AN INTRODUCTION
TO THE
CONSTITUTIONAL LAW
OF THE
UNITED STATES
ESPECIALLY DESIGNED FOR STUDENTS, GENERAL AND PROFESSIONAL.
BY
JOHN NORTON POMEROY, LL.D.,
AUTHOR OF "AN INTRODUCTION TO MUNICIPAL LAW."
Seventh Edition, revised and enlarged.
BOSTON:
HOUGHTON, MIFFLIN AND COMPANY. The Riverside Press, Cambridge. 1883.
Entered according to Act of Congress, in the year 1868, by JOHN NORTON POMEROY, in the Clerk's Office of the District Court for the Southern District of New York
PREFACE TO THE THIRD EDITION.
IN preparing the work of which the third edition is now offered to the public, the principal purpose of the author was to furnish for general readers, for colleges, law schools, and other higher seminaries, and for the legal profession, a book adapted to their present wants and based upon the principles of constitutional interpretation which have been settled by the civil war and by the political events that followed it. Although, as the name indicates, it is an Introduction and does not purport to be an absolutely exhaustive treatise, yet all the purely constitutional questions which have at any time been passed upon by the highest national tribunal, are discussed and the results thereof are stated. In respect to some of these topics, where there has been a conflict of opinion between the federal and the state courts, or where the relative powers of the national and state governments have been somewhat undefined and uncertain, the treatment has been designedly made more full and minute. Among the more important of these topics are the powers of taxing and of regulating commerce, the military powers, the executive powers, the rights of citizenship, and state laws impairing the obligation of contracts. The work is thus intended for use as a text-book by the courts and the bar.
In determining the principles which underlie all others, in reference to the nature of the United States as a body politic and of its Constitution, an attempt has been made to construct a harmonious system of interpretation founded, not upon theoretical and a priori speculations, but upon historical facts, which shall at the same time recognize and uphold the nationality and absolute sovereignty of the United States and the supremacy of its government, and also maintain the essential exist-
PREFACE TO THE THIRD EDITION.
ence and rights of the several states as necessary elements of the political order established by the one People in the Constitution which they adopted. While, therefore, the whole civil structure, federal and state, is made to rest upon the nationality and sovereignty of the United States, the construction that is advocated guards with equal care against any tendencies towards an undue centralization of power, and upholds the sacred principle of local self-government as the very groundwork of all civil and political liberty.
The text of the present edition has been carefully revised and corrected ; and whatever errors of fact or inaccuracies of statement had been discovered have been removed. An Appendix has also been added, which contains an abstract of all the decisions involving an interpretation of the Constitution, rendered by the Supreme Court of the United States since the publication of the first edition. The Public Law of the land authoritatively declared by the highest tribunal, is thus presented as it stands at the present day. The subject matter of this Appendix is arranged in an order conforming to that pursued in the body of the work, with appropriate subdivisions and headings, so that it can be easily referred to in connection with the discussions found in the original text. The additions thus made embrace many subjects of the highest theoretical and practical importance; among others, the nature of the Federal Union and its relations with the States, the status of citizenship with the rights and immunities of citizens, the interpretation of the XIIIth, XIVth, and XVth amendments, the regulation of inter-state commerce, the extent and limits of the national and the state powers of taxation, — and the questions thus raised and determined, equal in magnitude and in their far-reaching effect any that were ever before passed upon by the national court of ultimate resort.
J. N. P.
August, 1875.
TABLE OF CONTENTS.
INTRODUCTORY CHAPTER.
SECTION
Law divided into Public, and Private ............ 1 What included in Public Law ............ 2-12
Austin's and Savigny's classification ............ 2
Falck's classification ............ 3-12
What included in Private Law ............ 5 Public Law divided into Political and International ............ 6 Elementary idea of the "State" and of "Sovereignty" ............ 7-9 What included in Political Law ............ 10-12
Political Law divided into General, and Special ............ 12 Object of this treatise; political law of the United States ............ 13-15 Methods of its study and interpretation ............ 16-21
Importance of the study to American lawyers ............ 22
" " " citizens ............ 23 Divisions of this treatise ............ 24
PART FIRST.
WHAT IS THE CONSTITUTION, AND BY WHOM WAS IT CREATED . THE ESSENTIAL NATURE OF THE ORGANIC LAW, AND OF THE BODY POLITIC WHICH LIES BEHIND IT.
CHAPTER I.
STATEMENT OF THEORIES ; NATIONALITY OF THE UNITED STATES.
Importance of this subject ............ 25, 26
SECTION I.—THEORIES WHICH HAVE BEEN PROPOSED AND ADVOCATED
Three theories proposed ............ 27
I. The complete National Theory ............ 28, 29
II. " " State Sovereignty Theory ............ 30, 31 III. " partial National Theory ............ 32-34
SECTION II —MEANING OF "NATION," AND OF POLITICAL SOVEREIGNTY.
SECTION Course of investigation to be pursued ............ 35 "Nation" and "Sovereignty" imply each other ............ 36 Distinction between "Nation" and "Government" ............ 37-39 Definition of "Nation" and "Sovereignty"............ 40-42
SECTION III.—THE PRINCIPAL PROPOSITION IN REGARD TO THE NATURE OF THE CONSTITUTION, AND THE NATIONALITY OF THE UNITED STATES.
The United States is a nation and is sovereign ............ 42 The separate states are not nations and not sovereign ............ 43 Case of a revolution not included ............ 44
CHAPTER II.
HISTORICAL SKETCH OF THE POLITICAL MOVEMENTS WHICH TERMINATED IN THE ADOPTION OF THE CONSTITUTION.
SECTION I.—PERIOD PRIOR TO THE CONFEDERATION.
Importance of this inquiry ............ 45
The nation does not date from the present Constitution ............ 46 Condition of the colonies prior to the revolt ............ 47
Nature of the revolt ............ 48
" " " first Continental Congress ............ 49
" " " second " " ............ 50
Declaration of Independence, its authors, and its effects ............ 50-53 When the nation began ............ 54
Sovereign states cannot limit their sovereignty ............ 55,56 Opinion of modern publicists in reference to last proposition ............ 55
SECTION II.—PERIOD OF THE CONFEDERATION
Idea of nationality not formally adopted ............ 57
Effect of local and state influences ............ 58
Adoption of Articles of Confederation ............ 59
Genera] description of these articles, and of the movements which
led to them ............ 60-63
Abstract of Articles of Confederation ............ 64, 65
Articles of Confederation not a fundamental law ............ 66 Controlling ideas embodied in them ............ 67-73
I. No United States Citizenship ............ 67 Formative elements were states ............ 68
II. Articles acted upon States and not Individuals ............ 69
III. Government had no power to compel obedience ............ 70 Congress was the sole department of the government ............ 71
IV. Limited extent of the powers granted to the Congress ............ 72, 73 Consequences of this form of government ............ 73-75
SECTION III.—PROCEEDINGS WHICH DIRECTLY LED TO THE ADOPTION OF THE CONSTITUTION.
SECTION
A remedy necessary; an amendment to the Articles of Confederation contemplated ............ 76 First Convention in 1786 ............ 77 Call of Convention by Congress, to amend Articles of Confederation ............ 78 Meeting of Convention in 1787 ; did not do what they were called
to do ............ 79 Convention of a body of volunteers ............ 80
Their final action ............ 81
Meaning of these proceedings; nature of the acts of the state governments in submitting the Constitution to the people ............ 82 Contest in relation to adoption of the Constitution ............ 83 Ratification of the Constitution ............ 84
CHAPTER III.
THE NATIONAL ATTRIBUTES INVOLVED IN THE PROVISIONS OF THE CONSTITUTION. SECTION I.—DISTINCTION BETWEEN THE GOVERNMENT AND THE NATION.
The people, as a collective unit, are the nation, as distinct from the
government ............ 85, 86
The theory of the government is involved in this proposition ............ 87 Illustrations from French and from English history ............ 88 Various powers held by a government; the people may wield all
power ............ 89
The government may wield all power held by the people; examples, England ............ 90
The government may wield part of the power held by the people;
examples, United States ............ 91
SECTION II.—THE IMPORTANT AND DISTINCTIVE NATIONAL ELEMENTS IN THE CONSTITUTION ITSELF, IN THE ATTRIBUTES AND FUNCTIONS OF THE GOVERNMENT.
1. The Preamble. Language of the Preamble ............ 93
National character of the Preamble ............ 94
Preamble of the Confederate Constitution, compared ............ 95
2. The Enacting Clauses.
The powers of the agent cannot exceed those of the principal ............ 96, 97
I. The Declaration of Supremacy (Art. VI. § 2) ............ 98-101 The supremacy belongs to judge-made as well as to enacted law ............ 99 Interpretation of the IXth and Xth amendments ............ 100, 101 Powers are granted by the people to the States ............ 101
II. The Status of Citizenship ............ 102 III. The Proprietorship of Public Lands ............ 109
IV. Nature of the Legislative Powers held by the General
Government and forbidden to the States ............ 104-106
V. Nature of the Executive Powers ............ 107
VI " " Judicial Powers ............ 108
VII. The Power of Amendment ..... 109-115
Language of the Constitution (Article V.) ............ 109
This language unlimited ............ 110
State sovereignty theory as applied to the power of amendment ............ 111 The people created, and may amend ............ 112
Significance of the forms to be pursued ............ 113-115
Legality of the amendment abolishing slavery ............ 116-118 Conclusion ............ 119, 120
PART SECOND.
IN WHAT MANNER AND BY WHOM IS THE CONSTITUTION TO BE AUTHORITATIVELY CONSTRUED AND INTERPRETED ; OR THE MEANS AND COMBINATIONS FOR ASSURING THE OBSERVANCE OF THE FUNDAMENTAL LAW.
Constitutional law includes this subject ............ 121
Necessity for a sanction to constitutional law; kinds of sanction ............ 122 To apply a sanction, Constitution must be interpreted ............ 123 Questions, in whom does the power of interpretation reside ............ 124
I. It resides in the general government and not in the states ............ 125-133 The political society which created must interpret ............ 125
The people are the final interpreters ............ 126
The government, as agents of the people, are the proximate interpreters ............ 127
General assent to this position ............ 128
Exceptional dissents ............ 129-132
Political dissents; Virginia and Kentucky resolutions ............ 129 Judicial dissents; Worcester v. Georgia ............ 130
" " Ablemann v. Booth ............ 131
Subordinate power of the states to interpret ............ 133
II. The final power to interpret authoritatively resides in the
Supreme Court of the United States ............ 134-148 Question stated, whether each department may interpret for itself,
or whether the Supreme Court must interpret for all ............ 134 General acceptance of latter view ............ 135
contrary theories; Jefferson's and Jackson's, considered ............ 136 The interdependence of the three departments of government ............ 137 Consequences of conceding the power to each department to interpret authoritatively ............ 138-140
A single arbiter necessary; nature of the Constitution as a fundamental statute requiring a judicial interpretation ............ 141
Function of the judiciary to interpret statutes, conceded ............ 142
English courts do not have the power, because there is no written
constitution binding on the government ............ 143
Provisions of the Constitution which support these conclusions ............ 144, 145
Objections to the power considered; that the court is not progressive ............ 146
Objections that this power would make the court the supreme lawgiver ............ 147
Judicial decisions; Van Home's Lessee v. Dorrance ; Martin v.
Hunter's Lessee; Cohens v. Virginia; Ablemann v. Booth ............ 148
Sanctions to enforce the Constitution; impeachments; criminal prosecutions ............ 149
Sanctions pronouncing a statute or official act null ............ 150
PART THIRD.
WHAT POWERS AND CAPACITIES ARE CONFERRED OR IMPOSED UPON THE NATIONAL GOVERNMENT, AND WHAT ARE CONFERRED OK IMPOSED UPON THE SEVERAL STATES.
CHAPTER I.
THE LEADING IDEAS OF CIVIL POLITY WHICH ENTER INTO THE ORGANIZATION OF THE UNITED STATES.
Divisions of the subject ............ 151
Rights of the states ............ 152
Powers of states are derived from the nation ............ 153
National affairs committed to the general government; local affairs
to the states ............ 154
Ideas of centralization and local self-government, fundamental 155-164 Necessity and power of each idea ............ 155-157
Principle of local self-government, how applied ............ 158, 159 Historical origin of principle of local self-government ............ 159-164
CHAPTER II.
EXTERNAL FORM AND ORGANIZATION OF THE GOVERNMENT.
Objects of this chapter ............ 165
SECTION I.— THE SEPARATION OF THE GOVERNMENT INTO THREE CO-ORDINATE DEPARTMENTS.
SECTION
Division into legislative, executive, and judicial departments ............ 166 Same division in England ............ 167
Organization in other countries ............ 168
This arrangement favorable to freedom ............ 169
Reasons for this result; tendency of power to increase ............ 170, 171 Constitutional provisions ............ 172
Separation of functions not complete ............ 173
President's legislative power, his veto ............ 174-177
His legislative function inferior ............ 175
Legislative power of the British Crown ; more theoretical than real ............ 176 President's legislative power more substantial ............ 177
President need not assent to proposed amendments ............ 178
His power to make treaties ............ 179
Other instances of interchange of functions ............ 180, 181
Tendency of one department to encroach upon the others ............ 182 The legislature the most powerful ............ 183-187
Example of British Parliament ............ 184
Congress has greater inclination to amplify its powers ............ 185
Effect of Congress acquiring all governmental power ............ 186, 187
SECTION II.—THE SEPARATION OF THE LEGISLATURE INTO TWO CO-ORDINATE BRANCHES.
Senate and House of Representatives; constitutional provisions ............ 188 Example of British Parliament ............ 189
Organization and nature of the Senate; principle of local self-government ............ 190
Organization and nature of the House; principle of centralization ............ 191 Number of members of House determined by population of the states ............ 192 Population how reckoned; constitutional provision ............ 193 Advantages resulting to Southern states ............ 194
Increase of this advantage from abolishing slavery ............ 195
Remedies proposed ............ 196
SECTION III. —METHOD OF CHOOSING OFFICIAL PERSONS.
General features; fewness of popular elections provided for ............ 197 President and Vice-President, how chosen ............ 198-203
Constitutional provisions ............ 198
How electors appointed ............ 199
Original design of these methods ............ 200-202
Change in this design ............ 203
The Senate, how chosen ............ 204
The House of Representatives, how chosen ............ 205-215
Constitutional provisions ............ 205
Powers of states to determine qualifications of electors ............ 206-209 Power of Congress to guarantee a republican form of government;
its meaning and extent ............ 210
The United States should control the qualifications of Congressional
electors ............ 211
Proposed XIVth amendment, considered ............ 212
This amendment opposed to ideas of local self-government ............ 213 Another amendment suggested giving Congress the control of this
subject ............ 214, 215
Other officers ............ 216
SECTION IV.—SOME RULES RESPECTING THE QUALIFICATIONS OF OFFICERS, AND THE ORGANIZATION OF THE HOUSES OF CONGRESS, AND THE CONDUCT OF BUSINESS THEREBY.
Qualifications in respect to age, citizenship, and inhabitancy; terms
of office ............ 217
Rules relating to the organization of Congress, and of each House ............ 218 Each House a judge of the election of its members ............ 219
Rules of order ............ 220
The journal; demand for the yeas and nays ............ 221
Revenue bills originate in the House of Representatives ............ 222 Rules applicable to the members individually ............ 223, 224
CHAPTER III.
GENERAL LIMITATIONS UPON THE POWERS OF THE UNITED STATES GOVERNMENT.
Objects of this chapter ............ 225
Government of the United States limited ............ 226
SECTION I.—EXPRESS LIMITATIONS UPON THE WHOLE GOVERNMENT.
Express limitations, some upon the whole government, some upon
one department ............ 227
General statement and nature of these limitations ............ 228-230 The Constitution originally contained few ............ 228
Provisions of first eight amendments ............ 229
These provisions generally found in state constitutions ............ 230 To whom are these negative provisions addressed ............ 231—234 They restrain the United States government and not the
states ............ 232-234
Barron v. Mayor of Baltimore ............ 233
Murphy v. The People; Barker v. The People; James v. The
Commonwealth ............ 234
This rule an unfortunate one; citizens may be exposed to state
injustice, and not sufficiently protected by the United States
government; illustrations ............ 235, 236
SECTION
Proposed XIVth amendment as a remedy ............ 237
The limitations are addressed to all departments and execute
themselves ............ 238
Examination and discussion of these limitations ............ 239
1. Right to keep and bear arms ; a militia ............ 239
2. Quartering soldiers upon private citizens ............ 240 3. Unreasonable seizures and searches forbidden; general warrants ............ 241
4. Course of proceeding in criminal prosecutions regulated ............ 242 Exception of persons in military service ............ 243
5. No person to be twice put in jeopardy for the same offence ............ 244
6. " " " " deprived of life, etc., without due process of
law ............ 245-250
Provision in Magna Charta ............ 245
What is due process of law ............ 246
Porter v. Taylor ............ 247
Wynehammer v. The People; Murray's Lessee v. Hoboken
Land Co. ............ 249
7. Private property not to be taken for public use without compensation ............ 251-256
Right of eminent domain, its nature ............ 251-253
Whether private property may ever be taken for military
purposes, without compensation: Mitchell v. Harmony ............ 254-256 Importance of these restrictive clauses ............ 257
May they ever be disregarded in an internal war ............ 258
SECTION II.— IMPLIED LIMITATIONS.
