or
insurrection, State volunteers, with quotas still
assigned by the President, where the States recruit
and organize, making State pride a thrilling incentive ,
to patriotism. 2 In either case the troops are sworn
into the service of the United States for active duty,
and serve accordingly under the terms of their enlist-
ment, though the regimental officers of State volun-
teers are commissioned by the State, much the same
as in the days of the Confederacy. 3 Congress may
in times of danger empower a draft upon the able-
bodied men of the Union when volunteering fails. 4
But the main reliance of the Union for peace, and
the lesser outbreaks of war or rebellion, must be, as
hitherto, its own regular army, immediately respon-
sible, kept in constant training and discipline, offi-
cered throughout by the Federal Executive, and
under direction of the war department stationed in
detachments to guard our national frontiers and
territories, garrison the forts, and as a military police
protect the public property and reservations at all
needful points.

Fitly environed for political leadership in North

i Articles, VII., IX., fifth clause.

2 State volunteers with State quotas were much relied upon in 1812
and 1861.

8 See supra, pages 90, 91.

* Men were drafted for the Civil War in 1863-1864. A draft was
seriously proposed in 1814, but peace came suddenly, and the occasion

142 CONSTITUTIONAL STUDIES.

America, relieved from all heavy anxieties of the
European balance of power, and easily first among
nations of the new world, the United States has
fortunately required thus far but a small standing
army for ordinary times. And to guard against the
possible abuses of a permanent establishment, our
present constitution expressly limits all army appro-
priations to the term of two years. 1 In a rare instance
or two the House of Representatives has thus exerted
its control of the military purse to check dangerous
tendencies. 2

XI. "To provide and maintain a navy" is the
next and associated power. 3 Not only for active
war, for the defence of ports and harbors and opera-
tions on navigable waters conjointly with our land
forces, but for the constant protection of the ocean
highways and the safeguard of American commerce,
and, moreover, as an imposing means of gaining con-
fidence and respect for the American name and flag
in distant ports, the navy of the United States was
broadly founded. In Revolutionary times some estab-
lishment of the sort existed ; but Confederate author-
ity was so hemmed in by State emulation in this
respect that except for privateering, very little prow-
ess by water redounded to the glory of the Union. 4

1 Const., Art. I., § 8, twelfth clause.

2 As in 1856, when military force had been used to coerce the
free settlers in Kansas Territory. 5 Schoul. United States, 348. This
stoppage of supplies was an old expedient of the British House of
Commons.

3 Const., Art. I. § 8, thirteenth clause.

4 The Union was authorized "to build and equip a navy," and to
appoint " all the officers of the naval forces." Articles, IX., fourth
and fifth clauses. The assent of nine States was needful, however, for
agreeing upon the naval vessels to be built, or the naval forces to be
raised, or for the appointment of a naval commander-in-chief. Arti-
cles, IX., sixth clause.

FEDERAL ARMY AND NA VT. 143

Army and navy were forces recognized together for the
Confederate prosecution of war, yet as States might
equip their own navies in war times for their own com-
merce, concentration was not easy ; l and, furthermore,
whether for war or peace, the usefulness of a Federal
navy was quite limited. The convention of 1787
readily agreed to enlarge the existing Federal power;
but objection was made in some of the State conven-
tions that ratified. Under this constitution, the
valor of our infant navy in conflicts with the Barbary
Pirate States and during the War of 1812 exalted it
to a proud renown which has never since been tar-
nished. Yet a naval establishment is always costly,
and in the long intervals of peace shipbuilding
changes its methods, and expensive hulks decay and
become worthless. It has been the constant rule of
our more perfect Union to maintain simply a regular
navy manned and officered for regular service, but in
great emergencies volunteer officers have been added
to the list of those in regular rank. 2

Congress may farther " make rules for the govern-
ment and regulation of the land and naval forces; " 3
a power by way of supplement to the two last enu-
merated. Though not specified in the original draft
of our constitution, the convention of 1787 readily
admitted the power as incidental and explanatory.
Such rules must not be inconsistent with a President's
due authority as commander-in-chief of the army and
navy. 4 Congress has by law forbidden such former

1 The real prohibition of State navies was for times of peace, and
then only so as to limit each State to such a number of war vessels as
Congress should deem necessary for the State defense or trade. Arti-
cles, "VT., fourth clause.

2 Enlistments are thus far voluntary. Probably a fair and impartial
draft for the navy might be ordered whenever necessary; but the for-
mer English mode of impressments was never permitted.

3 Const., Art. I., § 8, fourteenth clause.
* See Executive, post.

144 CONSTITUTIONAL STUDIES.

cruelties as flogging in the navy; yet for the most
part, and subject to occasional enactments of this
sort, the discipline and regulation of both army and
navy belong to the President, acting through the
respective Secretaries of War and the Navy. All
crimes committed in strict military jurisdictions by
land, or on board naval vessels, are punished exclu-
sively by the United States, and usually as to men in
service, by military or naval courts-martial. 1

XII. " To provide for calling forth the militia to
execute the laws of the Union, suppress insurrections,
and repel invasions " is the next comprehensive power
given for the self-maintenance of the Union by
physical force. Reliance mainly upon a trained and
well-regulated militia, composed of the mass of civil
inhabitants as volunteers primarily and not conscripts,
in preference to any standing army of professional
soldiers, has been fundamental in the States of free
America as with those British-born ancestors who
twice dethroned the Stuarts. 2 Articles of Confedera-
tion plainly recognize such a principle ; 3 nor was the
constitution of 1787 deemed satisfactory to the people
until made quite explicit in upholding that doctrine. 4
The constitutional object of calling out the militia is
seen to be not for offensive war, but for instant

1 Supra, page 113. So far as Union authority might actually extend
in such matters, the Articles of Confederation expressly empowered
" the United States in Congress assembled " to make rules for the gov-
ernment and regulation of its land and naval forces, and directing their
operations. Articles, IX., fourth clause.

2 See supra, page 33.

8 While the several States are to maintain no body of forces in
time of peace except for garrisoning the local forts, "every State
shall always keep up a well-regulated and disciplined militia, suffi-
ciently armed and accoutred," besides a good supply of military stores.
Articles, VI., fourth clause.

* See Amendments II. and III. (1789).

POWER OVER MILITIA. 145

defence against sudden danger from without, and
still more readily for putting down internal outbreaks.
It is in the latter sense, and when civil authorities
and the courts were found powerless or remiss in
maintaining order and national obedience within State
limits, that both in 1794 and 1861 a President of the
Union called out the militia of other States for a few
months to enter the disaffected region in arms, assign-
ing to each State its proper quota, and primarily
confiding in State executives to put the local troops
in motion. And it is noticeable that in each instance
a regular United States army was less available for
quelling disturbances ; also that Congress was not in
actual session, and prompt executive action became
needful under existing laws in advance of particular
legislation for raising and enlisting troops on a long
term. Regulars have served alone in some other
outbreaks, like that of the Mormons of Utah Territory
in 1857; but the power thus inherent in the Union
dispenses with a large regular army for ordinary times
while enabling the Union to fulfil its fundamental
guaranty of orderly Republican government. 1

Congress may also "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." 2 States felt considerable
alarm over the power vested in the Federal govern-
ment by this and the preceding clause. They feared
that the Union would weaken each local militia for

1 See "guaranty clause," Art. IV., § 4. Congress under the Con-
federation was notoriously deficient in power to summon the State
militia, as the Shays Rebellion manifested.

2 Const., Art. I., § 8, sixteenth clause.

10

146 CONSTITUTIONAL STUDIES.

strengthening the regular army ; and hence the reser-
vation here asserted, as well as the jealous amend-
ments of 1789. 1 Congress has not been much
disposed thus far to prescribe for the militia of the
States a national uniform "discipline," as here per-
mitted, still less to encroach upon the important
reserved right of each State to appoint officers and
attend to the training. But by this era it is well
settled that when local bodies of militia (though
State forces originally) are called into the service of
the United States, they are subject not only to the
orders of the President as commander-in-chief, but
also to those of any officer of superior rank who may
under the President's authority be placed over them
and their State commissioned officers. So, too, it is
settled that when Congress by statute gives the Presi-
dent discretionary authority to call forth the militia
in time of peril, this makes him the exclusive judge
as to when or whether the exigency has arisen, so
that neither State executives nor militia officers
can question it. 2

XIII. Exclusive Federal jurisdiction over Federal
places is the object of the last specific power here
enumerated on behalf of Congress. 3 Federal juris-
diction is for the most part superposed upon that of
States, except for the territorial domain of the Union,
where statehood is as yet inchoate. But Federal
government requires for its proper exercise some local
reservations over which its own peculiar jurisdiction
and authority shall be sole and indisputable. Hence,

1 Amendments II. and III. The States have always assurance
against centralized despotism in their representation in Congress.

2 7 How. 1 ; 5 Wheat. 1. During the War of 1812, and again in
1861, some State governors who were unwilling to furnish quotas took
issue with the President on this point of an emergency.

8 Const., Art. I., § 8, seventeenth clause.

FEDERAL SITES RESERVED. 147

first of all, a district (not exceeding ten miles square)
was to be set off as " the seat of the Government of
the United States." For 1783 had not been forgot-
ten, when a handful of mutineers from the continental
army forced Congress from Philadelphia, the State
Executive appearing reluctant to interpose his protec-
tion. 1 For the first few years of our constitutional
government New York and then Philadelphia served
as temporary headquarters ; but as soon as a district
had been chosen and improved for a Federal capital,
the permanent abode on the Potomac became a place
of exclusive Federal legislation and authority, and
as time showed, the essential citadel and rallying-
point of loyalty to the Union. 2 A like exclusive
authority is vested in Congress " over all places pur-
chased by the consent of the Legislature of the State
in which the same shall be, for the erection of forts,
magazines, arsenals, dockyards, and other needful
buildings. " 3

i 1 Schoul. United States, 22. See 146 U. S. 325.

2 Of the Federal district on both sides of the Potomac, ceded by the
respective States of Maryland and Virginia for a seat of government,
and first occupied by Congress in 1800, that portion south of the Po-
tomac was retroceded later to Virginia. Washington City now fairly
occupies the whole area remaining. Here the jurisdiction of Congress
is full and unlimited, both in a political and municipal sense. 147 U. S.
282.

8 Const., Art. I., § 8, seventeenth clause. To preserve the forts and
other property belonging to the whole Union, located on land which
had been purchased and paid for by the general government, was the
plain issue which first in 1861 united the loyal population under Presi-
dent Lincoln against States in rebellion.

VII.

FEDERAL CONSTITUTION ANALYZED; FEDERAL
AND STATE PROHIBITIONS.

Before passing from the Federal Legislature, our
constitution enumerates sundry prohibitions which
limit or are correlative with the important powers
just recited. These prohibitions are either (1) upon
Congress and the United States ; or (2) upon the
individual States.

I. Prohibitions upon Congress and the United
States occupy the ninth section of Article I. Next
after a constraint long since obsolete, but honored by
Congress while it lasted, 1 comes a prohibition against
suspending the writ of habeas corpus, " unless when
in cases of rebellion or invasion the public safety may
require it." 2 Habeas corpus (recognized but not
originating under Charles II. in the celebrated Act
of 1679) was a right highly prized by English free-
men from the earliest known era of the common law ;
and under such a writ, issued as of individual right
by the common-law courts, a person who had been
deprived of liberty was discharged from illegal im-
prisonment. Maxims denouncing all arbitrary sus-

1 Const., Art. I., § 9, first clause. This constraint upon slave-trade
prohibition until 1808 (which Art; V. undertakes to rivet closer) ad-
mitted expressly of legislative discouragement in the meantime by a
poll tax on the importation of slaves ; yet Congress forbore from all
such action. When the time (1808) arrived, foreign slave-trade was
formally abolished. Here, as elsewhere, our constitution wisely avoids
using the word "slave" at all. Cf. page 105.

2 Const., Art. I., § 9, second clause.

FEDERAL PROHIBITIONS. 149

pension of laws are to be found both in the English
bill of rights and the Revolutionary declarations of
our old thirteen States, 1 suspension by a monarch
being chiefly obnoxious. Here we perceive arbitrary
suspension equally forbidden in sense to Executive
and Congress; though not without qualification, as
above expressed, for great exigencies of public danger
from within or without, when suspension has always
been customary to a certain extent. If one complain-
ing, of unlawful arrest and detention sues out this
writ, he is brought at once into court for a summary
examination of the facts, and the court orders his
discharge if the detention was unlawful. Suspension
of the writ of habeas corpus, it has well been said, is
a suspension of Magna Charta, and nothing but a
great national emergency can justify or excuse it. 2
The power to suspend in permitted exigencies vests
naturally in Congress; but whether the President
may not himself suspend at discretion in a constitu-
tional emergency, especially if Congress be not in
session and time presses, is open to fair discussion. 3

" No bill of attainder or ex post facto law shall be
passed " is a prohibition to the Union borrowed from
earlier State constitutions and State declarations of
right; 4 and this prohibition is expressly extended to

1 Supra, page 32.

2 May, Const. Hist., ch. 11 ; Cooley, Elements, 300.

3 During the Civil War, 1861-65, President Lincoln claimed and re-
peatedly exercised the right to suspend the writ of habeas corpus; and
this against judicial protest, although the Supreme Court seems never
to have passed directly upon that question. Taney, 246. Even after
Congress had partially defined the limits of existing suspension he
suspended to a greater extent, on the claim of a still greater exigency
which the conflict had developed. It would appear that over any juris-
diction which an executive has properly declared subject to martial
law, the writ of habeas corpus is as a rule properly suspended. 7
How. 1.

4 Const., Art. I., § 9, third clause. Supra, pages 36-38, Maryland.

150 CONSTITUTIONAL STUDIES.

all States by a later section. 1 The clause has exclu-
sive reference to a sort of criminal legislation justly
abhorrent to liberty, at the same time that retrospec-
tive civil enactments by a legislature are impolitic
and deserve disfavor. 2 Among tax prohibitions upon
Congress already mentioned as qualifying the Federal
power, 3 we find the rule firmly buttressed that every
capitation or other direct tax must be laid proportion-
ately to a census. 4 " No money, " proceeds the text,
"shall be drawn from the Treasury but in conse-
quence of appropriations made by law ; and a regular
statement and account of the receipts and expendi-
tures of all public money shall be published from
time to time." 5 And finally, to confirm the equal
rights of mankind upon which the American govern-
ment and American society were henceforth to rest,
" 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 Con-
gress, accept of any present, emolument, office, or
title of any kind whatever, from any king, prince, or
foreign State." 6 States are forbidden, besides, to
grant any title of nobility. 7

1 Const., Art. I., § 10, first clause.

2 See 107 TJ. S. 221 ; 152 TJ. S. 377. Any law is ex post facto which
is enacted after the offence was committed, and which in relation to
the crime or its consequences altera the situation of the accused to his
disadvantage.

3 Const., Art. I., § 10, fourth, fifth, and sixth clauses; supra, page
119.

4 lb., fourth clause. This reiteration comes in special connection
with the first clause. See Article V.

5 lb., seventh clause. This admirable and business-like provision
explains its own purpose.

Const., Art. I., § 9, eighth clause. States, as Maryland, for in-
stance, are seen to have formulated already for themselves the prohibi-

7 Const., Art. I., § 10, first clause. And see prohibition to States
in Articles of Confederation.

PROHIBITIONS UPON STATES. 151

II. The prohibitions upon the States respectively
are found in section 10, which follows. Some of
these prohibitions we have already incidentally men-
tioned; as against granting letters of marque and
reprisal, coining money, emitting bills of credit, and
making anything but gold and silver coin a tender
in payment of debts ; 1 constraints, which were now
laid chiefly for giving the Union its free and untram-
melled scope on such national subjects. As for bills
of attainder, ex post facto laws, or the grant of titles
of nobility, always undesirable, express prohibition was
enjoined equally upon States and the Federal Union. 2
And to all this was added, that "no State shall
enter into any treaty, alliance, or confederation," a
prohibition absolute; 3 a similar prohibition having
applied to States under the Articles of Confederation,
though less concisely and with the soothing qualifica-
tion that Congress might interpose its consent and
give validity. 4 The omission of all such qualification
from the new and more peremptory instrument is
quite significant. 5

tion of " titles of nobility." Supra, page 38. But this clause comes
more directly from the broadly expressed Articles of Confederation.
" Nor shall any person holding any office of profit or trust under the
United States, or any of them, accept of any present, emolument, office,
or title of any kind whatever from any king, prince, or foreign State ;
nor shall the United States in Congress assembled, or any of them,
grant any title of nobility." Articles, VI., first clause.

1 Supra, pages 130, 136.

2 Supra, page 149. Const., Art. I., § 10, first clause.

3 Const., Art. I., § 10, first clause.

4 " No State, without the consent of the United States, in Congress
assembled, shall send any embassy to, or receive any embassy from, or
enter into any conference, agreement, alliance, or treaty with any king,
prince, or State." Articles, VI., first clause. " No two or more States
shall enter into any treaty, confederation, or alliance whatever between
them without the consent of the United States, in Congress assembled,
specifying accurately the purposes for which the same is to be entered
into, and how long it shall continue." Articles, VI., second clause.

5 The legal bearing of these phrases and their historical alteration,

152 CONSTITUTIONAL STUDIES.

Another phrase in this tenth section ordains in
effect that no State shall pass any law "impairing
the obligation of contracts." 1 The underlying prin-
ciple of such an interdict is salutary, and no good
reason can be given for forbidding States alone, and
not the Federal government as well, except the pos-
sible inadvertence of the Philadelpbia convention. 2
Madison, the best-informed member of that body, stig-
matizes bills of attainder, ex post facto laws, and laws
which impair the obligation of contracts as equally
" contrary to the first principles of the social compact
and to every principle of sound legislation." 3 And
he further intimates, that while States had already
begun prohibiting the two former in their constitu-
tions, and while all three prohibitions were within
the true spirit and scope of State fundaments, a dis-
position for sudden changes and interference with
contracts had become so manifest of late in some
State legislatures that it was high time to interpose
this new constitutional bulwark on behalf of private
rights. 4 A century has justified the wisdom of that
action, for few clauses in the present constitution
have given rise to more constant and vehement con-
troversy in the courts. To the long array of judicial
precedents on this topic the reader must turn for
details; a leading case in the Supreme Court on final
appeal, that of Dartmouth College, establishing long
ago that this prohibition applies to the State Legisla-
ture itself, under any unqualified grant or charter by

against the attempted Southern Confederacy of 1861, appears never to
have received the attention it deserved for constitutional discussion.

1 Const., Art. I., § 10, first clause.

2 So, too, as to " bills of credit," noted supra. See 110 U. S. 633.
8 Federalist, No. 44.

• l* «*' • Federal!st ' No - 7 > aJso alludes to contemporary State laws in
!££* °f P ri ™* e contracts, which amounted to an aggression on the
rights of other States whose citizens were injured by them

PBOHIBITIONS UPON STATES. 153

the State which amounts in effect to a contract with
private individuals. 1 Legal and not moral obligation
is here intended; and the obligation of a contract
which States must not impair is the legal means of
enforcing that contract, and of compelling the parties
to fulfil it. Hence, whatever State legislation may
lessen the efficacy of these means of enforcement
impairs the obligation. 2 But a law which gives
validity to what was a void contract does not essen-
tially impair its obligation, unless, at least, other
vested rights must suffer in consequence ; 3 nor is a
State to be thus debarred from forbidding by statute
certain kinds of contracts, provided that its enact-
ment be purely prospective in operation. 4

The two remaining clauses under present considera-
tion leave each constitutional prohibition upon States
optional with Congress, as under the old Confederacy.
Unless, therefore, Congress consents, no State shall
"lay any imposts or duties on imports or exports,
except what may be absolutely necessary for execut-
ing its inspection laws ; and the net produce of all
duties and imposts, laid by any State on imports or
exports, shall be for the use of the Treasury of the

1 4 Wheat. 518. Constraints upon local legislation under a State
constitution are here material ; nor can essential sovereign powers be
bargained away by a legislature. For a learned summary of the de-
cisions see Cooley, Elements, 311-327; Story, § 1385, et seq. Executory
and executed contracts are equally within the protection of this clause
of the constitution. But the contract must be a binding one at law
and founded upon a legal consideration.

It is State constitutions or legislative acts which this clause con-
strains, not mere municipal ordinances or judicial decisions. 163 U. S.
273 J 146 U. S. 258.

2 16 Wall. 314.

3 Story, § 1385. As to exempting privileged persons from taxation,
see 146 U. S. 279.

4 As, for instance, forbidding private contracts to be hereafter made
payable specifically in gold. A State may suitably reserve the right
to repeal or alter any charter it grants. 151 U. S. 556.

154 CONSTITUTIONAL STUDIES.

United States; and all such laws shall be subject to
the revision and control of the Congress." Thus the
permissive levy of customs duties to a State, hence-
forth peculiarly a national resource, was, even for an
extreme State purpose, closely strained. 1 Nor was a
State without the consent of Congress to lay hence-
forth "any duty of tonnage." 2

Again, no State shall without the consent of
Congress enter into any agreement or compact with
another State. 3 The lesser dread of such compacts
(for under this composite government States may
still make compacts), in comparison with any con-
federation or alliance, 4 supplies the permissive assent
of the Union through Congress. Compacts and
agreements, those of contiguous States, for instance,
upon some mutual use of common waters or a span-
ning bridge, or in disputed boundaries, have fre-
quently been made since, as before, the adoption of
this constitution and the consent of Congress removes
all national impediment. That consent need not be
express unless in some extreme case affecting Federal
sovereignty, but is inferable from indirect Federal
legislation which imports a sanction. 5 This same
qualified prohibition upon the States applies to the
less probable contingency of some State agreement or
compact with a foreign power, as distinct from a
treaty. 6

Finally, no State shall, without the consent of
Congress, "keep troops or ships of war in time of

1 Const., Art. I., § 10, second clause. Cf. supra, page 118.

2 lb., third clause. State interference by its own impost system,
with the attempted stipulations of Federal treaties negotiated in
Europe, was an evil partly guarded against in Articles of Confedera-
tion, VI., third clause.

3 Const., Art. I., § 10, 3.

4 Cf. supra, page 151.

6 11 Wall. 39. See also 148 U. S. 503.
6 Const., Art. I., § 10, 3.

PROHIBITIONS UPON STATES. 155

peace ; " nor " engage in war unless actually invaded
or in such imminent danger as will not admit of
delay." 1 The former prohibition favors one regular
army and navy establishment for the whole Union,
as since maintained; the reason of the latter, with its
contingent exception, is obvious. Rarely in these
days of land and submarine telegraph .and rapid
transit would a State find itself so suddenly in the
throes of a foreign war as to be compelled to fight
before the Federal government could come to its aid ;
and should such an emergency ever arise, the special
consent of Congress would doubtless be found super-
fluous. The suggestion of all this came from the
more primitive Articles of Confederation. 2

Besides the distinction among express State prohi-
bitions already noticed — prohibitions which of course
bear upon all States alike — we should observe that
some of them concern delicate functions of public
sovereignty, while others affect rather the private
rights of the individual. Other prohibitions ingenuity
might add which the nature and practical adjustment
of our composite government naturally imply; and
as for powers, it would have been needless for the
constitution to confer any powers expressly on the
States, since, as a recent writer 3 reminds us, they or
the people retain all powers not actually taken from
them.

i Const., Art. I., § 10, 3.

2 See Articles, VI., 5. No State shall engage in any war without
the consent of the United States, in Congress assembled, unless such
State be actually invaded by enemies, or shall hare received certain
advice of Indian invasion, and the danger is too imminent to admit of
a delay to consult Congress. And see ib. as to a State infested by
pirates. As to keeping up State war vessels or a State army in time
of peace, see Articles, VI., 4.

8 Mr. James Bryce, American Commonwealth.

VIII.

FEDERAL CONSTITUTION ANALYZED; THE
EXECUTIVE.

The Chief Executive of this Federal constitution
was a new creation. His prototype is seen in the
State Governor enlarged and adapted to high inter-
course with European kings and potentates, by bor-
rowing from the dignified lustre of Holland and
Great Britain. For the President of these United
States was to be a ruler, supreme in authority before
mankind abroad and at home beyond any single State
Executive, guardian of the national flag and resources
through peace and war, and fit conductor of our
common destinies. All the more disposed was the
convention of 1787 to give stability and strength to
this new chief magistrate, when the Legislature as
finally settled was found to have broadened the old
Continental Congress so greatly that a powerful
balance became needful ; and when, too, it was con-
ceded that the first person to occupy this exalted
station would be the safest and worthiest of all
administrators, and the peer in his republican sim-
plicity of any monarch of the old world.

The powers lodged, therefore, in the President of
the United States by our Federal constitution were
vast and energetic, and such as befitted a relation
where Congressional encroachment might need a
strong constraining power. No duality, no directory,
was set up for this Federal department, such as some
leading States in their dread of a monarch were then

THE FEDERAL EXECUTIVE. 157

attempting. There was not even a cabinet added in
the sense of a controlling ministry. 1 The President
was himself the sufficient chief magistrate of the
Union, empowered to take confidential or public
advice at his will, and to summon or change at
pleasure his chief department heads like all other
high Federal officials, subject to confirmation by the
Senate. A wise Executive will doubtless unify his
administration and secure efficient action; but his
own supreme discretion is, after all, the rule of action,
aside from the constitutional direction of Congress;
and Presidents have successfully pursued that rule
at times, disregarding Congressional clamor, and
removing summarily a department secretary who
opposed, while rejecting the collective advice of a
cabinet. 2

Our Chief Executive has his own responsibility to
the people, independently as to tests from that of
either branch of Congress; and Presidents have
remained in office with their chosen chief counsellors
while both Houses of Congress surged in opposition.
This is very different from that Parliamentary direc-
tion of affairs by which ministries are displaced when
the Legislature votes in opposition. Representative
government by the people is here of another sort.
The Presidential term itself is limited to four years,
and midway comes the opportunity to strengthen,
weaken, or secure him in his policy. Hamilton in

1 No idea of " cabinet " or " council " deliberation is intimated in
this constitution; but only a permission given to the President to
" require the opinion in writing " of the principal officer in each execu-
tive department upon any subject relating to his own official duties.
Const., Art. II., § 2. Our present Cabinet meetings with Cabinet vot-
ing originated in a chosen usage of President Washington, which most
of his successors have for convenience continued.

2 E. g., Andrew Jackson in 1831 and "the removal of the deposits."
But such a course, when public opinion disapproves and both Houses
of Congress resist, must be perilous.

158 CONSTITUTIONAL STUDIES.

1787 would have preferred the tenure of life or good
behavior; Jefferson, a seven years' term, once and
for all; but the constitution as framed fixed the
moderate term of four years, and put no restraint
upon re-eligibility. And popular usage for the first
half-century made each President the leading party
or non-partisan candidate for re-election a second
time, with eight years as the final limit, 1 — a usage
much modified since 1840. 2

A Vice-President is designated, corresponding to
the Lieutenant-Governor in some of the old thirteen
States, to preside over the smaller Senate or upper
branch, and thus maintain the equilibrium of State
representation in that body ; an officer ordinarily with-
out patronage, but in case of the removal of the
President from office, or his death, resignation or
permanent inability to discharge its duties, succes-
sor to the full power and patronage of Chief Execu-
tive for the residue of the term of four years, for
which they both were chosen. 3 Congress may by law
provide for the vacancy by removal, death, resigna-
tion, or inability of both President and Vice-Presi-
dent, and it has done so. 4 The double executive

1 Jefferson, upon this practical construction, finally favored the
constitutional tenure as that of eight potential years with an interme-
diate appeal to the people.

2 Const., Art. II., § 1, 1. Usage limiting the tenure to eight years
still prevails.

8 Const., Art. II., § 1. Presidents Harrison, Taylor, Lincoln, and
Garfield died while in office, and each was succeeded by a Vice-Presi-
dent for the remainder of the term. - At least three Vice-Presidents
have died in subordinate station while a President survived. The case
of a vacancy in both offices has never yet occurred.

i Const., Art. II., § 1. Congress by act of 1886 (24 Stats. 1) so
changed its former provision as to make the office devolve upon one
of the late Presidential advisers (or "cabinet") constitutionally eligi-
ble and previously confirmed by the Senate, in a prescribed order, the
Secretary of State taking precedence, and the Secretary of the Treas-
ury following next. Such person holds (agreeably to constitutional

THE FEDERAL EXECUTIVE. 159

candidacy or double ticket is now established in
American favor; but in 1787 the case was different;
and in Federal usage this nominee for the second
highest office, selected carelessly or to conciliate some
floating or adverse element in the party, too often
while Vice-President attracts counter influences to
the administration in power, so that should accident
suddenly promote him, the national policy and pat-
ronage might take a new and sinister direction. 1 A
Vice-President in his normal and inferior station,
with no favors to bestow and no responsibility, has
little but his casting vote in the Senate to give him
a casual importance. 2

Our constitutional method of choosing President
and Vice-President is not felicitous. - Wisely intend-
ing that the Executive should derive authority from
a source external to Congress, yet strongly indisposed
to trust the free choice of the people, the framers of
1787 tried the device of an electoral college, such as
Maryland's constitution already employed in another
connection. 3 No complacency could have been greater
than that with which the convention accepted this
solution of a perplexing problem. But political sub-
terfuge has rarely given ultimate satisfaction, and in
this instance experience has utterly belied the san-

phrase) until the disability be removed, or until a President shall be
chosen at the regular election.

i In each instance, thus far, except that of Vice-President Arthur's
succession, such has been the historical result.

2 Vice-President Clinton's casting vote (1811) against the recharter
of the United States bank, and that of Vice-President Dallas for the
Polk tariff of 1846, furnish rare instances where the incumbent of this
second office has made his influence felt. More influence, with the
people at least, might accrue if a Vice-President asserted more strenu-
ously in these days his constitutional functions as President of the
Senate, independent as the law makes him of senatorial favor.

8 Supra, page 54. Europe had pursued some such method in the
choice of the Doge at Venice, and of an emperor in Germany.

160 CONSTITUTIONAL STUDIES.

guine expectation of circumventing the common
voters and Congress together. Each State should
appoint its proportionate number of electors l in such
manner as its legislature might determine; and first
of all the State legislatures chose electors directly.
But public opinion early in this century asserted its
strength ; this choice of electors reverted to the people
of each State, who usually chose by districts, until,
for the better concentration of State influence on the
elections, the choice by general State ticket became
substituted, all selection of modes still depending
upon an arbitrary legislative discretion. 2 But whether
chosen by one State method or another, the State elec-
tors were confessedly, from the very first, agents only
of those who choose them for a particular purpose;
and while the recreancy of electors to their pledges
may in a close Presidential canvass thwart on any
constitutional occasion the will of the voters, the in-
evitable result of this Federal device has been to
make each State electoral college in effect a college
of proxies. And thus has evolved that choice of
President and Vice-President by the common voters
which the constitution meant anxiously to avoid, —
a choice not unfairly apportioned and guarded, but
clumsily arranged for popular ballot, tardily regis-
tered, so to speak, and liable always in any State to
tyrannous prevention or mischievous perfidy. 3

The original scheme, indeed, proved in certain
details so defective, that by 1803-1804 it was changed
by constitutional amendment. Electoral colleges

1 Equal to the whole number of its Senators and Representatives in
Congress.

2 See 146 U. S. 1, confirming the clear idea that a State legislature
may, at any time, by a change in the law, choose electors as formerly,
or require the people to choose them by districts instead of on a gen-
eral ticket. In South Carolina a legislature chose Presidential electors
down to the Civil War.

8 Const., Art. II., § 1, 2.

CHOICE OF EXECUTIVE. 161

were not to choose President and Vice-President
separately ; but two persons were to be voted for and
certified together to Congress, and the person prov-
ing to have the greatest aggregate number of votes,
if a majority upon the Congressional count, was to
be President of the United States, while the second
highest became ipso facto Vice-President. When
parties organized, John Adams, one party chief, was
chosen President in 1796, while Jefferson, the other
party chief, jostled as Vice-President; next in 1800,
when the opposition ticket led, Jefferson and Burr,
the party candidates for President and Vice-Presi-
dent, proved equal, so that the selection between
them was thrown into a house soon to expire and
controlled by their common enemies. Anarchy nearly
resulted, for the constitution made no express provi-
sion for the contingency of no choice by such a
house, and intrigue delayed action. Since the
twelfth amendment, 1 electors still meet to vote in
their respective States, but they vote in distinct
ballots for President and Vice-President ; and in case
of no majority choice by these colleges, whether
of President or Vice-President, the House selects
a President from the three highest candidates for
the one office, while the Senate chooses a Vice-
President from the two highest candidates for the
other. Voting in either branch is conducted after a
peculiar arrangement for the exigency, and in any
case where the House fails thus to choose a President
by the 4th of March, the Vice-President (sure to be
selected) shall act as President. The opening of
State certificates and the electoral count take place in

l See Amendment XII. (1803-1804) superseding Const., Art. II.,
§1,3. And note the specific details of this amendment. No Senator,
Representative, or officer of the United States can be an elector ; and
electors must not vote for a President and Vice-President, both of whom
are inhabitants of their own State. Const., Art. II., § 1.

11

162 CONSTITUTIONAL STUDIES.

solemn presence of both, branches of Congress with
the President of the Senate in the chair. 1 Choice of
chief magistrate by the legislature, where no candi-
date has received a majority vote in the first instance,
is a remnant of earlier practice, and a compromise
between legislative and popular selection. States
long ago discarded that principle for the plurality
choice of governor at the polls once and for all ; but
the Federal constitution still remains unchanged in
this respect, and that, too, while vesting such event-
ual choice in a retiring, perhaps a defeated, Congress,
rather than a newly chosen one. Nor does even this
amended scheme concede that President and Vice-
President are rightfully chosen by the people under
any circumstances.

State discretion prevails, we have seen, in the
method of choosing the electors of President and
Vice-President; but Congress may determine the
time of choosing electors and the uniform day on
which they shall give their votes. 2 Both religious
and property qualifications are ignored for President
and Vice-President, a great advance for those early
times when the constitution was framed; but no
person except a natural-born citizen of the United
States 3 is eligible to either office, nor one who has
not attained to the age of thirty-five, and been four-

1 The President of the Senate is designated to open the certificates
thus publicly, " and the votes shall then be counted." This means, as
Federal practice has constantly maintained, that the count is under the
direction of the two houses.

2 Const., Art. II., § 1, 4. Not until 1845, and after that depressing
experience of 1844, when the Massachusetts popular vote went to a
Whig candidate for President after it was known that his opponent
had carried the country, did Congress by law fix a uniform day for
choosing electors ; namely, as at present, the Tuesday following the
first Monday in November.

3 Or a citizen of the United States when the constitution was
adopted. Const., Art. II., § 1, 5.

EXECUTIVE POWERS AND DUTIES. 163

teen years a resident within the United States. 1 One
holding foreign intercourse with the world on behalf
of our whole people should be swayed by no native
prepossessions but those in favor of the United States
and this hemisphere.

The President's salary shall be paid him at stated
times, and shall neither be increased nor diminished
during the period for which he was elected ; and he
shall receive no other emolument from the United
States, or any of them. 2 Before entering on the
execution of his office, he must take a simple oath or
affirmation to faithfully execute the office of Presi-
dent of the United States, and to the best of his
ability preserve, protect, and defend the constitu-
tion; 3 whence the further usage of imposing cere-
monies at the capital with an inaugural address and
procession, none of which are essential preliminaries
to his exercise of official power. 4

The powers and duties of the President, as defined
by the constitution, are broad and ample for efficiency
and independence. (1) In domestic administration
he is sole commander-in-chief of the Federal army
and navy, and also of the militia of the several States
whenever called into the actual service of the United
States, — a responsibility sufficiently exclusive for ini-
tiating, conducting, or preventing war, and for sup-

1 Const., Art. II., §1,5; Amendment XII., as to Vice-President.
Diplomatic service abroad, like that of Mr. Buchanan shortly before
his elevation to the Presidency, does not disqualify for want of a
fourteen years' residence.

2 Const., Art. II., § 1, 7. This salary, fixed originally at $25,000 per
annum, was increased to $50,000 in 1873, under President Grant ; the
increase not taking effect, however, until the second term began for
which he was re-elected.

8 Const., Art. II., § 1, 8, 9.

* Historical precedent lessens the ceremonials of a second term,
and dispenses with them altogether where the Vice-President suc-
ceeds to a legal vacancy.

164 CONSTITUTIONAL STUDIES.

pressing rebellion, though it must rest discretionally
with Congress to declare formal war, and to vote or
withhold men and supplies. Purse and sword are
here separated. He controls, moreover, his civil
subordinates, and, except in cases of impeachment,
he has unconstrained power to grant reprieves and
pardons for offenses against the United States. 1

(2) As to foreign affairs, a concern of momentous
national dignity and importance, and often involving
secret and delicate complications, the President has
properly their sole conduct, subject only to an implied
right of Congress to press its peculiar views upon
specific points of foreign policy, by joint resolution,
obstructive legislation, or otherwise; 2 so that co-
operation is desirable in all great matters of policy.
It is for the President to receive or refuse reception
to ambassadors and other public ministers from
abroad, 3 fulfilling all diplomatic relations for this
government under the established intercourse of
nations, which is essentially executive. He com-
mences at pleasure and conducts all foreign negotia-
tions in public affairs, and makes all treaties. But
two-thirds of a Senate quorum must concur and give
sanction to each treaty, since otherwise it cannot
take effect; 4 and, furthermore, any treaty requiring
appropriations or new legislation to carry it into
effect ought justly to command a majority support
in both houses. 5

1 Const., Art. II, § 2, 1. He may pardon a person or a clais of
persons, before conviction or prosecution as well as later, with no con-
straint except that rights of property vested hy the prosecution cannot
be disturbed by him.

2 See "Forum," March, 1897, for the author's views concerning
such discordance.

3 Const., Art. II., § 3. All this, which belonged to Congress alone
under the Confederacy, was felt to require executive management.

4 Const., Art. II., § 2.

6 In the Jay treaty debates of 1796 the argument was pressed that

EXECUTIVE POWERS AND DUTIES. 165

(3) In the appointment of all subordinate officers
of the United States the permissive patronage of the
President is almost that of a monarch. Army and
navy officers he posts and details like any other com-
mander-in-chief, issuing and promulgating through
his Secretaries of War and the Navy rules and orders
which he is competent to change. As for the vast
and growing civil list, nothing but civil-service rules,
sanctioned and proclaimed by the President himself,
can safely operate to curtail his constitutional right,
whether immediately or by indirection, of controlling
the whole Federal executive patronage from highest
to lowest subordinates by appointing to vacancies,
and as appears most probable, by creating them at
pleasure. 1 Congress exercises fundamentally but a
limited constraint over such patronage. An act of
Congress creates the office and fixes its term and
recompense; periodical appropriations by Congress
are essential to the payment of such recompense.
But neither House of Congress nor both houses can
assume to appoint to civil or military office; there
remains only the "advice and consent " of the Senate
essential to a full and effectual appointment to the
higher offices. In other words, the President nomi-
nates to the Senate, and with a majority consent of
that body appoints ambassadors, other public minis-
ters and consuls, judges of the Supreme Court, and
all other officers of the United States established by

a treaty once ratified by the Senate becomes obligatory upon the House
under the constitution, and binds that body to vote appropriations ac-
cordingly. But the issue remained open to discussion ; and it is now
clear that legislation by Congress after the usual course may repudiate
any treaty, subject to the President's veto. 11 Wall. 616. As to the
international effect of such a breach, that is another question.

1 The civil-service rules of the present day, for reform of former
abuses under each new party President, are aided by legislation in
Congress, but it is the President who here, as in the army and navy
service, supplies his voluntary enforcement, But see page 170.

166 CONSTITUTIONAL STUDIES.

law, whose appointments are not otherwise provided
for in the constitution. 1 But Congress may (as they
have done frequently) vest by law 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 President has power to
fill all vacancies that may happen during the recess
of the Senate by granting temporary commissions. 2
He shall commission all the officers of the United
States. 3

(4) With regard to Congress and the regular
course of legislation, the President has important
functions, chief among which is the qualified veto-
power already described, 4 — a power so salutary in
practice as to have induced most States to adopt it,
with here and there an improvement which the
Federal instrument might well adopt in return. 6
The President is to inform Congress from time to
time of the state of the Union, and recommend such
measures as he shall judge necessary and expedient;
whence the established custom of a formal message
at the opening of each session, which under the two
earliest Presidents was made a grand ceremonial
occasion. 6 He may on extraordinary occasions con-

1 The Vice-President, like the President, is chosen by electors;
members of either branch of Congress are chosen independently of
the Executive ; and each house controls its own subordinates.

2 Const., Art. II., § 2.
8 lb., § 3.

4 Supra, page 111.

6 See Part III., post. As (1) in giving the President a stated time
after final adjournment in which to approve or disapprove the latest
bills; (2) in allowing him to veto items of appropriation bills, instead
of having to pass upon the bill as a whole.

Under the administration of Washington and John Adams, the
President went in state to Congress to deliver the message orally be-
fore the assembled houses; after which each house would consider
and frame a formal address in reply, bearing it in procession to the
executive mansion with corresponding ceremony. President Jefferson

EXECUTIVE POWERS AND DUTIES. 167

vene both houses or either of them ; and where the
two houses disagree with respect to the time of ad-
journment, he may adjourn them to such time as he
shall think proper. 1

(5) Finally the President shall take care that the
laws be faithfully executed; 2 and this includes not
alone the enforcement of acts of Congress according
to their express terms, but all the protection, national
or international, which the nature of our constitu-
tional government implies. 3 Nor can the judiciary
directly intervene by mandamus, injunction, or other-
wise, to control the Chief Executive in the exercise
of his high discretionary functions, — not even upon
the allegation that he is enforcing an unconstitu-
tional law. 4 But as to Federal subordinates, and in
acts purely ministerial, where nothing is left to
official discretion, it has been ruled otherwise. 6
Ministerial and executive duties in such a connection
should not be confounded ; for the exercise of power
to enforce the laws is a purely executive political
duty, which no remedy short of impeachment by
Congress can rightfully restrain. Congress cannot,
however, lawfully increase these executive duties
by delegating to the President its own legislative
authority. 6

The Executive Department has on the whole been
admirably adjusted, and a supreme incumbent of high

in 1801 substituted the simpler and more convenient method of sending
to Congress a written message, to which no formal reply was expected,
and such has since continued the uniform practice of government.

1 Const., Art. II., § 3.

2 lb.

» 135 U. S. 1.
* 4 Wall. 475; 6 Wall. 57.
« 1 Cranch, 137; 9 Wall. 298; 12 Pet. 524.

6 143 U. S. 649. But suspension of reciprocity by the President's
authorized proclamation is not open to such objection. lb.

168 CONSTITUTIONAL STUDIES.

character, wisdom, and good sense cannot fail even in
times of peace to make a strong and abiding impres-
sion. The very fact that Congress has such power
for enacting momentous laws unwisely renders it all
the more desirable that the President should have a
counteracting influence like some tribune of the
people. Another strong bulwark against the tyranny
of either Congress or the President, another grand
popular reliance, will next appear in the Federal
Judiciary, and most of all in the Supreme Court;
and the tenure of Federal judges, which alone is
fixed for life or good behavior by the constitution,
places them in the civil service above the reach of
arbitrary removal. '

IX.

FEDERAL CONSTITUTION ANALYZED; THE
JUDICIARY.

The want of a distinct and efficient Federal judi-
ciary was felt to be so vital a defect of the old Con-
federacy that the creation of this third department of
government under the Federal scheme of 1787 was
readily allowed. Here and there in Articles of Con-
federation we find a permissive establishment of
courts for piracies or captures on the high seas, while
Congress itself was made the final tribunal for deter-
mining disputes between States over such matters as
boundaries. 1 Yet in all this there was found no
independent Federal establishment, no sanction for
Federal judgments, no explicit means of enforcing
upon States or their inhabitants a decision rendered.
A judiciary aids in the due execution of powers
given to a government, by applying compulsion to
refractory individuals; its process should be afforded
to all invoking the public standards of right for the
adjustment of private controversies ; it should inter-
pret laws, treaties, and the constitution so as to give
a uniform sense to which all good citizens must
submit.

The Federal judiciary established by our consti-
tution of 1787 was made accordingly after the
Montesquieu formula, as independent and distinct as
either Congress or the Executive. One declared

i Confed., Art. DC

170 CONSTITUTIONAL STUDIES.

object of the preamble to that constitution was to
"establish justice;" and among the enumerated
powers of Congress "to constitute tribunals inferior
to the Supreme Court." 1 The judiciary article itself
declares expressly that "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." 2 Thus, while
Congress may model and remodel the lower Federal
tribunals from time to time, as may be deemed expe-
dient, the Supreme Court, which is the head and
crown of the whole system and the Federal tribunal
of last appeal, remains as perpetual in functions, as
intact and independent (except for diminishing or
increasing its membership when vacancies occur 3 ) as
Congress itself or the Executive. No law can abolish
or supersede it; no Presidential fiat can change the
incumbents. So complete a separation of a judiciary
from the other two departments of government sup-
plied to our Federal system what few States possessed
thus early. 4 In tenure and method of appointment
this Federal system conformed fairly to the spirit of
1787, but unchanging afterwards, as most State
systems have done, it anchors fast to stable conserv-
atism, as so august a judiciary should. All Federal
judges have been regularly appointed by the Presi-
dent, subject to confirmation by the Senate, and those
of the Supreme Court cannot constitutionally be
appointed otherwise. 5 Their tenure is defined unre-
servedly as "during good behavior; " and their com-
pensation, which they are entitled to receive "at
stated times," shall not be diminished (though Con-

1 Art. I., § 8.

2 Art. III., § 1.

8 Vacancies cannot be compelled except by impeachment.
4 Supra, page 66.
6 Supra, page 165.

THE FEDERAL JUDIGIARY. 171

gress may increase it) during their continuance in
office. 1 A Federal judge may be displaced by due
process of impeachment, but the Federal constitution
gives no power to remove on the simple address or
joint resolution of Congress. 2

Since Congress may change the inferior Federal
courts at will, so may it abolish, and thus incidentally
deprive judges of their offices. A premature circuit
court establishment was thus swept away in 1801
when Jefferson became President, and politics con-
quered politics. Soon after the Civil War circuit
courts with special judges were re-erected by Con-
gress, and in 1891 was interposed a court of appeals
to rank next in order to the permanent Supreme
Court. District courts in each State were always
the Federal tribunals of first resort. Territorial
courts, erected as incidental to general sovereignty
over national territory, are not within the strict estab-
lishment; and judges of such courts may be appointed
for definite terms, and are removable by the Presi-
dent. 3 Nor have the President's military provisional
courts any permanent civil character. 4

Our Federal courts have kept to their own domain,
performing no functions except those of a judicial
nature, and such as the constitution imposes plainly
upon them. They refuse to arbitrate political issues
or to participate in executive business ; they decline
to sit as commissioners or determine questions sub-
ject to the consideration and supervision of Congress
or of some executive officer. 6 The Supreme Court

i Const., Art. III., § 1. To induce but not compel voluntary retire-
ment at old age after long and faithful service, acts for pensioning
such judges have been passed.

2 Cf. State organic law, page 67.

3 l Pet. 511; 141 U. S. 174.

4 9 Wall. 129 ; 13 How. 498.

5 Cooley, 51 ; 13 How. 40; 19 Wall. 107, 655.

172 CONSTITUTIONAL STUDIES.

would not entertain appeals from the Court of Claims
until Congress gave a judicial character to that
tribunal by making its money judgments competent. 1
Nor does the organic rule of States like Massachu-
setts obtain for procuring the Supreme Court's
advice as a basis for future executive or legislative
action; but its opinions are rendered only in the
course of regular litigation. 2

Not to be too technical in describing here the judi-
cial power which United States courts exercise, we
may observe that Federal jurisdiction arises under
three different conditions : (1) Because of the sub-
ject-matter; as where a case, whether in law or
equity, civil or criminal, arises under the Federal
constitution, the laws or the treaties of the United
States and the interpretation thereof is material to
the issue ; and besides in all cases of admiralty and
maritime jurisdiction arising on the high seas or
internal navigable waters, or in interstate commerce,
subjects vested in the Federal government. 3 And
here, both in interpretation and enforcement, the
Federal judiciary is supreme. (2) Because of the
parties litigating whom local State process cannot
fairly conclude. As in civil cases, regardless of the
subject-matter, between citizens of different States;
so that in consequence our Federal decisions compre-
hend to-day a great body of commercial and business
law, not strictly binding as precedents otherwise

1 Cf. 2 Wall. 651, and acts of 1863.

3 During President Washington's administration, and while the
Supreme Court had as yet very little judicial business to transact, an
opinion upon the legal bearings of certain matters before the Cabinet
was refused by Chief Justice Jay on constitutional grounds. This,
however, has not prevented judges nor even the Chief Justice from
serving in some special capacity for a public emergency.

8 Federal jurisdiction here is very broad. 12 How. 443.

THE FEDERAL JUDICIARY. 173

upon the courts of individual States, but rendered so
as to harmonize as far as possible the contemporaneous
law and practice of the States where parties litigant
resided. (3) Because of subject-matter and parties
combined ; and with particular reference to the grav-
ity of State or international disputes which might
affect the peace and stability of the whole Union.
To this head belongs the exclusive Federal jurisdic-
tion of all cases which affect ambassadors, other
public ministers and consuls; of all controversies to
which the United States shall be a party ; of contro-
versies between two or more States, 1 between a State
and citizens of another State, 2 or between citizens of
different States; between citizens of the same State
claiming lands under grants of different States ; and
between a State or the citizens thereof and foreign
States, citizens or subjects. 3

In this third and gravest class, or rather in all
cases which affect ambassadors, other public ministers
and consuls, and those in which a State shall be a
party, the Supreme Court takes original and uncon-
trolled jurisdiction under the constitution. But in
all such other cases as we have mentioned, the
Supreme Court exercises an appellate jurisdiction
merely, both as to law and fact; and this, further-
more, subject to such exceptions and regulations as

1 As in some question of boundaries or division. 11 Wall. 39.

2 An early decision against the State of Georgia by the Supreme
Court (2 Dall. 419), produced such alarm that the constitution was
amended (1794-1798) so as to exclude Federal jurisdiction of any suit
in law or equity commenced or prosecuted against one of the United
States by citizens of another State, or by citizens or .subjects of any
foreign State. Amendment XI. But a State may expressly waive
such defence. 108 U. S. 436. The principle that a sovereign is not
amenable, involuntarily, to the suit of an individual, has no application
to a suit by one government against another government. 143 U. S.
621.

» Const., Art. in., § 2.

174 CONSTITUTIONAL STUDIES.

Congress shall make. 1 This appellate jurisdiction
comprehends the highest State courts as well as
inferior Federal tribunals, wherever a cause of juris-
diction affirmatively appears; in considering State
constitutions, for instance, or laws, which involve a
question of conflict with the Federal " supreme law
of the land." 2 But the Supreme Court imposes
cautious conditions upon State supervision. A griev-
ance must be affirmatively shown. The appeal must
not be upon an agreed statement, but as the result of
honest antagonism ; nor will it be entertained on any
simple issue of facts, nor where the State tribunal
might have decided upon some other ground, but
only in law and necessarily. 3 Federal courts are
indisposed to take a criminal out of State custody by
habeas corpus ; 4 nor can the mere hardship, impolicy,
or injustice of any State law or constitutional pro-
vision be alleged as an objection to its validity.
Aside from all such appellate jurisdiction, cases are
removed from State to Federal inferior courts upon
proper jurisdiction shown. 6

Europeans often wonder that Federal and State
courts can work together in upholding so complex and
conflicting a jurisdiction; but, as English observers
admit, the system of Federal supervision works, and
now, after a hundred years of experience, works
smoothly. 6 For the fundamental principle in the
United States is that the supreme law-making power
resides in the people, and that whatever they funda-
mentally enact binds everywhere; so that, whether

1 Const., Art. III., § 2. The Court of Appeals (1891) now renders
final judgment in many cases.

2 Const., Art. VI.

8 143 U. S. 339 ; 150 U. S. 361 ; 152 U. S. 355.
* 156 U. S. 272.

5 Cooley, 129 ; U. S. Eev. Stats. 641, and acts of 1887 and 1888.

6 1 Bryce's Commonwealth, 245.

JURIES AND FEDERAL CRIMES. 175

in State or Federal application, that which is uncon-
stitutional transcends the permanently expressed will
of the people. 1 Delay and patient deliberation by
the highest tribunal over what has been fully argued
in a concrete case, not arising until the enactment of
disputed validity has been put in force, must go far
towards preparing the public mind for accepting an
adverse judgment. Public legislation submits thus
to our sober second thought, and the Supreme Court
is keeper of the national conscience, the guaranty of
minority rights, as it ought to be. For, as Burke
has so fitly observed, every government ought in
some sort to make a balance of its judicial authority,
and give security to its justice against its power. 2

One or two provisions of the Federal constitution
concerning judicial procedure may be noted in this
connection. The ancient trial by jury, which we
have seen our Revolutionary States proclaiming
among fundamental rights, 3 is clearly secured in the
instrument of 1787, so far as all criminal trials
(except in impeachment) are concerned. As to vici-
nage, always an important incident of this sacred
right, lest one might be dragged into distant neigh-
borhoods for arraignment, it is further provided that
such trial shall be held in the State where the crime
shall have been committed; or if not committed
within any State, at such place as Congress may by
law have directed. 4 But, this original instrument
ignoring the civil trial by jury, one of the earliest

1 Even the Supreme Court of the United States has in one or more
great instances heen considered as overruled by the people, acting
through political change; and imposing their " higher law."

2 For more technical details of Federal judicial power, see Cooley's
Elements, 111-147; Story, § 1577, latest notes.

8 Supra, page 32.

4 Const., Art. IH, § 2, 3.

176 CONSTITUTIONAL STUDIES.

amendments preserved that right in all common-law
suits, where the value in controversy should exceed
twenty dollars; forbidding to United States courts
the re-examination of any fact tried by a jury other-
wise than according to the rules of common law. 1
Other amendments insisted upon the presentment or
indictment -of a grand jury, denned the vicinage more
closely as that of the "State and district," wherein
the crime shall have been committed, such district
having been previously ascertained by law, and added
important safeguards to the accused which will be
noticed later. 2

Treason against the United States is most liberally
denned, repudiating the odious doctrines of construc-
tive treason once prevalent in the mother country.
Such treason, it is stated, shall consist only in levy-
ing war against the United States, or in adhering to
their enemies, giving them aid and comfort. 3 Equally
liberal as to the proof of such treason, against the
mockery of English State trials in the preceding
century, our constitution declares that conviction of
treason must be on the testimony of at least two wit-
nesses to the same overt act, or on confession in open
court. And once more setting an example in pun-
ishment for the offence, which England followed long
after, it repudiates the old common law which cruelly
visited the offence upon children and children's
children. Congress may declare the personal pun-
ishment, but no attainder of treason shall work cor-
ruption of blood or forfeiture beyond the life of the

1 Amendment VII.

2 Amendments V., VI.

8 Const., Art. III., § 3. This provision is taken from the old Statute of
Treasons, 25 Edw. III., which during the English civil war was plainly
violated in Sidney's trial. See 4 Bl. Com. 75. A mere conspiracy
by force is held not sufficient, without an actual levying of war
4 Cr. 75.

JURIES AND FEDERAL GRIMES. Ill

person attainted. 1 There is no common-law juris-
diction of crimes in the United States, but Federal
crimes must be denned by Congress, subject to the
further written law of the Federal constitution. 2

1 See 9 Wall. 339, as to a case under our own civil war of 1861-65 ;
also English statute 3 & 4 William IV., c. 106. With hanging, draw-
ing, and quartering, the old English punishment of a traitor's person
was barbarous enough. Hanging has been the appropriate modern
punishment; but under Act July 17, 1862, Congress gives the court
discretion to sentence by fine and imprisonment instead. The criminal
offence of treason, though heinous enough, is one of the most difficult
to calmly adjudicate or discern in any body politic. Under our own
composite system there is allegiance due to the United States, and alle-
giance due to the State, the former being now acknowledged para-
mount ; and one might render himself liable to State prosecution for
some local traitorous offence to which these Federal clauses would not
per se apply.

2 8 Pet. 591 ; 125 U. S. 555.

12

X.

FEDERAL CONSTITUTION ANALYZED; INTER-
STATE AND TERRITORIAL RELATIONS.

Article IV- of the constitution is largely devoted
to interstate provisions which affect private rights
and the States themselves. Much of it is an expan-
sion from the earlier text of the Articles of Con-
federation.

That full faith and credit shall be given in each
State to the public acts, records, and judicial pro-
ceedings of every other State is admitted to be an
essential rule of comity, and particularly so in a
co-ordinate Union like ours. The constitutional
phrase is almost literally borrowed from Articles of
Confederation, 1 with the fitting supplement that
Congress may by general laws prescribe the man-
ner and effect of such proof. 2

The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several
States. 3 This, too, is a paraphrase only less literal
from the Articles of Confederation, which recognized
such a comity under the earlier Union, " the better
to secure and perpetuate mutual friendship and inter-

1 Articles, IV.

3 Const., Art. IV., § 1. Inquiry into the jurisdiction of another
State court over parties and subject-matter is not precluded. 138
U. S. 439 ; and see HI U. S. 657.

3 Const., Art. IV., § 2. See also Amendments XIV., XV., enlarging
the constitutional effect of this clause.

INTERSTATE PROVISIONS. 179

course among the people," and for equal "privileges
of trade and commerce." A sort of mutual State
citizenship, with reciprocal privileges and immuni-
ties, as in passing through, residing, pursuing busi-
ness and enjoying liberty and property, is here under
the Federal system of 1787 effectively secured. It
is further declared in the same connection — once
more paraphrasing Articles of Confederation 1 — that
fugitives from justice, charged in any State with
treason, felony, or other crime, shall be extradited
on executive demand, wherever found, to be removed
to the State having jurisdiction of the crime. 2 This
and another clause, now happily obsolete since the
extinction of American slavery, 8 complete the comity
provisions which affect our interstate relations more
immediately for the individual. 4

Next as concerns States immediately in their public
relations, provision is first made for extending the
original Union by the prospective admission of new
States. Under the Confederacy a similar extension
had been authorized, embracing Canada, with pos-
sibly other British-American colonies ; 6 but the Con-
tinental Congress went beyond such literal authority
when title to the vast region of the Mississippi was

1 Articles, IV. The original article is drawn out rather loosely,
and so as to avoid controversy under a confederated system which left
all naturalization to coequal States.

2 Const., Art. IV., § 2. This is a State executive duty which Fed-
eral courts cannot compel. 24 How. 66. Local retaliation generally
corrects any mischief.

8 Const., Art. IV., § 2, 3, known historically as the "fugitive slave
clause," though purposely avoiding the word " slave ; " and requiring
State extradition of persons " held to service or labor in one State "
and escaping to another. That clause was in expression borrowed
from the early New England Articles of Confederation, page 73.

* See for technical details, Cooley, 195-201.

6 Articles, XI.

180 CONSTITUTIONAL STUDIES.

clearly quitclaimed by leading States to the Union. 1
Under our present constitution the discretion to
admit new States is lodged unreservedly in Congress
like ordinary legislation ; and ever since the Louisiana
purchase of 1803, that discretion, which had clearly
comprised the original territorial area of the United
States westward to the Mississippi, has been repeat-
edly extended in practice so as to comprehend with-
out constitutional change whatever adjacent foreign
territory on this continent between the two oceans
may be acquired at any time by war or peaceful
purchase. But both as to policy and constitutional
right, so vast and unreserved a power to Congress,
or to the treaty-making department, without limit of
popular referendum, constitutional amendment, or
unusual constraint whatever, to change the whole
scope and character of this Union by the incorpora-
tion of foreign soil and foreign populations or races,
is worth challenging on every new occasion; for it is
a power pregnant with the gravest dangers, such as
debauched and finally destroyed the Roman empire.
This confederated system of ours recognizes no per-
manent political condition anywhere but that of co-
equal States. And as for admitting new States
formed within existing and recognized domestic ter-
ritory, the unconstrained power of Congress which
the framers of 1787 intended to bestow is ample
enough to be dreaded. 2 For no State once admitted
to the Union can ever be deprived of its equal

1 Supra, page 85. In the Ordinance of 1787, whieh our first Con-
gress of 1789 ratified, it had been agreed that new States not exceed-
ing five might be formed from the northwest territory and received
into the Union. Articles of Confederation were in their final form
assented to by all the States but Maryland, before this territorial ces-
sion was made at all; hence the insufficient authority which those
Articles had recited.

2 Const., Art. V.

TERRITORIES AND NEW STATES. 181

suffrage in the Senate without its consent. 1 New
States, therefore, may be constitutionally admitted
by Congress into this Union; but no new State shall
be formed or erected within the jurisdiction of any
other State, nor any State be formed by the junction
of two or more States or parts of States, without the
consent of the legislatures of the States as well as of
Congress itself. 1

Further power is given Congress in this section
" to dispose of and make all needful rules and regu-
lations respecting the territory or other property of
the United States." 2 By 1787 a vast domain west
of the Appalachian range to the Mississippi became
the undisputed " property " of the whole Union, not
under the Articles of Confederation, but rather as a
virtual concession gained when ratifying them from
the older States. Those sovereign cessions from
Virginia and other States were not without special
conditions regarding the future status of American
slavery, which Congress later recognized. 3 Terri-
tories most ample, and stretching from ocean to ocean,
have since come into the Union, as the sole fruit of
national purchase and conquest; yet territorial the-
ories have been occasionally broached since 1787, as
though the Union were incompetent to regulate freely
its own soil for settlement and republican education.*

1 Const., Art. IV., § 3. The consent of Congress need not be di-
rectly given if fairly inferable from its course of action. 1 1 Wall. 39.
As might well be surmised, no States have ever been consolidated by
junction on such terms as above ; while in repeated instances — e. g.,
Maine from Massachusetts and West Virginia from Virginia — old
States have been constitutionally subdivided by triple consent.

2 Const., Art. IV., § 3.

8 "Nothing in this constitution shall be so construed as to prejudice
any claims of the United States or of any particular State." lb.
This mollifying clause appears to have been inserted with express ref-
erence to territorial jurisdiction.

4 " Squatter sovereignty " and other such ingenious doctrines served,

182 CONSTITUTIONAL STUDIES.

Over this general subject, however, as also in the
admission of new States, since territories ripen natu-
rally into statehood, Congress exercises a plenary
constitutional discretion, which ought to respect the
general welfare and wishes ; 1 for the constitution was
made for States and not for territories, and the terri-
torial condition is in a proper sense only temporary
and preparatory.

Finally, it is imposed on the United States as a
duty (1) to guaranty to every State a republican
government; (2) to protect it against invasion; and
(3) to protect it upon due application against domestic
violence. 2 The first or guaranty clause, whose per-
version in meaning was attempted during the recon-
struction era which followed close upon our civil
war, presupposes a State government of a republican
form already in existence; and while permitting
States to change^ their local organic law, imposes
only the restriction that republican shall never be

however, a temporary political purpose, which vanished with the final
disappearance of slavery.

1 The plenary power of Congress over the territories combines that
of a local proprietor of land and of a regulator of local government.
Doubtless that power is subject by implication to all fundamental lim-
itations in favor of individual rights which are now formulated in the
Federal constitution and its amendments. 136 U. S. 1. Methods of
territorial government for the Union date back to 1784 and to the
Continental Congress, which laid broadly the foundations of the pres-
ent public land system, clearly recognizing at once the solemn trust of
nurturing and educating the new settlements into loyal, self-governing
and orderly States. Two forms of territorial government have been
from time to time established by Congress as circumstances required :
(1) an executive Federal government, somewhat arbitrary, under the
immediate appointment of President and Senate; (2) a Federal gov-
ernment partly popular, which recognizes a territorial legislature and
local representation; and this is the usual kind. Congress may and
usually does impose certain fundamental conditions upon the admission
of each new State.

2 Const., Art. IV., § 4.

FEDERAL GUARANTY AND PROTECTION. 183

exchanged for anti-republican constitutions. 1 By-
republican government we should understand a gov-
ernment whose representatives are chosen by the
people ; and while no czar or hierarch would be thus
allowable, legitimate republican government may
take a wide variety of forms. Moreover, a State
republican government once established may demand
the Federal assistance because of the hostile action
of some invading foreign power, or by reason of some
Revolutionary domestic uprising against the consti-
tuted authority; and in either case, the intervention
of the Federal government to protect the people in
their existing government would be proper. 2 In
other extreme instances, as where despotism is in-
stalled and organized under forms of law, 3 or there
has never been a State government, or that which
once existed has been displaced in the course of
rebellion and attempted secession and lapses into
domestic disorder, some just enabling action by the
United States may be advisable or even necessary.
As for the protection of an existing State against
invasion, such is the natural incident of Federal con-
stitutional government for occasions of emergency,
as was State self-protection under the previous Con-
federation. Protection, however, against domestic
violence is so delicate an exercise of Federal power,
and so liable to abuse and sensitive collision, that it
is expressly guarded by requiring the State Legisla-
ture, or (if it cannot be convened) the State Execu-
tive, to invoke such protection. This expression,
however, does not cover the whole ground, for by
the present age the network of interstate commer-

1 Federalist, Nos. 21 and 43.

2 7 How. 1 ; 7 Wall. 700. The Dorr Rebellion in Rhode Island,
1841-42, furnished an instance in point.

8 As in the Mormon territorial outbreak of 1857.

184 CONSTITUTIONAL STUDIES.

cial and other common interests has overspread the
area of the United States so completely that where
State authorities are themselves remiss in putting
down local disorder or in calling for Federal aid, the
President, supported by Congress, is justified in
marching troops to the scene and intervening for
the welfare of the whole people and the public
concerns. 1

1 As in the Illinois disturbances of 1894. By virtue of interstate
commerce and carrying the mails, "the government of the United
States has jurisdiction over every foot of soil within its territory and
acts directly upon each citizen." Debs, Re, 158 U. S. 564.

XI.

FEDERAL CONSTITUTION ANALYZED; ADOPTION,
POWER TO AMEND, AND FEDERAL SU-
PREMACY.

Consonant to the spirit of that earlier age, both
adoption and future amendment of this Federal con-
stitution were deemed sufficiently sanctioned by repre-
sentatives of the people without a direct reference to
the polls. This, indeed, is the essence of republican
government as distinguished from democracy, whose
fiat is a plebiscitum. 1 Articles of Confederation had
been the product of a general Congress submitted
to the thirteen State legislatures for confirmation.
The constitution of 1787, on the other hand, framed
by the Philadelphia convention, went to conventions
of the different States for final sanction after a per-
missive reference by the Continental Congress; a
closer reference than before to the will of the people
(since conventions are of spontaneous popular origin),
yet an incomplete one. The prevalent disregard of
immediate popular expression was more plainly mani-
fest in the provisions made for future constitutional
amendment, which left the convention or legislative
mode a mere matter of option by Congress, still
ignoring all direct vote by the people. No inadver-
tence gave such shape to these provisions as to
make amendment difficult; for that Philadelphia
convention would never have met, the scheme of

1 Supra, page 47, for earlier State practice.

186 CONSTITUTIONAL STUDIES.

Confederation could not have been superseded at all
at this period, had one specific amendment passed all
thirteen legislatures instead of twelve, — had organic
change been possible without a universal State assent.
Even now, by a sort of revolutionary process, this
new constitution of 1787 was to be sufficiently estab-
lished by the ratification of nine out of thirteen
States, 1 and any still reluctant might remain outside.
Two specific modes of future amendment we find
set forth : one, the simpler and the only one in fact
which a century's experience has applied, is by spe-
cific amendment proposed to the several States by
two-thirds of both Houses of Congress ; the other, by
a convention which Congress shall call on the appli-
cation of the legislatures of two-thirds of the States.
In either case Congress takes the direct initiative,
though in the latter case its duty becomes formal
and imperative, and a mere majority may suffice.
In neither instance, however, is the President's
approval needed, as though to legislation, but Con-
gress performs a special function which the constitu-
tion executes. 2 For calling a new convention the
remote initiative vests in scattered but co-operating
State legislatures; but as those several legislatures
must apply to Congress, no spontaneous Federal con-
vention like that of 1787 is ever again to be legally
called, seeking Federal approval afterwards. For
the ratification of a new Federal constitution or of
prospective amendments, three-fourths of all the
States must give assent either by local legislature or
convention, as Congress may propose in advance. 3
If such a thing be organically possible as an irrepeal-

1 Const., Art. VII. See page 95.

2 3 Dall. 378.

8 Const., Art. V. Congress has thus far chosen to propose ratifi-
cation by State legislature. The mode is not optional with States, nor
is reference made at all to a direct popular expression.

METHODS OF AMENDMENT. 187

able ordinance of man, which we may well doubt, this
constitution has in one important particular ruled out
all change. 1

Students of our American system have criticised
that rigid Federal conservatism which compelled so
large a fraction as three-fourths of all the States to
give any proposed change validity. Yet there are
sound reasons for making radical Federal amend-
ment more difficult than in the less spacious area of
individual States. In fact, a popular impulse that
moves two-thirds or even a large majority not sec-
tional of the States to ratify easily widens its propel-
ling force to the greater fraction; and so was it with
the adoption of the instrument of 1787 itself. The
greater difficulty is rather in initiating change at all,
in overcoming the first inertia, in getting Congress
by a two-thirds vote to propose something remedial,
where, most of all, one or the other branch must be
shorn of privileges should the change take effect. A
hundred years and more have produced only fifteen
articles of amendment, of which the first ten, pro-
posed by the very first Congress, really rounded out
the original instrument under a tacit compromise with
ratifying States, while the last three were the exac-
tion of a bloody civil strife. The two intermediate
amendments, affecting Congressional privilege in no
respect, aimed to rectify minor constitutional defects
which Federal procedure had disclosed. When
public opinion becomes well aroused, the gates of
constitutional amendment fly wide open and entrance
gives easy exit; but it is the concrete that arouses,
and the public mind, dormant through generations
of prophetic foreboding, awakes only when sufferings
are actual.

1 Const., Art. V., close of article ; ( 1 ) as to slave-trade privileges,
obsolete since 1808 ; (2) as permanently guaranteeing the equality of

States in the Senate.

188 CONSTITUTIONAL STUDIES.

The sixth article contains three clauses. The first
proclaims all debts and engagements of the old
Confederation equally binding upon the new Union. 1
The second, or Federal supremacy clause, constantly
invoked by the Federal judiciary when State consti-
tutions or enactments violate the grand ordinance of
Union, declares explicitly that this Federal constitu-
tion, and all pursuant laws and treaties of the United
States, "shall be the supreme law of the land;"
enjoining further their paramount obligation not upon
the United States judiciary alone, by implication,
but upon the judges in every State, whatever the
constitution and laws of any State may recite to the
contrary. 2 By "supreme law of the land," or para-
mount comprehensive law essential to the whole
Union, is meant that which Congress and all other
departments of government must respect at all times,
and to which States and their own departments when-
ever in conflict must yield subordination. The
Federal constitution measures therefore the validity
of laws and treaties of the United States, which to
be valid must conform to its own ordinance ; and as
between these, a statute or a treaty is equally obliga-
tory in a national and domestic sense, so that the one
may supersede the other if later in point of time. 3

The third clause of this article, consistently with
such a doctrine of Federal supremacy, binds all high
officers, executive and judicial, as well as all mem-
bers of the Legislature, whether of the United States
or of the several States, to swear to support this

1 Const., Art. VI., § 1. Since all thirteen States entered finally the
new Union, this pledge of public faith well fortified the new national
policy of sustaining sacredly the public credit.

2 Const., Art. VI., § 2.

8 11 Wall. 616; 143 U. S. 570. Of course in an international sense
the repeal of ». treaty may involve a breach of public faith with inter-
national consequences, as concerns the other contracting power.

FEDERAL OATH AND TESTS. 189

Federal constitution, — the simple and only oath or
affirmation that the United States of America impera-
tively asks from any one. And finally, in a most
liberal spirit for that eighteenth century, when State
official tests were commonly exacting, 1 it is announced
that no religious test shall ever be required as a
qualification to any office or public trust under the
United States. 2

i Supra, page 43. * Const., Art. VI., § 3.