The United States government one of limited powers ............ 259 Within the scope of its functions it is absolute ; Congress has an unlimited choice of means which conduce to a lawful end ............ 260, 261 Examples of the practice of Congress under this rule ............ 262 Examples of the decisions of the Supreme Court asserting this rule:
Fisher v. Blight; Martin v. Hunter's Lessee; McCulloch v. Maryland ; Gibbons v. Ogden ............ 263-268
General principles established by judicial decision and legislative
practice ............ 269
CHAPTER IV.
THE LEGISLATIVE POWERS OF THE UNITED STATES GOVERNMENT.
SECTION I.—THE POWER OF TAXING.
Provisions of the Constitution ............ 271
Divisions of the subject ............ 272
First. What Powers of Taxation are held by Congress?
SECTION
I. The Purposes for which Taxes may be Laid and Collected.
General purposes; payment of debts, the common defence,
the general welfare ............ 273, 274
General discretion of Congress as to measures ............ 275 II. The Various Kinds of Taxes.
Different kinds of taxes defined ............ 276 Direct and indirect taxes ............ 277
III. The Means and Methods of Enforcing the Taxing Power.
Constitutional provisions; apportionment and uniformity ............ 278 Direct taxes apportioned ............ 279
Indirect taxes uniform ............ 280
What are direct, and what indirect, taxes: Hylton v. United
States ............ 281, 282
Tax on articles exported ............ 283
Measures included within the taxing power ............ 284
IV. Extent of the Taxing Power.
The power unlimited: Providence Bank v. Billings; McCulloch v. Maryland ............ 285-287
Stamp duties on private agreements ............ 288
" " " judicial proceedings ............ 289-293
These stamps are taxes on property ............ 290, 291
For what purposes may revenue be raised ............ 294, 295
Second. What Powers of Taxation are held by the Several States?
I. Implied Limitations upon the Power of the States to Tax.
States have the taxing power; but it is subordinate; must be used second to that of the United States; cannot be exercised upon property or means of the United States ............ 297 Cases illustrating this principle ............ 298-304
Taxing United States Bank: McCulloch v. Maryland; Osborn
v. Bank of United States ............ 298
" salary of United States officers: Dobbins v. Commissioners ............ 299
" United States securities by name : Weston v. City
Council ............ 300
" United States securities as a part of tax-payer's general property: Bank of Commerce v. City of New York; Bank Tax Cases ............ 301, 302
"stockholders of national banks: Van Allen v. Assessors; People v. Commissioners ............ 304
General conclusions ............ 305
Effect of United States revenue license: McGuire v. The
Commonwealth ............ 306
II. Express Limitations upon the Power of the States to Tax.
Constitutional provisions: duties on imports and exports; inspection laws ............ 307
What are inspection laws ............ 308
Cases illustrating these provisions : Brown v. Maryland; License cases; Passenger cases; Cooley v. Port Wardens;
Almy v. California ............ 309-312
SECTION II. —THE POWER TO BORROW MONEY
Constitutional provisions; general discretion of Congress ............ 313 Methods of borrowing money which may be used ............ 314 Power to charter United States or national banks, as one method:
McCulloch v. Maryland ; Osborn v. Bank of United States ............ 315 Issuing treasury notes; power to declare them legal tender: Metropolitan Bank v. Van Dyck ............ 316, 317
Power of the states to borrow; forbidden to emit bills of credit ............ 318, 319 What are bills of credit: Craig v. Missouri; Briscoe v. The Bank ............ 320, 321
SECTION III.—THE POWER TO REGULATE COMMERCE
Constitutional provisions ............ 321 a
Reasons for these provisions; division of the subject ............ 322
First. Nature of the Power.
Whether the power is exclusive in Congress : three theories ............ 323, 324 What is commerce ............ 325
Power of Congress extends only to foreign and inter-state commerce ............ 326 General objects of this grant of power ............ 327, 328
Rules of interpretation: police powers of states: regulations of
commerce ............ 329-331
Gibbons v. Ogden ............ 333-337
Rules established by this case ............ 338
Brown v. Maryland ............ 339-343
Wilson v. Blackbird Creek Co. ............ 344-346
New York v. Miln ............ 347-350
The License cases ............ 351-357
The Passenger cases ............ 358-360
Cooley v. The Port Wardens ............ 361, 362
Wheeling Bridge case ............ 363-366
Smith v. Maryland ............ 367
Sinnot v. Davenport ............ 368
Philadelphia Bridge case ............ 369-373
Power of states to construct bridges ............ 373
Second. The Extent of the Power.
SECTION What is commerce: commerce among the states: general nature
of the power to regulate ............ 375-378
Congress may pass laws regulating (1) places ............ 379
(2) Means and instruments of commerce ............ 380-382 Construction of routes for internal traffic ............ 382
(3) The subject-matter of commerce ............ 383
(4) Laws affecting the liability of persons engaged in commerce ............ 384
SECTION IT — THE POWER TO MAKE RULES FOR NATURALIZATION.
Constitutional provisions ............ 385
What is naturalization ............ 386
Power to naturalize resides exclusively in Congress ............ 387-390
SECTION V. — THE POWER TO ENACT BANKRUPT LAWS. Constitutional provisions ............ 391
I. Nature of the Power.
States may exercise it in the absence of Congressional action ; acts
of Congress oust the authority of the states ............ 392
II. Extent of the Power: What Laws may Congress pass.
Meaning of "bankrupt" and "bankruptcy" ............ 393-402 Kind of laws which Congress may pass ............ 397-402 Reasons in favor of general bankrupt laws ............ 403-407
SECTION VI. —THE POWER TO COIN MONEY. Constitutional provisions: their meaning ............ 408-410
SECTION VII.—THE POWER OVER THE POSTAL SERVICE.
Constitutional provisions: their meaning and application ............ 411, 412
SECTION VIII. —THE POWER TO CREATE AND BESTOW PATENT RIGHTS AND COPYRIGHTS.
Constitutional provisions; their meaning and application ............ 413, 414
SECTION IX.—THE POWER TO DEFINE AND PUNISH CRIMES.
Express provisions of the Constitution ............ 416
First. The Express Power to define and punish crimes. 1. Counterfeiting the Securities and Current Coin of the United States.
Meaning and extent of this particular power ............ 417-419 Whether the states may also exercise this power ............ 420
II. Piracies, Felonies committed on the High Seas, and Offences against the Law of Nations.
SECTION
Extent of this power ............ 422, 423
Piracy; meaning, kinds, special cases of ............ 424-427
Offences committed on the high seas; what are the high seas ............ 428-430
III. Treason against the United States.
What is treason ............ 431-433
Punishment thereof ............ 434,435
What included within the power ............ 436
Second. The Implied Powers to define and punish Crimes. The origin and extent of these powers ............ 437-440
SECTION X.—THE MILITARY AND WAR POWERS.
Constitutional provisions ............ 441
First. The Powers which relate to the Inception and Conduct of War. I. The Power to declare War.
Reasons for intrusting this power to Congress ............ 443 Can a war exist before Congress has declared war ............ 444 Can the President so act as to create a proper war ............ 445-453 Commencement of a civil war ............ 447-453
II. The Power to grant Letters of Marque and Reprisal. Nature of this power, ............ 454
III.—The Power to make Rules concerning Captures on Land and Water. What are "captures" ............ 455
Extent and nature of the power ............ 456, 457
Captures during a civil war ............ 458,459
Second. The Powers which relate to the raising, maintaining, equipping and governing the Army and Navy.
I. The Power to raise and support the Forces. Necessity of this power; limitations upon it ............ 460-462 What measures Congress may adopt ............ 463-466
II. The Power to govern the Forces.
Nature and extent of this power ............ 467, 468
Military Law ............ 469-471
Third. Those Powers which relate to the Employment of The Militia in the Service of the General Government.
The militia belongs to the states ............ 472
Extent of power of Congress to call forth the militia ............ 473, 474 Houston v. Moore: Martin v. Mott ............ 475, 476
Conscription. Nature of conscription ............ 477, 478
Knudler v. Lane ............ 479-482
Arguments against the power ............ 480
" in favor of the power ............ 481
Conclusion ............ 482
SECTION XI. — THE POWER OVER THE TERRITORIES. Constitutional provisions ............ 483, 484
I. The Right of Proprietorship.
Title to unappropriated lands; cessions by the states ............ 485-487 Acquisition of lands by treaty ; power to acquire land by treaty ............ 488 Power to dispose of public lands ............ 489
II. The Right of Government.
Government of the District of Columbia, ............ 490, 491 Limitations upon this power to govern ............ 492, 493 Government of the territories; source of this power ............ 494-499 The Dred Scott case ............ 496-499
SECTION XII —EXPRESS PROHIBITIONS UPON THE EXERCISE OF LEGISLATIVE POWERS.
Divisions of this subject ............ 500
First. Prohibitions directed to Congress, or to it and the State Legislatures I. Bills of Attainder.
Definition and description ............ 501-503
The Test Oath cases; Cummings v. Missouri; Ex parte Garland ............ 504-511
II. Ex Post Facto Laws. Definition and description ............ 512-514
Calder v. Bull; Fletcher o. Peck; Watson v. Mercer ............ 515-518 Lord v. Chadbourne; Woart v. Winnick; Rich v. Flanders; State
v Paul ............ 519-521
Hartung v The People ............ 522-524
The Test Oath cases ............ 525-528
Examination of these cases; when is a test oath a penalty ............ 529-535
III. Other Express Prohibitions.
SECTION
Authority to draw money ; titles of nobility ............ 536
Second. Prohibitions directed to the State Legislatures alone. Impairing the Obligations of Contracts. Divisions of the subject ............ 538
I. What are Contracts within this provision of the Constitution?
1. Executory contracts ............ 540
2. Executed " ............ 541
Grants made by states ............ 542-546
3. Offices ............ 547-553
4. Licenses ............ 554-559
5. Private corporations; definition ............ 560, 561 Questions involved ............ 562
(1) A charter is a contract in its general scope and design ............ 563-568 Dartmouth College v. Woodward; Providence Bank v.
Billings ; Planters' Bank v. Sharp ............ 564, 565 Cases in state courts ............ 566-568
(2) A charter is a contract in respect to its express collateral stipulations; stipulations against taxing, and against exercise of the power of eminent domain ............ 569-584 United States Supreme Court cases ............ 571-573 Cases in state courts ............ 574-583
Binghampton Bridge case ............ 584
(3) Collateral stipulations not implied in charters ............ 585, 586
6. Municipal Corporations ............ 587
II. What is the Obligation of a Contract? The meaning technical not popular ............ 588
Obligation in the Roman Law ............ 589
The law creates the obligation ............ 590-592
Ogden v. Saunders ............ 593
Illustrations ............ 594, 595
A remedial right included in the obligation ............ 596, 597
III. What State Laws impair the Obligation of Contracts.
General Rules ; meaning of impair; future contracts ............ 598, 599
1. Laws which apply directly to the terms of a contract ............ 600, 601 Exercise of right of eminent domain ............ 602
State Insolvent Laws; their effect ............ 603-608
2. Laws which apply directly to the remedy ............ 609-627 A remedial right included in the obligation ............ 610 What is the remedial right; distinction between it and procedure ............ 611, 612 Modes of procedure not included in the obligation ............ 613 Illustrations ............ 614
Bronson v. Kinzie; McCracken v. Hay ward, Grantley's Lessee v.
Ewing; Curran v. Arkansas ............ 615, 616
(1) Deprivation of remedies ............ 617
(2) Statutes of limitation ............ 618
(3) Imprisonment for debt ............ 619
(4) Stay and appraisement laws ............ 620-624
(5) Exemptions from execution ............ 625-627
CHAPTER V.
THE EXECUTIVE POWERS.
Constitutional provisions ............ 628
Divisions of the subject ............ 629
SECTION I.—GENERAL NATURE OF THE EXECUTIVE DEPARTMENT AND OF THE EXECUTIVE FUNCTIONS.
Nature of the Executive Department; independence of the President ............ 630-632
President's powers chiefly political ............ 633, 634
Classes of Presidential powers; those completely conferred by the
Constitution ............ 635, 636
Those which act upon occasions created by statutes ............ 637
Those which are created by statutes ............ 638
Extent of President's discretion ............ 639
Marbury v. Madison ............ 640
Tendency to encroach upon functions of the President ............ 641
SECTION II. — THE POWER TO APPOINT OFFICERS.
Nature of this power ; what officers are to be appointed ............ 642, 643 Objections to this power; reasons in its favor ............ 644, 645
Extent of the power ............ 646
The power of removal considered ............ 647-650
Theories examined ............ 651, 652
Third theory ; that the whole power over the subject resides in
Congress ............ 653
The President's power to fill vacancies which may happen during
a recess of the Senate ............ 654-657
Proper mode of exercising the power to appoint and to remove 658-661 Tenure of Office Statute ............ 661
SECTION III.—THE POWER AND DUTY OF THE PRESIDENT TO TAKE CARE THAT THE LAWS BE FAITHFULLY EXECUTED.
Nature, extent, and degrees of this power ............ 662
The President may not, as a general rule, judge independently
as to the validity of laws ............ 663-667
Two exceptions to this rule ............ 668
SECTION IV — THE POWER OF THE PRESIDENT TO MANAGE THE FOREIGN ACT INTERNATIONAL RELATIONS OB THE UNITED STATES.
SECTION
Constitutional provisions ............ 669
This function separated into two branches ............ 670
The President's power to conduct negotiations ............ 671, 672 The power to make treaties ............ 673-678
Kinds of treaties which may be entered into ............ 674
What kind of treaties cannot be made ............ 675
How treaties operate ; those which at once execute themselves;
those which are promissory ............ 676-678
Legislative powers flowing from this function ............ 679-681
SECTION V.—THE POWER OF THE PRESIDENT TO GRANT REPRIEVES AND PARDONS.
Definition of pardons ............ 682
Pardons granted by the King or by Parliament ............ 683
I. Extent of the President's power. ............ 685-694
General rule; he may resort to any species of pardon known to
the English law; U. S. v. Wilson; Ex parte Wells ............ 685-687 The common pardon after conviction ............ 687
The conditional " " " ............ 688
The pardon before conviction, trial, etc.; Ex parte Garland ............ 689, 690 General pardons ; general amnesties ; may the President issue a
general amnesty ............ 691-694
II. The powers of Congress over pardons ............ 695, 696
May not limit the President's authority ............ 695 Whether Congress has any independent authority ............ 696
SECTION VI —THE POWER OF THE PRESIDENT TO GIVE INFORMATION AND TO RECOMMEND MEASURES TO CONGRESS
The power and duty to give information ............ 697-699
The power to recommend measures ............ 700-702
Nature and extent of this power ............ 700
Its abuse ; executive encroachments upon the legislature ............ 701, 702
SECTION VII.—THE POWERS OF THE PRESIDENT AS COMMANDER-IN-CHIEF.
Constitutional provisions ; general nature of these powers ............ 703, 704 Distinction between the function of executing the laws, and the
functions of commander-in-chief; the President wages war 705, 706 Suspension of the writ of habeas corpus; who may suspend ;
effect ............ 707, 708
Additional powers during war ; martial law ............ 709-714
Congress obtains no additional powers during war ............ 710 Whatever the President can obtain, must flow from his function of
commander-in-chief ............ 711
Do such powers exist, "military law," "military government,"
and "martial law" defined ............ 712
Opinion of Ld C. J. Cockburn ; decision in Ex parte Milligan ............ 713 Remarks on Ex parte Milligan ; nature and extent of martial law ............ 714
SECTION VIII.—IMPEACHMENT. Constitutional provisions ............ 715
(1) Who may be impeached; what are civil officers ............ 716
(2) The lawful grounds of an impeachment ............ 717-727
First theory : impeachment restricted to offences made indictable
by statute ............ 717, 718
Second theory: impeachment extends to all violations of official
duty ............ 719
Examination of these theories; historical precedents in U. S. ............ 720, 721 The second theory accords with the general plan of the government ............ 722-726
Meaning of "high crimes and misdemeanors" ............ 725
Debates In the constitutional convention, etc. ............ 727
(3) What punishment may be inflicted; suspension from office
daring the pendency of the proceedings ............ 728
CHAPTER VI.
THE JUDICIAL POWERS OF THE UNITED STATES GOVERNMENT.