XII.

FEDERAL CONSTITUTION ANALYZED;

SUBSEQUENT AMENDMENTS.

The amendments to the original Federal constitu-
tion of 1787 subsequently adopted to this date are
fifteen in number. Of these the first ten collectively
are in the nature of a supplemental declaration of
rights, embracing a careful selection by the First
Congress from an immense mass of proposed amend-
ments, which doubtful States, beginning with Massa-
chusetts, had framed and submitted when ratifying
the original instrument. Ratifying unconditionally
for the sake of harmony what appeared an imperfect
constitution in its original draft, these States in con-
vention gave their needed consent upon an under-
standing that the new Federal government would at
once initiate amendments of this general character
to broaden and strengthen the safeguards of liberty ;
nor in this did the new government disappoint them. 1
Many of these "bill of rights " provisions were trans-
ferred from State constitutions already established. 2
The eleventh amendment 3 stifled suits in the Supreme

1 Amendments I.-X., all submitted together to the State legisla-
tures in 1789, and declared adopted in 1791. Congress proposed at the
same time two other amendments which failed of State adoption. One
of them fixed a permanent rule for apportioning the House of Repre-
sentatives ; the other forbade that a law varying the compensation of
members of Congress should take effect until after a new election of
representatives.

2 Cf. Part I., c. 3.

3 Proposed in 1794 and declared adopted in 1798.

SUBSEQUENT AMENDMENTS. 191

Court of the United States obnoxious to State sov-
ereignty, and prevented such litigation for the future.
The twelfth amendment 1 corrected defects in the
machinery of Presidential elections made patent in
the bitter party contest of 1800, but did not radically
change the plan. The thirteenth, fourteenth, and
fifteenth amendments, completing the list at the
present time, were the cumulative result of that
fratricidal conflict whence emerged a Union purged of
human slavery and readjusted to the new social
condition of equal civil rights, regardless of race or
complexion. 2

Congress has at different epochs entertained a vast
variety of amendment propositions, many of them
crude and transient, which have failed of a two-
thirds passage in both houses and public insistence.
One memorable one went to the States in 1861 for
adoption, but in the tremendous drift of events
became overwhelmed; pledging the Union never to
interfere with slavery as locally existing in a State,
it preceded by only four years that thirteenth amend-
ment whose actual scope was diametrically opposite,
for public opinion in those four years underwent a
revolution. No co-operative State application to call
a convention such as the constitution recognized has
ever yet demanded the action of Congress ; nor has
Congress ever required an amendment to be ratified
by State conventions instead of the Legislature.

I. " Bill of Rights " was the compromise addition
purposed to the original instrument of 1787. Several
important clauses of the original constitution had

1 Proposed in 1803 and declared adopted in 1804.

2 The thirteenth amendment was proposed and adopted in 1865.
The fourteenth was proposed in 1866 and adopted in 1868. The fif-
teenth was proposed in 1869 and adopted in 1870.

192 CONSTITUTIONAL STUDIES.

actually that character, 1 but no parade was made of
them, as though of blazing formulas our framers
were weary. Of the first eight compromise amend-
ments, which touch the individual and civil rights,
it should be said that in general they apply exclu-
sively to Federal jurisdiction and procedure ; 2 States
themselves cherishing similar maxims for appli-
cation to issues more peculiarly their own. As to
the first amendment (1) Congress must make no
establishment of religion nor prohibit its free exer-
cise, — a prohibition which is not transcended by
breaking down some despotic hierarchy or polygamy
pursued under the guise of religion in the Territories, 3
but inculcates non-interference in private preferences
of religious worship. (2) Congress must not abridge
by law the freedom of speech or of the press, — a
maxim already pronounced in the States, where its
application must mostly be confined. 4 (3) Congress
must not abridge by law the right of the people
peaceably to assemble and to petition the government
for a redress of grievances. 6

II. A well-regulated militia being necessary to
the security of a free State, the right of the people
to keep and bear arms shall not be infringed. 6

1 E. (/., the humane limit to penalties for treason, the habeas corpus,
no title of nobility, no religious test for office, and jury trial in criminal
cases.

2 147 TJ. S. 490, as to fifth amendment; 124 XL S. 200; Story,
§ 1782, notes.

8 136 TJ. S. 1.

4 The "sedition act" of Congress in 1798 appears to have been
founded upon a misconception of Federal jurisdiction in such matters
as well as of good policy. But anti-lottery acts are no such abridg-
ment of freedom, for freedom is not immoral license.

6 This does not sanction a threatening demonstration of violence
at the capital. To petition is not to demand, but to ask with loyal
deference. This, too, we have seen, was a State maxim. Supra,
page 35.

6 For State maxims corresponding, see page 33. In the English

FIRST TEN AMENDMENTS. 193

III. Soldiers shall not be quartered in time of
peace in any house without the owner's consent, nor
in time of war except as the law may prescribe, —
an abuse of the colonial age while revolution was
impending. A common incident of war while bel-
ligerent or rebellious soil is occupied, it should not
be arbitrary or injurious to peaceful and loyal
citizens.

IV. The people shall be secure against unreason-
able searches and seizures, and no warrants shall issue
but upon probable cause, supported by oath or affir-
mation and a particular description. 1

V.-VIII. The next four amendments chiefly con-
cern procedure in the Federal courts, extending safe-
guards such as States had expressly recognized for
protection of the accused. Presentment or indict-
ment must be made by a grand jury for a capital or
otherwise infamous crime, as an added prerequisite
to the trial of crimes by a jury ; 2 though to cases
arising in the land or naval forces, court-martial
regularly applies, as well as to State militia while in
active Federal service. 3 No person shall be twice
put in jeopardy of life and limb for the same offence ;
nor shall any one in any criminal case be compelled
to be a witness against himself. 4 The accused in all

Bill of Eights of 1688 was a similar provision as to Protestants, whom
the King had disbanded while treating Roman Catholics with favor.

1 Supra, page 33. " Writs of assistance " or general search-war-
rants were a cause of complaint against George III. before the Revo-
lution, and the eloquent James Otis denounced them. No sealed letter
can be lawfully opened except under a search-warrant. But see 96
U. S. 727 as to lottery circulars; 143 U. S. 110.

2 Supra, page 175.

3 158 U. S. 109.

4 Amendment V.; 142 U. S. 148. It is not "twice in jeopardy" to
undergo a second trial where the first jury reached no verdict before
its discharge. If a witness has absolute immunity against future prose-

13

194 CONSTITUTIONAL STUDIES.

criminal prosecutions shall have a right to a speedy
and public trial by an impartial jury of the State and
district of the crime. 1 He shall be informed of the
nature and cause of the accusation, and be confronted
with the witnesses against him ; he shall have com-
pulsory process for obtaining witnesses in his favor,
and shall have the assistance of counsel for his
defence. 2 This final clause at least secures valuable
rights to the accused which the old common law
curiously ignored, and all the foregoing safeguards
were well worth expression.

No person shall be deprived of life, liberty, or
property, without due process of law; nor shall
private property be taken for public use without just
compensation. 3 These are broad maxims constantly
invoked. Life, liberty, and property comprise those
personal rights which are universally dearest to the
individual, and deserve most the law's equal protec-
tion. " Due process of law " guards those individual
rights from all sovereign interference apart from
such correct and orderly proceedings, considerate of
private right, as are imposed by what has long been
called " the law of the land, " — a law sound in policy
and operating upon all alike. 4 Constitutional or

cution, he may be compelled to testify, as the latest cases rule. 161
U. S.-691. Cf. 142 U. S. 547.

1 Various State statutes are constitutional which allow one charged
with crime to waive voluntarily a trial by jury and elect to be tried by
the court. 146 U. S. 314. Territorial trials do not require any ascer-
tained "district," as district relates to States. 138 U. S. 157. And
see supra, pages 32, 34.

2 Amendment VI. See 161 TJ. S. 29.

Amendment VII. as to jury trials in civil suits at common law has
been noticed, supra, page 175. In equity and admiralty suits jury
trials are in the main discretionary with a court for special issues of
fact only. Nor in the analogous Court of Claims procedure is a jury
trial essential. 102 U. S. 426.

s Amendment V. at close.

4 153 U. S. 716.

FIRST TEN AMENDMENTS. . 195

"bill of rights" provisions admirably define those
rights in America; and both statute and case law
must respect such fundamental guaranties in order to
apply " due process of law. " l The identity in mean-
ing of this familiar expression with "law of the
land " — both Anglo-Saxon phrases time-honored — is
now conceded. 2

" Taking property for public use without just com-
pensation " was already forbidden in State constitu-
tional law, 3 and States to this day preserve the
organic prohibition under some variations of expres-
sion. The right of eminent domain in a government
to appropriate and control individual property for the
public use and welfare, as in laying out highways or
erecting public buildings, is admitted, and that right
is often imparted to municipal and other corporations ;
but the exercise of such a right in its many manifes-
tations must respect individual ownership by award-
ing not an arbitrary but a just recompense, which, if
not otherwise agreed upon, must be awarded by some
fair and impartial tribunal. 4 There may be fran-
chises or other incorporeal property as well as property
corporeal subjected to this taking. 5

Excessive bail shall not be required, nor cruel and
unusual punishments inflicted. 6 Here we find old

1 See Cooley, 229-235. Hence do we find statutes practically tested
by these more fundamental and enduring precepts, whose early inspi-
ration was drawn from such solemn documents as Magna Charta. Our
Federal constitution well distinguishes in this respect by ordaining
that instrument with statutes " made in pursuance thereof," etc., " the
supreme law of the land." Supra, page 188.

2 18 How. 272. And see Amendment XIV.
8 Supra, page 41.

4 Cooley, 344-357 ; 152 U. S. 132 ; 160 II. S. 499 ; 142 U. S. 79.

6 148 TJ. S. 312.

6 Amendment VIII. Electrocution is not a " cruel and unusual
punishment" within the constitution, but rather in sense a humane
one. Nor can the solitary confinement of a condemned criminal be
deemed unconstitutional. 142 U. S. 155.

196 CONSTITUTIONAL STUDIES.

barriers renewed against tyranny; for constitutions
do not so much create new rights in the people as
prevent abuse under the forms of justice. A
prisoner once convicted by a jury may be rightfully
committed without bail pending an appeal,

IX., X. The last two amendments of the original
compromise concern reserved sovereign and public
rights not imparted to this new Federal or Federor
national government. Here it is seen that the reser-
vation made is not so much of State sovereign powers
as of that general sovereignty of the whole people
in whose name the instrument of 1787 had ordained
a new and more perfect Union. 1 Under Articles of
Confederation, it was the States that prepared and
entered into the league of Union; and those articles
distinctly asserted that the powers not expressly
delegated to the United States in Congress assembled
were retained by the respective States. 2 But in
adapting that assertion to the new constitution by
way of amendment, Congress purposely put forth a
phrase less favorable to State sovereignty, by omitting
the former word "expressly," as though some of the
newly delegated authority might fairly be implied,
and by reciting that the powers not delegated to the
United States by the constitution, nor prohibited by
it to. the States, were reserved to the States respec-
tively, "or to the people," a pregnant alternative. 3
So, too, in the preceding article it was declared that
the enumeration in this constitution of certain rights
should not be constrained to deny or disparage others
"retained by the people." 4

In all strict Confederacies, as history teaches,
either the strongest States rule or anarchy prevails.

1 Const., Preamble. 3 Amendment X.

2 Articles, II. * Amendment IX.

LATER AMENDMENTS. 197

But in America, under the constitution, the subjects
of the present Union are not States, but private citi-
zens, and a peculiar representation tends to equalize
State influence. To quote from De Tocqueville, the
United States constitute no longer a Federal govern-
ment, but an incomplete national government, which
is neither exactly national nor exactly federal, and
two sovereignties exist in each other's presence. 1

XI., XII. The eleventh amendment, which re-
strains the judicial power of the Union in suits by
non-resident individuals against a State, has already
been considered. 2 So also has the twelfth amend-
ment, which cured some defects in the primitive
machinery of Presidential elections, without essen-
tially changing its operation. 3

XIII.-XV. Of the three final amendments, the
effect is cumulative towards one general end ; namely,
to establish in essential citizenship a race once held
in bondage. The thirteenth amendment, the direct
logical outcome of our Civil War and of President
Lincoln's military emancipation, abolished forever, in
clear and simple phrase borrowed from the old ordi-
nance of 1787, not negro slavery alone, but all
slavery and involuntary servitude, within the United
States or any place subject to their jurisdiction,
except for crime upon due conviction. 4

The fourteenth amendment, further extending the
scope of social reconstruction which followed this
first grand achievement and the close of armed con-

1 De Tocqueville's America, 199.

a Supra, page 173. See 140 U. S. 1.

8 Supra, page 161.

4 Amendment XIII. Asiatic slavery cannot lawfully exist in
America, more than African, nor can a system of peonage or of
compulsory adult apprenticeship.

198 CONSTITUTIONAL STUDIES.

flict, is partly vindictive or retributive, and yet not
harshly so either in expression or enforcement, con-
sidering the provocation. President Lincoln was
now dead. The pursuance of a policy towards van-
quished fellow-citizens passed into other control ; and
the States lately resisting were compelled to pass
under the yoke, and sanction new terms of pacifica-
tion, before normal relations with the Union were
fully restored. Hence the adoption in turn of the
fourteenth and fifteenth amendments, by States
Southern as well as Northern, in a co-operative assent
under the forms of the constitution. 1

Three prime objects are presented by the four-
teenth amendment: (1) the better protection of the
emancipated negro as a citizen of the United States,
under the broadening of former definitions ; 2 (2) the

1 Article XIII. had been unconditionally ratified by thirty-two
States out of thirty-six. Article XIV. was ratified by thirty-three
States out of thirty-seven, and Article XV. by thirty States out of
thirty-seven. All this was far in excess of the requisite three-fourths.
The States rejecting amendments, in every such instance, were either
border slave States, not under military control, or those of the free
North, where public sentiment opposed the reconstruction policy of
Congress.

The constitutional effect of State rejection followed by acceptance,
and of State acceptance followed by rejection, might have come up for
discussion had the vote been closer in adopting these three amend-
ments, for historical precedents were here furnished. (1) Conditional
ratification is usually to be considered no ratification in a constitutional
sense ; and such being the prevalent belief when the constitution of
1787 came before the conventions of the original States, reluctant
State conventions abstained from such action. (2) State acceptance
is probably constitutional, even though a previous legislature or con-
vention has rejected, provided such ratification follows within a reason-
able time. (3) But after a full acceptance, it seems that a State
cannot rightfully rescind ratification and then reject ; if, at all events,
some other State has meanwhile ratified upon the faith of that previous
acceptance. These three statements of doctrine find analogies in the
common law of private transactions.

2 Under the well-known "Dred Scott" decision of 1857 (19 How.
393), the rights of American citizenship were denied by the Supreme
Court to the negro, whether as a slave or a freeman.

CIVIL WAR AMENDMENTS. 199

punishment of citizens lately rebellious; (3) the
integrity of public credit and the public debt of
the United States, by upholding the claims of loyalty
and repudiating those of disloyalty under the late
conflict. 1 A broad and enlightened status of citizen-
ship for the future, based alone upon birth or natural-
ization in the United States subject to its jurisdiction,
without other adventitious distractions, is here set
forth for application, both to the United States and
to the State wherein the person resides. States are
forbidden to abridge the privileges or immunities of
citizens of the United States ; to deprive any person
of life, liberty, or property without " due process of
law; " or to deny to any person within local jurisdic-
tion "the equal protection of the laws." 2 This
amendment, as since construed in the courts, does
not change radically the former relation of State and
Federal governments ; but leaves still to the several
States exclusively the protection of all civil rights
and privileges which are not expressly or by clear
intendment vested in the Federal government con-
formably to its nature and attributes. 3 Next a new
apportionment basis for representatives in Congress,
based upon numbers, fitly supersedes that which in
1787 compromised as between the free and slave

1 Amendment XIV.

2 lb. § 1. States subject to the above-expressed constraints still
retain the police power as before ; and a " civil rights " bill of Congress
to compel an equal and indiscriminate intercourse of races at hotels, on
railway cars, or in the schools, exceeds its prescribed authority. 109
U. S. 3. Separate race accommodations and facilities may be thus
provided. 163 U. S. 537.

8 92 TJ. S. 214 ; 116 U. S. 252 ; Cooley, 258. This amendment can-
not override public rights of a State in the nature of an easement.
1 60 U. S. 452. Nor State process which affords to all parties alike a
fair hearing. 150 U. S. 380; 160 U. S. 389. But all citizens are now
equal before the law; and no racial distinctions, so far as certain
political rights are concerned, can be permitted. 162 U. S. 565 (as to
drawing jurors).

200 CONSTITUTIONAL STUDIES.

population. 1 Negro representation is to be by num-
bers henceforth where before it was merely fractional.
States are not thereby compelled in consequence to
allow all negroes to vote; but wherever a State
abridges male suffrage "except for participation in
rebellion, or other crime," its basis of representation
in the House shall be reduced proportionally. 2 Be-
sides this granted disfranchisement of " rebel partici-
pants " (which the resisting States were never inclined
to put in force), all former members of Congress
and State or Federal officers who had engaged in
rebellion in violation of a previous oath to support
the constitution of the United States were temporarily
banished from the public service under this four-
teenth amendment; but Congress long ago by a vote
of two-thirds of each house removed this disability,
as permitted. 3 Finally the validity of the authorized
public debt of the United States, including pensions
and bounties for services in suppressing rebellion,
shall not be questioned; while, on the other hand,
neither the United States nor any State shall assume
or pay any debt or obligation incurred in aid of the
rebellion, nor any claim for the loss or emancipation
of any slave, but all such debts, obligations, and
claims shall be held illegal and void. 4

The fifteenth amendment, though framed and pro-
posed by Congress in turbulent times, rises once
more to unimpassioned dignity of statement. By

1 Supra, page 105, "three fifths of all other persons" (». e., of

2 Amendment XIV., § 2. This reduction has never been really
enforced by Congress, and there are practical difficulties to determin-
ing the constitutional proportion in figures.. There are Northern as
well as Southern States which apply an educational test in restraint of
general suffrage, and thus come equally within scope of the constitu-
tional threat.

8 Amendment XIV., § 3.

* lb. § 4.

CIVIL WAR AMENDMENTS. 201

this constitutional change the elective franchise is
broadened for the late slave's benefit, and a rule is
made mandatory upon States which Congress had
previously attempted to establish by policy. 1 All
abridgment of the right to vote is forbidden as to
citizens of the United States in the present ample
sense on any account of race, color, or previous con-
dition of servitude; but otherwise local suffrage is
still left to each State's regulation as before, with
only a new Federal right to interfere against racial
distinctions at the polls. 2 For suffrage here means
civic participation in government; it is not a natural
but a political right; and all such participation is
usually limited by the local government policy. 3

Such was to be the increased responsibility of the
Union under these last three amendments that in
each instance Congress was expressly empowered to
enforce the article by appropriate legislation, 4 — a
provision not to be found in any earlier amendments
of this constitution. That power is limited, however,
in meaning to the just scope of each separate amend-

1 Cf. Amendment XTV., § 2 ; page 200.

2 Amendment XV. Such a prohibition would apply to State ballot
laws which exclude a Chinese citizen of the United States, though
negroes are more immediately concerned, whose citizenship is so
largely their birthright. A State may still impose property or educa-
tional tests for the ballot, or disfranchise for crime, but all such tests
must apply equally to whites and blacks, without racial distinction.
92 U. S. 214, 542.

8 See Part III., post, showing State restrictions upon suffrage at the
present day. Various political reasons induced the passage of this
fifteenth amendment, and among them that the ballot would prove to
be educational and a means of enlightened self-protection to the freed-
men still dwelling among their late masters. But the apprenticeship
of liberty proves always slow and arduous ; and the first real results
of this experiment were certainly disappointing. The full constitu-
tional purpose of this amendment, however, for permanent effect is
just and noble, and in aid of a humanity more generous than nations
and kingdoms ever compassed before.

4 Final section in each amendment.

202 CONSTITUTIONAL STUDIES.

ment; which, as we have seen, to the disappoint-
ment, doubtless, of many who aided these constitu-
tional changes, leaves still, as in 1787, a wide range
of State discretionary action. The Federal constitu-
tion, here as elsewhere, is self-executing in most of
its prohibitions, and requires no legislation from
Congress to make them binding. 1 This self-execut-
ing power may be inferred in various other instances
where the public interest requires it; as in enabling
the Executive or Supreme Court to maintain due
independence of Congress, or so that the citizen shall
stand secure in his sacred individual rights against
the government.

1 E. g., in the thirteenth and fifteenth amendments, and in most
portions of the fourteenth.

PART III.
STATE CONSTITUTIONS SINCE 1789.

I.

HISTORICAL SEQUENCE.

From the day that the new Federal constitution of
1787 went into full effect, that admirable scheme of
union gained a conspicuousness in the eyes of man-
kind, and a paramount influence over the destinies of
the American people that no single State instrument
could possibly have rivalled. This constitution, as
perfected by the "bill of rights" amendments which
Congress promptly proposed and the States as
promptly adopted, became at once a model for the
new State constitutions of Pennsylvania and Georgia
already in preparation ; and scarcely a State in the
whole enlarged Union can be named at the present
day whose fundamental law does not pattern after
that immortal instrument in one detail or another.
But we should bear in mind, notwithstanding, that
much of that Federal framework is inapplicable to
American statehood; and further that some of the
best basic ideas of its architecture were derived from
thirteen pre-existing State charters in successful
operation. Free government in America received by
1789 a redoubled rather than an original impulse.
Later States have imbibed in their fundamental
written law much of the spirit and formal expression

204 CONSTITUTIONAL STUDIES.

of those leading commonwealths whose glory forever
gilds our earliest annals. Thus Kentucky, Virginia's
own offspring, took her institutions from the parent
State. Much of the substance of the healthy Massa-
chusetts constitution became the flesh and blood of
those thriving new States which New Englanders
reared in the free territory northwest of the Ohio
River; while Vermont, admitted into the Union in
1791, the first of new-born States with Kentucky,
chose to pattern her instrument of government very
closely after that of Benjamin Franklin's Pennsyl-
vania, which the latter State in 1790 supplanted. 1

There are at the present day forty-five full-fledged
States in the American Union, as against the thirteen
that originally composed it; and of that number very
few can be named more than fifty years old, whose
constitution has not been repeatedly recast in conven-
tion and rewritten. Old Massachusetts is the only
State of them all which can show, like the present
Federal Union, a primitive constitution still vigor-
ously operating, which, once adopted in the eigh-
teenth century, has never been superseded; and in
both instances amendments since added have wrought
much practical change. 2 New Hampshire and Ver-
mont furnish the only other examples of an eighteenth-
century constitution still in force at all. As time
goes on, the national flag of this Union seems beau-
tifully to symbolize the true historical relation of the
several States to national development. Those thir-

1 Vermont's constitution of 1786 first made this copy; and her con-
stitution of 1 793 after admission retained the image.

2 A computation made in 1885 by a careful historical scholar showed
among other statistics that four States — Georgia, South Carolina,
Texas, and Virginia — had each lived under five successive constitu-
tions; while Louisiana adopted her sixth constitution in 1879. These
figures did not include changes in those States that might have taken
place during the Civil War. Horace Davis's American Constitutions,
16; Johns Hopkins Historical Studies.

HISTORICAL SEQUENCE. 205

teen stripes are emblems of thirteen commonwealths,
the creative source of the whole American Union;
but the more in number the stars that crowd that
azure field as time goes on, the less distinctive
becomes the individual light that twinkles from
them.

During the remnant of the eighteenth century
which succeeded 1789, and while the Federalists as
a party retained control of national affairs, conserva-
tism was predominant in the States ; and this indeed
was the essential reason why Pennsylvania and
Georgia reformed at once their turbulent establish-
ments. But the latter State, with a restless popula-
tion, after amending within six years its second
constitution of 1789, adopted in 1798 a third new
draft of government. The great gain of Federal
example to national harmony and stability had been in
persuading each of these two States to supersede that
tumultuous assembly of a single house which had
exerted much undefined authority, by a truly Ameri-
can legislature of two branches; though Vermont
chose to experiment further for herself in that former
direction. Pennsylvania, besides, chose henceforth
a single executive, after the true American model, in
place of a directory, strengthening the independence
of that department against the Legislature, as the
Federal instrument had done.

The Republican era of Jefferson "and Madison which
■ merged into the stormy war of 1812 with European
embroilment, after a marvellous season of domestic
prosperity, and which happily escaped by 1815 with
peace and renewed national honor, was not produc-
tive of great fundamental change in the existing
States. This, however, was the era of new national
growth westward and in the valley of the Mississippi,
now rapidly reclaimed from Indian occupation and

206 CONSTITUTIONAL STUDIES.

extended by purchase to the wilderness of the Rocky
Mountains; and west of the Alleghanies, as indeed
throughout the Union, the impulse towards republi-
can and uniform government was strong and steady.
Not one of the eighteenth-century States remodelled
its constitution during the first seventeen years of
the nineteenth century, though local changes were
introduced here and there through the process of
amendment. Two new States, however, Ohio and
Louisiana, the antipodes of national sisterhood, were
admitted to the Union during this era.

From 1816 to 1835 ensues a period of perfect peace,
recuperation, and internal development, of a growing
native confidence in popular institutions, and a boast-
ful disposition to make proselytes of the old world.
Self-government had vindicated its claims by Ameri-
can example, and from European systems America
felt detached forever. Six new States, each with its
accepted constitution, were admitted into the Union
during the earlier portion of this era, at the average
rate of one State a year. 1 In a majority of the pre-
existing States constitutions were largely overhauled,
and rewritten or vitally amended; and Connecticut
in 1818 threw aside finally the venerable royal charter
which had served hitherto for republican govern-
ment, and clothed herself with a modern constitution
after the prevailing fashion. The tendency of the
nineteenth century now became manifest, for one and
all of these United States, to abolish all property and
religious tests, to enlarge the franchise for the white
man, to strengthen each State executive against the
Legislature, while putting greater curb upon the
discretion of that latter body, to use the judiciary as
a political check, and generally to give the reins

1 Indiana, Mississippi, Illinois, Alabama, Maine (by separation from.
Massachusetts), Missouri, 1816-1821.

HISTORICAL SEQUENCE. 207

more completely into the hands of the people, so
that the governed might become the governing also.
By this time the example of American independence,
with its written proclamation of human rights,
became the- solace and inspiration of the feebler
Spanish-American colonies to the south of us.

To this era succeeded 1836-1861, — a period when
a still more pronounced and combative democracy
wrestled with conservatism, and other bitter strifes
went on, until the slavery conflict, forcing its own
dangerous rivalry to the front, precipitated the whole
United States into a civil strife so terrible that it
seemed almost as if the sun of the great republic had
gone down forever in blood and sectional dissolu-
tion. In most States, meanwhile, the old barriers of
caste and property were broken down, and through
the brief and impatient tenure that ensued, office-
holding lost much of its traditional dignity and sta-
bility. Not only governors and the high executive
officials were now subjected to the will of com-
mon voters, as expressed at the polls, but judicial
incumbents as well. Party spoils were proclaimed
the prize of party victors; and with wealth increas-
ing besides, which sought special favors from public
officers and the Legislature, corruption grew, which
honest voters strove to repress by straining tighter
the cords of fundamental restraint. Splendid abili-
ties, devoted love of Union, struggled in the souls
of great statesmen with the weakness of compromise
and a fatal tendency to palter public interests for
temporary advantage, while the arrogance of material
strength tempted to trample upon the rights of
weaker nations. The star of manifest destiny for a
while led on to continental empire; but though the
Union triumphed steadily and enlarged its broad area
on the Pacific, territorial aggrandizement was not

208 CONSTITUTIONAL STUDIES.

honorable, as it had been in the earlier and simpler
years of the century. A swarm of new States
swelled the catalogue of written constitutions for
this portentous era; California, the seventh among
them, disturbing in 1849 the former equipoise of
free and slave States for admission; and the pro-
tracted struggle over Kansas, after the repeal of
the Missouri compromise, arousing the most vehe-
ment sectional passion. The aggregate number of
newly admitted States for this period was ten, two
of them furnishing the first fruits of Mexican
dismemberment. 1

By 1861 democratizing influences had nerved our
whole people, and taught them a self-reliance which
was to become yet stronger. Had it been otherwise,
a civil war, which drained the resources of States
arrayed in deadly strife, would have ruined this
Union. Each adversary fought with courage and
determination, but victory crowned the stronger and
in sight of Heaven the worthier cause. During
those four years of fight little heed was given by the
Federal government to State extension ; but Virginia
being torn asunder in the struggle, a loyal and sepa-
rate State, known as West Virginia, was organized
in 1862, and Congress admitted in 1864 from the
Rocky Mountain region the sparse mining State of
Nevada. The period of southern State reconstruc-
tion lasted for about twelve years from the submis-
sion and disarmament of that section in April, 1865.
New State constitutions now forced southern inhabit-
ants not only to acquiesce in the legal extinction of
slavery throughout the Union, but to repudiate, with

1 Arkansas, Michigan, Florida, Iowa, Texas, Wisconsin, California,
Minnesota, Oregon, and Kansas. The numerous proposed constitutions
of this last-named State prior to its admission, record the desperate
struggle of free and proslavery settlers for the mastery.

HISTORICAL SEQUENCE. 209

the repeal of their several ordinances of secession,
the whole doctrine of State sovereignty upon which
the theoretical right to secede had been based.
Other conditions yet more galling were imposed by
amendments of the Federal constitution, whose
supremacy was henceforth unquestioned. 1

From the accession of President Hayes in March,
1877, the rehabilitation of the once insurgent States
became complete. Military interference in the south-
ern section now ceased, and the Union rapidly
regained its normal condition with a former obstacle
to national harmony now fairly removed. A new
era of fraternal reconciliation now commenced such
as the world has seldom witnessed. Federal amnesty
was freely accorded by Congress and the President,
while Southern States hastened to blot out as they
might the disabilities of their military champions
under their own organic law. Meanwhile at the
North and in the growing West States always loyal
have renovated their local institutions with a stronger
confidence than ever in the permanence of the
American Union, and with a fuller determination to
hold government, State or Federal, as closely amen-
able as possible to public opinion. The appointing
of all high officers of the State has been largely
taken from chief magistrates and the Legislature.
The Chief Executive, now the sole choice of the
voters, is viewed more than ever as the vicegerent of
popular authority. Fundamental limitations accu-
mulate upon legislation and the incurring of public
debt. Even the State judiciary, though strengthened
against rash and tumultuous assault, is made to feel
its final dependence upon the voters; and the pas-
sionate desire of an American democracy to control
and limit public government, at the present day, is

1 Supra, page 198.
14

210 CONSTITUTIONAL STUDIES.

in strong contrast with the deferential and implicit
confidence which the common people reposed in their
representatives, those especially of their legislatures,
a century ago. 1 Those brief instruments of State
government, in the earlier era, which left a skeleton
outline for legislatures to fill up at will, have given
place long since to lengthy constitutions, full of local
specifications and of details jealously worked out by
description, like a huge act of legislation. 2

1 The new States admitted into the Union from 1865 to 1897 are as
follows : Nebraska (1867), Montana (1889), North Dakota (1889), South
Dakota (1889), Washington (1889), Idaho (1890), Wyoming (1890),
Utah (1894). Total present number of States in the Union, forty-five.

2 Some hare severely criticised the present distrustful and prolix
tendency of expression in our latest State constitutions. One of the
ablest of such critics, the late Governor William E. Russell, of Massa-
chusetts, in an address at Yale University (1894), sets forth earnestly
some of the most forcible objections to such full and unphilosophieal
detail in an organic instrument. But something may be said on the
other side. The notable simplicity of our Federal constitution, on which
such critics dwell, is hardly in contrast ; for its framers, after much
discussion and practical experience of the particular problem, under-
took merely to draw out better and define the organic powers adequate
for maintaining an efficient Union with a few supreme concerns com-
mitted to it ; while in the several State governments remains that
great residuary mass of functions and authority, such as changes and
develops of necessity with the evolution of society. State legislation
for such vast and diversified concerns must necessarily grow and in-
crease in complexity as society multiplies and concentrates its popula-
tion ; and so, too, must the State fundamental law, which controls that
legislation, take on a like incongruous growth of provision. Massa-
chusetts is praised for keeping to the old and simple landmarks of con-
stitutional government ; and yet in that roving discretion still left to
the Massachusetts Legislature under an ancient constitution, we see
the cause and occasion of those constant and prolonged annual sessions
from which most other States are now happily exempt ; and the fact,
for instance, that mere statute enactment in that State promotes private
incorporation under general laws, while State constitutions elsewhere
compel it, does not deter the schemers from constantly seeking special
privileges and modifications for themselves, and thus at least consum-
ing the public time, if not inducing worse dangers. The true course
for States seems to be to avoid the evils of too close a specification, on
the one hand, in a written framework of government, and too lax a
discretion to transient representatives of the people on the other.

II.

METHODS OF FUNDAMENTAL ADOPTION AND
CHANGE.

How little stress, in framing and putting into
public force a State constitution, was laid upon the
direct approval of the voters prior to the Federal
example of 1787, or indeed, in that Federal instru-
ment itself, we have already remarked. 1 American
statesmen in those days thought it a sufficient resort
to first principles for the people to choose special
representatives to a convention — since a convention
derived a deeper sanction than a legislature — and
then leave that convention to its own unfettered and
final discretion. To that earlier practice of the
States Massachusetts and New Hampshire are seen
to have constituted the only clear exception ; but the
more fundamental sanction which those States chose
so early to rest upon has gradually become the com-
mon condition.' In one or two very recent instances,
to be sure, where a prime and perplexing object of
constitutional reform has been to reduce a voting
element, 2 a State convention has assumed to establish
as well as shape out the new organic law. But for
real homogeneous communities of these United States,
where the majority rules, the true sanction of a con-
stitutional convention must consist, henceforth and

1 Supra, pages 47, 185.

2 As recently (1896) in South Carolina, where there is a large negro
element of population, and (1897) in Delaware.

212 CONSTITUTIONAL STUDIES.

forever, while self-government sustains itself, not in
the choice of constituent representatives alone to that
convention, but in the ultimate approval at the polls
of that convention's work as formally submitted.

The change in this popular direction came slowly
in America, and long after the nineteenth century
had begun. 1 New Hampshire's new constitution of
1792 went to the voters, and was ratified by them,
like her earlier one. But this was an exceptional
instance. On the other hand, the amendments of a
New York convention in 1801, artfully procured,
were promulgated as final without any such submis-
sion ; and so was it with new constitutions somewhat
earlier, of South Carolina in 1790, Delaware .in 1792,
and Georgia in 1798. 2 Pennsylvania's convention
of 1789 had framed a radically new instrument of
government; and after adjourning in 1790, that the
people might examine but not pass upon the work,
it reassembled a few months later and formally pro-
claimed this new constitution in force. With States
newly admitted to the Union at the close of the last
century, the course pursued was the same. Conven-
tions framed and put in force the Kentucky constitu-
tions of 1792 and 1799; those of Vermont in 1793
and of Tennessee in 1796 were ordained in like
manner.

Ohio's first constitution (1802), followed by that
of Louisiana (1812), each framed by a territorial con-
vention under an enabling act of Congress, but not
submitted to the people, recognized among other
provisions the right of a legislature 3 to submit to
the people on future occasion whether there should

1 See notes to Poore's Constitutions, which the official text of these
early instruments serves to confirm.

2 As also the Georgia amendments of 1795.

8 In Ohio by a two-thirds vote ; in Louisiana by a majority.

FUNDAMENTAL ADOPTION. 213

be a constitutional convention ; but as to the popular
referendum of such a convention's work the instru-
ment was silent. 1 It was the era next succeeding
the peace of 1814 that saw the first decided advance
since 1787 of the popular submission doctrine in the
United States. Connecticut, in 1818, when setting
aside the old colonial charter, submitted, after the
Massachusetts and New Hampshire fashion, her new
constitution to the people, and that instrument was
ratified at the polls. Next, New York in 1821
invoked the same popular test to the adoption of a
new framework of government. Massachusetts, in
1820, held a convention and proposed important
changes in the organic law, some of which carried at
the polls while others miscarried. Great Southern
States, from 1830 to 1835, such as Virginia, North
Carolina, and Tennessee, 2 held conventions, each of
which framed fresh constitutions, and submitted
them to the people of the State, by whose majority-
vote each and all became ratified and effectual.