Constitutional provisions ............ 729
Nature of Jurisdiction in general ............ 730-739
Jurisdiction civil, criminal, common-law, equity, admiralty, etc. ............ 731 Original or appellate ............ 732
Exclusive or concurrent ............ 733
General or limited ............ 734-736
Limited by the subject-matter ............ 737
" in respect of parties ............ 738
Derived from the Common Law or from statutes ............ 739 Nature and extent of the jurisdiction of U. S. courts in general;
reasons for conferring it ............ 740-745
Jurisdiction of U. S. courts is either "necessary" or "supplementary" ............ 746
Necessary jurisdiction considered ............ 746-757
Cases arising under the Constitution ............ 747-750
What are such cases ............ 748
How far this jurisdiction exclusive, or supreme ............ 750
SECTION
Cases arising under the laws of the U. S. ............ 751 " " " " treaties ............ 752
" affecting ambassadors, etc. ............ 753
" of admiralty ............ 754
Controversies to which the U. S. is a party ............ 755
" between states ............ 756
The supplementary jurisdiction considered ............ 758, 759 Some special rules ; no common law jurisdiction ; the power of
Congress over the jurisdiction ............ 760
CASES CITED.
Page
Ablemann v. Booth (21 H.) 86, 96, 171, 514 Adams v. Hackett (7 Fost.) 359 Almy v. California (24 H.) 198 Am. Ins Co. v. Canter (IP.) 308, 314 Antelope, The (10 W.) 274
Backus v. Lebanon (UN. H.) 366, 374 Baldwin v. Hale (1 Wall.) 395 Bank of Alabama v. Dalton (9 H.) 404 Bank of Commerce v. N. Y. City
(2 Black) 171, 191, 193 Bank of Penn. v. Commonwealth
(7 Harris) 368 Bank of Republic v. Co. of Hamilton (21 Ill.) 375 Bank of U. S. v. Deveaux (6 Cr.) 517 Bank Tax cases (2 Wall.) 171, 192 Barker v. People (3 Cow.) 148
v. Pittsburgh (2 Barr) 357 Barron v. Mayor, etc. (7 P.) 147 Beal v. Nason (2 Shep.) 404 Beauregard v. N. O. (18 H.) 516 Beers v. Haughton (9 P.) 405 Betts v. Bagley (12 Pick.) 393 Billmyer v. Evans (4 Wright) 407 Binghampton Bridge case (3
Wall.) 378 Blanchard v. Russell (13 Mass.) 393,
395 Boardman v. De Forest (5 Conn.) 393 Bollman, Ex parte (4 Cr.) 517 Boston, etc. R. R Co v. Salem,
etc. R. R. Co. (2 Gray) 374 Boyle v. Zacharie (6 P.) 394 Bradford v. Farrand (13 Mass.) 394 Brandon v. Green (7 Humph ) 336 Breitenbach v. Bush (8 Wnght) 408 Brewster v. Hough (10 N. H ) 373 Briscoe v. Bank, etc. (11 P.) 204 Bronson v. Kinzie (1 H.) 400, 405
v. Newberry (2 Doug.) 405 Brown v. Maryland (12 W.) 196, 219
v. Wilch (26 Ind.) 201 Bruffitt v. G. W. R. R. Co. (26
111.) 367 Bunn v. Gorgas (6 Wright) 407
Butler v. Pennsylvania (10 H.) 367
Calder v. Bull (3 Dall.) 320, 331
v. Kurby (5 Gray) 360 Call v. Hagger (8 Mass.) 403, 404 Cargill v. Power (1 Mann.) 407 Carpenter v. Pennsylvania (17 H.) 333 Charles River Bridge v. Warren
Bridge (11 P.) 380 Chirac v. Chirac (2 W.) 261 City of Utica v. Churchill (6 Tiff.) 193 Clarke v. Bazadone (1 Cr.) 516 Coffin v. Rich (46 Me.) 334 Cohen v Wright (26 Cal.) 348 Cohens v. Virginia (6 W.) 96, 514 Collett v. Collett (2 Dall.) 250 Commonwealth v. Bacon (6 S. &
R.) 356 Commonwealth v. Mann (5 W. &
S.) 367 Commonwealth v. New Bedford
Bridge (2 Gray) 367 Conkey v. Hart (4 Kern.) 403 Connor v. N. Y. (2 Sandf) 356 Conway v. Taylor's Lessee (1
Black) 246 Cook v. Moffatt (5 H.) 394 Cooley v. Port Wardens (12 H.) 198,
234
Coupland, Ex parte (26 Texas) 304 Craig v. Missouri (4 P.) 204 Cummings v, Missouri (4 Wall.) 319, 321, 340 Curran v. Arkansas (16 H.) 402
Danks v. Quackenboss (1 Comst.) 410 Darrington v. B'k of Ala. (13 H ) 205 Dartmouth Coll. v. Woodward (4
W.) 352, 367, 365,382 De Bolt v. Ohio Life Ins. Co (1
Ohio St.) 368, 377 De Cordova v. Galveston (4 Texas) 336 De Lovio v. Bolt (2 Gall ) 276 Dobbins v. The Commissioners
(16 P.) 189 Dodge v. Woolsey (18 H.) 369,377
Donelly v. Corbett (3 Seld.) 396, 406 Dorsey, Matter of (7 Port.) 348 Dred Scott v. Sandford (19 H.) 393 Durousseau v. U. S. (6 Cr.) 616
East Hartford v. Hartford Bridge
(17 Conn.) 374, 382 Easton Bank v. Commonwealth
(10 Barr) 376 Evans v. Montgomery (4 W & S.) 403
Farmer's & M. B'k v. Smith (6
W.) 393 Fisher v. Blight (2 Cr.) 168 v. Lackey (6 Blackf.) 406 Fletcher v. Peck (6 Cr.) 333, 361 Foster v. Neilson (2 P.) 460 Fox v. Ohio (6 H.) 271
Garland, Ex parte (4 Wall.) 319, 323,
340, 469,461
Gelpcke v. Dubuque (1 Wall.) 616 Gibbons v. Ogden (9 W.) 170, 214, 242 Gilman v. Lockwood 396 v. Philadelphia (3 Wall.) 224,
238 Gordon v. The Appeal Tax Court
(3 H.) 370 Grammar Schools Bart (11 Vt.) 367 Grantley's Lessee v. Ewing (3 H.) 402,
407
Griffin v. The Mayor, etc. (4 Comst.) 161
Hartung v. The People (8 Smith) 337 Hawthorne v. Calef (2 Wall.) 392, 412 Hemstead v. Reed (6 Conn.) 393 Hennen, Ex parte, (13 P.) 430 Hine, The, (4 Wall.) 276, 513 Hintrager v. Bates (13 Iowa) 201 Hirn v. Ohio (1 Ohio St.) 368 Hodgson v. Bowerbank (6 Cr.) 617 Hope v. Johnson (2 Yerg.) 336 Houston v. Moore (6 W.) 261, 299 Howard v. Bugbee (24 H.) 407 Hylton v. U. S. (3 Dall.) 178
Iron City B'k v. Pittsburgh (1 Wright) 376
James v. Commonwealth (12 S. & R.) 149
Kearney, Ex parte, (7 W.) 617 Kelly v. Drury (9 Alien) 395 Kennebec Co. v. Laboree (2
Greenl.) 334, 403, 404 Kimberly v. Ely (6 Pick.) 393 Kingley v. Cousins (47 Me.) 404
Klein, In re (1 H.) 258 Knoup v. Piqua B'k (1 Ohio St) 356, 368, 377
Knudler v. Lane (9 Wright) 301 Kunzler v. Cohaus (6 Hill) 269
License cases (5 H.) 197, 228 Lick v. Faulkner (25 Cal.) 201 Lord v. Chadbourne (42 Me ) 334 Loughborough v. Blake (6 W.) 310 Louis, The, (2 Dodson) 274 Lather v. Borden (7 H.) 516
Magruder, Ex parte, 347 Marbury v. Madison (1 Cr.) 419, 423, 616
Martin v. Hunter's Lessee (1 W.) 96, 168, 514 v. Mott (12 W.) 299 Mason v. Haile (12 W.) 404 Matheny v. Golden (6 Ohio St.) 378 McCormick v. Pickering (4
Comst) 269 McCormick v. Rusch (Am. Law
Reg) 408 McCracken v. Hayward (2 H.) 401,
406
McCulloch v. Maryland (4 W.) 169, 181, 189, 200
McElmoyne v. Cohen (13 P.) 404 McGee v. Mathis (4 Wall.) 363 McGuire v. Commonwealth (3
Wall.) 196 Mechanics & Tr. B'k v. De Bolt
(1 Ohio St) 368, 377 Mechanics & Tr. B'k v. De Bolt
(18 H ) 377 Mechanics & Tr. B'k v. Thomas
(18 H.) 377 Mede v. Hand (Am. Law Reg.) 411 Metropolitan B'k v. Van Dyck
(13 Smith) 171, 201, 203, 209 Metropolitan B'd of Ex. v. Barrie
(7 Tiff.) 361 Michigan B'k v. Hastings (1
Doug.) 367 Milligan, Ex parte, (4 Wall.) 165, 470,
476, 476, 478 Mississippi v. Andrew Johnson (4
Wall.) 419 Mississippi v. Smedes (26 Miss ) 348 Mitchell v. Harmony (13 H ) 162 Money v. Leach (3 Burr.) 164 Moore v. Am. Trans. Co. (24 H.) 247 Morse v. Gould (1 Kern.) 411 Moses Taylor, The, (4 Wall.) 613 Mossman v. Higgenson (4 Dall.) 517 Mott v. Pa R. R. Co (6 Casey) 375 Mundy v. Monroe (1 Mann.) 403
Murphy v. People (2 Cow.) 148 Murray's Lessee v Hoboken Land Co (18 H.) 169
Neves v. Scott (13 H.) 616 New York v Miln (11 P.) 226 Nichols v. Levy (6 Wall.) 616 Norton v. Cook (9 Conn.) 394
Ogden v. Saunders (12 W.) 261, 263,
386, 387, 393, 394 Ohio Life Ins. Co. v. De Bolt (16
H.) 369 Oliver Lee & Co.'s B'k, Matter
of, (7 Smith) 367, 387, 392 Oriental B'k v. Freize (6 Shep.) 404 Osborn v. B'k of U. S. (9 W.) 189, 200
Passenger cases (7 H.) 197, 231 Pennsylvania v. Wheeling Bridge
(13 H.) 235 Pennsylvania v. Wheeling Bridge
(18 H.) 171, 236 People v. Commissioners (4 Wall.) 171,
194
People v. Commissioners of Taxes (9 Smith) 191 People v. Commissioners of Taxes (8 Tiff) 194 People v. Pinckney (5 Tiff.) 382 Phalen v. Virginia (8 H.) 369, 616 Piqua B'k v. Knoup (16 How.) 369,
377 Piscataqua B'd Co. v. N. H. B'd
Co. (7 N. H.) 372 Planters B'k v. Sharp (6 H.) 366 Porter v. Taylor (4 Hill) 168 Prize cases (2 Black) 284, 290 Providence B'k v. Billings (4 P.) 181, 366, 380 Pugh v Bussell (2 Blackf.) 394
Quackenboss v. Danks (1 Den ) 410
Rich v. Flanders (39 N. H.) 335 Richmond R. R. Co. v. Louisa R.
R Co. (13 H.) 371 Rockwell v. Hubbell (2 Doug.) 411 Roosevelt v. Cebra (17 Johns.) 398 Ross Co. B'k v. Lewis (5 Ohio
St.) 378
Sackett v. Andross (6 Hill) 269 Sandusky City B'k v. Wilbor (7
Ohio St.) 378 Scoby v. Gibson (Am. Law Reg.) 407 Scribner v. Fisher (2 Gray) 395 Sinnott v. Davenport (22 H.) 237
Skelly v. Jefferson B'k (9 Ohio
St) 378 Skelly v. Jefferson B'k (1 Black) 378 Smith v. Maryland (18 H.) 237 v. Mead (3 Conn.) 393 Society P. G. v. Wheeler (2 Gall.) 403, 404
State v. Cummings (36 Mo.) 348 v. Garesché (36 Mo.) 348 v. Holmes (1 Chand.) 361 v. Moore (5 Ohio St.) 378 v. Paul (2 Ames) 336 Stocking v. Hunt (3 Den.) 403 Sturges v. Crowningshield (4 W.) 262, 385, 392, 404 Swift v. Tyson (16 P.) 516
Terret v. Taylor (9 Cr.) 362 Thayer v. Hedges (22 Ind.) 201 v. Hedges (23 Ind.) 201 Thompson v. Alger (12 Met.) 269 Toledo B'k v. Bond (1 Ohio St.) 366, 368, 377 Turnpike Co. v. State (3 Wall.) 381
U. S. v. Bevans (3 W.) 276, 517 v. Coolridge (1 W.) 517 v. Furlong (6 W.) 276 v. Grush (6 Mason) 276 v. Holmes (5 W ) 276 v. Hudson (7 Cr.) 617 v. Marigold (9 H.) 280 v. Moore (3 Cr.) 516 v. Ross (1 Gall.) 275 v. Smith (6 W.) 273 v Villate (2 Dall.) 260 v. Wilson (7 P.) 457, 464 v. Wiltberger (6 W.) 275
Van Allen v. Assessors (3 Wall.) 171, 194 Van Home's Lessee v. Dorrance
(2 Dall) 96 Van Husen v. Kanhouse (13
Mich.) 201 Van Rensselaer v. Snyder (3
Kern.) 403 Van Zant v. Waddell (2 Yerg.) 336
Walsh v. Farrand (13 Mass.) 394 Warner v. People (2 Den.) 355 Warren v. Paul (22 Ind.) 184 Watkins, Ex parte, (3 P.) 517 Watson v. Mercer (8 P.) 333 v. Tarpley (18 H.) 616 Webster v. Cooper (14 H ) 516 Wells, Ex parte, (18 H.) 458, 469, 460 Weston v. City Council (2 P.) 190, 191
West River Bridge Co. v. Dix (6
H.) 367, 392 Wilson v. Blackbird Creek Co.
(2 P.) 222 Wiscart v. Dauchy (3 Dall.) 516 Woart v. Winnick (3 N. H.) 335
Wood v. Child (20 111.) 403 v. Leadbitter (13 M. & W.) 358 Woodruff v. Trapnall (10 H.) 371 Worcester v. Georgia (6 P.) 85 Wynehammer v. People (3 Kern.) 159
ADDITIONAL CASES IN THE APPENDIX.
Banks v. Supervisors (7 Wall. 26) 535
v. The Mayor (7 Ib. 16) 535 Barings v. Dabney (19 Ib. 1) 544 Bartemeyer v. Iowa (18 Ib. 129) 530 Boice v. Tabb (18 Ib. 546) 544 Bradwell v. State (16 Ib. 130) 529 Butts v. Muscatine (8 Ib. 575) 544, 545
Cannon v. New Orleans (20 Ib. 577) 538 Case of the State Freight Tax (15
Ib. 232) 540 Chicago v. Sheldon (9 Ib. 50) 544 City v. Lampson (9 Ib. 477) 544 Collector v. Day (11 Ib. 113) 534 Crandall v. Nevada (6 Ib. 35) 536, 539
Delaware R. R. Tax (18 Ib. 206) 539 Ducat v. Chicago (10 Ib. 410) 524
Farman v. Nichol (8 Ib. 44) 544
Georgia v. Stanton (6 Ib. 50) 547 Gunn v. Barry (15 Ib. 610) 545
Hamilton Co. v. Mass. (6 Ib. 632) 535 Hepburn v. Griswold (8 Ib. 603) 523 Hinson v. Lott (8 Ib. 148) 538 Holyoke Co. v. Lyman (15 Ib. 500) 545 Home of the Friendless v. Rouse
(8 Ib. 430) 544
Knox v. Lee (12 Ib. 457) 523
Lane County v. Oregon (7 Ib. 71) 520 Legal Tender Cases (12 Ib. 457) 523 License Tax Cases (5 Ib. 462) 537 Liverpool Ins. Co. v. Mass. (10 Ib.
567) 524 Loan Asso. v. Topeka (20 Ib. 655) 535
Miller v. State (15 Ib. 478) 545
National Bank v. Commonwealth (9 Ib. 353) 536
Olcott v. Supervisors (16 Ib. 678) 545 Osborne v. Mobile (16 Ib. 479) 539 v. Nicholson (13 Ib. 655) 544
Pacific Ins. Co. v. Soule (7 Wall.
433) 533 Paul v. Virginia (8 Ib. 168) 524, 525,
539 Peele v. Morgan (19 Ib. 581) 538 Pennsylvania College Cases (13
Ib. 190) 545 Pervear v. Commonwealth (5 Ib.
475) 537 Provident Inst. v. Mass. (6 Ib. 611) 535
Railroad Co. v. Fuller (17 Ib. 560) 542 v. Jackson (7 Ib. 362) 538 v. Peniston (18 Ib.
5) 536 v. Penn'a (15 Ib. 300) 538 v. Richmond (19 Ib,
584) 543 Reading R.R. v. Penn'a (15 Ib. 284) 539 v. Penn'a (15 Ib. 232) 540
Slaughter House Cases (16 Ib. 36) 526 Soc. for Savings v. Coite (6 Ib. 594) 535 State of Georgia v. Stanton (6 Ib.
50) 547 State Tonnage Tax Cases (12 Ib.
204) 538 Steamship Co. v. Port Wardens (6
Ib. 31) 540
Texas v. Chiles (7 Ib. 700) 520, 521 Thompson v. Pacific R. R. (9 Ib
579) 536 Tomlinson v. Jessup (15 Ib. 454) 545
U. S. v. Klein (13 Ib. 128) 546 v. Railroad Co. (17 Ib. 322) 535
Veazie Bank v. Fenno (8 Ib. 533) 533, 534
Walker v. Whitehead (16 Ib. 314) 545 Ward v. Maryland (12 Ib. 418) 525,
538 Washington Univ. v. Rouse (8 Ib.
439) 544 White v. Hart (13 Ib. 647) 544 Woodruff v. Parham (8 Ib. 123) 538
TREATISES AND TEXT BOOKS CITED.
American Law Register, Vol. 6. N. S. ............ 483
Annals of Congress ............ 486
Appleton's American Cyclopedia ............ 66, 136
Austin, Lectures on Jurisprudence ............ 2, 6, 7, 8, 67
Binney, Horace, The Privilege of the Writ of Habeas Corpus, ............ 474 Brownson, O. A., American Republic, ............ .23
Chase, Judge, Trial of ............ 486
Chitty's Criminal Law, ............ 461, 466
Cockburn, Ld. C. J., Charge in Queen v. Nelson, ............ 478
Coke's Institutes, ............ 455
Digest, The ............ 1
Elliott's Debates, ............ 64, 66, 68, 86, 427, 428, 432, 493
Falck, Cours d' Introduction Générale à l'étude du Droit, ............ 2, 107 Federalist, The ............ 107, 120, 143
Finlason on Martial Law, ............ 477
Hautefeuille, Des Droits et des Devoirs des Nations Neutres ............ 39, 208 Heffter, Droit International Public, ............ 39
Hurd, John C., Law of Freedom and Bondage, ............ 23
Institutes, The ............ 383
Jameson, The Constitutional Convention, ............ 6, 37, 38
Judiciary Committee, House of Rep., Minority Report of, Nov. 1867, ............ 483 Lieber, Civil Liberty and Self Government, ............ 107, 130
Lieber, Political Ethics, ............ 107
Madison's Debates, ............ 493
Marsh, George P., Essays in the "Nation," ............ 23
Martens, Précis du Droit des Gens, ............ 39
Montesquieu, Esprit des Lois, ............ 110
Ortolan, Diplomatic de la Mer, ............ 39, 272, 274
Peck, Judge, Trial of ............ 487
Phillimore, International Law, ............ 273
Pinheiro-Ferreira, Notes to Martens, ............ 40
Pomeroy, Introduction to Municipal Law, ............ 67, 105, 129 Princeton Review, ............ 43,61
Savigny, Traité de Droit Romain, ............ 2
Story on the Constitution, ............ 36, 36, 38
INTRODUCTORY CHAPTER.
§ 1. THE systematic juridical writers among the Romans, whose works formed the basis of the compilations made by Justinian, separated the entire positive jurisprudence into two grand and opposed departments: the Public Law, and the Private Law (jus publicum, jus privatum). The Digest thus states the division:1 "Hujus studii [juris] duae sunt positiones; publicum et privatum. Publicum jus est quod ad statum rei Romanae spectat; privatum, quod ad singulorum utilitatem: sunt enim quaedam publice utilia, quaedam privatim." Most of the modern jurists of Europe make the same classification. Mr. John Austin, the profoundest writer on general jurisprudence which England has produced, rejects this division as useless and even perplexing. Before Austin, Blackstone, in his Commentaries, had suppressed this separation of departments, and had treated most of those matters which are generally ranged under the head of Public Law, as parts of the law pertaining to persons. There can be no doubt that Blackstone's method has the merit of simplicity when the object is to present either an outline, or a complete detailed statement, of the positive rules which make up the entire internal or municipal jurisprudence of a particular nation. But when it is designed to present simply some portion of this whole, the division made by the Roman jurists, and followed by a majority of the moderns, is not only convenient and natural but necessary.
§ 2. Assuming, therefore, the department of Public Law as opposed to that of Private Law, we inquire what portion of 1 Dig. Lib. 1, tit 1, § 2.
the entire body of a positive national jurisprudence does it embrace; in other words, what does a study of Public Law involve. Here we shall discover a marked diversity among theoretical writers. Austin says:1 "Public Law, in its strict and definite signification, is confined to that portion of law which is concerned with political conditions; that is to say, with the powers, rights, duties, capacities, and incapacities, which are peculiar to political superiors, supreme and subordinate." The Roman writers, in addition to the subject of political conditions, included also that of criminal law. Savigny, certainly one of the ablest and most exhaustive of modern writers, describes Public Law as containing those rules which establish the various political conditions or status, those which define crimes and apportion their punishments, and those which regulate civil as well as criminal procedure.2 The ideas which lie at the basis of this classification are, that the state directly interferes, through its officials and in its organic capacity, with criminal and civil procedure, and that crimes affect the state as a body politic in a higher and more important sense than they do the private individuals whose rights may have been infringed upon by the offender, so that the punishment of the crime is intrinsically a public duty and a public act.
§ 3. The analysis of Falck is theoretically more accurate and practically more convenient than any of the preceding, and I shall adopt it as setting forth the proper bounds of Public Law, and the fundamental doctrines upon which the idea of the state and of a law for the state is based.3
§ 4. The members of a civil society are divided, in respect to the manner in which they are subjected to laws, into those who command and those who obey; and upon this division rests the distinction of Public Law and Private Law. In strictness, every individual person, in so far as he obeys, is, in
1 Lectures on Jurisprudence, Vol 2, p 435, Lect. XLIV.
2 Traité Droit Romain, Vol. 1, chap ii. § 9.
3 See Cours d' Introduction Générale a l'Étude du Droit, par N. Falck, (Juristiche Encyklopadie), chap 1, §§ 26, 40, 41. The sections 4-12 in the text are substantially taken from Falck, with some omissions, and not a little amplification.
respect to such act of obedience, and in respect to his duty to obey, a private person; and every commandment in a civil society primarily flows from the totality of its members, — from the public, — but is formally uttered by some representatives of that totality, be these representatives monarchs, hereditary or elected delegates, or electors who choose these delegates. The Public Law, therefore, embraces all those precepts which impose duties or confer rights upon the political superiors in the state, supreme or subordinate; upon those who organically represent the state as a body politic. Those rules which control the subject members of the state in their relations with the whole body, ought in strictness to be ranged in the Private Law; but as these relations are public in their nature, the rules themselves are also considered as a part of the Public Law.
§ 5. A conception of the Public Law as a distinct division of the entire body of jurisprudence will be made clearer by ascertaining what great departments are included in the Private Law. These departments may be thus enumerated:
1st. The Civil Law proper (droit civil, Civilrecht); consisting of (a) the Law as to Persons (jura personarum);
(b) the Law as to Things (jura rerum); (c) the Law as to Obligations.
2d. Ecclesiastical Law (jus ecclesiasticum) in those countries where the Church is regarded as having a legal status, as something more than a voluntary association. This sub-department does not exist in the United States, but does in England, and generally throughout Europe.
3d. Supervisory Law (droit de la Police, Polizeirecht). 4th. The Law as to Crimes and Punishments. 5th. The Law as to Civil and Criminal Procedure. The Private Law, therefore, includes those rules which define the rights, powers, capacities, and incapacities of various classes of persons, private, domestic, or professional; the rights of oroperty in all its grades which may be had in or over things;
and the rights which flow from contracts and all other sources of obligations between determinate individuals. It also embraces a description of those delicts or offences which the state
punishes, and which are called crimes, together with the means and methods by which these crimes are punished, and those by which civil rights and duties are protected and enforced. Finally, under the denomination of Police are ranged all those governmental means proper to maintain good morals, public security, order, health, and the like; in general, all those means which augment the convenience and promote the tranquillity of social life.
It should be carefully noticed that, although the state by virtue of its sovereignty is the source of all these rules, and, at the call of a person interested, interferes by certain classes of functionaries, such as magistrates, judges, administrative officers, in enforcing duties and protecting rights, and interferes directly in its own name and by its own authority in punishing criminals and exercising social supervision, yet all these rules primarily and essentially concern the members of the civil society in their private, individual, separate capacities; the state is not involved in its separate, organic unity as a body politic; although interested, it is rather so incidentally than directly.
§ 6. The Public Law, on the other hand, touches and affects the state in its organic unity. It regards that state as one body politic in its juridical relations, whether those relations be with its own subjects, or with other independent states. As these two classes of relations do and ever will exist, the Public Law may properly be divided into the two corresponding departments: Political Law, or State Law properly so called (Staatsrecht), and International Law (jus inter gentes, Völkerrecht). The department of International Law may be dismissed with this mention as entirely foreign to the purposes of this work.
§ 7. As an aid in ascertaining with definiteness what classes of rules properly fall within the division of Political Law, it will be advantageous to advert briefly to the essential feature of the state under its necessary conditions. This essential feature, without which the state cannot exist, consists in the possession of sovereign power. The nature of sovereignty, both in respect to the external and the internal relations of
the state, will be fully developed in a subsequent chapter; it is sufficient now to say that the sovereign power consists in the collective will and in the faculty of wielding and disposing those forces which obey that will. This sovereign power should be conceived of as indivisible in its nature, and as appertaining to the totality of members of the body politic — to the entire people: for, except under peculiar circumstances, there exists no reason for excluding from participation in the common will and action either one or many of those who directly take part in the political society.
§ 8. If this idea of the primary source of sovereignty can be accepted by the German theorist, by Americans it should certainly be regarded as axiomatic, and as lying at the very bottom of our conceptions of the state, and of the political structure we have erected in accordance with those conceptions. The expression, All power proceeds from the People, is trite enough, but the full significance of the expression is perhaps not sufficiently apprehended. According to the American theory, here reproduced by Falck, sovereignty does not reside in legislators, or executives, who are chosen, nor in the body of electors who immediately choose, but in the total aggregate of persons who are members of the state, and who by the present constituted order of things are primarily represented by the existing body of electors, and ultimately, by the legislative and executive officers.
§ 9. Although it is truly said that the sovereignty resides in the aggregate of members, yet in states of a certain extent it is not possible, and even in the smallest it would not be convenient, for this totality of the people to deliberate and act. These functions of deliberation and action, which constitute the exercise of the sovereign power, are therefore confided to many, or to one, of the members of the body politic, and in that case it is often said of these persons that they possess the sovereign power. Practically, there is nothing improper in this form of expression, so long as the constituted order of things in any particular state subsists; the totality having delegated their capacity to deliberate and act to representatives, have not generally reserved to themselves any
legal and constitutional right to recall the delegation; such recall, when made, must be extra-legal, or extra-constitutional, or, in other words, revolutionary. How far this is true in our own country, will be considered in the sequel. The common expression referred to is, however, theoretically incorrect; in strictness it should be said that these persons are entrusted with and wield the sovereign power.1
It is this delegation by the totality of the function of exercising the sovereign power, which creates the necessity of establishing a fixed rule to which the depositaries of this power
— the various orders of actors in the government — ought to conform in their relations with other members of the state; or, in other words, there thence arises the possibility of a constitution in a juridical sense of the term. As a consequence, a governmental power, not possessing sovereignty in itself, but only wielding it by delegation, cannot, according to the very conception of its existence, be unlimited, absolute; although it is not indispensable that the rules which restrain it should be formally expressed. In the United States, these rules are formally expressed; in England, they are not. That which we call an unlimited, absolute government is so in appearance only: it is one whose acts, for the time being, do not depend for their validity upon any open expression of assent by the people, or by their direct representatives. The government, on the other hand, which we usually call limited, is one that is subjected to this dependence.
§ 10. This brief analysis of the nature and mode of exercise of that sovereign power which is the essence of a state, will enable us definitely to fix the limits of the department of jurisprudence called Political Law. That department must be concerned with the extent, manner, and means of the exer-
1 See Jameson, The Constitutional Convention, chap. ii §§ 21-24. See, also, Austin, Lectures on Jurisprudence, Vol. 1, Lect. VI. Austin seems to me to have fallen into grave errors while discussing this whole subject. He either too much narrows the meaning of the term sovereign power, and confounds it with the mere capacity to exercise that power according to the constituted order of things in a particular state; or else he utterly ignores the idea that sovereignty resides in the totality of members of a state as a political unit.
cise of sovereign power, so far as this exercise is confined to the interior relations of the state. The complete theory of these interior relations has a triple object: First, the fundamental organization of the whole of the relations which subsist between the government and the people; secondly, the established order of the functions by which the action of the political power with respect to the people may be carried on;
thirdly, the manner of procuring the means and physical forces which the action of the government demands. This theory in its entirety is called Political Law. In a strict sense, therefore, Political Law is the science which investigates and describes the form and constitution of the state, and which consequently responds to the three following questions: 1st. In whose hands is placed the exercise of the sovereign power? 2d. To what laws is this exercise subjected? 3d. By what means and combinations is the observance of these laws assured?
§ 11. The actual constitutions of states have been, and are, exceedingly varied; and the political forms commonly admitted — democracy, aristocracy, and monarchy — do not express all the differences which appear in fact, because they refer only to the number of persons who exercise the power, and not at all to their juridical relations. Thus the government of our own country cannot with accuracy be referred to either of these divisions as they are commonly understood. It is certainly not a democracy; and, although not in outward form an aristocracy or a monarchy, it is subjected to the same limitations in kind, but far greater in degree, as those which are usually placed upon the latter species of government. Indeed, Austin, with theoretical correctness, ranges limited monarchies and representative republics under the head of aristocracies.1 In those constitutional forms of government only which may be essentially referred to the group of aristocracies, or to that of monarchies, can there be any question of a law which limits the political power, and consequently of means and combinations to ensure the maintenance of this law. In a pure democracy, such a law is simply impossible; for, as the totality 1 Lectures on Jurisprudence, Vol. 1, pp. 191-200, Lect VI.
in whom alone resides sovereign power also wield that power directly, they can only be self-restrained in its exercise: no law can be imposed upon the acts of a sovereign.1 In fact, the recognition of a fundamental limitive law has ordinarily resulted in the selection of a body, more or less numerous, which represents the people. But, as we have seen, the action of this body cannot imply a participation by it, as such representative body, in the sovereign power. The true import of this form of organization is, that the exercise of certain rights of sovereignty — legislation or administration, or both — is subordinated to the assent of these representatives.
§ 12. Political Law, as thus described, is finally divided into General, which presents the theory of the state in general; and Special, which confines itself to the constitution of a particular state. In the same manner, the science of Jurisprudence itself, of which Political Law is a part, is separated into General, which treats of positive law in the abstract;
and Special, which is occupied with the entire municipal law of some determinate nation.
§ 13. The object of the present work is the investigation of Political Law in one of its special forms, — that of our own country, — the Constitution of the United States of America. As the People of the United States, the possessors of sovereign power, have arranged their governmental relations by intrusting the management of a portion to the central national government, and another portion to the governments of the respective states, an exhaustive treatment of the subject would require that I should separately examine not only the Constitution of the United States, but also that of each state. Thus only should we ascertain the entire scope of those juridical relations which subsist between the whole people and their
1 Austin is certainly correct in his proposition that the sovereign cannot be compelled by law; his error is in determining who is the sovereign. Were his positions true, the result would be inevitable that, in the United States, there was absolutely no sovereign; for all classes of rulers, national and state, are limited by precepts which have all the attributes of positive
law; and if the people, in whose name these commands are assumed to be uttered, be not the sovereign, we have none. Indeed, Austin seems practically to be driven to this conclusion.
government. But this method of treatment cannot conveniently be pursued. I shall confine myself to the Constitution of the United States as a unit, and shall refer to the state constitutions so far only as they may be implicated with the national government. I shall inquire within what sphere the state governments may legitimately act, but farther than this cannot go. What action has been taken by the inhabitants of a particular commonwealth must be ascertained by the student of local law.
§ 14. The plan adopted for the present work does not require, nor even permit, me to enter at large into the field of General Political Law. Any extended inquiry into the nature of the state and of government in the abstract, into the advantages or disadvantages of particular forms, or even into the merits or demerits of special portions of our own Constitution, would be out of place, and will not be attempted. This work is not intended to be a treatise on civil polity. But the investigation of our established order, and the interpretation of doubtful clauses in the organic law, will require some reference to these more general topics. So far as may be necessary for these purposes, and as incidental to the general design, such reference will therefore be made. There are invaluable treatises upon General Political Law, to which the student may be referred; and it seems both unnecessary and inexpedient to combine the two methods of discussion — the abstract and the special — in a single work, any farther than may be useful for explanation and illustration.