Pennsylvania's convention of 1790 had been called
at discretion on the seventh year by the "Censors,"
a popular council revived in Vermont's new constitu-
tion, just after Pennsylvania had dispensed with it.
Other old States, whose Revolutionary constitutions
had made no express provision for change or super-
sedure, felt an inherent'competence to summon a new
convention at any time for either purpose. But,
following the example set by the Federal constitution
and some still earlier State instruments, we see
special provisions made at once for the process of
simple constitutional amendment without calling a
convention at all. Thus Delaware (1792) adopted

1 Tennessee's first constitution of 1796 was in this respect similar,
and so were those of Kentucky and Delaware in 1792.

2 Also, apparently, Mississippi in 1832.

214 CONSTITUTIONAL STUDIES.

the Maryland rule of 1776, long favored in the
Union, that one legislature shall propose an amend-
ment by a specified vote exceeding a bare majority,
and the next after an intervening general election
shall pass that amendment similarly, and thereby
give it full force. 1 Such a mode of amendment, by
which Maryland herself made four organic changes in
the eighteenth century, without calling a convention
at all, is seen to eliminate the direct sanction of the
voter. But when Connecticut, New York, and
Massachusetts made united demonstration about 1820
in favor of submitting directly to the people all
constitutions framed in convention, those States ini-
tiated likewise by co-operation the popular reference
of specific amendments. 2 Each of these three States
at that time improved upon the old Maryland plan of
1776 (which, like our Federal plan, dispensed with
conventions for mere amendment) by requiring: (1)
proposal of the change by one legislature; (2) re-
newed proposal by a succeeding legislature ; and (3)
final approval of the change by a majority vote of the
people. And this, with occasional slight variations,
may be considered the modern American mode still
in vogue for changing a State constitution in specific
particulars where no convention, no rewritten docu-
ment of government, is thought desirable.

Thus, then, after the United States had fulfilled a
third of their nineteenth-century orbit, and emerged
into the full splendor of confident democracy, new
constitutions and even amendments to existing instru-
ments, whether initiated by convention or legisla-
ture, drew their vital breath, not from representatives
of the people, but from the final sanction of a popular

i Supra, page 49.

2 Cf. Alabama's constitution of 1819 on this point, similar but Jess
explicit.

FUNDAMENTAL ADOPTION. 215

majority at the polls. All State constitutions, in
fact, since 1835, have been thus established as matter
of course, with the rarest of exceptions. 1 A New
York convention in 1846 invoked such political
approval of its work, though the previous constitu-
tion had not literally required any test of the kind.
Even in Florida (1838-39) the constitution under
which that .territory, once Spanish, became by 1845 a
State, was submitted by schedule to its voting inhab-
itants. The people of Wisconsin territory rejected
summarily the organic instrument prepared for State
admission by a convention in 1846, and accepted a
later one in 1848. Rhode Island's constitution of
1842, the date when the last of our primitive United
States cast off its colonial charter, was a peculiar one
in many respects, having an English flavor of local
customs ; and a majority vote at the polls gave this
new instrument validity, though no amendment was
to take effect in the future without a three-fifths
popular assent. During the busy decade of constitu-
tional change which preceded Civil War, this funda-
mental submission, whether in State or territory, in
old or new jurisdictions, had become so sacred that
while the Free-Soil controversy raged hottest on the
territorial soil of Kansas, a fair-minded majority in
Congress, sustained by the public opinion of both
sections, united in refusing recognition to a constitu-
tion which in 1858 a territorial convention had sought
arbitrarily to ordain as the price of statehood; and
submission to a territorial vote being thus compelled,
the instrument was buried in ignominy.

So, too, has it been with State constitutional

1 It appears that Arkansas was admitted as a State in 1836 with a
constitution promulgated simply by the convention which framed it,
harmonizing in that respect with Missouri's neighboring action in 1820
under a constitution quite similar. Recent exceptions in States where
unpopular change is contemplated are noted supra, page 211.

216 CONSTITUTIONAL STUDIES.

amendments wherever this later period has given
opportunity for regulating anew the amendment
methods. The Arkansas constitution of 1836, by
way of solitary exception, embodied the old-fashioned
scheme of leaving all changes to be wrought out
completely in successive legislatures. 1 Elsewhere
each new or remodelled State constitution required
all new amendments to be submitted to a popular
vote. "Each amendment," says in effectthe New
Jersey instrument of 1844, " shall be distinctly pre-
sented for vote, and no amendment oftener than once
in five years." American State practice to this day
prefers that amendments shall originate in the Legis-
lature, and pass both houses by some fractional vote
greater than a quorum majority. Usually, perhaps,
a second legislature must after a similar vote con-
firm the proposition ; but in either case, a referendum
at the polls settles finally the fate of the proposed
organic alteration.

Once more, as a sign of increased deference to the
people, we find our modern State constitutions ex-
pressly providing that the people shall not only vote
upon the organic product of any future convention,
but upon the preliminary question whether any con-
vention shall be held in the State at all. New York
in 1846, liberally favoring the inherent control of
republican government by the people for the people,
declares that every twentieth year, as well as at
intervening times when the Legislature may provide,
the people shall vote whether to hold a convention
or not, and the decision of the majority shall prevail
on that point. That policy has been followed else-
where with excellent effect. 2 Other States, however,

1 Here, again, Arkansas stood by the example supplied in 1820 by
its neighbor, Missouri.

2 See, e. g., Ohio's constitution of 1851, that of Kansas, 1859, and

FUNDAMENTAL ADOPTION. 217

more conservative on that point, still prefer specific
amendments, by initiation in the Legislature, to any
such radical disturbing influence as a remodelling
convention. But conventions themselves choose
often to propose amendments rather than draft the
whole fundamental law anew. The Illinois conven-
tion of 1848 broke up its work into parts for separate
submission, as New York and other States have since
done, with good effect, in order that the rejection at
the polls of some doubtful propositions might not
prevent a legal acceptance of the worthy residue. 1

It would be interesting to consider how far funda-
mental conditions expressed in any sovereign consti-
tution as irrepealable can have binding force upon
posterity. Such conditions as recognize the Union
paramount may be thought obligatory enough with-
out any State expression, and all such conditions in
a government are understood to be subject to the
right of revolution. But other provisions expressly
declared unamendable or irrepealable may be found,
not in the original Federal instrument alone and
those of original States, 2 but regularly upon the
admission of new States to the Union formed out of
the national territory by way of a compact with
Congress. 3 A compact to be legally repealed requires
the assent of both parties ; but no such compact exists

Maryland's in 1867. To such provision we owe some excellent changes
in New York's fundamental law.

1 During the ten years which preceded our Civil War the political
convenience of taking the sense of the people separately upon doubtful
propositions became obvious when new States, such as Kansas, Oregon,
and Minnesota, were to be admitted.

2 See supra, pages 49, 187.

8 Such, for example, by way of compact with the Union, as these :
never to tax the lands of non-residents higher than those of State resi-
dents ; and that local and adjacent waters shall be a common highway
for the whole Union, etc.

218 CONSTITUTIONAL STUDIES.

between the present people of a State or nation and
their own posterity, and mutual repeal in such a sense
is as impossible us mutual establishment. No lmtnati
ordinance can rightfully claim perpetual fullihnout.

To take American institutions in their latter-day
sense ami throughout this renovated Union, now
happily in normal working ordor, tho Stato constitu-
tion is become practically a law which tho people
make directly by voting at the polls upon a draft
submitted to them; 1 meaning by this, however, an
enactment fundamental and obligatory upon all Stato
departments, legislature, executive, and judiciary,
save as to possibly transoonding tho supremo Federal
constitution, llonce it bocomos to this extent a
direct exercise of popular sovereignty, a government
by plebisoitum. Whilo our Federal constitution still
can only bo amended by throe-fourths of the States
ratifying after the old method of separato convention
or legislature (in praotieo tho latter, as Congress
has hitherto exercised its option), 8 and thoro is no
plebiscitum, no polling of tho whole United States at
all, a State constitution may usually bo changed by
a bare majority vote at the polls, however small,
after the two legislatures in succession, or (as in
some instruments), a single legislature has put the
proposed amendment before tho people. 8 Tho last
"Council of Censors," with authority to call conven-
tions or amend, has vanished from tho Statos. 4 And
in tho lengthy constitutions with infloxiblo regulation
on matters liablo to fluctuating opinion, which now
so often confront us, 6 conventions show some of the

1 See Bryce's Commonwealth.
a Supra, pago 1 86.

° The requirement of a minimum numbor of votes cant acorns a fair
ono for fundamental changes. And neo Delaware (1831).

4 Soo Vermont's amondmont (1870) to constitution of 17d:i.

5 Among oxamplos of growing vorbonity talion at random from

FUNDAMENTAL ADOPTION. 219

temporizing, lobbying, and log-rolling propensities
which they criticise as follies in a legislature. The
people of a State choose the convention, but members
of that body are the architects and joiners of the new
organic framework. All this points in favor of mak-
ing concrete submission of a new scheme by separate
propositions where there is uncertain sentiment; and
in favor of proposing an occasional amendment, as
far as possible, in preference to holding conventions
at all. l?or all this makes the people more nearly
the originators of their own system. The public
mind does not readily grasp the full purport of a
complete instrument de novo, nor balance the prob-
able evils against the probable advantages; but it
seizes readily upon specific corrections of specific
evils, illustrated by some actual state of facts which
has just aroused the common interest. Instead of
being eager to summon conventions and re-enact the
whole body of fundamental law, our people have
generally proved conservative and slow to act, except
in plain emergencies.

State constitutions by no means the latest, wo find Pennsylvania's in-
strument of 1873 occupying twenty-three pages of print againBt ten in
that of 1838; Maryland's, of 1867, with thirty-two against twenty-one
in that of 1851 ; and Missouri's, of 1875, with thirty-three against fifteen
in that of 1820. Tho magnitude of now subjects for public attention,
such aB railways, manufactures, and municipal government, largely
accounts for such a growth. See supra, page 210.

III.

STATE FUNDAMENTAL MAXIMS.

Op State fundamental maxims in the nature of a
declaration of rights, those first familiar through the
Revolutionary instruments of Virginia, Pennsylvania,
Maryland, and other members of the original Confed-
eration have left their lasting impression in Amer-
ica. The sacred formulas in the preamble of our
Declaration of Independence find like recognition,
besides those with dispersed lustre in the original
text of the Federal constitution, or blazoned together
as its first ten amendments. Political truths, like
those in the Revolutionary declarations of rights,
gained double circulation and credit in the land when
stamped as the new coinage of the Union. These
bosom truths need here no repetition. 1 In one form
of statement or another, and with variations of expres-
sion suggested by time and circumstances, they are
to be found in all succeeding constitutions, whether
of old or new States ; most American commonwealths
still choosing to devote in their organic code a special
chapter to such recital. But of basic State maxims
originating since 1789 it is hard to draw out any
catalogue ; and the more so because States in recent
years have taken so greatly to limiting specifically
the range of legislative or judicial authority in pro-
hibitions which themselves might often be thought
tantamount to formulas of good government. For

1 See supra, page 30.

STATE FUNDAMENTAL MAXIMS. 221

whenever a people safeguard their individual rights
against public action in one department of sovereignty
or another, then in a sense one may say that the " bill
of rights " maxim finds expression. With this caveat,-
let us enter upon the task of a brief enumeration,
favoring most as fundamental maxims those which
constitution builders have set apart in that category.

The Montesquieu separation of threefold powers is
still inculcated constantly in American State consti-
tutions ; nor has modern civil experience devised any
radical departure from that method for carrying on
popular government. Among the few formulas first
derived from Federal example and the constitution
of 1787, we may note with satisfaction the spread
among States of that which forbade laws impairing
the obligation of contracts. The right of petition,
on the other hand, embodied by amendment only in
this Federal instrument, spread into continental
acceptance through State example. 1 Everything
ranged under the head of " great and essential prin-
ciples of liberty," says the Pennsylvania instrument
of 1790 for better assurance, " is excepted out of the
general powers of government, and shall remain for-
ever inviolate." Perhaps the earliest grand idea to
propagate vigorously in this new era of complete
Union was that (already advanced by Pennsylvania 2 )
which abolished all imprisonment for debt where the
debtor in good faith gave up whatever property he
had, — a doctrine which Vermont, Kentucky, and
Georgia all announced by constitution in the eigh-
teenth century, and which under statute or funda-
mental law is since the doctrine of the whole United
States.

1 Pennsylvania and Massachusetts, supra, page 35. Pennsylvania's
instrument of 1790 once more included Penn's colonial clause as to
deodands and suicides. See page 35.

2 Page 36.

222 CONSTITUTIONAL STUDIES.

An accused person acquitted shall pay no costs
unless the majority of judges certify that there was
probable cause for prosecution. 1 Banishment as a
State punishment is prohibited; and so is corporal
chastisement for civilians. 2 Indiana announced by
1816 that a man's "particular services," as well as
his property, should not be taken without " just com-
pensation," — a maxim, by the way, to which Ohio in
1802 had given a novel turn from the stand-point
of public advantage. 3 Illinois in 1818 mingled with
the familiar recital of other private rights that of
reserving commons forever to the people, meaning
by commons lands that were once granted in common
to any town or community by competent authority. 4
Truth as to the facts shall be an admissible defence
in all libel suits. 5

While the new national tendency was steadily to
dispense with special qualifications for civil office or
the Legislature, tenure of office for life or for good
behavior, even in the case of judges, became gradu-
ally obnoxious to public sentiment, as the newer con-
stitutions gave expression ; Virginia herself extending
to the judiciary by 1850 the " return into that body
from which they were originally taken," and the
election test "at fixed periods " to which the legisla-

1 Delaware, 1792.

2 Ohio, 1802. Delaware (1897) alone retains the antiquated pillory
and whipping-post. Flogging in the army or navy or the merchant ser-
vice has been a subject for later repression by Congressional enactment.

3 Private property shall always he subservient to the public welfare,
provided just compensation be given.

4 See constitution of 1848, permitting a legal division of such com-
mons by suitable procedure in the courts.

5 Mississippi, 1817 and 1832. New York and other leading States
made such a change in the common law of libel by simple legislation
early in the century. "Unless published from malicious motives " is
the prudent qualification of Rhode Island's constitution (1842) and
that of some other States.

STATE FUNDAMENTAL MAXIMS. 223

tive and executive departments alone were declared
subject in her famous declaration of 1776. 1 Missis-
sippi had much earlier proclaimed as the universal
tenure of State office some limited period of time,
provided good behavior shall continue so long. 2
" No office shall be created of longer tenure than four
years, " is the rigorous rule which Indiana proclaimed
in 1851 ; and yet while holding to the older American
prohibition of more than one lucrative office at a
time in the same individual, this Indiana convention
made stated exceptions in a few deserving instances.
No lieutenant-governor, declares the Michigan con-
stitution of 1851, 3 shall be eligible to any office or
appointment from the Legislature, except he be
chosen to the United States Senate. Property and
religious qualifications, whether for office or the right
of suffrage, were now disappearing. Extra compen-
sation for public officers or contractors was sometimes
jealously forbidden, and public salaries were ordered
paid, without increase or diminution during the
incumbent's term of office. 4

As our nineteenth century nears its meridian, we
see stronger safeguards than before insisted on for
individual security against judicial process. "The
writ of habeas corpus shall in no case be suspended,"
observes that Vermont constitution of 1836, which
establishes tardily a legislature of two houses.
Writs of error shall never be prohibited by law. 5
Criminal indictments must be framed for prosecution,
and no one shall be compelled to criminate himself. 6
For the trial of criminals by peers and a jury, the

1 Supra, page 37.

2 Mississippi, 1832.

8 With perhaps the fresh recollection of some specific abuse.

4 Wisconsin, 1848. See VIII., post.

6 Wisconsin, 1848.

6 Cf. U. S. Const., Amendment V.

224 CONSTITUTIONAL STUDIES.

common law fairly retained its magna charta sanctity;
but as to civil litigation some of the former reverence
faded. " Jury trials may be waived by agreement in
civil cases," is the new maxim of various State con-
stitutions: 1 "in civil suite not over fifty dollars" is
another experimental change, the Legislature may
authorize trial by a jury of six men. 2 "In all crimi-
nal cases," declares Indiana's constitution in 1851
somewhat vaguely, " the jury shall have the right to
determine both the law and the facts." Oath or affir-
mation shall be such as most consists with binding
the individual's conscience. 8 No person arrested or
confined in jail shall be treated with unnecessary
rigor. No court shall be secret. " No person shall
be incompetent as a witness by reason of his religious
belief " is a maxim of the New York constitution of
1846, soon to be adopted elsewhere, as amplifying
religious liberty of conscience, already an accepted
rule. Amendments of the Federal constitution for
protecting those accused of crime find an increasing
State acceptance. "No imprisonment for debt"
becomes now an unqualified State assertion; 4 and
more than this, a new privilege develops in the
legal exemption from seizure and attachment (since
nearly universal) of a certain reasonable amount of
property for every debtor, "that he may enjoy the
necessary comforts of life." 5 California in 1849
specified homestead exemptions for heads of families ;
and recognizing the new conflict now waging in the
Atlantic State legislatures for married women's
rights, though not without a Spanish-American pre-

1 New York, 1846; California, 1849. Contra, Illinois, 1848.

2 New Jersey, 1844. North Dakota's constitution (1889) allows of a
verdict by nine jurors.

8 Indiana, 1851.

4 Wisconsin, 1848; Texas, 1845. Cf. page 221.

6 Wisconsin, 1848.

STATE FUNDAMENTAL MAXIMS. 225

disposition to the civil law of matrimonial matters,
that earliest of Pacific States sanctioned by its
primitive constitution the wife's separate property.
In the cause of sound morals, duelling had by this
time been fundamentally forbidden in many States ;
and lotteries, too, once so popular a means of raising
money for civil and religious objects. 1

Among State organic provisions of this middle
epoch of the century were several whose object was
to break up finally manor and patroon systems of
landholding, such as had lingered in New York,
to abolish feudal tenures, and further to discounte-
nance all leases longer than a single generation. 2
Methods were now prescribed for assessing damages
wherever property might be taken for public uses,
and the tender of compensation was to precede the
taking. 3 Maryland's early precept enjoining equal
and uniform taxation was henceforth seen formulated
in one set phrase or another. Existing rights of
commons, "fishery and the rights of shore," found
also fundamental protection. 4

By the middle of this century bills of rights had
become largely eclectic, whatever the pride of a con-
vention in changing old phraseology; new States
copied or selected from other constitutions in force
in older States ; and in one or two instances of that
epoch maxims bad been scattered through an organic
instrument without any distinct grouping. 5 But now
appear new and express proscriptions of race or

1 See various constitutions, 1836-1850.

2 No lease beyond twelve years. New York, 1846. No lease longer
than fifteen years. Wisconsin, 1848. The law of primogeniture or
entailments shall never be in force. Texas, 1845.

8 See Michigan, 1850. Cf. page 36 ; Indiana, 1851.
* Rhode Island, 1842. Cf. page 36.
6 See Michigan, 1850.

15

226 CONSTITUTIONAL STUDIES.

nationality, due to the drift of political conflict for
the next ten years. Indiana, though always a free
commonwealth, declares that no negro or mulatto
shall come into the State ; 1 while free Oregon, upon
being admitted as a State, pronounced with rude
dogmatism that no negro, Chinaman, or mulatto
should have the right of suffrage, and invited " white
foreigners " only as settlers. 2 To the time-honored
right of free people to bear arms 3 was now annexed,
in States where deadly brawls were common, the
qualification that carrying concealed weapons was
not to be included. 4

Women's rights have advanced boldly in the
organic favor of American States remote from our old
Atlantic slope. Many were the States, from 1850
onward, that protected the separate property of
married women by constitutional maxims, as Cali-
fornia had done, 5 while in all the other States legis-
lation has come to establish such a policy without
constitutional announcement. And since the Civil
War woman's emancipation, so styled, from her com-
mon-law conditions, has progressed towards active
participation in a government controlled originally by
man alone, and yet not to positive victory.

"In the words of the Father of his Country,"
quaintly recites the preamble of Rhode Island's con-
stitution in 1842, " we declare that the basis of our
political systems is the right of the people to make

1 Indiana, 1851.

2 As to Chinese exclusion, Oregon appears to hare gained the start
of California in its organic law ; and it would appear from this first
constitution that mining resources were anticipated in that northerly
Pacific State beyond what ever became revealed.

8 Supra, page 192.

4 Kentucky, 1850.

6 E. g., Michigan, Indiana, Oregon, Kansas, during 1850-1860.
Kansas in 1859 went still farther in declaring the rights of husband
and wife equal in the custody of their children.

STATE FUNDAMENTAL MAXIMS. 227

and alter their constitutions of government," but that
what exists at anytime is obligatory on all till
changed by an explicit act of the whole people. 1
Indeed, the recognized American doctrine, with
racial qualifications, perhaps, in the slaveholding
States, appeared more clearly as time went on that
all power was inherent in the people with the right
fundamentally to make and alter whenever the public
good should require it, — this proviso being however
understood, that the government should continue
republican and popular in form. Soon after the
downfall of human slavery in 1865 we find maxims
in the State instruments of reorganized and border
States, formerly slaveholding, which announce hence-
forth the common faith of universal brotherhood; and
with a repudiation of all property in man, repudiat-
ing also all political distinctions founded in race or
color. Various States in this new era recanted
formally the heresy of secession, and declared alle-
giance to the Union henceforward as paramount to
all claims of State sovereignty. 2 If in this new
and reunited national era, the latest of all, other
maxims of fundamental right are worth recording as
State constitutional expressions, they are suggested
mostly by the growth of wealthy private corporations
or the difficult adjustment of municipal government
to the great and growing cities. Civil rights of the
negro make an additional element. 3

Except for the racial obstructions noted, aliens
have been liberally regarded in the United States

1 Rhode Island had just suppressed the Dorr Rebellion.

2 See South Carolina, 1868; Virginia, 1870. Nevada, when ad-
mitted in 1864 as a new free State, had pronounced fundamentally
against the secession theory while civil war was raging.

8 Thus the right of all citizens to travel on the public highways has
reference to discriminations of race and color by common carriers.
Mississippi and Louisiana, 1868.

228 CONSTITUTIONAL STUDIES.

for the most part. But some reaction has set in
against foreign ownership of lands and corporate
stock, as one or two of the latest constitutions
indicate. 1

The enlightened lead of the old thirteen States,
and especially New England, in public schools and a
liberal education, was not lost upon the new States of
the nineteenth century, whose earliest constitutions,
Ohio's, for instance, developed the same policy.
Most new States, in fact, formed out of national
territory, received in succession from Congress when
admitted to the Union generous grants of the public
land as an endowment in the cause of learning.
Equal participation by the inhabitants in such
endowed education, we see expressly enjoined in
Ohio's first constitution. 2 These Congressional grants,
for common schools and a graded system of education
capped by a State university, were usually stated to
be in consideration of certain fundamental advantages
promised to the whole Union under the compact of
State admission; and public library funds from the
sale of public lots was another stipulation in early
instances. 3 Michigan, of the grand tier of new
northwestern States, broadly declares in 1835 by
fundamental law that the Legislature " shall encour-
age, by all suitable means, the promotion of intel-
lectual, scientific, and agricultural improvement,"
California by 1849 employing a similar expression. 4
While " Native-Americanism " swayed American poli-
tics somewhat later, the dread of Roman and foreign
influence appeared in State systems of education.

1 Washington, 1889.

2 Ohio, 1802.

8 See Indiana, 1816.

* This is after the Massachusetts example, set as early as 1783.
Supra, page 42.

STATE FUNDAMENTAL MAXIMS. 229

All money raised by taxation for the support of pub-
lic schools was directed by a Massachusetts amend-
ment of 1855 to be applied exclusively to schools
under legal and public control, and not to those of
any religious sect; J and such continues the American
rule to this day. Equality of the sexes in public
education is enjoined in some late constitutions.
But various States, where the white and colored
races are largely blended in a population now wholly
free, forbid their instruction in the same public
schools, and the policy is to educate the races
separately. 2

" No person, " declares Pennsylvania in her consti-
tution of 1790, " shall be disqualified from office on
account of religious sentiments who acknowledges
God and a future state of rewards and punishments;"
dispensing for the future with belief in the inspira-
tion of the Bible, the former limit of toleration. And
with the dawn of the nineteenth century, the impulse
became resistless to adopt Federal example, and get
rid of religious tests for voter, office-holder, or legis-
lator. Maryland by 1810 abolished all* taxation for
the support of religion, remitting all Christian sects
to the voluntary plan of sustenance. 3 Still earlier
had Ohio's constitution, which ushered in the present
century, proclaimed the right of conscience, the right
of free worship to the individual, without religious
preference or religious test; yet inculcating further
in the same connection that religion and morality
were essential to society, and hence that schools and

1 See also Kansas, 1859. 2 1 Bryce, 423.

3 Much of the American written law by which this voluntary sys-
tem became finally established in the different States depended upon
simple legislation where the State constitution itself had fixed no defi-
nite standard. Virginia's religious freedom act, for instance, antedated
our Federal constitution, and was perhaps the earliest legislation of
the kind.

230 CONSTITUTIONAL STUDIES.

common instruction, not inconsistent with rights of
conscience, should forever be encouraged. 1 Such
precedents were not lost upon Congregational New
England. Connecticut's bill of rights in 1818
announced freedom henceforward for religious pro-
fession and worship, and forbade preference to any-
Christian sect or mode of worship. And, finally,
Massachusetts, by constitutional amendment, abolished
in 1833 her time-honored levy of parish taxes, and re-
nouncing the former championship of " public Protes-
tant teachers of piety," remitted all religious sects in
the commonwealth to their own private devices for
raising money. 2 "Free interchange of thought" (a
right which should not be abused) is commended in
some later American instruments. 3 It was not, how-
ever, until 1877 that New Hampshire, by modernizing
amendment, struck out her ancient test of "Protes-
tant religion," which discriminated against Roman
Catholics for office. And atheists are still, or at
least were recently, disqualified from holding office
under the fundamental law of a few States. 4 Ver-
mont's old constitution, moreover, still enjoins fun-
damentally upon Christians the duty of regular public
worship of some sort, find the observance of the
Sabbath, or Lord's day. 5

1 Ohio, 1802.

2 See also Alabama's 1819 constitution forbidding religions tests for
office.

8 Indiana, 1851.

4 In four States (Arkansas, Maryland, North Carolina, and Texas)
a man is ineligible to office who denies the existence of God ; in Penn-
sylvania he is ineligible if he does not believe in God and the existence
of future rewards and punishments. In Maryland and Arkansas such
a person is also incompetent as a witness. See 1 Bryce, 424.

6 Vermont, 1793. Cf. Delaware, 1831.

Utah's singular experience as a Territory led to constitutional ex-
pressions unusually strong upon her admission as a State (1895) ; there
should be no union of church and State, nor domination of any church ;
polygamous or plural marriages were forbidden, etc.

IV.

THE ELECTIVE FRANCHISE.

That admirable forbearance wbich the fathers of
our Federal instrument displayed in leaving the
whole delicate regulation of popular suffrage to the
several States deserves repeated mention. The new
system of Union could hardly have been adopted
otherwise. For the House of Representatives of a
Federal Congress it was thought sufficient to require
that the choice of a member from any particular State
should be by the same suffrage standard which that
State applied for election to its own most numerous
branch of the Legislature. For membership in a
Federal Senate, as well as in the supreme choice
of electors of a Federal chief magistrate, deference
was paid to the wisdom of each State legislature, —
that safe embodiment of representative authority, as
the earlier practice of modern republics regarded it,
in an aggregation of public, men, wiser and more
trustworthy, it was thought, than the people whom
they represented. All this suited well the temper of
confederated States in the eighteenth century, and
through the nineteenth results have continued on
the whole satisfactory. All discussion, all experi-
ment over the extension of the suffrage, then, has,
been conducted within separate State confines, except
perhaps concerning negro suffrage, which civil war
compelled the whole Union to consider as in some
sense a national problem. Democracy and manhood

232 CONSTITUTIONAL STUDIES.

suffrage have gradually gained Federal ascendency,
through ascendency in the several States where regu-
lation is easier and more elastic. And in the mean-
time the Federal example since 1787 of dispensing
with all religious or property tests for participation
in civil government stirred quickly the States to
emulation.

To repeat our former statement, this Union, so
far as concerned the Federal form of government,
might have developed into an aristocracy; but State
direction and State institutions have compelled it to
become a democracy.

This Federal Union, as we have seen, began its
operations in 1789 as a combination of States quite
conservative and somewhat aristocratic for the most
part, showing the force of English environment in
the distrustful qualifications which hedged the indi-
vidual right to vote. 1 But under the sunbeams of
enlightened self-government, those qualifications soon
began dispersing like a morning mist. The Federal-
ists, as the earliest national party intrenched in
power, relied largely upon voters of property, upon
the socially influential in established States. There
were property tests and religious tests for electors and
candidates already; yet, partly through the efforts of
a political opposition, concessions soon appeared in
one constitution or another. K Pennsylvania, with no
religious test for the voter, dispensed in 1790 with
her former religious qualification to hold office.
South Carolina, the one State where caste and cavalier
prepossessions stood the strain of democratic innova-
tion down to the defiant strife of 1861, abolished
religious tests both for voter and office-holder by
organic change. 2 Kentucky in 1799 pronounced in
her constitution against religious tests, whether for

1 Supra, page 50. 2 Supra, page 44.

THE ELECTIVE FRANCHISE. 233

voters or office-holders, choosing the rule of the
Federal Union. Delaware in 1792 enlarged the
franchise so as to embrace every "white freeman"
of full age and two years' residence who paid a State
or county tax. Tax-paying was by the close of the
eighteenth century the minimum standard which
property qualification had reached under the old
enlightened State example so far as constitutional
expression was concerned; yet among the earliest of
new States, Kentucky dispensed with even this before
the century ended, as did also Vermont. Maryland
in 1810 abolished all former property qualifications,
whether for office-holding or voting, even to the pay-
ment of taxes. That the voter should be at least a
tax-payer was, however, much longer insisted upon
by most States. South Carolina's constitution of
1790 adhered to the freehold qualification; "five
hundred acres and ten negroes," or a real estate
valued at £150 sterling clear of debt, was the stand-
ard set in her organic law.

Connecticut, in her constitution of 1818, favored
qualifications of property, or of militia duty, or of a
State-tax payment within a year. Massachusetts,
abolishing all freehold or property qualifications for
the voters soon after, clung still by the poll tax for a
long period. 1 Delaware in 1831 abolished religious
and property qualifications, except as to paying taxes.
Virginia in 1830 made a technical enumeration for
property qualification, having earlier left the Legis-
lature largely to itself. The democratic tendency
in new States before 1830 was towards dispensing
with even the tax-paying qualification, thus giving
freely the franchise and popular control of govern-
ment to numbers and not property. 2 New York in

1 Abolished finally in 1891.

2 Illinois, 1818 ; Alabama, 1819 ; Missouri, 1820.

234 CONSTITUTIONAL STUDIES.

1821 dispensed with its former freehold privileges in
voting, at the same time specifying for the franchise
various requisites of taxation, or of service in the
State militia or among the firemen. During the
years 1836-1860 the final abolition of tax-paying as
well as of property-holding requirements became very
marked in the changed constitutions of our States.
Yet there are States which to this day require the
payment of a slight tax in order to vote, while Rhode
Island still imposes a property qualification.

A buoyant and increasing confidence in the unregu-
lated popular expression at the polls, for city and
country alike, seems to have culminated in America
about the middle of this nineteenth century. So
far as white male inhabitants were concerned, all con-
stitutional change in the States had hitherto tended
to so extend the franchise that the poorest local
resident not a criminal nor a dependent pauper
might readily take part at the polls with those who
paid taxes and had a pecuniary stake in the govern-
ment; while as for bribery and the criminal disquali-
fication not unfrequently denounced in organic law,
convictions had been rare and individual disfranchise-
ment by the Legislature still rarer. But now the
native-born began to feel the evils of an unrestrained
and incongruous migration from foreign lands, and
of that organized machine in the largest cities which
too often tampered with the ballot-box, and induced
riot and corruption at the polling-booths. Greater
purity of the ballot, the elimination of fraudulent
opportunities, became henceforth a standing task for
all good citizens. Hitherto no educational test had
been applied to the common voter; but midway in
this present century Native Americanism asserted
itself. "No elector shall be qualified," declared
Connecticut's amendment of 1855 in substance, " who

THE ELECTIVE FRANCHISE, 235

cannot read the constitution or any statute of the
State; " and Massachusetts by 1857 confined the b^K
lot to such as could read the constitution in the
English language and write their names. To such
constraints upon ignorant suffrage those two common-
wealths have ever since adhered, claiming that prac-
tical experience commends the rule, and a few States
for special reasons have lately joined them. This
reading and writing test is not the true one for all
cases, since sturdy and honest manual labor makes
better citizens than a mental training perverted.
Foreigners may know their native language, if not
ours, nor are the illiterate necessarily ignorant.
Nevertheless, moral fitness, though a most desirable
exaction, can only be tested by judicial conviction
for crime, and an approximate organic satisfaction is
better perhaps than none at all.

Meanwhile various other constitutions of the decade
1850-1860 are seen prescribing to one extent or
another a registration system in the growing centres
of population, so as to reduce the danger of false
and repeated personation at the polls; 1 and such
safeguards will increase with time rather than
diminish.

The new State of Kentucky ordained that elections
should last for three days at the request of any can-
didate; and new Tennessee followed by prescribing
two consecutive days. 2 The eighteenth century was
then near its close. Likely enough a similar usage
had existed previously in Virginia or North Carolina.
But the mischiefs of frequent and prolonged elections
have since impressed our people; and by 1861 and
the era of the Civil War, elections were almost uni-

1 Virginia, 1850; Louisiana (as to New Orleans), 1852; Rhode
Island, 1854.

2 Kentucky, 1792, 1799; Tennessee, 1796.

236 CONSTITUTIONAL STUDIES.

versally confined by State organic law to a single
day, each newly admitted member of the Union favor T
ing that principle. To separate civic from State
elections is held desirable in these later days; so,
too, where possible, in alternate years, to separate
the great State contests from the national.

That controversy, as between the ballot and viva
voce modes of voting, whose origin we have already
remarked, 1 continued far into the nineteenth century.
Georgia in 1789, Pennsylvania and South Carolina
in 1790, Kentucky in 1792, Vermont in 1793, Ten-
nessee in 1796, each in turn gave fundamental prefer-
ence to the modern ballot. But Kentucky, veering
in her opinion, changed from the ballot in 1799 to
viva voce, siding in practice apparently with the
mother State, Virginia, whose course had been
defined by statute discretion. Georgia's change of
mind was somewhat similar. 2 And thus stood the
issue at the close of the last century.

Since then the use of the ballot under State funda-
mental law has advanced steadily towards universal
acceptance throughout the Union. 3 Original States,
like New York and Maryland, which had once ex-
perimented with the viva voce method, abandoned it
forever. 4 And the fair distinction drawn in 1790 by

1 Supra, page 51. In Dr. Cortlandt "E. Bishop's History of Elec-
tions in the American Colonies (III. Columbia College Historical
Studies, Wo. 1), it is shown that proxy Toting prevailed very early in
Massachusetts and adjacent colonies, and that traces of this practice
remained in Connecticut's early election laws down to 1819, when her
charter was superseded. This mode, as in private corporations, sug-
gests a possible origin of the American ballot. See pages 50, 51.

2 Georgia's constitutions of 1777 and 1789 had favored the ballot;
but that of 1798 required the electors to vote viva voce in all popular
elections until the Legislature should direct otherwise.

8 See Ohio, 1802; Louisiana, 1812; Connecticut, 1818.
4 Maryland, 1810; New York, 1821.

BALLOT AND ORAL VOTING. 237

Pennsylvania's constitution is seen recognized in
various other State instruments framed previous to
1850, — that all elections shall be by ballot except
those by legislators, who shall vote viva voce. For
those in public station ought to be held by constit-
uents to their public responsibilities and be judged
by the record, while to the voter an honest indepen-
dence, as among candidates, is the chief essential.