But there is another and stronger reason why arguments to convince us of the suitableness or unsuitableness of the whole plan, or of any essential feature of it, are unnecessary. The nation has passed the point in its history when any other scheme could be possible. The general form of our government, and all of its important elements, are fixed. They were deliberately and finally chosen after a discussion which surpassed in fulness and ability any other that had ever been presented to a people as an aid to their decision. Before the adoption of the Constitution, such a scrutiny was indispensable. An appeal was made to the fundamental principles of
government; the merits of various grants and limitations of power, and of various forms of organization, were carefully canvassed. The question presented was, Why should we, the People of the United States, choose this proposed scheme of government? The publications of the day, and especially the collection of letters known as the Federalist, contain an answer to this inquiry. But now this Constitution is fixed;
no one thinks of substituting in its place any new or different form of government; no one suggests any fundamental, or even important, change in its detail. By it the nation must stand or fall. The citizen knows its excellencies and its weaknesses, its capacities and its omissions. Such as it is, it must continue to be our organic law.
This Constitution being thus accepted as a fact, and universally regarded as substantially permanent, neither the educated citizen nor the professional student needs to ask, with much solicitude, whether any particular clause is better or worse than some other which might have been incorporated in the instrument; he needs to inquire what is the meaning of this clause, and what powers does it confer or limit, and how does it affect the relations between the government and the members of the body politic. All the aids which the canons of verbal interpretation, or history, or analogies with other forms, or ethics, can contribute to the correct determination of this all important question, may be freely used; indeed, an answer is often impossible without a resort to some or all of them. There can be no doubt that the People are strongly convinced of the excellency of their organic law; that they will not yield their convictions to the demands of any theorizers; and that they will suffer no amendments except those which shall more completely carry out the ideas upon which the whole is based, which shall supply some omission, or correct some inadvertency. I repeat, the Constitution as a whole must stand. I believe that nothing but external violence can overturn it; no voluntary act of the people will displace that accustomed order which has proved to them so beneficent.
§ 15. Leaving, therefore, the branch of General Political Law, the general ideas of government and of Civil Polity, to
other writers, I shall confine myself substantially to the Constitution of the United States as it stands; to the complicated organization of political agents to whom the management of the government is confided; to the capacities, incapacities, rights, powers, and duties which have been conferred upon those agents; to the questions which have arisen and have been settled; and to those which have been discussed, but have not yet been put to rest. Or, to quote the language of Falck, I propose to answer, in respect to the United States, the three questions: In what hands has the exercise of the sovereign power been placed? To what law has this exercise been subjected? By what means and combinations has the observance of this law been assured?
§ 16. How must such a design be accomplished? In what method and by what materials must such a purpose be carried out? The Constitution of the United States is peculiar; no other one has existed in times past, or exists now, resembling it. The manner, form, and means of its study and exposition must therefore be very different from those which would be employed in treating of the Political Law of any other nation. The Constitution of England is unwritten and traditional; it has grown up by a historical development, and the historical element must enter largely into its discussion. The Constitution of France is written and formal, so far as the mere organization of the departments of government is concerned; but, in respect to the law which limits those departments, it is vague and indeterminate. And so, if we should examine the organic law of all the European nations, even when that law is written, none would be found which resembles our own.
The Constitution of the United States is peculiar in that it is all written; that it has nothing of tradition. The government and the people go to the instrument itself as the embodiment of all granted functions; the past is resorted to only for explanation and interpretation of the written word. It is, indeed, in all respects, a statute, — a statute of vast and solemn import, enacted in the name of the people, and accepted by them as the basis of all other legislation, and therefore infinitely transcending all in importance and compulsive force;
but it is none the less a statute, — an expression of legislative will in a written form.
The Constitution is peculiar in that, while it is full and extends over a wide field, and contains a large amount of detail, and expresses in a written form all the powers that are conferred upon the government, it is nevertheless not complete and exhaustive. It does not range through the entire extent of governmental action. Conferring powers of a high national character, and absolutely supreme as far as they are granted, it withdraws a very large portion of governmental powers from the agents which it establishes, and thereby causes the juridical relations between these agents and the people, in respect to the matters thus withdrawn, to be a mere negation. In short, the Constitution is a written code creating functions perfect as far as they go; but the code is partial, not complete; in respect to much which occupies the attention of European governments, it is silent.
The Constitution is peculiar in that this written scheme not only organizes and constitutes the various departments of government, but defines and limits with care and precision all the capacities with which they are clothed. It establishes a law for them which is the formal and authoritative utterance, in a written form, of the will of the people, who possess sovereign power; and it provides efficient means for assuring the observance of that law.
Finally, the Constitution is peculiar in that it furnishes a method by which the people, in a legal and constitutional manner, may partially or wholly change the form and character of their government; obviating the necessity of revolutionary measures in case the plan adopted should fail of accomplishing the high purpose for which it was designed.
§ 17. In discussing, therefore, the powers, capacities, incapacities, rights, and duties of the governmental agents, all appeals to general ideas of civil polity, all references to the analogies of other forms and other nations from whom we may be supposed to have drawn some of our methods, all purely historical deductions, are and must be constantly restrained and limited by the letter itself of the written instrument. On the
other hand, this written instrument is so much one of enumeration rather than of description; is so much an expression of general grants of power rather than the embodiment, in a codified form, of minute detail, — that an appeal to history, to the analogies of other political organizations, and to fundamental ideas of civil polity, of justice and equity, is not entirely superseded, nay, is often absolutely necessary. The work of the interpreter is not alone verbal; he may, to a considerable extent, strengthen his conclusions by a reference to the doctrines of General Political Law.
§ 18. The science of Political Law, as applied to the Constitution of the United States, demands from the student, the citizen, and the legislator, methods and qualities similar to those which are requisite for the lawyer and the judge in interpreting and expounding the terms of an ordinary statute. The reasons of this are obvious and imperative. The canons of verbal interpretation are everywhere the same in substance; they only vary in respect to the character of the writing to whose explanation they are applied. The method and habit of the lawyer are essentially identical with those of the historical critic or the biblical student. In the practical application of legal principles in the common affairs of life, the written agreement, the deed, the testament, the statute, are construed by the aid of the same rules, simply because they are written. The written constitution, merely because it is a constitution, can form no exception. The most that can be said is, that, as greater interests are involved which affect the state rather than the individual, all narrow and technical construction should, as far as possible, be avoided; the nature of the writing as an organic law should be allowed its full effect. Still, the truth remains, that the habit of thought of the lawyer is necessary to a correct understanding of the Constitution; and as, by our peculiar organization, the courts are called upon to apply this fundamental law to the acts of legislatures and executives, in testing the validity of these acts, it follows that the most authoritative expositions of the Constitution have been, and are, made by men trained in their profession and office to the lawyer-like habit.
It is no reproach to the Political Law of the United States that this method of study is necessary. Certain theorists have complained because the legal spirit has influenced legislators, judges, and jurists in their exposition of the Constitution. These persons have entirely failed to comprehend the nature of our form of government; to discern the essential differences between it and all others existing or past.
It may be that an unwritten, traditional, elastic constitution, capable of continuous development, able, like the Common Law, to adapt itself to the changing needs of society and the state, is superior to the written. It may be that an organic law cast in the mould of an iron code has intrinsic defects which expose the body-politic to grave dangers. Upon this question there may be difference of opinion. But one thing is sure, — that the American people are unanimous in preferring their own written form. Indeed, so far from abandoning the plan, their tendency has constantly been to extend and enlarge it; and state constitutions, as remodelled from time to time, have been made more unyielding, more minute, more like an elaborate code. This tendency is no doubt to be regretted; its effects have been evil; it should, if possible, be resisted; but it conclusively shows that a written constitution, with all its results, be they good or evil, is preferred now even more decidedly than when the Convention submitted their labors to the country for approval. It cannot be denied that, by deciding in favor of a fundamental law contained in a written instrument, the people necessarily adopted with it the consequence that this instrument must be read, interpreted, expounded, in the same manner, by the same means and methods, which are appropriate to all other legislative acts. Indeed, the very advantage claimed for our American form of constitution is, that all powers, capacities, and duties are precisely denned by the written word; that there is no room left for sudden or even gradual encroachments upon the rights of the citizen; that, the writing remaining unaltered, the various departments of the government can ever be held to these plain utterances of the people's will.
§ 19. But, while it is necessary that the Constitution should,
from its very nature, be read and expounded by the aid of processes which the lawyer uses in interpreting a statute, the lawyer's technical and professional knowledge, training, experience, and skill are by no means required. In fact, the rules and principles of verbal criticism are essentially the same when applied to all writings: they are not arbitrary, but are based upon reason, and may be easily appreciated and employed by all persons of common understanding. The layman may comprehend the true meaning of a testament or of a statute as readily as a lawyer; but both would arrive at the result in the same manner; both would consciously or unconsciously apply the same rules to the resolution of a doubt, or the clearing up of an obscurity. The great mass of citizens, the electors who represent and act in the name of this body, the legislators who are chosen to carry on the constructive work of the government, are alike competent to approach the organic law in the true spirit, and interpret it with accuracy. This is the chief merit of our type of constitution, - — a merit which is often claimed for codes of private law. All may read, all may understand; the only uncertainty will be that which must always inhere in language, which can never be an absolutely perfect medium for the expression of thought.
§ 20. But, while this careful, textual, lawyer-like mode is indispensable in construing the fundamental law of the United States, there is still room for the more free, wide, and statesmanlike methods. The letter of the instrument is not so imperative as to shut out all but a verbal criticism. The whole field of political action not being occupied, the question constantly arises, what is the limit beyond which the government may not pass. The grants of power being rather enumerated than described, the inquiry must continually recur, what special acts may be done by virtue of these general concessions. To answer these all-important questions may well demand the highest resources of statesmanship in the legislators who make, in the executives who administer, and in the courts who expound, the laws, — may well require of those who choose these representatives an education in the principles of civil polity far beyond that needed by any other people. The lessons
taught by history, drawn from the experience of other nations, suggested by the analogies of other governments, contained in the principles of justice and equity, may always exert their due influence upon him who studies and expounds our Constitution.
§ 21. It is evident, then, that the true method of interpretation is a resultant of these somewhat divergent forces, — a combination of the precise, strict, verbal, narrow mode of the lawyer, and the broader, freer habit of the statesman. The one looks mainly at the letter, disregarding consequences, motives, reasons — ita lex scripta est; the other passes by the letter, and concerns itself with great principles, with considerations of a high expediency, with far-reaching national results. From the very commencement of the present government, there have existed two schools who represent these two modes of construction. The one has unduly exalted the lawyer-like, the other the statesman-like, process. Each is in error, and disasters would surely follow were either to obtain a permanent supremacy. With the one school, the Constitution loses its character as the fundamental, organic law of a government, and sinks to the level of an ordinary private statute, to be expounded with all the technical and literal precision which would be appropriate to a penal code. By them the canons of verbal criticism are invoked without any regard to the object and nature of the instrument to which they are applied. With the other school, the Constitution loses its character of law at all, and becomes simply a starting-point from which to construct a system unwritten and traditional. The one would cramp and dwarf the energies of a growing nation; the other would remove all the barriers which have been set up lest those energies should finally become self-destructive. Combine the two, and the essential ideas of a positive law, and of a political society as the subject of that law, are preserved;
the safety and stability of the government are ensured; the national development may go on uninterrupted by arbitrary restraints, and unbroken by sudden shocks. Such has thus far been the method adopted by legislators, executives, ana courts, and approved by the people: let us hope that it may never be abandoned.
§ 22. The study of their Political Law is of the highest importance to American lawyers and American citizens. In no other country is the legal profession placed under such an imperative duty to become familiar with this special branch of jurisprudence. The Constitution of the United States is a law to legislatures, to executives, and to courts both of the nation and of the states; the constitution of each commonwealth is, in like manner, a law to its local authorities. Every statute, every administrative act, every exercise of jurisdiction, must be tested by, and conform to, this fundamental utterance of the people's sovereign will. Hence the bar and the bench are called upon to exercise a function unknown in other countries, — that of pronouncing upon the validity of a statute by comparing it with the Constitution, and by deciding as to the power of the legislature to enact it. English courts are constantly compelled to construe and interpret; but for them to declare an act of Parliament void, from a want of authority in that body, would be an anomaly indeed. Private rights and duties are affected by all governmental acts; and the American lawyer cannot meet the requirements of his profession, cannot maintain the private interests intrusted to him, unless he is acquainted not only with the text of the Constitution, but also with the judicial and legislative interpretation which forms the mass of our Political Law.
§ 23. The motives which should urge the citizen are far higher and more imperative than those addressed to the lawyer. Second only to his duty to God, stands that to his country; the welfare of the body-politic has a stronger claim upon him than even that of family or of self. How wonderfully has this truth, forgotten perhaps for a while, been recognized, accepted, and acted upon within the last six years 1 But, by the organization of our government, the welfare of the body-politic is committed directly to the citizen. Even if not an elector, he may become one; and, at all events, he may exert a controlling influence which goes to make up a part of that public opinion which carries along with it electors and the elected. Weighty as is the obligation resting upon all citizens, it assumes a deeper and more imperative nature as it affects
the educated classes, and especially the young men and young women who are preparing for the duties of citizenship by the culture received from the college, the academy, the school. Their very knowledge and discipline should fit them to give tone and character to public opinion; to lead, and not to be driven, in all political movements. Our higher institutions of learning, and our means for a widely diffused popular education, will have miserably failed in attaining the most important object for which they were designed, if they do not make young men and women better, wiser, truer, stronger American citizens. The customary course of study need not be disturbed; it performs its good office; it gives mental vigor, and imparts knowledge. But some direct and systematic instruction in the Political Law of the United States should form a necessary part of the work done not only in every college, but in every academy and common school. That this study has not been and is not thus universal, is glaringly inconsistent with the ideas upon which our government is based;
it is antagonistic to those principles of popular education which have come to be regarded as axiomatic; it has been at least the partial cause of disasters that cannot be measured, of evils that well-nigh destroyed the nation itself.
§ 24. The analysis given at the commencement of this chapter suggests the general topics which fall within the department of Political Law. In applying these abstract notions to our own country, they must be modified by the peculiar character of the Constitution, by the anomalous and complicated nature of the political organization, by the double distribution of governmental functions, and by the definite limits placed upon the exercise of powers both by the nation and by the respective states.
In pursuing my design, the work will be divided into three parts, each to a certain extent independent of the others.
Part First will consider and answer the question, What is the Constitution, and by whom was it created? — or, in other words, will treat of the essential character of the organic law and of the body-politic which lies behind it.
Part Second will consider and answer the question, In what
manner and by whom is the Constitution to be authoritatively construed and interpreted? — or, in other words, will treat of the means and combinations for assuring the observance of the fundamental law.
Part Third will answer the question, What powers and duties are conferred or imposed upon the national government, and what conferred or imposed upon the several states?
PART FIRST.
WHAT IS THE CONSTITUTION, AND BY WHOM WAS IT CREATED? THE ESSENTIAL NATURE OF THE ORGANIC LAW, AND OF THE BODY-POLITIC WHICH LIES BEHIND IT.
CHAPTER I.
STATEMENT OF THEORIES: — NATIONALITY OF THE UNITED
STATES.
§ 25. IT does not require any extended argument to convince us that the question to be discussed in the first part of this work lies at the basis of all others. Upon the conceptions we form of the essential character of this organic law, and of the body-politic which lies behind it, must depend our notions of all the relations of the United States and the several commonwealths to each other, and of all the functions of the general and local governments. Is this Constitution the fundamental law of a nation? Then the government must, to some extent, possess national and comprehensive powers. Is it, on the other hand, a mere league, treaty, or articles of agreement and federation between sovereign and independent nations, who thereby delegate a portion of their inherent powers to the agents thus constituted? Then the powers must be limited by the very letter of the instrument which creates this agency, and are virtually under the management and control of the sovereigns who have delegated them. We are met, then, at the very threshold of the political structure we are to examine, by this most momentous consideration; and to it we should give our careful and candid thought and attention. The views we shall adopt will give shape and color to all our
subsequent opinions upon the various matters which shall come under discussion. If we shall fall into error here, that mistake will follow us through our entire course of exposition. If we are correct here, we shall hardly deviate far from the true path in our future progress.
§ 26. The statesmen and jurists of our country have perceived the necessity of establishing this fundamental point, and have devoted to the solution of the question all the resources of learning, eloquence, and partisanship. It was first mooted during the existence of the Confederation; it was the subject of animated debates in the Convention; it was discussed with extremest zeal while the Constitution was before the people, awaiting its adoption; it formed the subject of the first judicial investigation made by the Supreme Court into the powers of the general government; it has since received the attention of all the public men who have directed the course of popular opinion; it might have been considered as settled, so far as united legislative, executive, and judicial construction can establish any controverted doctrine; but it again arose in these late years, and passed from the forum and the senate-house, from the arena of peaceful debate and the contests of intellect, to the arbitrament of the battle, to the fierce discussion of the battery and the bayonet, to be finally and forever put to rest by the force of the nation wielded in solemn war.
SECTION I.
THEORIES WHICH HAVE BEEN PROPOSED AND ADVOCATED.
§ 27. If we examine and compare the various writings of public men and the arguments and judgments of courts, which have been put forth at intervals during the existence of the present Union, we shall discover that three theories have been proposed and advocated, by different schools of statesmen and jurists, in relation to the essential character of the Constitution itself, and of the United States as a body-politic. These theories I shall state in a manner as brief and precise as possible.
It is not claimed that all legislators, judges, or statesmen, who have been ranged on the one side or on the other, have expressed themselves in the same unqualified terms. While some have followed out their processes of reasoning to the inevitable results, others have stopped short of the logical conclusions from their premises. Others still, and among them some of the most eminent, have seemed to hesitate between two; while advocating measures, or rendering decisions, which appear to result only from the adoption of one of these theories, they have used language appropriate entirely to another.
§ 28. I. The first theory regards the United States as a
.nation, and its Constitution as the organic, fundamental law of that nation. This nation, or in other words the collective People of the United States as a political unit, existed prior to the adoption of the Constitution, and was not therefore called into being as a consequence of that instrument. The Constitution was not the work of the separate states, regarding those states simply as organized governments; nor of the peoples of those states, regarding those peoples as separate and independent sovereign aggregates or communities; but it was the work of the People of the United States as a whole, as a political unit, — not voting together, it is true, in the process of adoption, as a consolidated mass of electors, but, for reasons of policy and convenience, acting in their respective commonwealths. As a necessary consequence, the powers held by the general government were not delegated to it by the several
states, regarding those states simply as organized governments; nor by the peoples of the several states, regarding those peoples as separate and independent sovereign aggregates or communities; but were delegated to it by the People of the United States as a whole, abstracted from their local relations to the various commonwealths of which they were also members; although, in the very process of delegation, this one people did not vote together as a consolidated mass
of electors, but, for certain reasons of policy and convenience, acted in their respective states. The powers not thus granted by the people of the United States to its general government
were not reserved by the several states to themselves; for, as these states as such did not grant any powers, they could not reserve any. But they were reserved by the People of the United States to themselves, or to the several states. Thus the People of the United States, as a nation, is the ultimate source of all power, both that conferred upon the general government, that conferred upon each state as a separate political society, and that retained by themselves.
§ 29. This, in substance, is the view of the Constitution advocated by Hamilton, by Jay, by Marshall, by Story, by Webster, and upheld by the judgments of the Supreme Court during its earliest years, and while it continued under the leadership of its most illustrious head, Chief Justice Marshall, I would not be understood as claiming that all these great men have maintained the whole of the foregoing propositions in an unqualified manner; and particularly it is conceded that the last of the series — that which relates to the reservation of powers to the states by the People of the United States, and not by the states themselves — has rather been implied, than clearly and dogmatically stated, by many of the adherents of this school. Even Marshall and Webster, the great champions of the inherent nationality of the People of the United States, have sometimes used language more appropriate to advocates of the theory to be thirdly stated. But I give the foregoing abstract, without hesitation, as embodying necessary and legitimate conclusions from the whole course of their reasoning; while, by most of the earlier expounders, all these results were reached without hesitation, and were set forth in language pointed and cogent, and in a manner unreserved. In the most recent times, this theory has been developed with great precision and fulness by writers and juridical students of eminent ability and learning. Among these may be mentioned John Codman Hurd, in his "Essay on the Law of Freedom and Bondage in the United States," — a treatise which, more than any other American work, has received the commendation of European jurists; O. A. Brownson, in his "American Republic"; and George P. Marsh, in a series of letters communicated to the "Nation."
§ 30. II. The second theory denies that the United States
is now, or ever was, in any true sense of the term, a nation.
It assumes that, by the revolt of the colonies, there resulted thirteen independent and sovereign states or nations; that
these thirteen states retained their separate sovereignty during the confederation; and that they did not resign this high at
tribute under the present Constitution. It does not regard that Constitution as an organic and fundamental Law for a single body-politic, but as a compact, as an instrument in the nature of a league, treaty, or articles of association between the separate, independent, sovereign states. It represents these several sovereign states as granting or delegating a portion of the supreme powers which they possessed to the government of the United States, which they had thus constituted as a limited agent, for all and for each of them, to fulfil certain well-defined duties, and assume certain well-understood functions, which this agent could advantageously fulfil and assume. As a consequence, this agent — the general government — possesses no powers but those given in express terms, or by implication absolutely necessary. Nor has it the capacity by itself, or by any of its departments, — legislative, executive, or judicial, — to decide, with authority and as a finality, of the extent of those delegated powers; but the sole capacity to determine this most momentous question rests with each particular state for itself. In the practical operation of this capacity of determination, no state is in the least bound by act of Congress, order of President, or judgment of Supreme Court, nor even by the decisions of its sister commonwealths, but may judge finally and conclusively for itself. As a further consequence of this inherent capacity of determination, any state, after it has authoritatively decided that the general government has transcended its proper limits, has assumed and exercised functions not belonging to it, may treat the compact as broken, the trust as forfeited, the agency as ended; and may retire from the confederacy, thus resuming all the powers which it had before delegated to the United States. Lastly, as the several independent, sovereign states were the principals which intrusted a portion of their attributes to the general
government, they reserved to themselves the residuum not thus expressly parted with; and are therefore, in theory and in fact, the source of all political functions both of themselves and of the United States. We are, then, not one nation, one people, but an assemblage of nations, united for some specific purposes by a friendly league into a loose federation. No citizen, therefore, owes allegiance to the United States, as Mr. Mason, of Virginia, observed in the Senate; but each person owes allegiance only to the State of which he is a member.
§ 31. This theory found friends and advocates at the very earliest period of our existence as an Union, and has continued to receive the support of a large number of public men down to the present time. Mr. Jefferson gave it the aid of his powerful influence in his private correspondence and in many of his public acts, although, while at the head of the nation as President, he practically abandoned it. It received a new impetus from the vigorous, keen, impracticable intellect of Mr. Calhoun, in whose writings it was pushed to its logical consequences, and whose disciples have most zealously propagated their faith until it became an acknowledged article in the political creed of most Southern statesmen, and did not want believers in all other sections of the country. It has, however, never received the assent of Congress, or of the Executive, or of the Judiciary of the United States, although many representatives and senators, and a few judges, have attempted to commit their respective departments to its cause. Baffled in the legislature and the courts, it finally sought the field; and, as it appealed to the sword, may not American citizens in all portions of our common country unite in the devout hope that it has perished by the sword?
§ 32. III. A third system of construction occupies a middle ground between these two extremes, and, while avoiding
the pernicious and destructive consequences of the latter, does not adopt all of the enlarged and national views of the former. This theory regards the states as originally independent, sovereign commonwealths, but as having surrendered to the United States a portion of their sovereignty, to be held, not at the will and pleasure of the single states, but absolutely
and irrevocably. While the states, therefore, and not the people of the nation as a political unit, are the source of all power given in the Constitution, that instrument was not designed as a mere compact or league between independent sovereignties, but as a firm and lasting organic Law for the newly created political body, and is to be expounded, construed, and interpreted by the governmental authorities therein established. All powers, however, not expressly granted by the states are reserved and held by themselves; and to that extent they retain their ancient sovereignty.
§ 33. It may be asked how this last theory practically differs from the first. I answer, in some respects not at all; in most respects widely and radically. According to both, the United States is a nation, — by the former, to all intents, and with all powers within the scope of the functions committed to the government or reserved to themselves by the People; by the latter, to a limited intent, with only those special powers conferred upon the government by the states. Following the former, we naturally adopt an enlarged and liberal mode of interpretation; following the latter, we are compelled to restrain and narrow the development of national life. The former looks to the United States as the country, the home, the centre of hopes, ambition, patriotism, and devotion; the latter rather regards the individual state as possessing the first place in our affections, and ourselves as children of the particular commonwealth rather than of the mighty Union one and indivisible. On the other hand, both deny the right of a state to exalt its own judgment as the sole criterion by which the duties of its members are to be measured; both pronounce the assumed privilege of seceding from the Union as a political heresy of the deepest dye; both regard the Constitution, and the laws made in pursuance thereof, as paramount over all local and state legislation.
§ 34. Among the leading supporters of the last theory may be named Madison and Jackson. It also lies at the basis of the judgments of the Supreme Court upon constitutional questions rendered during the presidency of Chief Justice Taney, It had perhaps been adopted by a very large portion, if not
indeed by a majority, of politicians. The events of the last six years, and especially those growing out of the close of the war and the readjustment of disturbed relations, would seem to have brought the first theory into greater prominence; and it may probably become the one accepted by the government and the people.
SECTION II.
MEANING OF THE TERMS "NATION" AND "POLITICAL SOVEREIGNTY."
§ 35. To put each of the foregoing theories separately to the test would involve needless repetition. A single analysis will be sufficient to disclose the essential nature of the Constitution, and of the body-politic which lies behind it. This analysis will consist of two separate and independent branches, namely, —
1st. A historical sketch of the political movements which terminated in the adoption of the Constitution; and,
2d. An examination of the provisions of, that instrument itself.
But, as a preliminary to this investigation, it is absolutely necessary to form clear and accurate conceptions of the mean ing of certain terms, — terms much used in ordinary discourse, but yet often employed in a vague and doubtful manner. Very much of the difficulty in all verbal disputes arises from the want of accurate definitions; and this is true in politics as well as in philosophy and religion.
§ 36. Let us at the outset, therefore, attempt to obtain some correct and fixed notions of the term "Nation,"1 and of its indispensably related term, "Political Sovereignty." The facts represented by these words necessarily imply or presuppose each other. There can be no nation without political sovereignty, and no political sovereignty without a nation. I shall
1 Writers on public law use the word "State" in the sense in which I have employed the word "Nation." But as the word "State" has been indissolubly connected with our local commonwealths, great confusion would result from the employment of it, in this discussion, in its more general sense.
not be able, therefore, to separate these ideas, and to present each as distinct from the other. As well might one attempt to give a scientific description of light and of color without reference to their mutual relations and combined existence.
§ 37. And first, the distinction must be carefully and constantly preserved between the nation, and the government which that nation has actively created, or has passively permitted, as the agent for the expression of its supreme will. The people themselves, the entire mass of persons who compose the political society, are the true nation, the final, permanent depositary of all power. The organized government, whatever be its form and character, is but the creature and servant of this political unit which alone possesses dominion in itself. It is true that the people, the nation, may have either actively constituted or passively admitted the rulers to be the sole channels and means through which their sovereign power shall be ordinarily wielded and directed for the national purposes, and may have bound themselves not to resume the direct and efficient management of that power except in certain well-defined and established methods; nay, they may have restricted the government itself in the exercise of its functions, so that beyond certain appointed limits it cannot go, and thus may have denied to this government the rightful use of all the attributes of sovereignty which they themselves possess, so that for the time being these attributes cannot be brought into play by either; but it is no less true that these attributes still potentially exist in the nation, ready to be called forth whenever the people shall see fit to follow the defined and established methods, and to put their inherent, paramount force in motion.
§ 38. This great principle of human rights and of political science, which was distinctly announced to the world and first practically acted upon by our own forefathers, and which is theoretically admitted by most writers on Public Law, has been virtually overlooked or forgotten by many supporters of the "State Rights" theory, in the protracted discussions that have arisen upon the Constitution. The nation and the states have been continually confounded with the mere ruling appa
ratus or governments of these societies. All powers have been denied to the nation except those conferred upon its limited government, and as a consequence the very existence of a nation at all has been also denied.
The intentional ignoring, or tacit rejection of the same doctrine, is the fallacy which runs through the whole of Mr. Austin's elaborate lecture upon the nature of the independent political society and of political sovereignty found in the first volume of his "Province of Jurisprudence," and which thus destroys much of the usefulness of that treatise.
§ 39. It is certainly unnecessary for Americans to argue in favor of the correctness of this principle. Our whole political structure, our whole civilization, is based upon it. So true is it to nature and humanity, that not only have European publicists adopted it, but even the European governments do not now reject it; and some of the most arbitrary claim to wield their power by virtue of an authority derived from its practical recognition. The idea that the rulers, whether one or many, compose the state, is a thing of the past, a notion which has been swept away in the resistless march of social development.
§ 40. The foregoing postulate being accepted, a nation, in its strict sense, may be defined to be an independent, separate, political society, with its own organization and government, possessing in itself inherent and absolute powers of legislation. It may not, from some peculiar features of its voluntarily created or permitted form of civil order, have enabled its rulers to call into efficient action all of these inherent and absolute powers of legislation, and it may have restrained itself, by solemn and fundamental enactments, from exercising these complete powers except by a course, and in a manner, distinctly defined and established; yet so far forth as it possesses these attributes without limit, and so far forth as it has clothed its constituted rulers with functions which involve these attributes under limits, it knows no superior to itself, it is not subordinate to any other political society or government.
§ 41. Such a political society is a nation; this nation pos
sesses political sovereignty. It may have any organization, from the purest democracy, to the most absolute monarchy;
but considered in its relations to the rest of mankind and to its own individual members, it must exist, to the extent at least of enacting laws for itself, as an integral, independent, sovereign society among the other similar nations of the earth. Its government, or in other words, the permanent agents which it has established to make efficient its organic will, must be so far independent, that no other power may authoritatively control its legislation, no other state may interfere, and, according to any received and admitted constitution of things, prescribe what the law shall be.
§ 42. From this description of the "Nation" and of "Political Sovereignty," it is evident that the latter term especially is often used in a sense far from correct, falling far short of the fulness of meaning which legitimately belongs to it. If we may properly apply the word sovereign to political societies which are really subordinate, because within their subordinate sphere they possess a large mass of political powers, and can lawfully act throughout a wide range over their immediate subject inferiors, then we may with equal propriety describe as sovereign any society or person that occupies a position of superiority simply in relation to others who are dependent. In truth, the term sovereign, used as a word of political import, is the expression of an absolute idea; it does not admit any notion of grades, of inferiority, of dependence, or of division.
Of course, I purposely put out of view the supremacy of God over nations as well as over individual men, for I am speaking only of the character of civil societies in their relations to each other and to their own members.
SECTION III.
THE PRINCIPAL PROPOSITION IN REGARD TO THE NATURE OF THE CONSTITUTION AND THE NATIONALITY OF THE UNITED STATES.
§ 42 a. The meaning of the terms Nation and Political Sovereignty having been thus explained, I purpose to show that
the United States fulfils all the requirements which have been mentioned as necessary to the existence of a nation; that the people thereof is an independent, separate political society with its own organization and government, possessing in itself inherent and absolute powers of legislation; that by its Constitution it has created a government as its agent for making its will efficient, but has therein expressly prevented that agent from calling into action all of its inherent and absolute powers; that by the same Constitution it has also restrained itself from exercising those powers in their full measure, except by methods carefully denned in the same instrument;
that by pursuing these methods there is no limit to the operation of the national force; that its attributes are self-existent and not derived; that it knows no superior; that no other civil society may authoritatively control its legislation, or judge of the extent to which that legislation may be carried.
§ 43. On the other hand, in respect to all these particulars which truly constitute a nation, each state must be described in terms the exact opposites of those employed in reference to the United States. Each state is not an independent, separate political society; it does not possess in itself inherent and absolute powers of legislation; the functions of its rulers are limited not only by its own local constitution, but by that of the Union, and cannot be indefinitely enlarged by any amendments of its own organic law, for the organic law of the nation binds it by an irresistible sanction; another political society not only may but must control its legislation and judge of the extent to which that legislation may be carried. Instead of enjoying attributes of sovereignty, each state, as a separate political society, is in a position of permanent subordination.
§ 44. Of course I am now speaking of the United States and of the several commonwealths under our present civil order, as that is adjusted by and through the existing organic law. I make no reference to the event of a revolution, and the results which such a catastrophe might produce; for revolutions are accomplished not according to law and the estab
lished order of things, but against law, and by the destruction of the constituted authority.
The propositions here stated will be illustrated in the two succeeding chapters by a historical sketch, and by an examination of the Constitution itself.
CHAPTER II.
HISTORICAL SKETCH OF THE POLITICAL MOVEMENTS WHICH TERMINATED IN THE ADOPTION OF THE CONSTITUTION.
SECTION I.
THE PERIOD PRIOR TO THE CONFEDERATION.
§ 45. THE nature of the civil polity which existed during the earlier periods of the revolution and subsequently under the Confederation, is an element of the utmost importance in determining the character of the present Union. It has long been too much neglected by statesmen and political writers;
but its controlling effect was recognized by those men who had passed through the struggle of the war and the disastrous experience of the Confederation, and were called upon by their official positions to fix the limits of the new-made government. In very recent times, during the search for first principles and solid foundations quickened by the late war, the attention of American publicists has been again more strongly drawn to this vital subject, and it has been examined with more care, and illustrated with more fulness, than ever before.