But while the method of voting remained debat-
able, we see in the various conventions of new States
of the Mississippi valley a disposition either to com-
promise or evade the present issue. Mississippi in
1817, at her admission, ordained that the first State
election should be by ballot, and all future elections
"regulated by law;" Alabama in 1819 that all elec-
tions should be by ballot until the Assembly directed
otherwise; and Indiana in 1816, earlier than either,
that all popular elections should be by ballot, pro-
vided that the Legislature might, if thought expe-
dient, change in 1821 to the viva voce plan, after
which time the rule should remain unalterable. All
such dexterous political expedients seem to have
ended, as they ought, in establishing permanently for
each State concerned the written or printed ballot.
But Illinois, on the contrary, put the burden of proof
upon advocates of the ballot, just as Georgia had
done in 1798; her new constitution of 1818 or-
daining that all votes should be given viva voce
until the Legislature enacted otherwise. Even such
subterfuges could not avoid destiny, for in 1848
Illinois permanently established the ballot under a
new State constitution. Georgia made apparently
no change before 1861, whatever might have been
the legislative action. Missouri's convention in 1820
seems to have evaded the issue altogether; while
Arkansas in 1836 gave clear preference to viva voce,

238 CONSTITUTIONAL STUDIES.

just as Illinois had done when first entering upon
statehood. The tendency of the century had now
become unmistakable for taking each popular vote by
ballot; and Michigan's concession to the contrary in
1835, that township officers might be elected viva
voce, marks the extreme limit for suffrage by voice
and a show of hands, so far as American practice
permanently shaped out elections by the people.

Down to the Civil War, however, while States
such as we have mentioned might be thought doubt-
ful in their dissent from the ballot, Virginia and
Kentucky stood sturdily together to resist the gather-
ing sentiment of sister States. And in the appeal to
unflinching manliness at the polls these two States
insisted that every voter should show at the hustings
the courage of his personal conviction. Custom and
statute law seem to have fixed early the viva voce
standard for the Old Dominion, though her organic
law down to 1830 was silent on the subject. But
Virginia's new constitution of that year gave to the
filial Kentucky a pronounced support, by the declara-
tion that "in all elections" to any office or place of
trust, honor, and profit, the votes "shall be given
openly or viva voce, and not by ballot." And once
again in 1850, the emphatic and somewhat humorous
expression of Kentucky's constitution, a few months
earlier, was duplicated in the new Virginia document
of that year, that "in all elections," whether by the
people or the Legislature, "the votes shall be per-
sonally and publicly given viva voce, provided that
dumb persons entitled to suffrage may vote by
ballot." All this, however, won no more proselytes,
for by this time all new States of the Union favored
successively the ballot in their written constitutions ;
and while the Civil War progressed, a decade or

BALLOT AND ORAL VOTING. 239

more later, Virginia recanted such views and con-
formed to American practice. 1

State reconstruction following the Civil War com-
pleted the organic triumph of the ballot-box through-
out the United States. But, free from all military
coercion in her organic institutions, Kentucky seems
to have kept longest to the old method. In 1891,
however, her constitution, too, was remodelled; and
one clause of that instrument expressly declares that
all elections by the people shall be by " secret official
ballot." This full phrase sanctions the improved
method of voting which our latest generation has
adopted. Instead of the manifold private and partisan
ballots once pressed upon each voter by rival canvas-
sers at the polls, we now have in nearly every State,
and as part of the organic law where new State con-
stitutions or amendments dispose of the subject, an
official ballot after what is known as the " Australian
plan, " publicly printed and prepared, on which appear
the names of all party candidates for the voter's
own secret mark of preference. A system, in short,
which guards better than ever before the individual's
choice and his personal freedom from corrupt and
insidious temptation is the American suffrage reform
which signalizes the last decade of the nineteenth
century.

Growing evils of machine politics and demagogism
are met by numerous provisions in State constitutions
of the past forty years, whose main object is to pre-
serve at all hazards the purity of the ballot-box and
the rights of each honest voter. Hence are found
many details over ballot methods, registration, and

1 Virginia and West Virginia, 1863-1864. Every voter shall be
free to use an open, sealed, or secret ballot as he may elect. West
Virginia, 1872.

240 CONSTITUTIONAL STUDIES.

the appointment of inspection officers to prepare and
revise voting lists, especially in the large cities. 1
Those kept at asylums or prisons at the public
expense are forbidden to vote, while bribery or intimi-
dation at the polling places, and all false personation,
are crimes severely denounced for punishment, and
fit reason, moreover, for depriving one of the rights
of elector. 2

A certain brief period of local residence is usually
made indispensable to adult suffrage; such, for in-
stance, as a residence within the State for two years
and within the town half that time. One must, at
all events, according to our State constitutions, vote
only at the place where he resides ; and within the
first half of this century local residence for both voter
and representative candidate became strongly insisted
upon, as it has been ever since. 3

Various organic provisions of a miscellaneous char-
acter qualify the right to vote. Thus South Carolina
in 1810 expressly excluded non-commissioned officers
of the United States from such exercise. Sailors
and seminary students neither gain nor lose a voting
residence by their casual presence. 4 State suffrage
has been usually confined to the native-born and to
those naturalized under the laws of the United States,
except for residents in the last century during the
Revolution, or when the Federal constitution was

1 See New York, 1894, providing for registration lists and a bipar-
tisan election board.

2 See for such details the constitutions of Maryland (1867), Mis-
souri (1875), Colorado (1876), and New York (amendments of 1894).
A few States have shown a fundamental dislike to registration provi-
sions, as in the Texas, North Carolina, and West Virginia constitu-
tions, 1870-1876.

3 Semble, that under South Carolina's constitution of the last cen-
tury a freeholder might vote where he held land, even though not a
resident. The text appears obscure.

* Kew York, 1894.

VOTING DISABILITIES. 241

adopted; 1 and supported paupers are quite generally
excluded together with confined criminals. Each
voter must have attained majority. During the
Civil War and subsequently, gratitude to the citizen
soldier induced in various loyal States some special
extension of the franchise for the special benefit of
that class of persons. 2 Idiots and insane persons are
always implied and often express exceptions to the
exercise of local suffrage. While the Native Ameri-
can party influenced our politics, an amendment in
1858 to the ancient constitution of Massachusetts
compelled an additional residence of two years within
the jurisdiction of the United States subsequent to
naturalization, before any person of foreign birth
could be entitled to vote or eligible to office; but
gratitude to the foreign-born who went forth to battle
for the Union caused the repeal of that amendment
in 1863. In various States at the northwest, on the
contrary, the right to vote is extended to aliens
who have declared their, intention, even before reach-
ing the full status of naturalized citizens of the
United States. Latterly, however, some reaction
from this policy has set in, Texas and Minnesota in
1896 pronouncing overwhelmingly for amendments
which made suffrage by foreign immigrants more
difficult. 3

1 Vermont by 1828 abolished a right which had been given in 1793
to denizens who were not naturalized citizens.

2 Thus Massachusetts in 1881 relieved from pauper disqualification
every person who had served in the war and been honorably discharged.
During the war, provision was made by some States for taking the
votes of citizen soldiers in the field. And see New York, 1874.

3 So large were the majorities for these respective changes that in
Minnesota, with no issue of nationality raised, the constitutional amend-
ment requiring an alien to become fully naturalized before he could
vote, must have been supported by many foreign-born voters already
secure in their rights.

See also New York (1894) forbidding a naturalized foreigner toTote
within ninety days after receiving his naturalization papers.

16

242 CONSTITUTIONAL STUDIES.

Negro suffrage in the United States remains a
puzzling problem, and the revolution of sentiment
favorable to its exercise is yet imperfect. State con-
stitutions, those especially in the slaveholding area
of the Union, made strong discriminations concern-
ing race and color prior to 1861. This Federal
Republic began its high career as the republic of
European immigrants. Negroes, mulattoes, and
Indians were specially excepted from the right to
vote by the first of new slave States admitted into
the Union. 1 Ohio, too, first-born of the Ordinance
of 1787, began statehood by confining her elective
franchise to "every white male inhabitant." 2 Even
Connecticut in 1818 conferred suffrage only upon
"white male citizens." But Maine in 1820, like her
parent State Massachusetts, 3 conferred the right to
vote upon "all male citizens," ignoring from the
outset all distinctions of complexion. Massachusetts
and New Hampshire had always been nominally
liberal on this point, though the property test worked
out sufficiently a practical difference. Vermont (fol-
lowing Pennsylvania) and Rhode Island belong to
the same category. 4 New England's homogeneous
population favored all this generosity to races. Yet
"free white men" or "white male" inhabitants or
citizens grew to be the favorite organic expression
during the first sixty years of this nineteenth cen-
tury, as the nation expanded, whether in slavehold-
ing or non-slaveholding States; and sometimes, by
way of recompense for their exclusion, colored free-

1 Kentucky, 1792, 1799.

2 Ohio, 1802.

a See Massachusetts, Amendment III. (1821). Cf. Massachusetts
constitution, as to " male inhabitants " having a property qualification.

4 It might have been a legal question how far free negroes in this
period were to be deemed " citizens of the United States." The Dred
Scott decision (1857) is to be recalled in such a connection.

NEGRO SUFFRAGE. 243

men were exempted from militia duty and all pay-
ment of the poll tax. 1 North Carolina's constitution
of 1835 withheld the ballot from those descended
from negro ancestors to the fourth generation. 2 New
York in 1821 applied specially to all negro voters the
requirement of three years' State residence and a
freehold property. 3 Even Pennsylvania, by 1838,
changed from "all freemen" to "all white freemen"
in defining the electoral franchise. At the date of
our Civil War, unquestionably, the preponderance
of State authority, north as well as south, justified
the conclusion that America was in general effect a
white man's government.*

Bloodshed and the long fraternal strife of arms
put an end to such racial announcements. With
the violent abolition of slavery throughout the land,
and the reasserted supremacy of the Federal Union
over all State opponents, came, as a secondary grand
result, the mandatory extension of the elective fran-
chise to manhood suffrage by Federal amendment,
regardless of complexion, race, or the previous con-
dition of bondage. 5 The lately insurgent and slave-
holding States embodied that declared extension in
their new fundamental codes, as Congress compelled
them to do ; and as for the loyal States northward,
national duty and consistency demanded like organic
changes. But even in States where no servile popu-
lation was now set free, where slavery had never
found strong foothold, and negroes still constituted

i Vermont, 1793; Pennsylvania, 1790; Ehode Island, 1842.

2 New York, 1821 ; Tennessee, 1834.

3 California in 1849 is liberal to all " white males," including those
of Mexico who may elect to become citizens of the United States ; and
even Indians and their descendants (but not negroes) are generously
considered.

* See Indiana, 1851 ; Oregon, 1857; Minnesota, 1857.
5 Supra, page 197.

244 CONSTITUTIONAL STUDIES.

but a small fraction of the inhabitants, the people
showed a decided repugnance to changing the old
rule which had confined the ballot to "white male "
inhabitants. As late as 1864 the new free State of
Nevada had been admitted into the Union while
the Civil War was in progress, with its organic law
thus worded ; and only after a long political struggle
would the Empire State of New York conform its
own organic expression to the fifteenth Federal
amendment. 1 The reconstructed slave States, after
suffering meanwhile for a few years from the domi-
nation of a corrupt political faction which the new
and misguided negro vote had helped into local
power, threw off the disgraceful encumbrance; and
since 1877 the white natural leaders have generally
preserved in their own States a practical home rule,
while the degraded negro vote has remained dormant
or suppressed. A better and stronger participation
of whites and negroes at the polls is hoped for here-
after, as the race so long in bondage gains in educa-
tion and industrial independence through the civilizing
process of freedom. Meantime constitutional changes
have been wrought in several of these States, which,
without actually transgressing the Federal require-
ments, bear chiefly against the large negro element
in the population, by advancing the general tests of
education and property for all electors, 2 and perhaps,

1 Such a proposition had been in 1846 submitted separately to the
TOters of that great State for adoption, when it was rejected by a vote
of two to one. Again submitted by way of amendment in 1860, unre-
strained negro suffrage was rejected by an immense majority. A new
constitution for New York was framed in 1868, which renewed the
proposal of equal suffrage regardless of race or color; and the people
negatived that proposal by a closer vote. But by constitutional amend-
ment in 1874 equal suffrage was proposed once more, and that amend-
ment was finally carried at the polls.

2 See Mississippi's constitution of 1890, and South Carolina's of
1896.

PLURALITY ELECTIONS. 245

too, by multiplying the enumerated convictions for
crime upon which, any individual offender may be
wholly disfranchised. 1

The gradual establishment of a plurality poll in
place of the majority, as formerly, was in our older
States the fruit of hard experience. For repeatedly,
when leading parties were so divided that a third
candidate held the balance of power, were the people
baffled in their preference, so that a new trial at the
polls became necessary, or else the Legislature, after
a fundamental rule prevalent in the last century,
became the umpire of candidates. Several of the
leading historical States abandoned the majority for
the plurality doctrine soon after the middle of this
century, 2 conforming to a practice established much
earlier in other parts of the Union. By that period,
too, it became common in all newly admitted States
to prefer the same electoral test, and thus decide the
candidate chosen, once and for all, according to the
obvious wishes of the greater number who had
voted. 3

Minority representation is a new political idea
recognized in some of the later constitutions, though
scarcely favored, being confined naturally to local
groups, such as aldermen, representing a single dis-
trict or city. 4 Cumulative voting, which is much
aided by the Australian official ballot, seeks such an
end; and here among more nominations on a ticket

1 "Petty larceny" is included among the oflences thus punishable
in Virginia's constitution of 1876. See also North Carolina, 1876. *

2 Massachusetts, 1855; Maine, 1856; Virginia, 1880. Cf. Federal
constitution, old-fashioned in this respect, page 162.

8 Vermont, Rhode Island, and Connecticut are probably the only
States in the Union which still require a majority to elect at the polls.

4 See Illinois constitution, 1870. West Virginia, 1872, permits a
referendum on this issue. So in South Dakota; but the vote proved
adverse.

246 CONSTITUTIONAL STUDIES.

than there are "persons to' be voted for, '«. voters can
accumulate their strength in the selection.

California in 1879 excluded all natives of China
from the suffrage. 1 Hitherto the American rule
with trivial exceptions is seen to have been, under its
most liberal conditions, that of manhood suffrage;
and the admission of woman partially or fully to the
same political privilege has now become an agitating
issue, of whose final outcome in States long organized
upon the historical basis of self-government it is yet
too early to judge. 2 That the Legislature may dis-
franchise those convicted of infamous crime is a con-
stitutional permission, founded upon sound reason,
which at this day is largely bestowed. 3

Under some of the earliest constitutions of the
new Federal epoch electors were specially privileged
from arrest (except for specified heinous offences)
during their attendance at the elections or while
going and returning; and this privilege from arrest

1 Semble, in conflict with the 15th Federal Amendment, unless regu-
lated by some such test as that of religion.

2 See Minnesota's partial permit to the Legislature in 1875; Utah's
constitution (1895) establishes it. See also permissive clauses, North
and South Dakota.

3 Kentucky in 1799 denounced penalties against those convicted of
bribery, forgery, or other high crimes and misdemeanors, one of which
was exclusion from the suffrage. Special disqualification from voting,
as a penalty for criminal conviction, became a just feature of many of
our later constitutions ; and to the Legislature was given full power on
the subject under one fundamental phrase or another. Ohio, 1802;
Louisiana, 1812. Connecticut's organic law of 1818 (amended, 1875)
required every elector to " sustain a good moral character," and de-
prived one without reservation of his right to vote on conviction of
bribery, forgery, perjury, duelling, fraudulent bankruptcy, "or other
offence for which infamous punishment is inflicted." That the Legis-
lature may disfranchise those convicted of infamous crime is the
milder expression of many States. Indiana, 1816; New York, 1821;
Delaware, 1831; Virginia, 1830; Tennessee, 1834. "Betting on elec-
tions" is an offence. New York, 1846. Bribery, or the attempt to
bribe, is a felony; and one who offers a bribe may testify without
being prosecuted for doing so. New York, 1894.

VOTERS' INCREASED POWER. 247

has become during the present century a feature of
many State constitutions. 1 No elector shall be
obliged to perform militia duty on election day
except in time of war or public danger. 2 And dur-
ing our latest era the American disposition has
increased to combine elections so as to reduce their
number and frequency, and give the local people of a
State relief from political turmoil and excitement.
State and national elections have in consequence
been set for the same day, where formerly they were
held in different months of the same year; and
biennial State elections for both Legislature and the
highest executive officers are now decidedly preferred
to those annual pollings once deemed so essential to
liberty. 3

Not only in the extension of voting membership,
but through increased opportunities for exercising
the power to choose among candidates, has the elec-
tive franchise made immense progress during the past
century in these United States. The choice of local
town and county officers at the polls has been con-
sistently maintained from the colonial age, and more
than ever do such incumbents derive authority from
the people. Instead of choosing members of a single
representative assembly, or of the most numerous
branch only 'of the Legislature, as formerly, the mass
of voters in each State have become, through the
gradual assimilation in representative character of
the two houses of a State legislature, electors on a
uniform basis of qualification to both State Senate

1 Pennsylvania, Delaware, Kentucky, and Tennessee, 1790-1799.
The phrase is suggested by that clause of our Federal constitution
which defines the privilege for members of Congress.

2 Utah, 1895. And see supra, page 33.
8 Supra, page 18.

248 CONSTITUTIONAL STUDIES.

and House. While for years after American inde-
pendence was declared, the chief magistrate of many-
States was chosen by the Legislature, that choice
now devolves upon the general body of voters in-
stead, as does also that of most other high executive
officers, and, by as nearly a direct process as the
Federal constitution will permit, of President and
Vice-President of the United States besides. Finally,
and as the full triumph of free suffrage longest
opposed by conservative citizens, judges and the
chief officials connected with the machinery of the
courts are now chosen by the voters in nearly every
State, — sometimes at large and sometimes by dis-
tricts. The march of the American democracy to
power has proved irresistible.

V.

THE LEGISLATURE.

The general pattern of an American State legisla-
ture, as shaped out by 1789, has served ever since
without essential change. And the practical recon-
struction of Congress by that important date gave to
the more favored plan of a two-chambered body
throughout the United States an immense propulsion.
For under all republican governments experience
teaches that the law-making power needs a constant
check upon headlong activity, like that swift messen-
ger of the fairy tale who had to put clogs upon his
feet lest he should run too far. Scarcely had the
Federal government started upon its nobler career,
when Georgia and Pennsylvania, the only States
among the old thirteen that had hitherto since 1776
experimented with the Legislature of a single house,
gave up forever that tumultuous representative body,
and conformed thenceforth to the bicameral rule. 1
Vermont, however, whose young admiration of
Pennsylvania's previous instrument of State govern-
ment was unquenched, entered the Union in 1793
with a single representative body by way of Legisla-
ture. But in that bucolic State of small townships,
coequal in comparison, under highly favorable con-
ditions for further experiment, the plan did not work
well, and by 1836 a legislature of two branches was
substituted. These tests appear to have been conclu-

1 1789-1790, under new State constitutions.

250 CONSTITUTIONAL STUDIES.

sive enough for American opinion; and the two-
chambered Legislature has since remained the only
kind set up in the United States.

But a true basis of difference between the two
representative branches of a State legislature has
not been easy to formulate. That happy composite
of the many and the one which supplies historical
distinction between the Senate and House of Eepre-
sentatives of Congress finds no analogy in the popula-
tion of an individual State. Some of our earlier
local statesmen would have drawn out a basis of dis-
tinction for the commonwealth by opposing property
or social standing in the upper or smaller branch to
numbers in the lower or larger; but the deep-set
repugnance of the common voters to anything like
organic recognition of privileged wealth or aristocracy
sweeps us farther and farther from such political
arrangements. Nothing has been left in the present
era by way of a real difference of deputed authority
in the two branches of a State legislature, but such
as comes from representing geographical voting, dis-
tricts of larger area and population in the Senate,
and of smaller area and population in the House,
with perhaps a higher standard of age and a more
stable tenure in the one branch than in the other.
Nor are even such slight differences tolerated pa-
tiently in a crisis of excitement by our jealous democ-
racy, eager that its will shall be promptly and
implicitly obeyed by the whole Legislature, and that
each member shall bend to his constituency. The
result of all this is naturally to invite into power
flexible and time-serving legislators, seldom very-
wise, and frequently dishonest, to the exclusion of
the free-spoken with minds of their own. In Massa-
chusetts, as in most parts of New England, it was
long the rule of representation to apportion the State

THE LEGISLATURE. 251

Senate by counties and the House by towns; and
since candidates were arranged as much as possible
by general tickets in the earlier days of the Union,
leading citizens and their constituencies made of
legislative service a matter for local pride and dis-
tinction. The ablest and most popular in the town
and county were re-chosen to the General Court year
after year. But in course of time, as republicanism
grew less compliant, the argument for separate and
subdivided candidacies, for numerical representation
by one periodical census or another, and for local
rather than general tickets, carried such weight that
the old system passed into discredit. Temporary
geographical lines now made arbitrary groups by
districts, combining towns and subdividing counties
for one or another branch of the Legislature; and
with little left to interest the foremost citizens in
sacrificing personal time for the public, little chance
for conspicuous service, representation now came
much under the control of intriguers and petty
seekers for place; instead of centurions in politics
were the leaders of tens and twenties ; while towns,
cherishing local pride no longer, had to be content
with bargaining that the common deputy of the geo-
metrically arranged district for the time being should
be put up at one locality for one legislature, and at
another for the next. Deterioration of ideals and of
personal character comes as a necessary consequence
of all this modern nicety in fractional representation,
though other causes of political degeneracy may doubt-
less be sought elsewhere; as, for instance, in the
undiscriminating extension of the elective franchise
among the shiftless and illiterate, and the growing
wealth and complexity of society, affording opportu-
nities and temptation for masters of political chicanery
to use organization for base ends. Democracy itself,

252 CONSTITUTIONAL STUDIES.

so admirable in most other phases, yields too much
to insidious flattery, and by its capricious and uncer-
tain temper towards public servants and its mis-
placed gratitude for public services, repels many
who were best worth trusting above the common-
place.

Pennsylvania's constitution of 1790 apportioned
senators of the State by districts. They were never
to be less in number than one-fourth nor greater
than one-third of the representatives. Both houses
are in 1796 declared by the new State of Tennessee
"dependent on the people." Following Federal
example, the names " Senate " and " House of Repre-
sentatives " henceforth became usually distinctive of
the two branches. 1 New York in 1801 increased her
House and diminished her Senate, in order the better
to make a fair contrast of size a prime element of
distinction. The same period of service for both
houses was selected in some new constitutions of the
eighteenth century. But other States preferred some-
thing more like the Federal arrangement; and so at
least that senators should be chosen for a double,
treble, or still longer term than members of the
House, with perhaps a corresponding division of
classes, for effecting a gradual change of member-
ship, as in the United States Senate. 2 While
"annual elections " continued still into the nineteenth
century the rule of the States for choosing to the
popular branch, at least, 3 Tennessee, upon her admis-

1 Delaware in 1792 substitutes this style for "Council" and "House
of Assembly."

2 Kentucky, 1799; South Carolina and Pennsylvania, 1790; Dela-
ware, 1792. Kentucky, 1792, tried the Maryland plan of an electoral
college for choosing senators, and by 1799 abandoned it. Supra,
page 54.

8 See Kentucky, Vermont, Pennsylvania, South Carolina, Georgia,
New Hampshire, 1789-1800.

THE LEGISLATURE. 253

sion in 1796, ordained biennial elections for either
branch. State elections, long held in the spring of
the year, became by national influence transferred
gradually to the fall, and then absorbed into the
month and Tuesday of November designated for
Federal elections. While New England favored
towns as the early unit of representation in the
House, southern States in the vicinity of Virginia
chose rather the county for that purpose. And that
census plan of periodical apportionment for represen-
tatives, which the Federal constitution was not the
earliest to offer, becomes rapidly a permanent feature
in State systems. 1 Both houses, says Ohio, as the
nineteenth century began, are " to be chosen by the
people ; " and her simple tax-paying qualification for
membership in either branch betokened the dawn of
a liberal dispensation of former property require-
ments. 2 As in earlier State constitutions, eligibility
to the Legislature was made incompatible with hold-
ing other places of public trust; and priests and
ministers of the gospel were in many States pro-
nounced ineligible to the Legislature. 3 Laws en-
acted were to be published at the end of each session.

Distrust of the Legislature appeared in funda-
mental State provisions very soon after the new
machinery of our Federal Union had been set in full
motion. And most of the constraints now gradually

1 See Pennsylvania, Tennessee, Georgia, during the eighteenth
century.

2 Ohio, 1802. But Louisiana, 1812, imposed a landed test, while
some older States were abolishing such standards. New York long
retained her freehold requisite for membership in the Senate.

8 The Massachusetts constitution of 1780 placed no such disqualifi-
cation upon the clergy ; but officers of instruction at Harvard College
were made specially ineligible, — a rule which was not repealed until
1877.

254 CONSTITUTIONAL STUDIES.

imposed by the people of the States were doubtless
the offspring of public evils practically felt. Thus,
New Hampshire ordained in 1792 that no member of
the Legislature should take fees or serve as counsel
or advocate in either branch. 1 The appointment
during one's legislative term to an office not elective,
which had been newly created, or whose emoluments
had been increased by the Legislature in which he
served, was largely forbidden. 2 Secrecy of procedure,
in State, as in the United States Senate, came under
speedy condemnation. That the galleries of each
House shall be open to all persons who behave
decently we find proclaimed in various new constitu-
tions before the close of the last century. 3 Ohio's
constitution in 1802 set an example of parsimony in
fixing the pay of legislators at a low rate, and there
has been much regulation of the matter since, in the
various States, with an ingenuity to discover some
standard which might induce short sessions. That
no increase of compensation to members shall go into
effect for the same session in which the bill passes
has long been the rule of many States. 4 And as the
middle of this century approached, the popular pur-
pose grew persistent to settle by basic and precise
provisions the relative number of each branch, rules
for apportionment and taking the census, and most
other details of representative election. A classified
Senate, like that of the United States, was now in
the height of American favor ; while as to biennial

1 Vermont in 1 793 provided similarly.

2 Pennsylvania, 1790; Delaware, 1792. Nor for one year after.
Kentucky, 1799. The Federal constitution is imitated in such
provisions.

8 New Hampshire and Delaware, 1792; Vermont, 1793; Tennessee
1 796. See also Pennsylvania, 1776 ; New York, 1 777. Supra, page 56.

4 See New York, Virginia, Tennessee, Alabama, and Mississippi
about 1820.

THE LEGISLATURE. 255

legislatures, several States had advanced by 1850 to
the next stage of making sessions biennial besides, as
well as the Legislature itself. 1 No session, prescribes
Louisiana's organic law in 1845, shall last beyond
sixty days. 2 And when in extraordinary session,
says that of Illinois in 1848, those subjects only shall
be considered for which the Legislature was convened.
As in the elective franchise, we now see religious
and property qualifications for the Legislature dis-
pensed with, age and a local residence being the only
enduring requisites for a seat in either branch. 3 In
the latter respect State fundamental law has grown
more insistent, if possible, as time goes on; and
British observers of our institutions have not failed
to comment upon the disadvantage of such a rule, in
keeping the best talent of a whole State from com-
peting for the public service, in order that local
mediocrity may be exalted beyond its deserts. But
whatever may be the force of this objection, the
American people appear committed beyond recall to
such requirement, since it gives mathematical force
to each constituency. And in the more ambitious
prize of representative to Congress, where State con-
stituencies are still so much at liberty to go outside
their own area for a candidate, it rarely happens that
a non-resident district representative is sent to the
Federal House at Washington by choice of the dis-
trict voters. For a certain prepossession towards
local objects, such as comes from common residence,
is deemed needful for a representative; so, too, local
interests must be regarded, both in procuring the

i See Georgia, Texas, Alabama, Maryland, 1840-1846. This is an
advance upon the federal plan of a biennial Congress holding annual
sessions.

2 And all legislation beyond that date should be null and void.

s Delaware was the latest State which required a property qualifica-
tion for the Senate. But see constitution (1897).

256 CONSTITUTIONAL STUDIES.

crumbs, however small, of public patronage, and in
guarding and shaping special concerns in the vast
miscellaneous business of a legislature. For all
enactments of a legislature do not affect alike the
welfare of the whole body politic, nor aim at general
reforms ; nor is all public administration an adminis-
tration for all. A few constitutions of the eigh-
teenth century in its final decade insisted still upon
freehold or property qualifications, especially in the
State Senate ; J and the property test outlasted in the
new era that of religion; yet Federal example and
the genius of American democracy tended speedily
to abolish all such distinctions. While the yeomen
or property-holders sat together in a legislature,
membership was of a higher grade, like that which
we now see in a social club.

Federal example set the fashion for various phrases
of special description in a State constitution, relating
to officers and methods of organization and due pro-
cedure for either house in transacting the public
business. And so, too, in the relative functions of
the two houses, much the same sort of definition
became applied. Thus, "bills for raising revenue"
(a style henceforth preferable to the State "money
bills," so called before 1787) were likewise to origi-
nate in the House, or larger body; yet as this nine-
teenth century developed, and two branches in most
States were found in fact equally representative of
the people, unlike the American Congress, the dis-
position of State conventions increased to dispense
with such old distinctions, so that all bills whatever
might originate in either house. 2 One idea embodied

1 E- 9-, South Carolina, Tennessee, Delaware, New York.

2 See Tennessee, 1796, setting an example in this respect, since
widely followed.

THE LEGISLATURE. 257

in a State constitution or two of the eighteenth
century, 1 has found much favor since: that every
new hill must be read for three successive days, with
free opportunity of discussion before it passes, unless
in case of urgency a stated fraction of the whole mem-
bership much greater than a majority dispenses with
the rule in that branch where the bill is pending.
More significant still is the spread of an early New
Jersey fundamental, which substitutes for the major-
ity of a quorum, in various instances, the majority of
all elected to the body. Thus, while Federal prac-
tice, and that perhaps of most States, still conforms
to the old Parliamentary standard of a majority of
the quorum for passing any bill, with a larger frac-
tion, such as two-thirds, for overcoming vetoes and
in other special cases, not less than nineteen of the
United States could be counted in 1884 which made
instead the majority of all elected the test. of original
passage in either branch, while some nine States
applied that standard for passing bills over an
executive veto. 2

Old State precedent 3 has been much followed in
permitting a legislature (where the Federal constitu-
tion itself is silent) to punish by brief imprisonment
persons not members who are guilty of contempt.
By 1844 New Jersey put forth another idea for the
first time apparently in our organic law, that each
bill passed by the Legislature must have but one
subject, the same to be expressed in its title; and
New York in 1846 confining the idea rather to
private and local bills, that rule more or less compre-

1 Kentucky, 1799, and prior Virginia and North Carolina provi-
sions; alao Illinois and New York, 1816-1835.

2 See New Jersey (1776); tables in Horace Davis's Constitutions,
67, 68. Kentucky, 1799, first illustrates the latter instance of requir-
ing a majority of all elected in either branch to overcome a veto.

8 Supra, page 67.

17

258 CONSTITUTIONAL STUDIES.

hensive has since found its way into many other State
constitutions, often with the added proviso that no
law shall be enacted at all except by a bill. 1 That
no public act shall be in force until a stated period
after the end of the session corrects some mischiefs
of the old common law, peculiarly distressing before
steam locomotion and the telegraph were invented.
Not even the public contracts of a legislature have
escaped the vigilance of constitution framers in the
newer States. Those for fuel or for stationery must
be given to the lowest bidder; extra compensation on
public contracts must never be awarded; nor may any
member of the Legislature be lawfully interested in
public contracts. 2 In New York State the stringent
constitutional rule is now that all money bills and
such as appropriate money or other property for local
or private purposes shall require for their passage in
each branch of the Legislature the two-thirds vote
of all members elected. 8

The era of strong fundamental restraint upon
legislative power in America opened with the second
quarter of the nineteenth century. The patronage
of electing the chief executive and all other high
State officials became by this time quite generally
taken from legislatures that had once enjoyed it,
and vested by State constitution in the suffrage of
the people. And, furthermore, the brief constitutional
text applicable to legislative action in the earlier
instruments, importing great confidence in the discre-
tion of the people's representatives, ceases forever to

1 California's constitution in 1849 well rounds off the expression,
adding that no law shall be revised or amended by reference to its title,
but the section amended shall be published at length. Appropriation
bills shall contain no other provisions. Illinois, 1848.

2 Wisconsin and Illinois, 1848.
8 New York, 1894.

THE LEGISLATURE. 259

characterize these written fundamental ordinances.
Nothing so convincingly manifests the progress of a
popular self-confidence and strength among Ameri-
cans, as contrasted with the old customary repose of
constituents in the superior wisdom of the social
superiors who represented them, as the nineteenth-
century development in this special respect. Instead
of leaving such public agents, as in Revolutionary
times, to formulate and philosophize over the extent
to which it might be safe to admit the commonalty
to participate in government, we see communities as
the efficient principals binding public agents by their
own fundamental rules and cutting down credentials,
as though deference to statesmanship were at an end.
Instead of looking up to the Legislature as the arca-
num of fundamental liberties, we see the people
inclining rather to governors and the courts, as a
needful corrective upon legislatures tempted to go
astray. Instead of hailing each new session of the
people's representatives as the advent of salutary
reform, we see legislatures shortened and kept
adjourned as much as possible, because of their
sinister disturbing influence upon the sober pursuits
of life; and beyond all delegation of authority is
seen the popular determination to bend this and all
other departments of government to public opinion,
and render each public servant responsible for his
stewardship.

These restrictions upon legislative action have
become so varied and numerous in our modern State
constitutions, and so diffuse, moreover, as scarcely to
admit of a clear classification. First and foremost,
they show by 1835 a positive disrelish of special
legislation, and especially of that for the benefit of
business corporations. General laws become hence-
forth insisted upon as much as possible by way of

260 CONSTITUTIONAL STUDIES.

substitute. Thus, the Legislature shall have no
power to suspend a general law for individual benefit,
nor to pass laws for individual benefit which are
inconsistent with general laws, nor to grant special
privileges, immunities, and exceptions. 1 No private
law shall be passed unless upon due notice of appli-
cation. 2 Private and special privileges and appro-
priations are seen checked in various ways. Some
States shortly before the middle of the century tried
to hamper the private creation of corporations ; others
forbade that corporations, excepting municipal ones,
should be specially created, but remitted their forma-
tion altogether to general laws, with a general reser-
vation that the Legislature might alter or repeal. 3
Laws for loans or for pledging the State credit are
expressly limited, both in the amount to be borrowed
and the method of legislative enactment.* The
particulars of taxation, too, under a just assessment,
are defined; and those, too, of collection. 6 Before
the middle of the century, and following the disas-
trous crisis of public State improvements about 1837,
still more specific and stringent constraint was placed
by organic law upon loans of State credit, and the
authority to create State debts where no emergency
of war or insurrection existed. Municipal borrow-
ing, furthermore, was expressly limited, and muni-
cipal authority in other respects; nor should the
State, through legislation, aid private individuals or
corporations. 6 Banks were the first among chartered

1 Tennessee, 1834. 2 North Carolina, 1835.

8 See California, 1849; also various States (1835-1849), such as
Rhode Island, New York, Pennsylvania, Michigan, Florida, Texas,
Wisconsin.

4 Mississippi, 1832.

6 Maine, 1820.

6 See 1842-1849, Rhode Island, Maine, New York, New Jersey,
Illinois, Florida, Wisconsin, Texas, California.

THE LEGISLATURE. 261

private corporations to encounter such popular dis-
like; 1 but after the Civil War it was chiefly the
railway-carrier.

There shall be no act of incorporation hereafter,
says Delaware in 1831, unless two-thirds of each
branch concur; a power of revocation shall be
reserved, and the term (unless for public improve-
ment) shall not extend beyond twenty years. In
divorce and alimony matters, the alteration of names,
adoption, and the restoration of voting rights to those
convicted of crime, States authorized general legisla-
tion, but forbade special enactments on the subject. 2
And so, too, in organizing churches and private
societies, and in authorizing the sale of lands, general
laws, with a special procedure in the courts, now
found fundamental favor.