§ 46. Those who have adopted either the second or third of the theories set forth in the preceding chapter, have expressly assumed as their fundamental position, and many who should be ranged among the supporters of the first have at times seemed tacitly to admit, that whatever of a national character we possess dates from the first establishment of the present Constitution; that by or through this instrument the people of the states were for the first time drawn together into an union which might properly be termed a nation; that prior thereto the several states were confessedly sovereign, inde-
pendent commonwealths. The advocates of the second, or "State Rights" theory must of necessity maintain this position; but from those who hold to the essential, perpetual, and supreme nationality of the Union, this concession is not the mere surrender of a verbal point; it is the abandonment of a great principle, and is not only impolitic, but unnecessary, being entirely contrary to the truth. We have now to deal with plain historical facts, not with theories, nor with disputed questions of intention. Whatever these facts may be, we cannot change them by argument, nor escape from their legitimate consequences. I repeat, the condition and character of the political society prior to, and at the time of, the adoption of the Constitution, is a fact, to be ascertained in the same manner as any other matter within the province of history.
§ 47. Prior to the revolt which terminated in the war of the Revolution, the colonies were not a single nation, nor were they thirteen separate nations. They possessed, singly or in combination, none of the powers and attributes of nationality. Each was independent of the others so far that the collective inhabitants and local governments of each had no authority over the inhabitants nor within the territory of the others. But each was a dependency and an integral part of the British empire. As a result flowing from this common dependence, the inhabitants of each possessed certain rights and privileges within the territories of all the rest; the people of each owed common allegiance to the crown, and were under a common subjection to the imperial government of the King and Parliament. It is true that from their proximity, their one language and religion, and the general identity of their interests, a feeling of unity and nationality had to some extent become spread through the colonies; but this was as yet a mere sentiment, and would continue such until, as it deepened in intensity, it should result in united acts of the whole people which should proclaim that people one nation.
§ 48. Such acts were done. Difficulties arose between certain colonies and the imperial government; and these proving too serious for peaceful adjustment, resort was had to violence.
In their first appeal to arms, in their first movement toward separation from the British empire, the people of the colonies acted as a unit; and from this epoch dates our national existence, dates the birth of a political society now known as the United States of America. The revolt was not the work of the colonies acting separately and independently, in any assumed sovereign capacity, but of the people of all these local communities acting together through their representatives in the Continental Congress, which assembly, though revolutionary, provisional, tentative, and loosely organized, was essentially national.
§ 49. On the 5th of September 1774, delegates to the first Congress assembled at Philadelphia. They were appointed from the different colonies; in some by the popular branch of the legislature, in others by a convention directly chosen by the people.1 With a correct understanding of the real condition of affairs, and of their own character as representatives, these men styled themselves in their formal acts "the Delegates appointed by the Good People of these Colonies."
The government thus formed was, in truth, revolutionary;
it was not intended to be permanent; but it exercised in fact and of right a sovereign authority, not as the delegated agents of the local governments of the separate colonies, but in virtue of original power granted by the people. Their acts were all of a national character. They forbade the importation and exportation of articles of merchandise from and to Great Britain and certain of its dependencies; they passed a Bill of Rights; they stated their common grievances, and adopted an address to the king and to the British people.
§ 50. On the 10th of May, 1775, a second congress of delegates was held. These were chosen in some of the colonies by the popular branches of the local legislatures, but in most by conventions directly elected by the people.2 Their measures were still more national. They assumed to regulate commerce, to provide a supply of funds, to raise an army, to construct a navy, to establish a Post-Office Department, and to do many other acts, all looking toward a complete separa-1 See 1 Story on the Constitution, § 200. 2 Ibid. § 203.
tion from the British empire.1 Finally, they issued the Declaration of Independence, and thus at one blow cut off all connection with the mother country, and consummated the process of national birth which had been begun two years before.
§ 51. What is the result to be deduced from these events? Prior to the Declaration of Independence the colonies, separately or unitedly, did not assume to be, nor were they, independent, sovereign states. In theory, they still spoke of themselves as dependencies of the British crown, seeking redress by force, but ready to return to their obedience whenever that redress should be granted. Practically they were in a condition of revolution; the words of duty in their public acts were mere words of policy, their deeds had another meaning. But in their progress toward independence they acted in concert from the beginning, and this concert was not one of mere league or compact, but of organic unity. The boundaries which separated one colony from another were unaltered; the local legislatures were preserved; the congress of delegates assumed but limited powers; but so far as they asserted independence it was the assertion of the nation and not of thirteen sovereign nations. Nor did the delegates derive their authority in fact from the colonial legislatures, but from the one people acting behind and superior to these legislatures, acting as a political society, and exercising the attribute of sovereignty which belongs to such a body politic. Beyond all question the idea of nationality was not distinctly presented to their minds;
they did not evolve a completed theory of the nature of their civil polity, and proceed to carry out that theory. They were guided by circumstances, and as events led them to acts of nationality they followed unhesitatingly.
§ 52. Again, the Declaration of Independence was not the work of thirteen separate colonies, each acting in an assumed sovereign capacity, but of the United Colonies acting in a national capacity through their delegates in congress assembled. This congress did not propose the declaration to the states and recommend its adoption by their local legislatures 1 See 1 Story on the Constitution, § 203.
nor did it need such endorsement to give it validity; state ratification when made was a work of supererogation. The declaration was finally and forever established by the whole independent political society through the means which they had appointed. The language of the instrument itself indicates its nature and its origin. Nothing is said of the independence of the several states, but the operative clauses indissolubly combine the idea of organic unity and nationality with that of independence. "We, therefore, the representatives of the United States of America, in general congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do in the name and by the authority of the good people of these colonies, solemnly publish and declare, that these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do." It is evident that in this clause, the words "free and independent states," "united colonies," "good people of these colonies," are used in a collective sense, to describe the one political society which was declared to be independent and to possess sovereign powers.
§ 53. No single colony, therefore, by this organic act revolted and claimed separate independence. It is true that New Hampshire, New Jersey, and South Carolina, had, prior to July 4th, 1776, adopted new constitutions for themselves;
but these were all made in pursuance of a resolution of Congress of the 3d and 4th November, 1775, recommending the states to form such government "as would best promote the happiness of the people .... during the continuance
of the dispute with Great Britain:"1 and they were all expressly declared to be temporary, and to exist only until a
1 See Jameson, Const. Conv. § 127. See also § 128, for a second resolution of May 10, 1776.
reconciliation should be effected with the mother country.1 These constitutions were, therefore, political steps toward independence, but not absolute assertions of that condition. Virginia had acted more decisively. On the 29th of June, 1776, she had declared "the government of this country as formerly exercised under the crown of Great Britain totally dissolved."2 But this was a declaration, not that Virginia, but that the whole united colonies were independent; it only shows that the statesmen of Virginia in those early days had a true understanding of their relations to the other colonies and to the nation; they then recognized the existence of one country, and that country not the State of Virginia, but the United States of America. Who then became independent by this organic declaration of the people's will? Not Massachusetts, not New York, not Virginia, but the nation. To whom did that political sovereignty pass which had before been vested in the empire of Great Britain, acting through its king and parliament? Not to Massachusetts, not to New York, not to Virginia, for these political societies had not declared themselves independent, but to the United States of America.
§ 54. But it may be asked, if this proceeding was national, when and how did the colonies become one nation? The answer has already been partially given. The people, in the first expression of their organic will by the appointment of delegates to a general congress, took the initiative in their progress toward nationality. They clothed these delegates with undefined powers for the public good; the delegates finally, in the exercise of these powers, declared the country free and independent of the British crown; the people, by their acquiescence in this declaration, completed the birth of the nation. There never was, in fact, a moment's interval when the several states were each independent and sovereign. While colonies they unitedly resisted, revolted, declared that combined political society independent. The blow which severed the connection with the British empire, did not leave a
1 See Jameson, Const. Conv. §§ 131, 133, 139.
2 1 Story on the Constitution, § 211.
disintegrated mass made up of thirteen communities now independent; it left an united mass, a political unity, a nation possessing the high attributes of sovereignty which it had just exercised. The United States was then a fact, and no power but that which called it into being — the People — is competent to decree the national destruction.
§ 55. I have dwelt somewhat at length upon this point because I esteem it to be of vital importance to a proper understanding and construction of the acts and proceedings of the people of the United States in the adoption of the present Constitution. It is the key to the whole position. Grant that in the beginning the several states were, in any true sense, independent sovereignties, and I see no escape from the extreme positions reached by Mr. Calhoun. If at the outset the political society consisted only in a weak agglomeration of thirteen separate nations, each of these nations must have possessed all the powers which belong to any other independent sovereignty in the world. Among these attributes, the one which underlies all others, and is, in fact, necessarily implied in the very conception of separate nationality, is that of supreme, continued self-existence. This inherent right can only be destroyed by overwhelming opposing force; it cannot be permanently parted with by any constitution, treaty, league, or bargain, which shall forever completely resign or essentially limit their sovereignty, and restrain the people from asserting it. They may at any time throw off the obligations of constitution, treaty, or league; however solemn and formal may have been the stipulations into which they have voluntarily entered, these exist only during their own good will and pleasure.1
1 This doctrine that a sovereign state cannot bind itself by any treaty or compact by which its sovereignty is wholly or substantially surrendered or lessened, is now maintained by the leading writers on Public and International Law. In the expressive language of one of these writers, "For moral beings as well as for individuals, there can be no obligatory promise, when this promise is of suicide." See, on this subject, Martens, Precis
du Droit des Gens, § 52 (Paris, 1864); Ortolan, Diplomatie de la Mer, liv I, ch. v. p 90 (Paris, 1864); Hautefeuille Des Droits et des Devoirs des Nations Neutres, t. i. pp. 8-10 (Paris, 1858); Heffter, Droit International
§ 56. Now it is claimed that these highest attributes of political sovereignty belong, and from the very beginning have belonged, to the people of the United States, one and indivisible. If, on the contrary, they originally pertained to the thirteen states in their separate capacities, they have never been permanently surrendered or essentially limited, simply because they cannot be thus forever parted with; and as a consequence they may be resumed and exercised at will. Thus have the extreme opponents of nationality reasoned with irresistible logic from the premises assumed by them — the original sovereignty of each state. Believing as I do that their conclusions are false in theory and in fact, and destructive of all that is admirable in our national union and constituted government, I see no escape from these results if the premises are granted upon which their whole argument is based.
But the premises should not, need not, be granted. It is demonstrable as a fact of history, as to which there can be no mistake, and which cannot be changed to suit the demands of conflicting theories, that the people of the United States, through their own positive act done in their own name by their delegates, sprang into self-existence as an organic political society possessing sovereignty, and that the separate states, as individual bodies politic, were never independent, never clothed with the attributes of nationality.
SECTION II.
THE PERIOD OF THE CONFEDERATION.
§ 57. In the further development of this branch of the
subject, I shall now examine the origin and character of the Confederation which preceded the existing government.
Although as a grand historical fact, the revolt and the Declaration of Independence were the work of, and had resulted in, one nation, yet it must be at once conceded
Public, § 83 (Paris, 1866); Pinheiro-Ferreira, Note to § 58 of Marten. (ed. of 1864).
that the theory was not yet perfected in the minds of the revolutionary leaders, or of the people themselves. It is not possible for any community to shake off, by one voluntary act, the habits of thought, prejudices, and opinions, which have formed a part of their common life for generations. Under the influence of high-wrought feeling, or of a clear conception of duty or interest, a people may temporarily throw aside their former habitual modes of action, and for a time adapt themselves to a new state of social existence;
but as soon as the paroxysm is past, as the flow of enthusiasm has receded, the conceptions of duty and interest become less clear, and the community gradually returns to its old customs, thoughts, and methods. Our revolutionary fathers were no exception to this rule. While colonies they had regarded their political societies as distinct; some jealousies had continually existed among them; some difference of interests had ever kept them apart. The necessities of their position, the absolute impossibility of separate revolts, the presence of a common danger, and the sentiments of an exalted patriotism, for a while swept away and buried all these local prejudices, these attachments to colonial or state independence. The interests of the whole were for a time regarded as paramount, and placed far in advance of the interests of the several parts. This perfect unity lasted long enough to produce that glorious offspring, the People of the United States, — that new-born Nation, destined in the providence of God, I reverently believe, to be the example and teacher to all the nations of the earth, an example and teacher by its errors and punishments as well as by its excellencies and prosperity, until, being made perfect through suffering, it shall wield an influence over humanity even surpassing that exerted by the deathless empire of Rome.
§ 58. But soon after the formal act which asserted the national independence, state pride, interests, and influence, began to be felt plainly and powerfully in our national councils. The former habits were too strong to be forgotten, and they soon returned with even increased power. A government must be formed to take the place of the exist
ing one, which was regarded as revolutionary and temporary improvised to meet the exigencies of the occasion which called it into being. As the revolution was no longer a mere policy of resistance ready to be abandoned when the British crown and parliament should yield to the demands of the colonies, but was to be prosecuted until independence should be recognized, a permanent organization must be substituted in the place of the one which had hitherto served to represent the people and to form the channel through which their national will was expressed. In the construction of this new government the separate state power triumphed over the national idea. Yet the latter was not entirely abandoned, nor was it, in fact, formally renounced. The people still remained one. They alone could decree their own destruction, and such a suicidal act can never be established by implication; of all others it needs positive, direct proof.
Still it is true that in arranging the new Confederation, in allotting powers and functions to its government, the supremacy was conceded to the states, while the national authority was placed in a position of actual subordination. The states were assumed as the sources of power; they were represented as severally existing and as delegating a small portion of their attributes to the central agent, while they reserved a much larger share to themselves. But even in the midst of this partial abandonment of the idea with which the revolution was commenced, the general body politic was not stripped of all its insignia of nationality. It was still left as the only political society which could hold intercourse with other sovereignties, which was admitted into the family of nations.
§ 59. On the 15th of November, 1777, Articles of Confederation, which from time to time had been discussed in the Continental Congress, were finally passed by that body and recommended to the several states for adoption. The states slowly followed the advice of Congress. All had ratified the instrument in 1778, except Delaware and Maryland. Delaware yielded in 1779, and Maryland in 1781.
§ 60. A recent writer describes the nature of the Confederation and the influences which led to it, in the following manner:1 "It is true, however, that this principle of one nationality thus embodied in our Declaration of Independence, was not clearly and consciously before the mind of the country at the time that declaration was made. The Union which was thus constituted was generally understood to be chiefly for mutual defence, which left the question between one or many sovereignties to be finally determined by future contingencies. Neither was it plain even to the national men of that day, either how much, or what sort of union was necessary to constitute a national government. Clear and adequate conceptions of what they were dimly striving to realize could not come in a moment, could not be other than the growth of years of effort. Also, the colonial, now the state, government were first in the field, in full organization and activity, with already more than a century of growth and consolidation, and they were intensely jealous of each other.
§ 61. "From these causes it resulted that the state governments, seduced by the charms of separate independence and nationality, immediately assumed to exercise all those sovereign powers which had been reclaimed from the crown of Great Britain by an act of the people of all the states in the Union. And this assumption, although it was not so understood at the time, was, in its true character, an usurpation. .... Here we see that state sovereignty on this continent had its birth in a palpable usurpation, which has never been formally sanctioned by the people of a single state, much less by the people of all the states, which would have been necessary, after the Declaration of Independence, to legitimate it in any one of them.
§ 62. "Having in this manner possessed themselves of sovereign powers, the states proceeded to delegate a portion of them to a confederated government under the celebrated Articles of Confederation. And here again we find the logic of usurpation ruling the whole procedure. For the states
1 See the Princeton Review for October 1861, p. 615. The article is from the pen of J. H. McIlvaine, D. D., Prof. of Polit. Science, Coll. of N. J.
had no right, upon any theory of popular government, to form that Confederation. Whatever sovereign powers they now possessed they claimed at least to hold from the people, whose acquiescence in what, as we have seen, was at first an usurpation, did give it an informal validity. No other claim would have been tolerated for a moment. But it is evident that no government holding from the people, can have any right to alienate its sovereign powers in order to form another government. The powers which a government holds in trust from the people, it can have no right to resign into any other hands except those of the people themselves. The states had no more right to cede away the least of their sovereign powers, in order to form another government for the United States, than they had to abdicate the whole in favor of the British crown. The adoption of the Articles of Confederation by the states was an act of irresponsible power in the same line of procedure by which that power had been at first acquired.
§ 63. "The necessity for union, and the pressure of the national principle as embodied in the Declaration of Independence, were so strong that the Articles of Confederation could not represent simply and purely the idea of state sovereignty; and a very cursory examination of these articles in the light of contemporary discussions, reveals the fact that they recognize both of these hostile principles limiting, and, to a certain extent, neutralizing each other. In certain provisions it seems impossible not to recognize a decided representation of the principle of one nationality, and by no means a feeble tentative toward the formation of a national government. This attempt, however, was frustrated by the number and extent of the sovereign powers claimed as reserved to themselves by the states, and by them prohibited to the Confederacy; in which the principle of state sovereignty was represented as predominant."