The impulse thus given by 1850 to legislative
regulation and constraint by State fundamental law
has since been steadily felt, and extended to every
quarter of the Union. Every later reform has been
in the same direction of fundamental constraint by
the people, so that public servants may not feel
above their masters. As for the structure of our
American Legislature of two houses, New England
States still prefer that each branch shall come wholly
fresh from the people at each election; which election
in Massachusetts and Rhode Island alone is still
annual, after the eighteenth-century fashion. 3 But

1 See Indiana, Illinois, Missouri, Mississippi, 1816-1820. No more
than one bank shall ever be chartered by the same act. Pennsylvania,
1838, recalling Governor Snyder and the "litter of banks" which he
killed by a veto.

2 North Carolina, 1835.

8 An amendment proposing the change from annual to biennial
legislatures was submitted to the people of Massachusetts in 1896 and
voted down at the polls.

262 CONSTITUTIONAL STUDIES.

all other States of the Union, old or new, have
adopted biennial terms, — a system which has given
satisfaction wherever tried. And in choosing bien-
nial legislatures the State preference by two to one
is, furthermore, in favor of biennial sessions, unlike
the rule of Congress. 1 Senators hold usually in our
States by the classified plan and with longer tenure
than the House ; but a half rotation at each election,
so as to bring the Senate in closer touch with public
sentiment, modifies the Federal example. 2 For either
branch of the Legislature the candidate, local by
district and local in residence, is chosen at the polls.
About half the United States limit the general ses-
sion of a legislature, even though it be only a biennial
one, to a fixed number of days, averaging less than
ninety. 3 Nor has it been thought ignoble to so regu-
late the pay of legislators as to spur them up to
organize promptly and push their work to its conclu-
sion ; for we find a gross salary fixed for the whole
session, 4 or a per diem for so many days, and no
longer; 5 while Indiana's constitution of 1851 made
the humiliating rule that each legislature must organ-
ize within five days from assembling a quorum, or
else have all the pay stopped until the organization
is complete.

Other stringent provisions are found. No new
bill shall be introduced after so many days 6 of the

1 New York, New Jersey, Kansas, and "Wisconsin, besides some New
England and various scattered Southern States, prefer annual sessions
for a biennial legislature.

2 New York, in 1846, took this new departure as the result of long
experience, and Michigan, Ohio, and other States presently joined her.
See Table (1884) Davis's Constitutions, 68.

8 Davis, ib. No session to last longer than the length prescribed by
organic law, unless two-thirds of all elected vote to extend it. Ken-
tucky, 1850; and see Virginia, 1850.

* Oregon, 1857.

6 Michigan, 1850. « Fifty. Michigan, 1860.

THE LEGISLATURE. 263

session have expired. No law shall pass by either
house on the day prescribed for adjournment, but
bills may then be enrolled. 1 Acts shall not pass to
cure former omissions, but by general statutes the
courts may be authorized to apply such remedy. The
people shall choose a State printer; stationery con-
tracts shall be awarded by a legislature to the lowest
bidder; perquisites of members in public documents,
books, newspapers, and postage are cut down or for-
bidden. No State paper shall be selected or estab-
lished for publishing the laws. 2 A date is designated
when all acts of a session with fixed exceptions shall
take effect, having by that time been duly published
and circulated. Technical terms must be avoided in
legislation; every act shall have its title, and only
one subject ; all acts are to be presumed public acts,
nor shall revision be made by mere reference. Riders
shall not be placed upon appropriation acts, but every
such act shall appropriate only. 3 Many compulsory
provisions of this character originated in States of
the Mississippi valley, or west of the Rocky range ;
but some, the oldest and wealthiest of Atlantic com-
monwealths, like New York, have since made similar
regulation, tired of the long usage in bodies unre-
strained like Congress, of deferring enactments both
trivial and momentous to the closing days of a ses-
sion, and then, with shameful haste, much scandal
and little scrutinyj pushing the whole mass through
together. 4

Massachusetts, proud of traditions and her old
framework of government, not only resists to the last

l Minnesota, 1857. 2 See Michigan, 1850; Ohio, 1851.

8 Virginia, Ohio, Indiana, Oregon, 1851-1857.

4 By New York's amendments of 1894, all bills must hare been
printed and distributed to the legislators at least three days before
their passage.

264 CONSTITUTIONAL STUDIES.

such modern organic changes, but stands for the
broadest discretion still possible in legislative pro-
cedure and policy. After temporizing for a while
in her basis of membership with the modern embar-
rassment of growing cities and depleted towns, that
State conformed before the Civil War to the new
necessity of district numerical representation. Vir-
ginia, after a somewhat similar effort to temporize,
found herself overwhelmed with a solution of the
representative problem which in the Civil War cost
the State her whole western population. A strict
apportionment rule for the two legislative branches
under a periodical census became the almost invari-
able practice of American States before 1861. Limi-
tations were by that time usually fixed or clearly
designated in new constitutions concerning the size
of each house. Many, however, of the changes
which in more modern constitutions of our States
have been seen fundamental 1 are by force of mere
statute wrought out in Massachusetts and the few
other States which still confide in the discretion of
representatives, and hug the old theory that legisla-
tures, freely chosen and frequently convening, are
the palladium of republican liberty. Biennial legis-
latures, with biennial sessions, would hardly suit a
commonwealth until fundamental checks had been
put upon legislation itself.

Scarcely a State in the Union, except Delaware, 2
exists at the present day, outside of New England,
whose constitution does not enter into details which
prohibit special legislation. During the decade pre-
ceding our Civil War the constitutions of Indiana
and Oregon enumerated the instances at length where

1 E. g., the preference of systematic organization and procedure
under general laws to special enactment.

2 A new Delaware constitution (1897) is just ordained.

THE LEGISLATURE. 265

general legislation should be rather applied; for
instance, in duties of justices of the peace and con-
stables; in regulating court practice and the venue
of actions; in divorce, the change of names, and
inheritances ; in sales of the real estate of minors and
insane persons; in laying out highways and town
plats; in regulating county and township business;
in taxation, the support of schools, official fees and
salaries ; as to interest and usury and the conduct of
elections. Minnesota just before 1860 set an organic
rule relative to lending the credit of the State to
certain railroads; and wearied of recent experience
in mingling State liability with private enterprises,
we see various States prohibiting thenceforward all
debts of that character, while arranging to sell out
the State stock held in existing schemes of im-
provement. Constraints already prevalent upon
private incorporation, and the incurring of debt,
State or municipal, increase rather than diminish as
the new era progresses. 1 In short, American State
constitutions at the present day strongly favor the
idea of impartiality towards all inhabitants, and the
uniform operation of all laws throughout the com-
monwealth to its remotest borders without preference
or privilege to any men or set of men.

If it be objected that all such hampering provisions
show distrust of the people's representatives, that
distrust is generated by a superior constituency, con-
fident of its capacity to give instructions. A lapse

1 See Wisconsin, 1871, whish, among other express prohibitions
upon special legislation, names the location or change of county seats,
the apportionment of the school fund, the incorporation or charter
amendment of any town or Tillage. The Legislature shall audit no
claim, but shall only appropriate after the claim has been audited.
New York, 1872. No extra compensation shall be voted to any public
officer or contractor. lb.

266 CONSTITUTIONAL STUDIES.

in character and ability may be predicated usually of
our public agents in times of peaceful routine; but
all the while good citizens are vigilant and patriotic,
and in great emergencies they come to the front.
Public life has no great charm here with its tidal
changes, and men prefer the more permanent dignity
and emolument of private station. But public
opinion still watches and influences ; and the average
community of worth and intelligence, with skilful
merchants and corporate organizers, university in-
structors and professional men, journalists, whose
power for good or evil is immense, and farmers and
mechanics, trained to intelligence and self-reliance,
form opinions on all public questions as they arise
and determine for themselves what should be done,
where once they left that determination to leaders.
The morning paper keeps each in touch with affairs,
and comment invites conclusion. Hence is it that
the circle which legislates is itself encircled by a
vaster deliberating audience, which is quick to note
vicious tendencies, and brings practical ingenuity to
bear upon their correction. "The longer a consti-
tution," it is sometimes argued, "the weaker the
people, and the more corrupt a community." Rather
should we say that, the longer a constitution, the
more complex the public interests which have to
be considered, and the sounder and more confident
the people that thus manifest a determination to
head off corruption and to bind all lesser agencies
by overmastering rules. Scarcely a change has been
here recited in legislative power and procedure which
is not, upon the whole, a change for the better.

VI.

THE EXECUTIVE.

The trend of experience in American States has
been since 1789 to free the Executive of the people
from the trammels of subordination which the Legis-
lature once applied. Two results have thus gradually
come about: (1) that the State chief magistrate,
somewhat after the example of a Federal president,
brings a certain dignity and independence of his
own to bear upon legislative action; (2) that the
Executive, as well as the legislator, feels an imme- '
diate dependence upon public opinion, and is equally
representative of the voters, though representing
officially the whole State, and not a fraction or geo-
graphical portion thereof. And thus does immediate
and practical representation of the people broaden
greatly its original base. All this is very different
from our American disposition in the Revolutionary-
age, for then no bulwark seemed too strong against
executive tyranny, as personified in the late monarch
or royal governors of Great Britain, and a legislature
seemed the sole refuge of public liberty.

Now that "President" had become the style of
the Federal Executive, States formerly employing
that designation dropped it for " Governor " on the
earliest opportunity following 1789. 1

The first organic change noticeable in these com-
ponent States after the new Union went into opera-

1 E. g., Pennsylvania and Delaware before 1800.

268 CONSTITUTIONAL STUDIES.

tion was inevitably to deprive the legislature of its
primary choice of a chief magistrate where such a
choice had formerly prevailed. Massachusetts had
since 1783 furnished notably the admirable example
of a State executive directly chosen by the people.
The Federal mechanism, too, for selecting a presi-
dent, though cumbrous and defective enough, meant
at all events an escape for Federal government from
the incubus of primary selection by Congress. In
the new State of Kentucky, therefore, public opinion
worked rapidly in the new direction. At once dis-
carding the mother-State practice of choosing a gov-
ernor by the Legislature, that State tried in 1792
the quasi Federal expedient of a choice by special
(senatorial) electors; but by 1799 this choice was
transferred to the people. Pennsylvania, Vermont,
Delaware, and Tennessee, during the last ten years
of the eighteenth century, concurred in the test of
election by popular suffrage under their new organic
law. 1 Ohio again in 1802 gave the choice of State
Governor to the people; Louisiana, the next new
State, making a strange compromise instead, 2 which,
by 1845, gave way to popular elections conformable
to American State practice elsewhere. As the nine-
teenth century passed its first quarter, old States,
such as Georgia, North Carolina, and Connecticut, 3
in framing new constitutions, were seen conforming
to this principle; Virginia, however, in 1830 still
keeping to its Revolutionary mode of legislative
choice of a governor. New States meanwhile were

1 But Georgia, in 1798, adhered to choice by the Legislature; and
so did South Carolina, 1790.

2 A legislature fresh from the people was to ballot from the two
highest candidates voted for at the polls. Louisiana, 1812.

8 Connecticut had long pursued this popular plan under her charter
government, prior to the constitution of 1818, which emanated from
the people.

THE EXECUTIVE. 269

invariably conferring the choice of chief magistrate
upon the people, under their successive instruments.
A plurality choice, moreover, by the people (which
must almost invariably result in a positive selection
between candidates on a single trial at the polls)
found strong proselytes before the last century ended,
since evidently the larger fraction of public support
is the safest. Of States so committed before 1800
were Pennsylvania, Delaware, and Tennessee. Ohio
opened the new century with a State constitution of
1802, which announced the same rule, since almost
universal. American practice had formerly favored
the idea that wherever a majority of voters was
requisite, the eventual choice from among the highest
candidates should revert to the State Legislature, if
the people elected no one, since, in so essential a
department of government, time ought not to be
wasted over further trials at the polls. 1 And to this
older rule some of our original States adhered during
the first half of the nineteenth century, — Maine,
on her separation from Massachusetts in 1820, still
retaining it.

Federal example now favored an increase in length
of the executive term, so as better to promote inde-
pendence, experience, and stability in each incumbent
of the office, formerly chosen annually. Four years
was the term fixed upon by Kentucky in 1799, and
in 1812 by Louisiana. Three years, somewhat earlier,
had Pennsylvania and Delaware established it by
way of change, while South Carolina, Georgia, and
Tennessee, between 1790 and 1800, made two years
their preference. Ohio, in 1802, fixed the tenure at

1 See Vermont, 1793; supra, page 60. The constitution of the
United States still retains this antiquated feature of eighteenth-century
instruments.

270 CONSTITUTIONAL STUDIES.

two years, and various other States followed with the
same limit. But Vermont, faithful to New England
tradition in this respect, pronounced upon her ad-
mission 1 for annual elections; nor did Connecticut
vary her ancient rule in that respect when supersed-
ing, after the War of 1812, her colonial charter.
Outside New England, however, the tendency for
longer terms of office and less frequent elections was
soon unmistakable, New York, Virginia, and North
Carolina all speeding before 1835 in that direction,
and new States taking the same current almost in-
stinctively. In short, by the present day, not a State
governor can be found outside of New England
whose term of office is not at least two years ; while
about half of our State executives are chosen rather
for three or four years. 2

Re-eligibility to supreme office was restrained by
various jealous instruments of the earlier epoch; yet
that restraint appears almost invariably to have been
partial only, and so as to permit of one's re-election
for a specified number of years out of some longer
stated period, or after the expiration of so many
years in retirement. Delaware in 1831, while raising
the executive term from three to four years, declared
the Governor re-ineligible altogether, — a constraint
which appears at this day quite abnormal in the
American system. 3

Organic tests for such station were not long kept
up after 1789. Pennsylvania, Delaware, Vermont,
and Kentucky, among States framing new or original
constitutions towards the close of the last century,
dispensed liberally with both religious and property
qualifications. Maryland in 1810 abolished all prop-
erty qualifications, whether for executive office or
the Legislature ; and Ohio in 1802 entered the Union
i 1793. 2 Dayis, Tables, page 67. 8 lb.

THE EXECUTIVE. 271

free of all such impositions. Tennessee in 1834
abolished the freehold qualification for Governor.
Towards the middle of the present century new con-
stitutions and new States usually ignored both prop-
erty and religious tests. On the other hand, the
constitution of South Carolina had exacted property
of the value of ,£1500 ; that of Tennessee a freehold
of five hundred acres; that of New Hampshire,
besides property, that the Governor should be of the
Protestant religion ; a while Louisiana in 1812 required
landed property worth five thousand dollars. New
York's constitution of 1821, with all its popular
innovations in other respects, maintained for Gov-
ernor the former freehold requirement. North
Carolina, when revising her instrument in 1835, still
disqualified atheists from the office, and required
property to a moderate limit. But now in 1846 New
York abolished her freehold qualification for Gov-
ernor once and forever. m Other old States instituted
similar changes, while States newly organized one
and all disregarded tests of property peculiarly un-
suitable to their simple condition. New Hampshire
abolished all freehold and property qualifications in
1852, and so had Massachusetts done for members of
the Legislature, though for many years longer this
latter commonwealth exacted of its Governor a free-
hold in his own right worth £1,000, and only in
1892 was this old test stricken out by vote of the
people. 2 But residence remains an essential quali-
fication in the States. The resident qualification
was somewhat stringent in constitutions of the eigh-
teenth century, aside from that of United States

1 See State constitutions, 1790-1800.

2 This text requirement of 1780 had probably escaped notice for
many years. Governor W. E. Kussell at length called attention to
the anomaly, and an amendment was readily carried.

272 CONSTITUTIONAL STUDIES.

citizenship. Thus seven years' residence in the
State was the test in Pennsylvania, and ten in South
Carolina. A lesser term of State residence, such
as six or four years, gained preference in the first
quarter of this nineteenth century, 1 and the tendency
has since been more liberal still. "A native citizen
of the United States," following Federal precedent,
several important States insisted upon early in this
century, and various others embody now the same
idea. 2 Disqualified classes have been announced from
time to time in certain constitutions; members of
Congress, for instance, State or United States officials,
or ministers of religion. The Governor must not
hold during his term any other office of profit. 3

The colonial appendage of an executive privy
council or directory began by 1789 to fade out in the
old thirteen States ; while States newly admitted and
having no early custom in this respect chose to
dispense quite generally „with the encumbrance. 4
Special functions of the old executive sort were for
the future left rather to a specific Senate, as under
the Federal system. Even in New England States
which retained expressly that " council " feature of
the executive branch, the choice of councillors became
transferred to the people by districts, in place of the
early legislative selection. 6 Virginia in 1830 reduced
her Revolutionary " council of State, " and applied to
that body a plan of rotation, but abolished the whole
council finally in 1850 as Maryland had done in 1837.
Maine in 1820 followed the parental example of
Massachusetts in establishing a permanent executive
council. Connecticut, on the other hand, merged

1 Louisiana, 1812; Ohio, 1802.

2 New York, Virginia, Alabama, Missouri (1821-1835).
8 Maryland, 1809.

1 Supra, page 61.

5 See Massachusetts, amendment, 1840.

THE EXECUTIVE. 273

her council fully in the Legislature as an upper
branch in 1818 ; while Vermont, beginning statehood
with such a body, abolished it in 1836. Ehode
Island's constitution of 1842 dispenses with an
executive council. After 1850, therefore, Maine,
New Hampshire, and Massachusetts became and
since remain the only States of the Union which still
maintain that old excrescence of colonial rule by
Great Britain. 1

Lieutenant-Governor was recognized in the new
constitutions of Kentucky, Vermont, and South
Carolina at the close of the eighteenth century; while
Pennsylvania, Delaware, and Tennessee left that
official out of their new or remodelled instruments
during the same period, as also did Ohio and Louisiana
early in the nineteenth century. During the first
half of the present century new States, without sec-
tional distinction, seem to have divided their prefer-
ences nearly evenly in respect of setting up such an
office; but towards 1850 the drift set strongly in
favor of lieutenant-governors, several old States
changing their former constitutions to that intent.
Ohio in 1851 established that office after half a cen-
tury's experience without it. A lieutenant-governor,
wherever recognized in State instruments, was now
to be chosen by the people like the Governor; and
so long as no vacancy in the chief office occurred for
his advancement, his chief duty was to preside over
the State Senate. Wherever, indeed, such executive
functionary was dispensed with, under a State con-
stitution, the President of the Senate supplied his
place. 2 Perhaps the political convenience of a double-

1 North Carolina, however, recognizes a peculiar " council," much
like a Federal cabinet, and consisting of the heads of the chief depart-
ments, 1876.

2 Delaware (1897) has just changed. Utah's constitution (1895)
designates a governor, but no lieutenant-governor.

18

274 CONSTITUTIONAL STUDIES.

headed ticket at the polls, to attract voters and invite
combinations for party support, has more to do with
the popularity of this vice-executive than any solici-
tude over the possible vacancy that may promote him
to full power. Concentration of the voting interest
on an individual candidacy had, on the other hand,
been thought in earlier times the surest pledge for
bringing the best man into supreme office.

It became common after 1789 to adapt for new or
reorganized State governments various provisions
relative to the executive department which our
Federal constitution had set forth in a corresponding
connection. Thus the Governor's salary was not to
be increased during his existing term of office. He
was to take heed that the laws were properly executed.
He was empowered to convene the Legislature on
extraordinary occasions, and at every session of that
body was to communicate public information and
recommend public measures by message. He might
adjourn the Legislature where the two houses could
not agree. He was of course commander-in-chief of
the State militia, though, as some States provided
further, he should not command in the field person-
ally save upon request of the Legislature. He
might require information or advice in writing from
his chief subordinates.

The pardoning power, either absolute or limited, is
conferred upon the Governor by the constitutions of
almost every State in the Union ; * and the phrase of
the Federal constitution (which includes reprieves)
supplies the usual text in this respect. 2 But some

1 Connecticut appears to furnish the only real exception at the
present day, agreeably to local tradition.

2 Delaware, in 1831, required the Governor to lay his reasons for
each pardon before the Senate. Various States have since adopted a
similar rule. He must send in to the Legislature a specific list of the

THE EXECUTIVE. 275

States require the advice of the Senate to such an
exercise; 1 and occasional reservations are made
besides the Federal exception of impeachment, par-
ticularly in the offence of State treason. In Con-
necticut the Governor can merely reprieve until the
end of an ensuing session of the Legislature, while
the Legislature alone can pardon. 2 New Jersey in
1844 set up a judicial committee on pardons to re-
strain the Governor's free exercise of the power; and
in Massachusetts the Governor's Council takes like
cognizance of his action. 3 But no remission of court
fees or of a debt due the State shall be made in par-
doning ; 4 public notice of application shall be given
before a pardon is granted, 5 and the Legislature may
regulate as to the manner of applying. 6

Among other provisions are these. The Governor
shall send a message to the Legislature with recom-
mendations at the close of his official term. 7 And
having a considerable power usually to appoint, he
must nominate to the Senate within fifty days after
the Legislature assembles in session. 8 No person
once rejected by the Senate shall be nominated again
unless at the Senate's request," nor appointed to the
same office during a recess. 9 Maryland in 1851
authorized the Governor to remove min6r officers
summarily for incompetency or misconduct. And
so favorably has such provision been since regarded

pardons granted, together with his reasons in each case. Wisconsin,
1848, modifying New York, 1846.

1 Louisiana, 1812; Rhode Island, 1854.

2 Connecticut, 1818.

B See also Indiana, 1851.

* Kentucky, 1850; Maryland, 1851.

6 Maryland, 1851.

6 New York, 1846.

i Michigan, 1851.

8 Maryland, 1851.

» lb.

276 CONSTITUTIONAL STUDIES.

elsewhere that at this day the Governor in New York
and various other States has enlarged power over the
high officials under him, even such as the Secretary
of State and Treasurer, especially where corruption or
gross neglect of duty is alleged, and may examine
and report to the Legislature concerning the facts,
and meanwhile suspend temporarily the accused
person from office. 1

As for the veto power, this, too, is generally
bestowed in the several States upon the chief mag-
istrate, according to the Federal principle which
originated in Massachusetts. 2 An absolute executive
veto, to be sure, has been unrecognized in America
since the days of royalty; but a qualified veto by the
Governor appeals to the second thought of the Legis-
lature, whose two houses may by a sufficiently large
vote on reconsideration pass the measure in question
to take effect, notwithstanding the official objections.
Two-thirds of a quorum constitutes usually that suffi-
cient vote agreeably to Federal and Massachusetts
precedent; 3 but a few States set this requirement at
three-fifths; 4 while a rule which has gained much
favor in the Union during the present century pre-
scribes for each house a proportion of all the members
elected, in order to override a veto. 5 In four of the
United States at least the Governor has no real veto
power at all, but at most can only require the Legis-
lature to reconsider its action. 6 Vermont in the last

1 See Michigan, 1862; New York, 1846, and amendments.

2 Supra, page 62.

3 Georgia and New Hampshire (1790-1800).

4 See Nebraska, Maryland.

5 See supra, page 257 ; Kentucky, 1799, and many new States (1820-
1835).

6 Davis, Constitutions, Table, page 67. Rhode Island, Delaware,
North Carolina, and Ohio. South Carolina's former constitution (1790),
was to the same effect. Ohio never granted a veto power to the
Governor.

THE EXECUTIVE. 277

century constituted the Governor and Council a board
of concurrence in legislation with power to return a
bill or propose amendments, which, if not agreed to
by the Assembly, effected a suspension of the bill
until the next legislature. The Vermont Legisla-
ture was then a single-chambered body; and after
the radical reforms of 1836 in that State, when the
council wholly disappeared, the Governor, no longer
thus encumbered, assumed normal relations with a
legislature which consisted of two houses from that
time forward. A mere reconsideration and passage
at discretion is the practical effect of an executive
veto, under a few constitutions of this century;
that of Connecticut in 1818, for instance, which
permits the majority of a quorum to finally pass a
bill, whether before or after an executive veto; and
New Jersey in 1844 requiring a majority of all elected
in either branch to pass a bill, whether first or finally.
"Two-thirds of all elected" is the rule prescribed in
some other States for overriding a veto, though not
for original passage of a bill. 1 The "pocket veto,"
where a legislature adjourns before giving the chief
magistrate his full time to consider, is further allowed
in most States, after the Federal example; and
Massachusetts in 1822 added that feature expressly
to her organic provision of 1780, to make the veto
power complete. At the present day, under State
constitutional provisions dating for the most part
later than the Civil War, a governor may consider
and decide whether or not to veto any act of the
Legislature for a prescribed period after the session
adjourns. And in not less than thirteen States he
may also veto particular items in appropriation acts,
leaving the residue to stand unimpaired unless pre-
ferring to veto the whole act. 2 Bills thus vetoed
i Michigan, 1850; Kansas, 1859. 2 Davis, Tables (1884), 67.

278 CONSTITUTIONAL STUDIES.

after adjournment are sent to the next session of the
Legislature.

Louisiana's first constitution 1 required the Gov-
ernor to visit the different counties of the State at
least once in two years, so as to keep informed of the
military and general condition of the State. Eem-
nants of the ampler executive functions of Revolution-
ary times appeared for a while in new constitutions
of the original commonwealths. That of South Caro-
lina, for instance, in 1790 authorized the Governor to
put an embargo not exceeding thirty days upon
the exportation of provisions, and Vermont in 1793
authorized embargoes ; while the text of the Massa-
chusetts instrument to this day preserves unaltered
the pompous enumeration of a governor's martial
prerogatives, as in the old days of State sovereignty,
or earlier still, of charter government.

The legislatures of the old thirteen States parted
reluctantly with that public patronage of which
State organic law at once began to deprive them.
Lesser official appointments were before 1812 given
by various new constitutions to the Governor, with
perhaps the added advice and consent of Senate or
Council. Secretary of State and Attorney-General
were thus transferred from the Legislature for choice
accordingly. But the State Treasurer was still to
be chosen annually by the joint vote of the Legisla-
ture, under many such constitutions, and so was it
with the State auditor, the State printer, and not
unfrequently with the Secretary of State. 2 Ohio and
Louisiana 3 left the appointment of all other civil
officers to be directed by law. Town officers were to

1 1812.

2 See Pennsylvania, Delaware, Kentucky, New Hampshire (1790-
1800); Ohio, 1802.

3 Ohio, 1802; Louisiana, 1812.

THE EXECUTIVE. 279

be chosen annually by the people. With regard to
State militia, the new State of Ohio in 1802 followed
New England precedent, leaving the line and most
field officers to be chosen by those who served under
them, while generals were to be elected by the Legis-
lature. With a truer military instinct for emergen-
cies, Louisiana, when admitted next in 1812, gave
the Legislature full discretion for organizing the
militia. Vermont's State Treasurer was required to
settle his accounts yearly. 1 South Carolina made
provision for two Treasurers, — one to officiate at
Charleston, and the other at the State capital. 2
Pennsylvania in 1838 required the State Senate to
sit with open doors upon appointments to office, 3 and
to confirm or reject by yea or nay vote all nomina-
tions sent in by the Governor; which provision,
approved by experience, reappeared in the later
constitution of 1873.

The best-laid schemes of State organizers for
thwarting the popular control of affairs, or trying
strange experiments, have ignominiously failed in
this country, and sooner or later the fetters of timid
expediency are broken. Thus, Louisiana's first ex-
periment in 1812 of making each popular vote for
Governor a dual presentation of candidates to the
Legislature and nothing more, 4 merged by 1845 into
a plurality choice at the polls and popular supremacy
in such elections. A governor for four years with
the liberal official patronage which this Louisiana
constitution had bestowed must have been sorely
beset for pledges meanwhile, when a legislature had

1 Vermont, 1793.

2 South Carolina, 1790.

8 Contrary to senatorial practice in Congress.
4 A Pennsylvania device of the preceding century, but differently
applied.

280 CONSTITUTIONAL STUDIES.

power to select his rival candidate in his stead. Not
less temporary was the electoral college expedient of
the last century, so far as States experimenting with
it x were concerned, though in our Federal constitu-
tion it remains beyond the easy reach of reform.
New York's absurd "council of appointment," under
the instrument of 1777, 2 reached, indeed, the zenith
of plunder and party favoritism in awarding the public
patronage of that rising State, when the crafty con-
vention of 1801 in that State (a convention whose
work was never submitted to the people) defined that
council as in effect a directory, where the Governor,
like any other member, must yield to the action of
its majority. The more popular constitution of 1821
in the Empire State swept out that conclave of
patronage, and gave the nominating power to the
Governor alone, like other commonwealths. And
by that same later constitution was displaced the
anomalous "council of revision" of 1777, so that the
Governor's veto henceforth conformed in New York
to the usual mode of making a chief magistrate
solely responsible for revising the acts of a legisla-
ture. 3 Illinois, adopting from New York in 1818
this same "council of revision," dropped it not less
emphatically in 1848, for the Governor's power to veto.
The Maryland convention of 1851, while raising
the official term from one to four years, applied a
singular expedient of rotation to the selection of chief
magistrate. The State was now divided into three
distinct districts, one of which comprised the area of
the eastern shore,- and another the Baltimore' region,
and it was prescribed that the Governor should be
taken in rotation from each district. Once more polit-

1 Maryland and Kentucky, supra, page 252.

2 Supra, page 63.

8 New York's constitution of 1821 was submitted to the people and
ratified at the polls.

THE EXECUTIVE. 281

ical ingenuity for abnormal government defeated its
own ends, for when the constitution of 1864 went into
effect the device was dropped. So, too, did Mary-
land in this 1851 instrument undertake to dispense
with an attorney-general, by allowing the Governor
to employ special counsel instead, at a recompense to
be fixed by the Legislature; but in 1864 the old
public office was restored.

While the modern tendency in the United States
has constantly been to give to the Chief Executive
greater independence of the Legislature, greater
official discretion, than in earlier times, none the
less positive has been political progression towards the
popular control of that great department. But for
the remarkable growth of particular States in wealth
and numbers, and a corresponding spread and increase
of public concerns and patronage as incidental to
supreme office, the dependence of the Governor upon
his State constituency would by this time have be-
come strikingly apparent. About the middle of the
nineteenth century, State organic law tended clearly
to submitting the choice of executive subordinates as
well as principals — all, in fact, of the great officers
of the commonwealth — to the suffrage of the voters
at large, rather than leave such selections longer to
either Governor or Legislature. New York in 1846
took a prominent lead in that direction; Massachu-
setts in 1855 followed. Other important .States
earlier or later wrought that important change in
existing institutions or embodied the principle in
instruments framed upon their first admission to the
Union. Under such organic provisions we now find
Secretary of State, Attorney-General, Auditor, and
Treasurer elected by the people in most States. 1
1 Michigan, Louisiana, California (1835-1849).

282 CONSTITUTIONAL STUDIES.

Names of new subordinate officials described in
State constitutions attest the expansion of govern-
ment still further, — State superintendent of public
education, State engineer and surveyor, and the
like. 1 County as well as municipal officers were by
the middle of this century chosen more generally than
before by the respective constituencies concerned; 2
among them, county clerks, treasurers, and registers.
But in the more populous States a great growth of
public patronage is traceable, which remains subject
to executive appointment under the usual limitations,
on lines denned by the State constitution; and com-
missions or boards, with a rotating membership, have
come prominently into notice. 3

As for State elections generally to high executive
honors, the people by their plurality vote decide the
choice between candidates at the ballot-box. Virginia
in 1850 abandoned deliberately for the Governor
that time-honored method of legislative selection
which had promoted to the chief magistracy such
sons and patriots as Henry, Jefferson, and Monroe in
less degenerate days. But South Carolina alone of
American commonwealths remained aristocratic in
structure down to the Civil War, unchanged by the
influences about her. There an aristocratic legisla-
ture, in which planters and landowners held the
preponderating force, chose the Governor, cast the
votes for Presidential electors, and controlled all
legislation and public patronage of the State. But
to the rule of popular choice there is now no State
exception.

1 New York, 1846.

2 As to judicial officers, etc., see next chapter.

8 See canal commissioners, codifying commissioners, inspectors of
prisons, etc., in New York's constitution of 1846, among the earliest
organic examples.

VII.

THE JUDICIARY.

The usual pattern for a State judiciary in these
modern times may be studied in the specific require-
ments of each fundamental State instrument. Com-
parison shows that the highest State tribunal (styled
sometimes a "court of appeals" and sometimes a
" supreme court ") is composed usually of a few indi-
viduals, often, indeed, of only three, who can so group
as to supply a majority for deciding each case ; and,
elected each by the people at large, such members
rotate, and the court changes gradually. 1 Inferior
courts, arranged naturally by counties, though not
unfrequently by arbitrary geographical districts,
have their own judges for the burden of original liti-
gation and appeals from the primary tribunals ; while
judges of municipal or police courts and justices of
the peace take jurisdiction of petty matters civil and
criminal in the first instance. Georgia was singularly
tentative as a State for a long time on this matter of
a judicial establishment; inferior tribunals shared
public favor with courts merchant; nor was it until
1835 that a supreme court was recognized at all in
her constitution. Legislative discretion in the erec-
tion of courts has within a hundred years been largely
curtailed; and in these days a State constitution

1 In some late constitutions a prospective increase of judges is pro-
vided for when the population reaches a certain limit. North Dakota
(1889).

284 CONSTITUTIONAL STUDIES.

generally defines fully the judicial system. Chancery
courts with special chancellors and a special equity
jurisdiction prevailed largely in the middle tier of
old Atlantic States; while New England cherished a
dislike of such establishments. But since 1840 the
fusion of law and equity in American practice, with
a common jurisdiction for last resort in the highest
appellate tribunal of the State, has been almost every-
where accomplished, thus unifying the two systems
as England also inclines. 1 Divorce and matrimonial
jurisdiction has been taken away altogether from the
Legislature; probate or orphans' courts are erected*
for the several counties ; and the former participation
of Executive or Senate in judicial business, some-
what after the English fashion of a House of Lords,
has been completely excluded.

The well-established rule of the mother country,
that judges should hold office during good behavior,
was the usual rule in America when our Federal
constitution was adopted. 2 That constitution, as we
have noticed, still preserves the English principle,
well justified by the high renown of its long line of
honorable incumbents, who, once promoted to the
bench, have dismissed all other ambition so as to
devote themselves faithfully and unreservedly to the
administration of justice for the rest of their activity
in life. No rule suits so well this delicate adjust-
ment to the whole Union. So, too, for many years,
States, new or old, kept for the most part to this
same rule of judicial incumbency. In all the later
constitutions of the eighteenth century, save that of

1 New York, in 1846, so reorganized the State Judiciary as to place
a court of appeals above the Supreme Court, abolish the office of chan-
cellor, and blend law and equity functions. See page 66.

Chancery jurisdiction was similarly abolished (1851-1856) in Mary-
land and Mississippi.

2 Supra, page 65.

THE JUDICIARY. 285

Georgia alone, good behavior continued the tenure;
that State of little traditional deference to judges or
.case law, permitting in 1789 only a three years'
incumbency in its "superior" (then the highest)
tribunal. 1 For a new example, Ohio entered the
Union in 1802, prescribing a seven years' term of
judicial office; but Louisiana, next in 1812, sanc-
tioned the conservative rule of good behavior. The
latter standard was maintained much longer; but con-
stitutions of the next generation began formulating
the theory of "a fixed term" for every public office,
as" though in a true democracy no citizen should
claim therein a vested right. Tennessee, by 1834,
and Indiana, as early as 1816, affixed accordingly a
tenure of years to the judicial office. Virginia in
1850 enlarged the phrase of her famous "Bill of
Rights " so as to read that " all elections " (those of
judges included by inference) "shall be free." 2

The New Hampshire constitution had fixed the
rigid limit of seventy years of age for judicial capac-
ity to serve, 3 and a few other States now adopted
such a limit, 4 New York narrowing it long before to
sixty. 5 But such had been the recognized need for
the bench, of men upright and honest, diligent
and skilled in their profession, inspiring confidence
in the whole community, that property qualifications
for a judge were dispensed with by general consent 6
from the earliest days of American independence, and
probably earlier. Some of our more modern consti-

1 Cf. Georgia constitutions, 1789, 1798, etc. Under Georgia's con-
stitution of 1798, the inferior court judges held for good behavior; but
that tenure was in 1812 reduced to four.years.

2 See page 32.

8 And for sheriffs also, 1792.
4 Connecticut, 1818; Maine, 1820.

6 See page 65. Missouri (1820) set sixty-five years. Nor shall
one be appointed before he is thirty. Missouri, ib.
6 Supra, page 65.

286 CONSTITUTIONAL STUDIES.

tutions, however, declare professional qualifications
indispensable, such as admission to the bar and ser-
vice as a practitioner, 1 — the only real or reasonable
test which a State may apply to judges.

As for selecting State judges, the choice lay origi-
nally between direct appointment by the Legislature
and appointment (subject to Senate or Council confir-
mation) by the Executive. Towards the close of the
last century, South Carolina and Tennessee in new
constitutions preferred a choice by the Legislature.
Vermont's peculiar constitution joined the single-
chambered Legislature and the Council for such a pur-
pose. But Pennsylvania, Delaware, New Hampshire,
and Kentucky pronounced in their new instruments for
appointment by the Governor with such confirmation
by Council or Senate as harmonized with their several
systems. This course was like that of the Federal
constitution. Georgia's constitutions of this early
period were peculiar; 2 and there seems little doubt
that this uneasy State, where there was much un-
defined jealousy against law and the lawyers, led
American commonwealths in point of time as to mak-
ing judges elective by the people under an organic
instrument. Of the two States admitted in the new
century before our second war with Great Britain
and Napoleon's downfall, Ohio made option of the
legislative election of judges, and Louisiana of execu-
tive appointment; and so did States continue to
divide in their declared preferences until 1830 or
later. But Mississippi in 1832 declared that all
judges should be elected by the voters, while Missouri

1 Kentucky, 1850. See constitutions of North and South Dakota,
Utah, Washington, etc. (1889-1895).

2 Cf. 1789 and 1798. Under the latter instrument, "superior"
court (the highest) judges were to be " elected ; " but those of the infe-
rior courts received appointment from the Legislature. By 1812 the
inferior court judges were subjected to the test of popular election.

THE JUDICIARY. 287

(1822-1835) worked gradually to the same doctrine.
Indiana, as early as 1816, had determined upon a
general judicial tenure for seven years ; yet doubtful
over the method of selecting judges, the convention
of that new State apportioned the highest of such
appointments to the Governor, the next in rank to
the Legislature, and the lowest to the people voting
in local districts. This compromise was a sign of
the advancing sentiment; and when in 1851 Indiana's
constitution was remodelled, the choice of all judges
from highest to lowest was freely accorded to the
people.

In short, the new political idea of limiting judicial
tenure to a term of years found readier and quicker
acceptance in these United States than that of elect-
ing judges at the polls. But change in this latter
direction was fully ripe by 1850 ; and old States as
well as new ranged themselves quite generally in
favor of popular elections as opportunitybenceforward
permitted. New York, Pennsylvania, and Virginia
led among the old commonwealths that now embraced
the new faith; Maine and Vermont acceded far
enough to permit probate and other minor judges to
be thus locally elected. The last stand for the old
method was made at the tribunals of final appeal and
against the choice of supreme judges by the voters
at large. Massachusetts resisted wholly the new
departure, and Maine herself in 1876 retreated from
the partial experiment. But in general the tide of
innovation has swept steadily on.

Judges have been made liable to removal, after an
English rule, in many States. The Governor "shall "
remove (or, as many States prefer the text, " may " at
discretion remove) on the address of two-thirds of
each branch (or, as some States prefer, the majority)

288 CONSTITUTIONAL STUDIES.

of the Legislature. 1 Other States leave this power
of removal to the Legislature apart from the Execu-
tive. 2 Happily, it should be said, this summary
means of purging the bench has not often been un-
fairly applied. In many States, on the other hand,
as under our Federal constitution, such sweeping
process is wholly ignored; while still other States
permit a summary removal under cautious qualifi-
cations ; such as confining the procedure to instances
of mental or physical inability in the incumbent, or
requiring, properly enough, that the cause of removal
shall be plainly set forth of record, and due notice
first given to the judge himself, that he may appear
and defend himself. 3 Rhode Island's constitution of
1842 had a singular provision in this respect; it made
all judges elective in the first instance by the Legisla-
ture, and each one should hold until a majority of all
elected to each house should by joint resolution de-
clare his place vacant. This liability of judges to a
somewhat arbitrary removal has gained of late years
such progressive approval in America that we may
consider it a remedy kept readily in reserve for the
corrupt and inefficient who have forfeited just con-
fidence rather than to foster in judges a timid and a
time-serving dependence upon popular favor. For
apart from the right of impeachment, which prevails
almost universally 4 in this Union, three-fourths of the
States, or more, now permit removal by the Legisla-
ture, or by the Governor on legislative address, under
constraints more or less particular, but in any event
without any formal indictment and trial, or the need-

1 Supra, page 67.. Kentucky, Pennsylvania, Delaware, Georgia.
This New Hampshire rule results in various hasty removals, where

some new political party comes into power.

2 New York, 1821, which is peculiar in the voting test applied.
8 Delaware, North Carolina, Maine, etc.

,J See next chapter, page 296.

THE JUDICIARY. 289

ful production of testimony under strict rules of
evidence. 1

Obnoxious judges have sometimes been legislated
out of office in a body by some act of the Legislature
abolishing the court itself, and creating a new one in
its place. The rigid formula of so many modern
constitutions which specify and create courts, instead
of trusting so largely to legislative erection, as did
the early State instruments and that of the Federal
Union, diminishes largely such opportunities; while
the modern limited tenure and popular choice of the
judges tend to dispense largely with such a need.
Special directions are found occasionally in State
constitutions on this subject; and Virginia, in 1830,
by way of disapproval, declared that no law abolish-
ing a court should be construed to deprive a judge of
his office, unless two-thirds of the Legislature con-
curred, but such judges might be assigned to other
duties. 2

At the present day we find the Judiciary in the
several States of this Federal Union made more effi-
cient, more fully independent of Legislature or
Executive, than ever before, and yet, like those two
other departments of government, brought under the
direct control and vigilance of the people. State
legislatures have been stripped of all judicial func-
tions formerly exercised, except in the procedure of
impeachment; and in the mode of appointing judges
the few States which still hold out against the choice
by ballot at the polls prefer Federal usage in confiding
the immediate selection to the Governor, with con-
firmation by Council or Senate. In four States, per-
haps, all old ones, the Legislature still chooses. But
less than one-third of the States in the entire Union

i Davis, Tables (1884), 70. 2 And see Ohio, 1851.

19

290 GONSTITUTIOls^L STUDIES.

trust any choice of judges but that by popular suf-
frage; and of that small fraction, only five States in
all — Delaware, Florida, Massachusetts, New Hamp-
shire, and Rhode Island — still preserve that judicial
tenure of life or good behavior which our Federal
system so highly commends. 1 Whether an elective
judiciary with service for a fixed term of years is on
the whole an improvement in modern politics re-
mains a mooted question; but certain is it that no
inclination has thus far been shown by the preponder-
ating States, once committed to this policy, to reverse
their opinion. 2 Every impulse of the age, indeed,
tends in this respect to the popular test. There is,
however, a decided leaning of late towards longer
terms of judicial office than were favored when the
reform began, — a new proof of that watchful and
corrective habit in political experiments which the
Anglo-Saxon temperament so happily displays; for
while, about the middle of the present century, the
tenure was usually fixed at four or six years, we now
find the highest judges elected for an average term
of eight years, which populous and wealthy New
York, where great concerns are litigated, increases
to fourteen and Pennsylvania to twenty-one. 3 An
incumbency like this last, which is almost tantamount
to the ordinary life service, and begins with so touch-
ing a proof of public confidence, may well furnish
incentive to an honorable emulation. One sees,
therefore, that even the dreaded jealousy of a democ-
racy in the State may be tempered by sober sense.
Appeals for an adequate recompense to the judges do

1 Davis, Tables, 70. In Rhode Island and New Hampshire with
peculiar limits elsewhere noted.

2 In 1873, upon the submission of a proposed amendment relating
to the judges of the highest court, the people of New York by nearly
two to one refused to return to the old mode of appointment.

8 But not re-eligible. Pennsylvania, 1 873.

THE JUDICIARY. 291

not go unheeded; and though rich remuneration comes
chiefly to those who devote themselves to private
practice at the bar, the American bench has never
yet failed to attract men of honor and more than
average ability.

Among miscellaneous constitutional provisions re-
lating to the judiciary in various States these may be
noted. Tribunals of conciliation to which parties
may voluntarily submit shall be favored. 1 State
reports shall be speedily published, and shall be free
for any one to print, 2 for emolument, except the
judges themselves. 8 Judges shall not charge juries
as to facts, but may state the testimony and declare
the law.* Judges shall as often as possible refer in
their decisions to the particular law on which the
judgment is founded. 5 Judges must render decision
in ninety days. 6 Judges shall have an adequate
recompense by way of salary and no fees or perqui-
sites ; such salary shall not be diminished, but may be
increased; they shall not act as attorney or counsel
in matters to be tried before them, nor in general be
interested parties in the official business transacted
in their courts. 7 They must not even practise law
while on the bench. 8 And for their better seclusion,
as also for encouraging a devotion to the duties for
which they have been set apart, undistracted by
politics, judges are sometimes declared ineligible to
public office elsewhere excepting judicial station,

1 Wisconsin, 1846 ; New York, 1846. See also Georgia, 1789-1835.

2 California, 1849.
8 Indiana, 1851.

* lb.

6 Louisiana, 1812, with a civil code.

" Rather a questionable requirement so far as fixing specific limits
is concerned. California, 1879.

7 See New Hampshire as early as 1 792. Recent constitutions (1889)
of new States contain such provision.

8 California, 1879.

292 CONSTITUTIONAL STUDIES.

during their respective terms of service. 1 Special
provisions are sometimes found concerning the
method and limitation of suits against the State.

There are still a few States of this Union in which
the Governor (and perhaps, too, the Legislature) may-
ask in advance the formal opinion of the judges of
the highest court for public guidance ; 2 but usually
no opinion can be procured from the judiciary of a
commonwealth except through the ordinary channel
of litigation and the formality of a test case duly
argued.

The common practice in this country about 1789
was for a court to appoint its own clerk ; and a clerk
might serve, like the judge, for good behavior. A
judge often bestowed the easy office upon a son or
kinsman. Ohio in 1802 required sheriffs and justices
of the peace to be locally elected by the voters ; and
this rule grew gradually into State favor. The
county prosecuting officers were formerly appointed
to a considerable extent by the Executive. The
modern revolution, however, in favor of fixed tenure
and popular elections for all officers of a State, has
swept into the patronage of the voters, clerks, sheriffs,
marshals, district attorneys, and registers, as well as
the judicial incumbents of the courts with which
such officers are connected, from lowest to highest.
In States disposed to economize the offices, the
county clerk has sometimes been designated to serve
as clerk of a county court, while the Secretary of
State officiates as clerk of the highest appellate
tribunal. 3

The increased momentum of the judicial power in
the United States chiefly results (1) from the idea

1 California, 1879.

2 Supra, page 67; Florida, 1875; South Dakota, 1889.
8 New Jersey, 1844.

CONSTITUTIONAL INTERPRETATION. 293

gradually evolved in American politics that the
written constitution, the local fundamental law of
any State, shall be regarded as a sovereign emanation
from the people, for defining and portioning out the
respective functions of well-ordered government, and
while confining each co-ordinate branch of such gov-
ernment to its own legitimate sphere, keeping all
three of them from encroaching upon the reserved
rights of the individual citizen; (2) as the corollary
of such a proposition, from the necessity of finding
some constant safeguard and exponent of such funda-
mental law, so that Executive and Legislature, the
originators more particularly of public policy for
present and future, shall be kept to the equilibrium of
fundamental constraints by some force consistent with
normal tranquillity. That safeguard and exponent
has been found, both in State and Federal systems,
in the tranquil and deliberate oversight of the Judici-
ary, — a tribunal devoted to revision of the past,
co-ordinate as far as possible with these more active
and aggressive departments, yet equally independent
in fundamental theory, and equally bound to regard
the will of the people as constitutionally expressed.
The courts accordingly compare the acts of these
other departments with the written constitution, and
as to acts of legislation, most particularly, whose
scope might otherwise be resistless by the individual,
pronounces them invalid and of no effect, if in fun-
damental conflict. Foreign observers of our insti-
tutions marvel that such a mechanism of constraint
can be practically applied, and they pronounce its
application confusing; yet they freely admit that
the mechanism works, and at this long distance of
time works easily.

Such arbitrament works all the better because no
violent array is brought up against Executive or

294 CONSTITUTIONAL STUDIES.

Legislature, because the test case made is that of
private individuals, and because argument is heard,
delay accorded, and the public mind, well prepared
to doubt whether the act complained of were really
consistent with organic law, learns in due time the
decision and its reasons. The test case comes to
judgment; the particular judgment is enforced; and
the people, and they, too, of co-ordinate departments
of the government whose pride is not wounded, and
whose agents have perhaps already changed, concede
that the judgment for one individual contestant ought
to prevail equally for all other private contestants
similarly situated. Cheerful acquiescence in the
decision of the highest appellate tribunal becomes
doubly the policy of fairness, — a maxim like that of
acquiescence in the political will of a majority; and
even were resistance continued, the court's process is
available to all other individuals in turn who feel
aggrieved, and disobedience to the law-makers be-
comes obedience to the State. Thus does wrong-
ful and despotic legislation become sapped of its
mischief.

The idea of a power thus overriding the enactment
of a legislature was not wholly new to American
citizens in 1789, but existed to some extent in
colonial and Revolutionary times ; and in the national
era which has succeeded that date, the Supreme
Court of the United States simply exerts on a new
and more comprehensive scale, and with a more
imposing fundamental operation, what States inde-
pendent of Great Britain had severally begun to
exercise in the intervening years through their own
highest tribunals. 1 Perfect government is gained in
this inherent operation of fundamental law of the
land, when general acquiescence is peacefully given

1 See "Atlantic Monthly," November, 1884.

CONSTITUTIONAL INTERPRETATION. 295

both by the people and the public departments, so
that the Executive desists from enforcement, and the
Legislature repeals the devitalized statute without
further controversy. For even supposing the court
to have registered an unrighteous decision (which is
seldom), it is better that the people, who make and
unmake judges and other public servants, shall defer
to the decision until their own peaceful opportunity
comes to reorganize and reconstruct.

The field of the American Judiciary becomes thus
immensely enlarged as appellate judges in a State
become thus the conservators of organic law. The
judges represent, as a recent writer has well expressed
it, "the deeper and more abiding popular sense of
order and justice; " and the court, no less an instru-
ment of the people than the Legislature, reflects the
public sentiment in a deeper, calmer, more lasting
form, embodying popular aspirations after an ideal
of perfect order. 1

1 Horace Davis's American Constitutions, 61.

VIII.

MISCELLANEOUS ; CONCLUSION.

Impeachment by the Legislature for the removal of
public officers is a process still sanctioned almost
everywhere in our American States, Oregon long
constituting the sole exception. Impeachment pro-
visions in the Federal constitution furnish, with some
local variations, the usual model in this respect. But
the cumbfousness and uncertain result of all such
political trials have induced contempt for the pro-
cedure ; so that in consequence some States are now
disposed to extend the summary removal of public
officers by address or joint resolution as a legislative
substitute; 1 while others empower the Governor,
whenever charges are preferred against subordinates,
to suspend or remove the culprits from office, and
to institute criminal prosecution against them in the
courts. Elections at frequently recurring intervals
and the popular test for all high officers of State,
judges included, must largely dispense with the
necessity of impeachment. Some modern State con-
stitutions expressly confine impeachment by the
Legislature to high officials, making all the lesser
public servants liable to indictment and trial in the
courts, and even to judicial removal, in case of con-
viction, as part of the punishment. 2

1 See Louisiana, 1812; Indiana, 1851 ; page 288.

2 Tennessee, 1834. And see California, 1848; Oregon, 1857.

MISCELLANEOUS PROVISIONS. 297

We have observed in the States of this century a
growing insistence upon geographical residence as a
test of the right to vote or hold office. Qualification,
or rather clear definition, of this rule finds occasion-
ally an organic recognition ; thus absence from home
on business of the State or Union shall not deprive
one of such residential rights. 1 The chief officers of
State are specially required under various constitu-
tions to reside at the seat of government, 2 and to
keep the records there, while county officers are
similarly enjoined. States, while seldom liberal,
have sometimes been parsimonious respecting public
salaries; as when Tennessee's constitution in 1796
prescribed a maximum limit for such recompense in
specific instances, yet named no minimum. "All
salaries and fees shall be moderate," enjoins Delaware
in 1792, " and receipts which specify particulars shall
be given for all official fees." 8 The Legislature shall
determine what deductions shall be made from the
salaries of public officers for neglect of duty. Among
citizens specially enumerated as ineligible to State
office we find ministers of the gospel, 4 army and navy
contractors, persons in the service of the United
States, and those, moreover, convicted of bribery or
infamous crimes. Plurality of offices, State and
national, is frequently forbidden in State instruments.
Virginia in 1850 disqualified every salaried officer of
a bank or attorney for the commonwealth from sitting
in the Legislature. Delaware has been the latest

1 Kentucky, 1799.

2 Michigan, 1835; Indiana, 1851, etc. Louisiana's early constitution
of 1812 declares that all civil officers for the State at large shall reside
within the State ; and all district or county officers within their respec-
tive districts or counties, and shall keep their respective offices at such
places therein as may be required by law.

* Delaware, 1792.
i Supra, page 68.

298 CONSTITUTIONAL STUDIES.

State in the Union, apparently, to retain a property
qualification, somewhat as in the last century. 1 Re-
ligious qualification was ignored so generally in new
State constitutions early in this century that it seemed
a relic of old times when Arkansas, as late as 1836,
declared upon admission to the Union that no atheist
should hold office nor be an admissible witness in the
courts. But North Carolina as late as 1876 renewed
the atheist disqualification of her earlier constitution;
and a few other instruments of old States are of the
same purport. 2

Following the traditions of her colonial age, Con-
necticut, far into the nineteenth century, maintained
two State capitals, Hartford and New Haven, where
the Legislature was required to hold alternate ses-
sions; but since 1873 Hartford has absorbed the
honor of State residence. Rhode Island, with a
similar colonial history, still pursues that old custom
of double headquarters at Providence and Newport.
In all other States of the Union one capital city has
always sufficed, and from the very outset of the nine-
teenth century we see the Federal rivalry of 1789
reproduced, and the strife of local settlements emulous
for selection as the seat of government, shaping the
expression of conventions, under whose guidance
Territories were ushered into the Union as full-grown
States. Thus Ohio in 1802 declares Chillicothe the
seat of State government until 1808, and forbids
money to be raised until 1809 for erecting any State
House. Louisiana in 1812 orders the State capital to

1 For the Senate. A convention has (1897) ordained a new con-
stitution for Delaware. A peculiarly obstructive method of calling
a State convention under the old organic law (namely, the vote of an
average representative majority of the people) hindered the needful
popular assent earlier.

2 See supra, page 230.

STATE CAPITALS, ETC. 299

continue at New Orleans until removed by law. By
the middle of this century the location of the seat of
government in a new State had become a prize for
keen and speculative competition; so that the con-
vention which framed the organic instrument for
submission to Congress would often evade the choice
of more than a temporary capital, leaving the perma-
nent one to be fixed later by the Legislature, under
the proviso that a State or even a county seat of
government once deliberately selected should not be
changed again at discretion. Oregon in 1857 made
the majority vote of the people indispensable to
every proposal for capital removal, — a wise precau-
tion, since schemes of the kind turn usually in the
Legislature upon local jobbery and debasement. State
boundaries are denned, and the fundamental condi-
tions with Congress concerning admission are seen
set forth in the constitutions of most new States of
modern times ; and a schedule is conveniently affixed
to new constitutions in general for temporary details
connected with the new establishment.

The revision and codification of State laws, at once
or at some later specified period, is found a feature of
many State constitutions in modern times ; and com-
missions for that purpose, or for devising improve-
ments in the penal and practice codes, are sanctioned
accordingly. 1 Indeed, commissions of three or more
have multiplied much as the drudgery of State busi-
ness increases; and boards of commissioners, gradu-

1 See this idea emanating early in the southwestern region, as in
Alabama, 1819, and Missouri, 1820. By 1846 New York set an exam-
ple in that respect since largely followed. But Michigan, in 1850, for-
bade all general revision of laws in the future, pointing out a simpler
method of reprinting, in the government publication, by way of substi-
tute. Whatever State legislatures might have ordered in such States
as Virginia and Massachusetts without constitutional direction, Georgia's
constitution of 1 798 is seen directing that within five years the body of
laws of that State, civil and criminal, should be digested.

300 CONSTITUTIONAL STUDIES.

ally rotating, came into vogue by 1850, to supplant
single heads for bureau service of a commonwealth.

The old thirteen States, once colonies, received no
liberal gifts for education from the Federal Union of
1789, such as endow common public instruction so
liberally in States west of the- Alleghanies from the
proceeds of the Federal public lands. Some of these
original States, however, have had public educational
funds of their own creation; that, for instance, of
Connecticut, known as the common-school fund, and
excellently managed; and New York had a similar
endowment. 1 Knowledge, virtue, literature, and the
common schools — the latter free from sectarian con-
trol — are all repeatedly commended in the organic
law of these United States, superintendents of State
education being specially provided. Asylums for
the poor and feeble gain provision also ; and the State
almshouse, and State institutions for the insane,
blind, deaf and dumb, are seen by 1850 among the
public institutions recognized by the fundamental
law of the people. Humane sentiments make con-
stant advance, and organic prohibitions multiply
against duels and lotteries, 2 as well as the older
offences enumerated. The evil practice of duelling,
which had cost so many distinguished lives, was by
1850 not unfrequently denounced as a disqualification
for office; and Texas in 1845 required an oath to be
taken by every State officer and member of the Legis-
lature that he had not fought nor been second in a
duel since the State constitution was adopted.

Tennessee's constitution at the time of her admis-

1 Connecticut, 1818; New York, 1821 ; supra, page 228.

2 See Maryland (1851) and other States (1851-1860). Previous to
1 800, lotteries had been widely recognized in America as a. suitable
mode of raising funds on behalf of charity, religion, and public
improvements.

MUNICIPAL GOVERNMENT. 301

sion to the Union in 1796 contained a protective
clause, exempting from taxation all articles manu-
factured from the produce of the State. During the
era of this century that State internal improvements
made an absorbing issue in national politics, some of
our local constitutions exhorted the Legislature to"
encourage such projects, while others forbade or
restrained all expenditures of the kind. 1 By 1860
the condemnation of such costly enterprises at the
expense of the State had become general. New
York's constitutions have taken special concern in
protecting and developing the salt springs of the
State and the Erie and Champlain canals, 2 ordaining
in 1846 that these public sources of wealth should
never be sold. Indiana has enclosed as a sacred
precinct the Tippecanoe battle-field; and Maryland
her State House square and grounds at Annapolis,
while New York seeks to rescue from private waste
or depredation the Adirondack forests and the water
supply of the Hudson and Mohawk valleys.

The increasing tendency of an American popula-
tion to swarm at central points of the commonwealth,
to the detriment of town representation and the old
uniform local government by selectmen and town
meeting, drew general notice before this century had
far advanced. New York in 1821 ordained that
mayors of all cities in that State should be chosen by
the respective common councils, but in 1833 per-
mitted the mayor of New York City to be elected at
the polls. Massachusetts in 1822 by a constitutional
amendment authorized the Legislature of the State to
incorporate cities wherever there were twelve thou-
sand inhabitants, and the local voters desired such

1 Cf . Missouri, Tennessee, Alabama, Mississippi, Michigan, Florida,
andTe^as (1819-1845).

2 New York, 1833, 1835.

302 CONSTITUTIONAL STUDIES.

change of government. Since the Civil War, State
constitutions, having large cities within the jurisdic-
tion, are seen devoting much detail to that increas-
ingly difficult subject of municipal self-government.
Thus, Maryland in 1867 makes lengthy provision
regarding the government of Baltimore. One muni-
cipal change which the recent New York convention
of 1894 favored is that of separating such municipal
elections from those of State or national officers, and,
by making them local and distinct, concentrate the
voter's attention to candidates detached from other
issues. In comprehensive schemes, however, for
municipal government, States are still confessedly in
the experimental stage of a most gigantic problem;
it may be said that of divided responsibilities, multi-
plied checks and balances, and varying terms of civic
servants, the present age seems heartily sick; and
dispensing with councils or mimic representative
assemblies, the remedy of the hour, which may or
may not prove finally effective, is that of establishing
a business man's government, controlled essentially
like a private business corporation, with powers con-
centrated in a commission or single executive whom
a board of aldermen can but slightly restrain. 1

The political tendency has been in many States
for the legislative majority, on behalf of rural con-
stituencies, to take a great metropolis in hand, med-
dling in its morals by a State board of police, and
regulating and experimenting with its municipal gov-
ernment ; but some late constitutions react a little in
favor of that home rule and local influence which all
good citizens must cherish while republics endure. 2

1 The mayor of any city may make official objection or "yeto''
within fifteen days to bills of the Legislature which affect the city's
domestic affairs. New York, 1894.

a New York's 1894 amendments classify the cities of that State
according to relative population; and as to cities of the first class

A POPULAR REFERENCE. 303

We have elsewhere traced the growth of that fun-
damental doctrine which required the submission of
constitutions and of constitutional amendments to
the voters. Towards the middle of this century such
convenient reference to the people became a resort
for relieving a State convention of various trouble-
some decisions upon such fundamental propositions
as granting suffrage to the colored race in a free
commonwealth; and thence the further advance was
easy for a convention to authorize a legislature to
frame other specific issues of a like perplexing kind
for the voters. Thus the Wisconsin convention in
1848 permitted a popular reference by the Legislature
of "bank or no bank," the creation or non-creation of
such corporations to depend upon the will of the
popular majority as expressed at the polls. The
creation of public debt for certain purposes was so
referred in various instances. The liquor question,
too, where those who would prohibit in a State alto-
gether conflict with the promoters of a license,
became about 1850, as it has been ever since, an
issue for popular referendum, under State constitu-
tions, 1 with later a "local option" application as
between the two plans in the various towns and cities.
Taxation and other provisions are seen framed in the
modern organic law of several States never to be
changed without a referendum to the people. In
many States a referendum is regularly made to the
people at specific periods, such as twenty years, on
the question of calling a constitutional convention.
And States are already agitating a new and final
advance in the same direction which shall require the
submission of all enactments by the Legislature to

empower a, mayor to guard as chief executive the interests of the
community against injurious legislation,
i Ohio, 1851.

304 CONSTITUTIONAL STUDIES.

the same final sanction of the people at the polls.
Ancient experience shows the unfitness of a plebis-
citum for framing and originating measures in a free
republic of more than moderate population, but not,
in matters of general concern, for considering the
adoption of what some representative body has pro-
posed in concrete form.

The Anglo-Saxon temperament has held sway thus
far throughout the Union; and, whether in the old
French and Spanish annexations of territory and
inhabitants, or that incongruous immigration from
abroad which pours in so constantly over the whole
area, foreign elements have been easily assimilated.
To this predominance of the primitive race and char-
acter through all such admixture, the stability of our
institutions is immensely owing. New States have
spread the influence of English ideas in law and
literature, and the mother tongue is the language of
this continent. Louisiana, on her admission in 1812,
ordained that all laws of the Legislature, and all
judicial and legislative proceedings, should be pro-
mulgated, preserved, and conducted in the same
language as that of the constitution of the United
States. 1 California, more yielding to her native
element, announced in 1849 that all laws or decrees
requiring publication should be published in English
and Spanish; but the former style has gained the
mastery. The genius of republican free government
on this continent is Anglo-American.

In conclusion, we are impressed by the progres-
sive strength of the two great forces of this American

1 It was conceded, however, in the Louisiana constitution of 1845,
that the Secretary of the State Senate and Clerk of the State House
of Representatives should be conversant with both English and French,
and that members might address the Legislature in either language.

FINAL OBSERVATIONS. 305

Union, the centripetal and the centrifugal, in their
constant relation to one another, as the whole undi-
vided people advance to continental empire. The
Federal government, now fitly styled national, stirs
best the spirit of public pride and love of glory,
because of its splendid historical achievements, and,
since the Civil War, its sure foundation in the
American heart. Exercising with energy such para-
mount functions of sovereignty as those of war, peace,
foreign relations, commerce, territorial acquisition
and development, the post-office, immense resources
of taxation which are exclusive as respects tariff and
the customs ; symbolized in the national flag and con-
trolling the only active and permanent army and
navy of the people ; regulating the mutual intercourse
of States and their inhabitants in essential particulars,
— the United States government with its continuity
of administration is at length easily paramount. But
in the several States, — prosaic by comparison,
whether in area, population, or the scope of ostenta-
tious action, — we see the multiplying nurseries of
self-government, the abodes where public spirit and
confident experience in free institutions must still be
generated while generated at all. Here originate
constitutional reforms and the inventions of democracy
to curb and regulate all rulers ; and in these jurisdic-
tions will popular liberty maintain its last stand,
should the Union, ages hence, fall asunder. Cor-
ruption that corrodes, despotism that oppresses, vice
that unnerves, need only be feared when poisoning
such fountain-heads.

Humble as may be the field of local achievement in
this Union, material as may appear State ends and
inconsequential State public routine, the study of
republican institutions is an exceedingly interesting
one which these several commonwealths furnish.

20

306 CONSTITUTIONAL STUDIES.

Political geography reckons usually by nations alone
and their chief cities ; and of State political divisions
in America the outer world makes scarcely more
account than would we of the counties or provinces
which make up England, France, or Germany; all
the more so that while homogeneousness continues in
a national sense, States with merely artificial bounda-
ries multiply. Yet, while the Federal constitution
has yielded but little to structural reform for more
than a hundred years, State instruments abound in
improved ideas of government which deserve to be
nationalized.

Our first impression, perhaps, as we approach the
study of these documents, is unfavorable. So much
constitutional detail seems needless. We object that
something ought to be left to the discretion of the
governing power, that the closest ligature of parch-
ment offers no adequate guaranty of good government.
But when we have well studied and compared State
constitutions, such prejudice softens ; we discern that
the modern governing power in the American com-
monwealth is not the agent, but the principal, not
individual ambition, but the general opinion. We
realize that a constitution becomes the most impera-
tive of written law, because the enactment of the
people. Breadth, not intolerance, characterizes these
later schemes of State government. Dislike of
monopolies, of class and money-making privileges,
though visible, is not destructively manifested. If
some impertinent or niggardly constraint can be
pointed out in a State constitution, it is only on rare
occasion. If rulers seem now and then hampered in
action, it is because the ruled are "subjects," in the
old-world sense, no longer ; because American citizens
are keenly sensitive to public shortcomings, and
apprehend the temptations which beset those placed

FINAL OBSERVATIONS. 307

temporarily over them by their own suffrage. Sooner
or later the best thought of each community, of busi-
ness men, of journalists, of university scholars, of
literary writers, of those who make a comparative
study of politics and government, of professional
men and philosophers, as well as of recognized politi-
cal leaders, has gone into the marrow of these State
constitutions. Republican home government finds
here the widest scope and expression; experiments
bring results ; and expedients for reform soon develop
vital principles. The whole outlook of such progres-
sion is hopeful, since the salvation of self-govern-
ment lies in a continuous sense of honor and patriotism
among the people, and in the courageous determina-
tion, moreover, of the majority to correct whatever
practical mischief public administration may at any
time bring to light. The American people, as a
mass, are far from being hasty and capricious in
ordering fundamental changes. Even in the great
mass of statutes churned out periodically by the
several State legislatures, those who explore inform
us that the really important changes of written law
are few and unfrequent; and our present study of
institutions convinces us that in organic political
reforms as well, the conservative instinct of the
American people is very great. The inertia of the
mass opposes those who are actively pushing for new
results.

The grandeur of our American example in the
world's history seems well assured, if only two dangers
be well guarded against. One of these, which is
fostered by the exceeding laxity of the Federal
power originally given in that respect to Congress,
or assumed, concerns the future territorial expan-
sion of this Union ; and it might be well if a con-
stitutional amendment should guaranty in this respect

308 CONSTITUTIONAL STUDIES.

a better constraining right to the people. The new
and remote annexation of a people unfitted to mingle
in self-government, and of a foreign country not
contiguous, may imperil the experiment of the fathers
in some future era of "manifest destiny." The other
danger lies in the excrescent growth of political
agencies for organizing the voters, massing cohorts
for the candidates, and making selfish spoils of the
public patronage. Against this latter evil should be
set the best mental and moral enlightenment of the
people, so that citizens may grow up good patriots,
able to combine and co-operate for noble ends with-
out arrogance or class spirit. That virtue which
has well been pronounced by Montesquieu the ani-
mating spirit of a republic is in its essence patriotism,
■ — a burning passion for one's own country, and a
desire to advance always its true good and greatness.
Though latent in commonplace times, such patriotism,
when intelligently directed, becomes an overwhelm-
ing force for the general good in times of danger.

CONSTITUTION

OF THE

UNITED STATES OP AMERICA.

We the people of the United States, in order to form a more
perfect union, establish justice, insure domestic tranquillity,
provide for the common defence, promote the general welfare,
and secure the blessings of liberty to ourselves and our posterity,
do ordain and establish this Constitution for the United
States of America.

ARTICLE I.

Sect. 1. All legislative powers herein granted shall be
vested in a Congress of the United States, which shall consist
of a Senate and a House of Representatives.

Sect. 2. The House of Representatives shall be composed
of members chosen every second year by the 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.

No person shall be a Representative who shall not have at-
tained to the age of twenty-five years, and been seven years a
citizen of the United States, and who shall not, when elected,
be an inhabitant of that State in which he shall be chosen.

Representatives and direct taxes shall be apportioned among
the several States which may be included within this Union,
according to their respective numbers, which shall be deter-
mined by adding to the whole number of free persons, includ-
ing those bound to service for a term of years, and excluding
Indians not taxed, three fifths of all other persons. The actual
enumeration shall be made within three years after the first
meeting of the Congress of the United States, and within every
subsequent term of ten years, in such manner as they shall by
law direct. The number of Representatives shall not exceed

310 CONSTITUTION OF

one for every thirty thousand, but each State shall have at least
one representative ; and until such enumeration shall be made,
the State of New Hampshire shall be entitled to choose three,
Massachusetts eight, Rhode Island and Providence Plantations
one, Connecticut five, New York six, New Jersey four, Pennsyl-
vania eight, Delaware one, Maryland six, Virginia ten, North
Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the representation from any
State, the Executive authority thereof shall issue writs of elec-
tion to fill such vacancies.

The House of Representatives shall choose their Speaker and
other officers ; and shall have the sole power of impeachment.

Sect. 3. The Senate of the United States shall be com-
posed of two Senators from each State, chosen by the Legis-
lature thereof, for six years ; and each Senator shall have one
vote.

Immediately after they shall be assembled in consequence of
the first election, they shall be divided as equally as may be into
three classes. The seats of the Senators of the first class shall
be vacated at the expiration of the second year, of the second
class at the expiration of the fourth year, and of the third class
at the expiration of the sixth year, so that one third may be
chosen every second year ; and if vacancies happen by resigna-
tion, or otherwise, during the recess of the Legislature of any
State, the Executive thereof may make temporary appointments
until the next meeting of the Legislature, which shall then fill
such vacancies.

No person shall be a Senator who shall not have attained to
the age of thirty years, and been nine years a citizen of the
United States, and who shall not, when elected, be an inhabitant
of that State for which he shall be chosen.

The Vice-President of the United States shall be President
of the Senate, but shall have no vote, unless they be equally
divided.

The Senate shall choose their other officers, and also a Presi-
dent pro tempore, in the absence of the Vice-President, or when
he shall exercise the office of President of the United States.

The Senate shall have the sole power to try all impeach-
ments. 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 con-
victed without the concurrence of two thirds of the members
present.

THE UNITED STATES. 311

Judgment in cases of impeachment shall not extend further
than to removal from office, and disqualification to hold and
enjoy any office of honor, trust, or profit under the United
States : but the party convicted shall nevertheless be liable and
subject to indictment, trial, judgment, and punishment, accord-
ing to law.

Sect. 4. The times, places, and manner of holding elec-
tions for Senators and Representatives shall be prescribed in
each State by the Legislature thereof ; but the Congress may
at any time by law make or alter such regulations, except as to
the places of choosing Senators.

The Congress shall assemble at least once in every year, and
such meeting shall be on the first Monday in December, unless
they shall by law appoint a different day.

Sect. 5. Each House shall be the judge of the elections,
returns, and qualifications of its own members, and a majority
of each shall constitute a quorum to do business ; but a smaller
number may adjourn from day to day, and may be authorized
to compel the attendance of absent members, in such manner,
and under such penalties, as each House may provide.

Each House may determine the rules of its proceedings, pun-
ish its members for disorderly behavior, and, with the concur-
rence of two thirds, expel a member.

Each House shall keep a journal of its proceedings, and from
time to time publish the same, excepting such parts as may in
their judgment require secrecy ; and the yeas and nays of the
members of either House on any question shall, at the desire
of one fifth of those present, be entered on the journal.

Neither House, during the session of Congress, shall, with-
out 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.

Sect. 6. The Senators and Representatives shall receive a
compensation for their services, to be ascertained by law, and
paid out of the Treasury of the United States. They shall in
all cases, except treason, felony, and 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.

No Senator or Representative shall, during the time for
which he was elected, be appointed to any civil office under the
authority of the United States, which shall have been created,

312 CONSTITUTION OF

or the emoluments whereof shall have been increased, during
such time ; and no person holding any office under the United
States shall be a member of either House during his continu-
ance in office.

Sect. 7. All bills for raising revenue shall originate in the
House of Representatives ; but the Senate may propose or con-
cur with amendments as on other bills.

Every bill which shall have passed the House of Representa-
tives and the Senate shall, .before it become a law, be presented
to the President of the United States ; if he approve he shall
sign it, but if not he shall return it with his objections to that
House in which it shall have originated, who shall enter the
objections at large on their journal, and proceed to reconsider
it. If after such reconsideration two thirds of that House shall
agree to pass the bill, it shall be sent, together with the objec-
tions, to the other House, by which it shall likewise be recon-
sidered, and, if approved by two thirds of that House, it shall
become a law. But in all such cases the votes of both Houses
shall be determined by yeas and nays, and the names of the
persons voting for and against the bill shall be entered on the
journal of each House respectively. If any bill shall not be
returned by the President within ten days (Sundays excepted)
after it shall have been presented to him, the same shall be a
law, in like manner as if he had signed it, unless the Congress
by their adjournment prevent its return, in which case it shall
not be a law.

Every order, resolution, or vote to which the concurrence of
the Senate and House of Representatives may be necessary
(except on a question of adjournment) shall be presented to the
President of the United States ; and, before the same shall take
effect, shall be approved by him, or, being disapproved by him,
shall be repassed by two thirds of the Senate and House of
Representatives, according to the rules and limitations pre-
scribed in the case of a bill.

Sect. 8. The Congress shall have power, —

To lay and collect taxes, duties, imposts, and excises to pay
the debts and provide for the common defence and general
welfare of the United States ; but all duties, imposts, and ex-
cises shall be uniform throughout the United States;

To borrow money on the credit of the United States ;

To regulate commerce with foreign nations, and among the
several States, and with the Indian tribes ;

To establish an uniform rule of naturalization, and uniform

THE UNITED STATES. 313

laws on the subject of bankruptcies throughout the United
States ;

To coin money, regulate the value thereof, and of foreign
coin, and fix the standard of weights and measures ;

To provide for the punishment of counterfeiting the securi-
ties and current coin of the United States ;

To establish post-offices and post-roads ;

To promote the progress of science and useful arts, by secur-
ing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court ;

To define and punish piracies and felonies committed on the
high seas, and offences against the law of nations ;

To declare war, grant letters of marque and reprisal, and
make rules concerning captures on land and water ;

To raise and support armies, but no 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, arming, and disciplining the mili-
tia, and for governing such part of them as may be employed
in the service of the United States, reserving to the States re-
spectively, the appointment of the officers, and the authority of
training the militia according to the discipline prescribed by
Congress ;

To exercise exclusive legislation, in all cases whatsoever, over
such district (not exceeding ten miles square) as may, by ces-
sion of particular States, and the acceptance of Congress, be-
come the seat of the government of the United States ; and to
exercise like authority over all places purchased by the consent
of the Legislature of the State in which the same shall be, for
the erection of forts, magazines, arsenals, dock-yards, and other
needful buildings ; and

To make all laws which shall be neeessary and proper for
carrying into execution the foregoing powers, and all other
powers vested by this Constitution in the government of the
United States, or in any department or officer thereof.

Sect. 9. The migration or importation of such persons as
any of the States now existing shall think proper to admit,
shall not be prohibited by the Congress prior to the year one

314 CONSTITUTION OF

thousand eight hundred and eight, but a tax or duty may be
imposed on such importation, not exceeding ten dollars for
each person.

The privilege of the writ of habeas corpus shall not be sus-
pended, unless when in cases of rebellion or invasion the public
safety may require it.

No bill of attainder or ex post facto law shall be passed.

No capitation or other direct tax shall be laid, unless in pro-
portion to the census or enumeration herein before directed to
be taken.

No tax or duty shall be laid on articles jfixported from any
State.

No preference shall be given by any regulation of commerce
or revenue to the ports of one State over those of another ; nor
shall vessels bound to, or from, one State, be obliged to enter,
clear, or pay duties in another.

No money shall be drawn from the treasury, but in conse-
quence of appropriations made bylaw ; and a regular statement
and account of the receipts and expenditures of all public
money shall be published from time to time.

No title of nobility shall be granted by the United States ;
and no person holding any office of profit or trust under them
shall, without the consent of the Congress, accept of any pres-
ent, emolument, office, or title, of any kind whatever, from any
king, prince, or foreign state.

Sect. 10. No State shall enter into any treaty, alliance, or
confederation; grant letters of marque and reprisal; coin
money ; emit bills of credit ; make anything but gold and silver
coin a tender in payment of debts ; pass any bill of attainder,
ex post facto law, or law impairing the obligation of contracts,
or grant any title of nobility.

No State shall, without the consent of the Congress, lay any
imposts or duties on imports or exports, except what may be
absolutely necessary for executing its inspection laws ; and the
net produce of all duties and imposts, laid by any State on im-
ports or exports, shall be for the use of the treasury of the
United States ; and all such laws shall be subject to the revision
and control of the Congress.

No State shall, without the consent of Congress, lay any duty
of tonnage, keep troops or ships of war in time of peace, enter
into any agreement or compact with another State, or with a
foreign power, or engage in war, unless actually invaded, or in
such imminent danger as will not admit of delay.

THE UNITED STATES. 315

ARTICLE II.

Sect. 1. The executive power shall be vested in a President
of the United States of America. He shall hold his office dur-
ing the term of four years, and, together with the Vice-Presi-
dent, chosen for the same term, be elected as follows : —

Each State shall appoint, in such manner as the Legislature
thereof may direct, a number of Electors equal to the whole
number of Senators and Representatives to which the State
may be entitled in the Congress : but no Senator or Represen-
tative, or person holding an office of trust or profit under the
United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote
by ballot for two persons, of whom one at least shall not be an
inhabitant of the same State with themselves. And they shall
make a list of all the persons voted for, and of the number of
votes for each ; which list they shall sign and certify, and
transmit sealed to the seat of the government of the United
States, directed to the President of the Senate. The President
of the Senate shall, in the presence of the Senate and House of
Representatives, open all the certificates, and the votes shall
then be counted. The person having the greatest number of
votes shall be the President, if such number be a majority of
the whole number of Electors appointed ; and if there be more
than one who have such majority, and have an equal number
of votes, then the House of Representatives shall immediately
choose by ballot one of them for President ; and if no person
have a majority, then from the five highest on the list the said
House shall in like manner choose the President. But in
choosing the President, the votes shall be taken by States, the
representation from each State having one vote ; a quorum for
this purpose shall consist of a member or members from two
thirds of the States, and a majority of all the States shall be
necessary to a choice. In every ease, after the choice of the
President, the person having the greatest number of votes of
the Electors shall be the Vice-President. But if there should
remain two or more who have equal votes, the Senate shall
choose from them by ballot the Vice-President. — Repealed by
Amendment XII.~\

The Congress may determine the time of choosing the Elec-
tors, and the day on which they shall give their votes; which
day shall be the same throughout the United States.

No person except a natural-born citizen, or a citizen of the

316 CONSTITUTION OF

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.

In case of the removal of the President from office,, or of his
death, resignation, or inability to discharge the powers and
duties of the said office, the same shall devolve on the Vice-
President, and the Congress may by law provide for the case of
removal, death, resignation, or inability, both of the President
and Vice-President, declaring what officer shall then act as
President, and such officer shall act accordingly, until the dis-
ability be removed, or a President shall be elected.

The President shall, at stated times, receive for his services a
compensation, which shall neither be increased nor diminished
during the period for which he shall have been elected, and he
shall not receive within that period any other emolument from
the United States, or any of them.

Before he enter on the execution of his office, he shall take
the following oath or affirmation : — " I do solemnly swear (or
affirm) that I will faithfully execute the office of President of
the United States, and will, to the best of my ability, preserve,
protect, and defend the Constitution of the United States."

Sect. 2. The President shall be commander-in-chief of the
army and navy of the United States, and of the militia of the
several States,when called into the actual service of the United
States ; he may require the opinion, in writing, of the principal
officer in each of the executive departments, upon any subject
relating to the duties of their respective offices, and he shall
have power to grant reprieves and pardons for ofiences against
the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of
the Senate, to make treaties, provided two thirds of the Sena-
tors present concur ; and he shall nominate, and, by and with
the advice and consent of the Senate, shall appoint ambassa-
dors, other public ministers, and consuls, judges of the Supreme
Court, and all other officers of the United States, whose appoint-
ments 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 President shall have power to fill up all vacancies that

THE UNITED STATES. 317

may happen during the recess of the Senate, by granting com-
missions which shall expire at the end of their next session.

Sect. 3. He shall from time to time give to the Congress
information of the state of the Union, and recommend to their
consideration such measures as he shall judge necessary and
expedient ; he may, on extraordinary occasions, convene both
Houses, or either of them, and in case of disagreement between
them, with respect to the time of adjournment, he may adjourn
them to such time as he shall think proper; he shall receive
ambassadors and other public ministers ; he shall take care that
the laws be faithfully executed, and shall commission all the
officers of the United States.

Sect. 4. The President, Vice-President, and all civil officers
of the United States, shall be removed from office on impeach-
ment for, and conviotion of, treason, bribery, or other high
crimes and misdemeanors.

AKTICLE III.

Sect. 1. The judicial power of the United States shall be
vested in one Supreme Court, and in such inferior courts as the
Congress may from time to time ordain and establish. The
judges, both of the Supreme and inferior courts, shall hold their
offices during good behavior, and shall, at stated times, receive
for their services a compensation, which shall not be diminished
during their continuance in office.

Sect. 2. The judicial power shall extend to all cases, in law
and equity, arising under this Constitution, the laws of the
United States, and treaties made, or which shall be made, under
their authority ; to all cases affecting ambassadors, other public
ministers, and consuls ; to all cases of admiralty and maritime
jurisdiction ; to controversies to which the United States shall
be a party ; to controversies between two or more States, be-
tween a State and citizens of another State, between citizens of
different States, between citizens of the same State claiming
lands under grants of different States, and between a State, or
the citizens thereof, and foreign states, citizens, or subjects.

In all cases affecting ambassadors, other public ministers, and
consuls, and those in which a State shall be party, the Supreme
Court shall have original jurisdiction. In all the other cases
before mentioned, the Supreme Court shall have appellate juris-
diction, both as to law and fact, with such exceptions, and under
such regulations, as the Congress shall make.

318 CONSTITUTION OF

The trial of all crimes, except in cases of impeachment, shall
be by jury ; and such trial shall be held in the State where the
said crimes shall have been committed ; but when not committed
within any State, the trial shall be at such place or places as the
Congress may by law have directed.

Sect. 3. Treason against the United States shall consist
only in levying war against them, or in adhering to their ene-
mies, giving them aid and comfort. No person shall be con-
victed of treason unless on the testimony of two witnesses to the
same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of
treason, but no attainder of treason shall work corruption of
blood, or forfeiture, except during the life of the person at-
tainted.

ARTICLE IV.

Sect. 1. Full faith and credit shall be given in each State
to the public acts, records, and judicial proceedings of every
other State. And the Congress may by general laws prescribe
the manner in which such acts, records, and proceedings shall be
proved, and the effect thereof.

Sect. 2. The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.

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.

No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law
or regulation therein, be discharged from such service or labor,
but shall be delivered up on claim of the party to whom such
service or labor may be due.

Sect. 3. New States may be admitted by the Congress into
this Union ; but no new State shall be formed or erected within
the jurisdiction of any other State ; nor any State be formed
by tifie junction of two or more States, or parts of States, with-
out the consent of the Legislatures of the States concerned, as
well as of the Congress.

The Congress shall have power to dispose of and make all
needful rules and regulations respecting the territory or other
property belonging to the United States ; and nothing in this

THE UNITED STATES. 319

Constitution shall be so construed as to prejudice any claims of
the United States, or of any particular State.

Sect. 4. The United States shall guarantee to every State
in this Union a republican form of government, and shall pro-
tect each of them against invasion ; and on application of the
Legislature, or of the Executive (when the Legislature cannot
be convened), against domestic violence.

ARTICLE V.

The Congress, whenever two thirds of both houses shall deem
it necessary, shall propose amendments to this Constitution, or,
on the application of the Legislatures of two thirds of the several
States, shall call a convention for proposing amendments, which,
in either case, shall be valid to all intents and purposes, as part
of this Constitution, when ratified by the Legislatures of three
fourths of the several States, or by conventions in three fourths
thereof, as the one or the other mode of ratification may be pro-
posed by the Congress; provided that no amendment which
may be made prior to the year one thousand eight hundred and
eight shall in any manner affect the first and fourth clauses in
the ninth section of the first article ; and that no State, without
its consent, shall be deprived of its equal suffrage in the
Senate.

ARTICLE VI.

All debts contracted and engagements entered into, before the
adoption of this Constitution shall be as valid against the United
States under this Constitution as under the Confederation.

This Constitution, and the laws of the United States which
shall be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United States,
shall be the supreme law of the land ; and the judges in every
State shall be bound thereby, anything in the constitution or
laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the
members of the several State Legislatures, and all executive and
judicial officers, both of the United States and of the several
States, shall be bound by oath or affirmation to support this
Constitution ; but no religious test shall ever be required as a
qualification to any office or public trust under the United
States.

320 CONSTITUTION, ETC.

ARTICLE VII.

The ratification of the conventions of nine States shall be
sufficient for the establishment of this Constitution between the
States so ratifying the same.

Done in Convention, by the unanimous consent of the States
present, the seventeenth day of September, in the year of our
Lord one thousand seven hundred and eighty-seven, and of
the Independence of the United States of America the twelfth.
3In B&itne&S whereof we have hereunto subscribed our names.

[Signed by] G2 : Washington,

Presidt. and Deputy from Virginia,
and by thirty-nine delegates.

ARTICLES

IN ADDITION TO, AND AMENDMENT OF, THE

CONSTITUTION OF THE UNITED STATES OF AMERICA.

ARTICLE I.

Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof ; or abridging
the freedom of speech, or of the press, or the right of the people
peaceably to assemble, and to petition the government for a
redress of grievances.

ARTICLE II.

A well-regulated militia being necessary to the security of a
free state, the right of the people to keep and bear arms shall
not be infringed.

ARTICLE III.

No soldier shall, in time of peace, be quartered in any house,
without the consent of the owner, nor in time of war, but in a
manner to be prescribed by law.

ARTICLE IV.

The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no warrants shall issue but upon
probable cause, supported by oath or affirmation, and particu-
larly describing the place to be searched, and the persons or
things to be seized.

21

322 CONSTITUTION OF

ARTICLE V.
No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a
grand jury, except in cases arising in the land or naval forces,
or in the militia, when in actual service in time of war or public
danger ; nor shall any person be subject for the same offence to
be twice put in jeopardy of life or limb ; nor shall be compelled
in any criminal case to be a witness against himself, nor be
deprived of life, liberty, or property, without due process of
law ; nor shall private property be taken for public use without
just compensation.

ARTICLE VI.

In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed,
which district shall have been previously ascertained by law,
and to be informed of the nature and cause of the accusation ;
to be confronted with the witnesses against him ; to have com-
pulsory process for obtaining witnesses in his favor, and to
have the assistance of counsel for his defence.

ARTICLE VII.
In suits at common law, where the value in controversy shall
exceed twenty dollars, the right of trial by jury shall be pre-
served, and no fact tried by a jury shall be otherwise re-exam-
ined in any court of the United States, than according to the
rules of the common law.

f ARTICLE VUI.

Excessive bail shall not be required, nor excessive fines im-
posed, nor cruel and unusual punishments inflicted.

ARTICLE IX.

The enumeration in the Constitution, of certain rights, shall
not be construed to deny or disparage others retained by the
people.

ARTICLE X.
The powers not delegated to the United States by the Consti-
tution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.

THE UNITED STATES. 323

ARTICLE XI.

The judicial power of the United States shall not be con-
strued 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.

ARTICLE XII.

The Electors shall meet in their respective States, and vote
by ballot for President and Vice-President, one of whom, at
least, shall not be an inhabitant of the same State with them-
selves ; they shall name in their ballots the person voted for as
President, and in distinct ballots the person voted for as Vice-
President; and they shall make distinct lists of all persons
voted for as President, and of all persons voted for as Vice-
President, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the
government of the United States, directed to the President of
the Senate ; — the President of the Senate shall, in the presence
of the Senate and House of Representatives, open all the certifi-
cates, and the votes shall then be counted ; — the person having
the greatest number of votes for President shall be the Presi-
dent, if such number be a majority of the whole number of
Electors appointed ; and if no person have such majority, then
from the persons having the highest numbers not exceeding
three on the list of those voted for as President, the House of
Representatives shall choose immediately, by ballot, the Presi-
dent. 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 mem-
bers from two thirds of the States, and a majority of all the
States shall be necessary to a choice. And if the House of
Representatives shall not choose a President, whenever the
right of choice shall devolve upon them, before the fourth day
of March next following, then the Vice-President shall act as
President, as in the case of the death or other constitutional
disability of the President. The person having the greatest
number of votes as Vice-President shall be the Vice-President,
if such number be a majority of the whole number of Electors
appointed, and if no person have a majority, then from the
two highest numbers on the list the Senate shall choose the
Vice-President ; a quorum for the purpose shall consist of two

324 CONSTITUTION OF

thirds of the whole number of Senators, and a majority of the
whole number shall be necessary to a choice. But no person
constitutionally ineligible to the office of President shall be
eligible to that of Vice-President of the United States.

ARTICLE XIII.

Sect. 1. Neither slavery nor involuntary servitude, except
as a punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any
place subject to their jurisdiction.

Sect. 2. Congress shall have power to enforce this article ,
by appropriate legislation.

ARTICLE XIV.

Sect. 1. All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of
the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States ; nor
shall any State deprive any person of life, liberty, or property,
without due process of law ; nor deny to any person within its
jurisdiction the equal protection of the laws.

Sect. 2. Representatives shall be apportioned among the
several States according to their respective numbers, counting
the whole number of persons in each State, excluding Indians
not taxed. But when the right to vote at any election for the
choice of Electors for President and Vice-President of the
United States, Representatives in Congress, the executive and
judicial officers of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants of such State,
being twenty-one years of age and citizens of the United States,
or in any way abridged, except for participation in rebellion or
other crime, the basis of representation therein shall be reduced
in the proportion which the number of such male citizens shall
bear to the whole number of male citizens twenty-one years of
age in such State.

Sect. 3. No person shall be a Senator or Representative in
Congress, or Elector of President and Vice-President, or hold
any office, civil or military, under the United States, or under
any State, who, having previously taken an oath, as a member
of Congress, or as an officer of the United States, or as a mem-
ber of any State Legislature, or as an executive or judicial offi-

THE UNITED STATES. 325

cer 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.

Sect. 4. The validity of the public debt of the United States,
authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing insurrection
or rebellion, shall not be questioned. But neither the United
States, nor any State shall assume or pay any debt or obligation
incurred in aid of insurrection or rebellion against the United
States, nor any claim for the loss or emancipation of any slave ;
but all such debts, obligations, and claims shall be held illegal
and void.

Sect. 5. The Congress shall have power to enforce, by ap-
propriate legislation, the provisions of this article.

ARTICLE XV.

Sect. 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States, or by
any State, on account of race, color, or previous condition of
servitude.

Sect. 2. The Congress shall have power to enforce this
article by appropriate legislation.

INDEX.

Admission of States, 179.

Aliens, 227. See Citizenship.

Allegiance, 22.

Ambassadors, 164, 173.

Amendment, 49, 185, 214-216.
See Constitutions.

Arms, Right to beae, 191, 226.

Abmt, 33, 141, 143, 154, 190, 193.

Attainder, 38, 39, 149, 176.

Bail, 33, 195.

Ballot. See Elections.

Banishment, 67, 222.

Banks, 131,260.

Bills of Credit, 130.

Borrow, 120.

Bribery, 50.

Cabinet, 157. See Council.

Capital, 147, 298.

Censors, 47.

Census, 53, 150.

Charters, 2, 9. See Govern-
ment.

Chastisement, 222.

Chinese, 226, 246.

Citizenship, in general, 24, 293 ;
naturalization, 127 ; State and
Federal, 128 ; comity between
States, 178; extradition of
offenders, 179; since civil war,
197. See Elections.

Colonies. See Government.

Comity op States, 178.

Commerce, 26, 121-127.

Commissioners, 74, 87, 282, 299.

Commons, Bight of, 222.

Compensation, official, 58, 107,
163, 170, 223, 296 ; for property
taken, 41, 195, 222.

Confederation, Articles of,
how formed, 84 ; general scope,
86 ; State rights and Congress,
86; detailed provisions, 88; in-
terstate advantages, 91 ; how
ratified, 91 ; fatal defects, 93 ;
superseded 1787-89, 94; ideas
adapted (1787), 102; preamble
(1787) compared, 102 ; powers
and prohibitions, 117; borrow-
ing power, debts, 120 ; regulation
of commerce, 121 j naturaliza-
tion, 127 ; money and measures,
130 ; post-office, 132 ; criminal
jurisdiction, 135 ; war and peace
power, 136 ; raising armies, 140;
calling out militia, 144 ; sundry
prohibitions, 150-155 ; judicial
power, 169 ; comity of States,
178 ; territorial provisions, 179 ;
debts binding, 188 ; reservation
of rights, 196.

Confederation, New England,
72.

Congress at Albany in 1754,
75; stamp act in 1765, 80;
continental (1774-1789), 80,
86; of United States, 104;
Senate and House, 104, 107;
qualifications and mode of
choice, 105, 200 ; recompense,
etc., 107 ; choice of Senators,

328

INDEX.

etc., 108, 109; assembling,
officers, rules, 110; journal,
bills for revenue, quorum, 111;
censure and expulsion, veto,
etc., Ill; impeachment, 112;
fundamental powers and prohi-
bitions, 115, 148, see Powees
and Prohibitions ; choice, etc.,
of President, 161, 162; sena-
torial special functions, 164, 165 ;
proposing constitutional amend-
ments, 186.
Constitutions, in general, 2, 266,
293; how interpreted, 101.

I. States (1776-1789); separation
of powers : Montesquieu, 45 ;
names of States, 46 ; conven-
tion to form, 46 ; how amended,
49 ; elective franchise, 50 ; legis-
lature, see Legislature, 51 ;
executive, see Executive, 58 ;
judiciary, see Judiciary, 64;
impeachment, oaths, sundry pro-
visions, 68 ; disqualifications, 68 ;
education encouraged, 69.

II. Federal, its origin and neces-
sity, 93; character of Federal
government, 96 ; structure and
distribution of powers, 99 ; com-
posite, federo-national, 96, 100;
rules of interpretation, 102 ; pre-
amble and purpose, 102 ; the
Federal legislature, 104, see
Congress ; fundamental pow-
ers, etc., 115, 148, see Powers
and Prohibitions ; the execu-
tive President, etc., 156, see
Executive ; the judiciary, 169,
see Judiciary ; interstate rela-
tions, comity, 178; faith and
credit to records, 178 ; privileges
and immunities, 178; extradition
rights, 179 ; annexing new ter-
ritory, 179 ; domestic territorial
policy, 1 80 ; guaranty to States,
182 ; republican government,
182 ; protection against invasion,

182; protection against insur-
rection, 183 ; adoption and
power to amend, 185 ; debts and
engagements binding, 1 88 ;
supreme law of land, 188 ; oath,
no religious test, 189; fifteen
amendments since 1787, 190;
" bill of rights " (first ten), 191 ;
freedom of religion, of speech
and press, and of petition,
192 ; militia, right to bear arms,
192 ; soldiers not to be quar-
tered, 193 ; criminal safeguards,
witness, jury, 193 ; reservation
to State or people, 196; civil war
amendments, 197.

III. States since 1789; historical
sequence, 203 ; modern details
and popular control, 210;
methods of adoption and change,
211-219; fundamental maxims,
220-230 ; elective franchise,
231, see Elections ; the
legislature, 249, see Legisla-
ture ; the executive, 267,
see Executive ; The judi-
ciary, 283, see Judiciary;
miscellaneous provisions, 296;
impeachment, suspension, 296 ;
capital cities, 298 ; codification,
commissions, 299 ; special reser-
vations, 301 ; municipal govern-
ment, 301 ; modern referendum,
303 ; Anglo-Saxon influence,
conclusion, 304.

Contracts, Impairment of, 152,
221.

Convention, in general, 47, 185,
213 ; at Albany in 1754, 75 ; at
Philadelphia in 1787, 46, 94.

Copyright, 133.

Council, 59, 61, 157, 272, 280.

Court, General, 17, 54.

Courts. See Judiciary.

Crime, 13, 32, 132, 135, 175, 193,
223 ; punishment of, 36, 42, 177,
195, 222.

INDEX.

329

Counterfeit, 132.

Currency, 130.

Debt, public, 120, 151, 188,200;
imprisonment for, 36, 221. See
Legislature.

Declaration, 81. See Rights.

Deodand, 13, 35, 221.

Directory, 59, 157, 272, 280.

Duels, 300.

Economy, 43.

Education, 69, 228, 235, 300.

Elections, colonial, 18, 24; in
period 1776-1789, 50; vote,
written oi oral, 51, 236-239;
choice of Federal Representa-
tive, 105 ; race distinctions, 201,
226, 227, 242-245; franchise
since 1789, 231 ; left to State
development, 232 ; tests, exten-
sion of suffrage, 234 ; time and
method of elections, 235, 252;
sundry disqualifications, 235,
240; plurality rule, minority,
245, 269 ; miscellaneous pro-
visions, 246; progress of De-
mocracy, 247 ; Presidential, 159,
161, 197; to Legislature, 253,
261 ; to executive office, 268,
281 ; of judges, etc., 287, 292.

Error, Writs of, 223.

Executive, colonial, 16; States
(1776-1789), title, method of
choice, 58; qualifications, pro-
perty, religion, 60; lieutenant-
governor, 61 ; council, 61 :
executive powers, 62; com-
mander-in-chief, 62 ; veto power,
62; pardoning, appointing, 63;
secretary, treasurer, etc., 63 ;
Federal (1787) a new creation,
156 ; President's term, responsi-
bility, etc., 157 ; Vice-President
and vacancy, 158 ; mode of
choosing executive, 159 ; amend-
ment of 1803-1804, 160, 197;
qualifications for office, 162;
salary, oath, inauguration, 163 ;

powers and duties, 163; com-
mander-in-chief, 163 ; pardon,
veto, 164, 166 ; in foreign affairs,
164 ; in civil patronage, appoint-
ments, 165; power to call or
adjourn Congress, 166; execu-
tion of laws, 167 ; States (since
1789), title,independence, choice,
267; term and qualifications,
269, 279 ; council, lieutenant-
governor, 272, 273; pardon, ap-
pointments, 275; veto, sundry
provisions, 276, 280; patronage,
subordinate officers, 278 ; popu-
lar control increasing, 281.

Exemptions, Homestead, etc.,
224.

Export Tax, 120.

Ex Post Facto Law, 149, 151.

Extradition, 25, 73, 179.

Faith and Credit, 178.

Felony, 107, 135.

Forfeiture, 38, 176.

Fishery Right, 26, 36, 225.

Franklin Flan, 75.

Freeholder, 50, 55, 59, 233, 243,
271.

Fugitives, 25, 73, 179.

Government,American, Colonial
(1607-1776) ; provincial, proprie-
tary and charter, 9; study of
early charters, 1 1 ; structure of
colonial government, 15; germ
of popular system, 21 ; funda-
mental safeguards, allegiance,
etc., 22 ; civil rights of colonists,
24 ; intercolonial rights, 24 ; reli-
gious freedom and philanthropy,
25; trade and private occupa-
tions, 26 ; gold, silver, etc., reser-
vation, 27 ; land tenure, registry,
etc., 28 ; States, 29, 45, 203 ; bills
of rights, see Rights, 29, 220;
constitutional features, 45, 203,
see Constitutions ; National
Development : early tendencies to
union, 70 ; New England Con-

330

INDEX.

federacy, 72; boards of com-
missioners, 73 ; congress or
convention, 1754, 74 ; Franklin's
plan of union, 76 ; Stamp Act
Congress, 79 ; Continental Con-
gress, 80; Declaration of Inde-
pendence, 81 ; States never
wholly sovereign, 82 ; articles of
confederation, 84, see Confed-
eration, Articles of ; Federal
constitution (1787) and new plan,
93-96 ; analysis of Federal con-
stitution, 99 ; municipal govern-
ment, 302. See Constitutions.

Governor, 58, 267. See Execu-
tive.

guaranty, federal, 182.

Habeas Corpus, 148, 174, 223.

Impeachment, 67, 112, 288, 296.

Improvements, Internal, 301.

Indians, 26, 105, 122, 242, 243.

Interstate Rights, 24, 125, 178.

Jeopardy, 193.

Judiciary, Colonial, 23 ; States
(1776-1789), judicial tenure and
choice, 64; establishment of
courts, 66 ; removal, sundry pro-
visions, 67 ; Federal establish-
ment (1787), 168, 169; supreme
court, permanent, 1 70 ; inferior
courts, changeable, 170; tenure
and salary, 170; jurisdiction
under Federal constitution, 1 72 ;
correction of State tribunals,
174; constitutional sanction, 174;
criminal jurisdiction, 135 ; suits
against States, 173, 197; State
courts (since 1789), 283; modern
tenure reduced, 284; how chosen,
tests, removal, 286; popular
influence, long fixed term, 289 ;
sundry constitutional provi-
sions, 291 ; opinions, clerks,
sheriffs, etc., 292 ; interpreter of
State constitution, 292.

Jury, Trial by, 32, 33, 176, 193,
223.

Land, tenure and registry, 27 ;
homestead, etc.exemptions, 224 ;
leases, etc., 225 ; public grants,
228, 300.

Law, Fundamental, constitution,
statute, 1; common or customary
law, precedents, 3 ; constitution
of United States, 7 ; range of
institutional study, 7.

Law of Land, 188.

Legislature, Colonial, 17 ; States
(1776-1789), one or two cham-
bers, 51 ; qualifications of mem-
bers, 55 ; sessions, fundamental
rules, 56; method of passing
bills, 57; Continental and Federal,
see Congress ; States (since
1789),choosing Federal senators,
108 ; general pattern, two cham-
bers, 249 ; style, basis of appor-
ti omnen t, 250, 261 ; sessions,
qualifications, early constraints,
253 ; method of enactment, 256 ;
punishments, fundamental rules,
257; later checks upon legisla-
tion, 258-261 ; biennial legisla-
tures and sessions, 261 ; latest
provisions, 264.

Libel, 222.

Lieutenant-Governor, 61, 223,
273. See Executive.

Lottery, 192, 300.

Marque, Letters of, 136, 151.

Militia, 33, 144, 191, 247.

Ministers, public, 164, 173 ; of
the gospel, 44, 55, 68, 297.

Money, bills for raising, 56, 111,
256 ; federal coinage and stand-
ard, 129; bills of credit, 130;
national bank, etc., 131 ; coun-
terfeiting, 132.

Montesquieu, 45, 46, 87, 103, 221.

Municipal Government, 302.

Naturalization. See Citizen-
ship.

Navy, 142, 165, 193.

Negro. See Elections, Slavery.

INDEX.

331

Nobility, Title of, 38, 150.

Oaths, 68, 163, 188.

Office, 37, 63, 68, 106, 166, 189,
223, 229, 275, 296.

Pardon, 63, 164, 275.

Patents, 133.

Patronage, see Office.

Petition, Bight of, 35, 192, 221.

Piracy, 135.

Post-office, 132.

Powers and Prohibitions, pow-
ers under Federal constitution,
115 ; as between States and
United States, 116; to tax,
borrow money and incur debt,
117 ; to regulate commerce, etc.,
121-127 ; over naturalization
and bankruptcy, 127 ; money,
weights, and measures, 129 ; post-
offices, patents, and copyrights,
132 ; piracies and felonies, etc.,
135; war, marque, peace, 136;
army, navy, and militia, 140;
capital and Federal sites, 146;
prohibitions in general, 116; upon
Congress, etc. : habeas corpus, at-
tainder, ex post facto, 148 ; tax
prohibitions, etc., 126, 150; ap-
propriations and treasury, 150;
titles of nobility, presents, etc.,
150 ; upon States : marque, coin-
age, bills of credit, tender, 130,
136, 151 ; title of nobility, 150;
attainder and ex post facto laws,
151 ; treaty, alliance, and con-
federation, 151 ; impairing obli-
gation of contract, 152 ; laying
imposts, etc., 153 ; compacts with
other States, 154; keeping troops
or engaging in war, 154 ; implied
prohibitions, 155.

President, 58, 137, 139, 145, 156-
168. See Executive.

Press, Freedom of, 33, 222.

Process of Law, 194, 199.

Proprietary. See Government.

Protection Policy, 301.

Provincial. See Government, 9.

Qualifications, of voter, 51, 232-
234 ; of legislator, 55, 253 ; of
executive, 61, 271 ; of judges,
64, 170, 285 ; of member of Con-
gress, 106 ; of federal executive,
162; of sundry officers, 68, 189,
213 ; geographical residence,
297. See Office.

Railways, 122.

Referendum, 47, 213, 216, 219,
245, 303.

Registry and Record, 28, 178,
235, 239.

Religion, 13, 25, 43, 189, 192,
229, 230.

Representatives. See Con-
gress, Legislature.

Reservation, Public, 27, 196,
301.

Rights, Bills of, definition, 29 ;
Virginia in 1776, 31 ; Pennsyl-
vania in 1776, 34 ; Maryland in
1776, 36 ; others iu revolution,
38 ; amendment to Federal con-
stitution, 191 ; reserved to State
or people, 196 ; State maxims
since 1789, 220-230.

Salary. See Compensation.

Search Warrants, 33, 193.

Sedition, 192.

Senate. See Congress, Legisla-
ture.

Slavery, 40, 105, 148, 179, 187,
197, 227.

States, names and number, etc.
46, 204, 305, see Constitutions ;
incomplete sovereignty, 82, 92,
96 ; suits against, 173, 197.

Statute, 1.

Suicide, 13,35, 221.

Taxation, colonial, 17, 80; in
States, 57, 260; Federal power
and method, 119; as to inter-
state commerce, 125; sundry
prohibitions, 150.

Tender, Legal, 130, 131, 151.

332

INDEX.

Territories, 13, 180.

Tests. See Qualifications.

Treason, 176.

Treasury, 150.

The att, 164, 188.

Union. See Government.

Veto, 62, 111, 277.
Voter. See Elections.
War, 136-144, 154.
Weights and Measures, 129.
Witness, 193, 224, 230.
Woman, Rights op, 224, 226, 246.