§ 64. An examination of the most important features of the Articles of Confederation, will clearly show that the foregoing language is entirely correct. I shall first present a short abstract of the whole instrument, and shall then describe the general character of the government which it constitutes, and
ascertain and unfold the ideas which were embodied in this political fabric. This review will be of great assistance in the study of the present Constitution. Nothing can better indicate the nature of the existing organic law than the sharp contrasts between it and the Articles of Confederation.
§ 65. The Articles themselves purport to be made by the "Delegates of the United States of America in Congress assembled," and to be ratified by the delegates in virtue of power and authority for that purpose specially conferred upon them by the state legislatures, and are entitled "Articles of Confederation and Perpetual Union between the States." The instrument establishes the following fundamental rules and stipulations for the government of the federation: —
1. That its name shall be the United States of America.
2. That each state retains its sovereignty and power which is not by this Confederation expressly delegated to the United States in Congress assembled.
3. That the states severally enter into a firm league of friendship with each other for their common defence and welfare.
4. That the free inhabitants of each state shall be entitled to all the privileges of free citizens in the several states; that no citizen of one state shall be subject to any restrictions upon trade and commerce in any other state which are not also imposed upon the citizens of the latter; that no duties shall be laid by any state upon the property of the United States;
that fugitives from justice shall be given up, and full faith given to the records and judicial proceedings of every state.
5. That a congress of delegates shall be established in the following manner: Each year, every state shall appoint and maintain, in whatever manner it shall please, not less than two nor more than seven delegates, who shall meet yearly;
but, in the congress thus constituted, each state shall be entitled to but one vote.
6. That no state, without the consent of the United States in Congress assembled, shall send or receive any ambassador;
nor make any treaty with a foreign nation or with another state; nor lay any duty or impost which will interfere with
stipulations contained in treaties entered into by the United States in Congress assembled; nor, in time of peace, keep up any vessels of war or bodies of troops, except its own militia;
nor engage in war, unless invaded; nor fit out privateers, except after a declaration of war by the United States in Congress assembled.
7. That, when troops are raised by any state for the common defence, all officers of and under the rank of colonel shall be appointed by that state.
8. That all common expenses shall be defrayed out of a common treasury, to be supplied by the states in proportion to the amount of private lands in each; but the levying and collecting taxes to pay their proportions are to be entirely under the control of the legislatures of the states.
9. That the powers of the United States in Congress assembled shall be as follows: To declare war and make peace; to send and receive ambassadors; to make treaties, under the restriction that no treaty shall be made destroying the right of a state to lay imposts and duties; to establish rules for the disposition of captures and prizes made in war; to appoint final courts of appeal in prize causes; to decide, on appeal, all controversies between two or more states, in a manner particularly defined; to regulate the value of all coin struck by the United States or by the respective states; to regulate the standard of weights and measures; to establish and regulate post offices; to appoint all officers of the land forces in the service of the United States, excepting regimental officers, and all officers of the naval forces; to make rules for the government of these forces; to appoint a member of Congress president of that body; to ascertain the sum of money necessary for the expenses of the United States, and appropriate the same when received; to borrow money; to build and equip a navy; to agree upon the number of land forces needed, and to make requisitions upon each state for its quota of such forces, which quotas are then to be raised and furnished by the respective states.
A concurring vote of nine states in Congress assembled was made necessary to enable that body to engage in war,
grant letters-of-marque, make treaties, coin or regulate the value of money, ascertain the sums of money necessary for the public expense, emit bills, borrow money, appropriate money, create or increase a navy, raise land forces, or appoint a commander-in-chief. All other measures, except adjourning for want of a quorum, required a concurring vote of a majority of the states in Congress assembled.
Articles 10, 11, and 12 are unimportant.
The final article was as follows: Each state shall abide by the determination of the United States in Congress assembled, on all questions which by this Confederation are submitted to them. And the articles of confederation shall be inviolably observed by the several states, and the Union shall be perpetual; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislature of every state.
§ 66. Such, in substance, was the fundamental law of the Confederation. But I have used an incorrect term. This was in no respect a law; it had none of the essential elements of law. It was not enacted by the supreme power in the state; it was not cast in the form of a command, nor did it confer on the government which it constituted any power to utter a command; it imposed no legal duties; it contained no sanctions by which obedience could be compelled. It was lather in its nature a treaty, to be observed as long as the contracting powers saw fit to yield to its requirements, and no farther. In truth, it was disregarded from the very beginning, and at last became a mere dead letter, with capacity only to hinder and thwart all attempts at development, to destroy all national and individual prosperity.
Some salient points in this constitution and government clearly indicate its character, and reveal the ideas which were controlling in its formation. We may profitably notice these points, and pass by the minor details which were contrived to make the plan effective.
§ 67. I. The first important and distinctive feature to be noticed is the entire absence of any formal recognition of, or
reference to, the existence of a nation. The People of the United States are not once mentioned; the presence and supreme attributes of that organic aggregate are completely ignored; no power is represented as derived from them, and none as conferred upon them; for even the slender concessions made by the states are not granted to the People, nor even to the United States as a political society distinct from its government, but only to the United States as represented by its government, — to the "United States in Congress assembled." As a consequence, there is no status of United States citizenship created or recognized; we have free inhabitants and citizens of the respective states, but no citizen of the United States.
§ 68. The formative elements which were combined in this political structure were not individuals, but were the sovereign, independent states, united in a friendly league for their mutual defense and welfare; and all powers not expressly delegated to the Congress were declared to be reserved by the several states to themselves. Here we perceive that the national idea had been tacitly abandoned, or, at least, totally lost sight of. The People who revolted, and who, through their delegates, had announced to the world their own independence and sovereignty, had no part nor voice in this new creation. They never adopted it by any formal act. It was not even the work of their delegates. Nay, the people of the respective states were not its direct authors; but the legislatures of these commonwealths assumed the power thus to restrain the sovereignty of their own constituents.
It is plain that, upon the extreme States'-Right theory even, this assumption was a palpable usurpation. No legislature is so supreme that it can, without direct authority, cede away the inherent political attributes and organic social existence of the body-politic it represents. But the jealousies of the state politicians, and the local rivalries fostered by them, had temporarily blinded the people and their public servants to their true interests, and to the rightful claims of the nation. If gome pure patriots perceived the real position of affairs, and attempted to impress upon their countrymen the national
ideas, their voices were drowned in the clamors of state partisans, and their arguments and warnings were powerless against state pride and prejudice.
§ 69. II. The second feature to be noticed is, that the few powers possessed by the United States were not directed against individuals, but against communities, against the respective states. Congress could not take money from the people by means of taxation; it could only direct the states to act. Congress could not enlist a soldier; it could only determine the number of troops needed for the common defence, and request the states to furnish their respective amounts. And, if we go through the whole range of its legislative and executive functions, we shall find the same principle at work, — a government acting upon independent states considered as separate, organized, political societies, and not upon the single individuals whose aggregates compose those societies.
There is no more important and distinctive element than this in the whole scheme of the confederated government, — nothing in which it contrasts more strongly with the present Constitution. For herein lies the very essence of the States'-Right theory; herein was distinctly embodied the claim of the states to paramount sovereignty. This was the crowning feature of the old Confederation, the perfected result of those notions which had then obtained the supremacy, and the conceded cause of all the disastrous and miserable consequences which followed from ill-considered and self-destructive organization. And, finally, this feature was entirely abandoned, and the government restored to its true basis, by the convention which framed, and the people who adopted, the present Constitution.
§ 70. III. The third point to be noticed is, that the United States government possessed, absolutely, no authority to enforce any of its enactments, to compel obedience to any of Its laws. In fact, it could only recommend, it could not command. It was left entirely to the option of the respective states, whether or not any of the congressional requisitions upon them should be observed. The government was without any coercive means of raising even the smallest amount
of money. If it was fortunate enough to borrow, it could offer no assurance of an ability to pay. It could lay no duties on imports or exports, levy and collect no taxes, command none of the resources for maintaining the common defence or promoting the common welfare. This inability to raise money by any authoritative measures, was the essential element of weakness, which made it a government in name only, a mere solemn sham, and exposed it to the ridicule of its own people and of foreign nations.
§ 71. Again, the Congress was the sole organ of the government. No independent executive was constituted to direct the national affairs; no independent judiciary was authorized to expound the provisions of the compact and determine the functions of the central and the state legislatures. Congress might, indeed, prescribe regulations for the disposition of prizes and captures taken in war, but could give these rules no sanction. It could create final courts of appeal in prize causes, but the decisions of these tribunals were mere nullities, for there was no executive arm to enforce them. The legislatures and courts of the respective states retained the substantial power, and this they constantly used with hardly a thought or notice of the shadowy attributes conferred upon the general government.
§ 72. IV. The last general feature to be noticed is, the limited extent of the nominal powers granted to the United States Congress. Most of these had reference to the prosecution of war. The Articles of Confederation, in a very great measure, relate to a state of hostilities. The condition of peace, and the ordinary operations of government in seasons of tranquillity, are barely alluded to; all this was left to the local commonwealths. Congress might regulate the value of coin; might, together with the states, coin money; might fix the standard of weights and measures; might establish post-offices; and this brief enumeration exhausts the list of those powers which have reference to internal affairs, unconnected with war. In the foreign relations its functions were nominally unlimited, for it might declare war, make treaties, send and receive ambassadors. But these concessions were prac
tically nugatory, for it could neither raise troops to fill its armies, or money to pay them; nor could it procure the stipulations of its treaties to be observed, for the courts of the thirteen states were supreme in expounding, and the legislatures in carrying out, the provisions of these international compacts.
§ 73. Such was the government of the United States during the Confederation, a name without a body, a shadow without a substance. The consequences of this plan of government upon the material prosperity of the people, upon the development of the states and the Union in all that constitutes national greatness, upon the estimate in which the country was held by foreign powers, were such as might have been anticipated from a political organization contrived in utter disregard of all the lessons of history, and in complete opposition to all true principles of civil polity.
§ 74. These consequences are very accurately described by the writer quoted above.1 "The history of the Confederation during the twelve years beyond which it was not able to maintain itself, is the history of the utter prostration, throughout the whole country, of every public and private interest, — of that which was, beyond all comparison, the most trying period of our national and social life. For it was the extreme weakness of the confederate government, if such it could be called, which caused the war of independence to drag its slow length along through seven dreary years, and which, but for a providential concurrence of circumstances in Europe, must have prevented it from reaching any other than a disastrous conclusion. When, at last, peace was proclaimed, the confederate congress had dwindled down to a feeble junto of about twenty persons, which was so degraded and demoralized, that its decisions were hardly more respected than those of any voluntary and Irresponsible association. The treaties which the Confederation had made with foreign powers, it was forced to see violated, and treated with contempt by its own members; which brought upon it distrust from its friends, and scorn from its enemies. It had no standing among the nations 1 Princeton Review, October, 1861, pp. 618, 619.
of the world, because it had no power to secure the faith of its national obligations. For want of an uniform system of duties and imposts, and by conflicting commercial regulations in the different states, the commerce of the whole country was prostrated and well-nigh ruined. Private indebtedness was almost universal, and there was no business or industry to provide for its liquidation. Bankruptcy and distress were the rule rather than the exception. The government was loaded with an enormous debt, and had no authority to provide for the payment of either principal or interest, whence its credit was paralyzed. The currency of the country had hardly a nominal value."
§ 75. "The states themselves were objects of jealous hostility to each other. The mouth and lower waters of the Mississippi were controlled by Spain, who prohibited their navigation; and whilst the Eastern States were urgent that her claims should be acknowledged for the sake of advantages to their commerce, the whole Western valley, with its dependencies, was on the verge of separation from the East, in order to maintain, at all hazards, the rights of way to the ocean on that father of floods. The internal peace of the country was threatened, and a civil war seemed inevitable from the discontent of the officers of the revolution, for whose sacrifices and necessities Congress, in open breach of the public faith, yet from sheer inability, had failed to make any compensation or provision. Nothing but the personal influence of Washington over the officers themselves averted this calamity. In some of the states rebellion was already raising its horrid front, threatening the overthrow of all regular government and the inauguration of universal anarchy. It is difficult for us to conceive of the panic which Shays's rebellion in Massachusetts spread throughout the country, and of the peril to which the whole fabric of society was exposed from organized bands of ten or fifteen thousand armed men bent on cancelling, at the point of the bayonet, all public and private indebtedness, and excited to madness with lust of plunder. Ah! what a picture of general gloom and distress, of patriot anguish and despair, is presented in the contemporary history of the confederate government."
SECTION III.
PROCEEDINGS WHICH DIRECTLY LED TO THE ADOPTION OF THE CONSTITUTION.
§ 76. The alarming results of the policy which had, for a while, abandoned the idea of one nationality, and taken up that of independent state sovereignty, were producing their legitimate effects upon the people. It was seen that something must be done, and that at once; for the wheels of government had actually stopped, and society would ere long become disintegrated. What to do. what measures to adopt, was as yet involved in doubt and dispute. An amendment to the Articles of Confederation, which, it will be remembered, would require the assent of Congress and of the legislature of every state, was at first suggested. The public acts of Congress and of the various legislatures at the time, point to this remedy; show conclusively that those who managed the public affairs were prepared to take no further step than the mere reforming and enlarging the existing government. This fact is important to be noticed; for it is, in many respects, the key to the subsequent action of the constitutional convention and of the people.
§ 77. Let us take a rapid review of the proceedings of the various legislative bodies, which terminated in the ratification of the present Constitution.
On the 21st of January, 1786, the legislature of Virginia adopted a resolution and appointed commissioners "who were to meet such as might be appointed by the other states of the Union, at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the said states; to consider how far a uniform system in their commercial relations may be necessary to their common interest, and their permanent harmony;
and to report to the several states such an act relative to this great object, as, when unanimously ratified by them, will ena
ble the United States, in Congress assembled, effectually to provide for the same."1
Four states only, New York, New Jersey, Pennsylvania, and Delaware, responded to this call; and their delegates, together with those of Virginia, met at Annapolis in September, 1786. Deeming their numbers too small, and their powers too limited for any permanent good, they separated after making a report to the several states and to Congress, in which they recommend that the states should appoint commissioners, "to meet at Philadelphia on the second Monday of May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the federal government adequate to the exigencies of the Union; and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislatures of every state, will effectually provide for the same."2
§ 78. After some delay, Congress acted upon this suggestion, and on the 21st day of February, 1787, passed a resolution, wherein, after reciting the power given in the Articles of Confederation to amend the same, and the existence of defects demanding a remedy, they recommend that "a convention of delegates, who shall have been appointed by the several states, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the states, render the Federal Constitution adequate to the exigencies of government, and the preservation of the Union."3
§ 79. The Convention thus recommended by Congress met at the time and place appointed, and was composed of delegates from twelve states. Rhode Island alone refused to be represented.
1 See Elliot's Debates, Vol. 1, p. 115.
2 Ibid. pp. 116-118.
3 Ibid. pp. 119, 120.
This Convention proceeded to do, and did accomplish, what they were not authorized to do by the resolution of Congress that called them together. That resolution plainly contemplated amendments to the Articles of Confederation, to be submitted to and passed by the Congress, and afterwards ratified by all the state legislatures, in the manner pointed out by the existing organic law. But the Convention soon became convinced that any amendments were powerless to effect a cure; that the disease was too deeply seated to be reached by such tentative means. They saw that the system they were called to improve must be totally abandoned, and that the national idea must be reestablished at the centre of their political society.
§ 80. It was objected by some members, that they had no power, no authority, to construct a new government. They certainly had no authority, if their decisions were to be final;
and no authority whatever, under the Articles of Confederation, to adopt the course they did. But they knew that their labors were only to be suggestions; and that they as well as any private individuals, and any private individuals as well as they, had a right to propose a plan of government to the people for their adoption. They were, in fact, a mere assemblage of private citizens, and their work had no more binding sanction than a constitution drafted by Mr. Hamilton, in his office, would have had. The people, by their expressed will, transformed this suggestion, this proposal, into an organic law, and the people might have done the same with a constitution submitted to them by a single citizen. This point, that the Convention had no authority for the work they actually did, that they were mere volunteers, is one of great importance, and has not received the attention it deserves from those writers who have expounded the fundamental law.
§ 81. On the 17th of September, 1787, the Convention completed their labors, laid the proposed Constitution before Congress, and advised "that it should be submitted to a convention of delegates chosen in each state by the people thereof under a recommendation of its legislature, for their
assent and ratification."1 The Constitution itself provided that, when ratified by at least nine states, it should become established in the states so ratifying the same.2
The Convention also enforced their recommendation by a letter addressed to Congress and through them to the country, from which some extracts will be interesting. "In all our deliberations we kept steadily in our view that which appears to us the greatest interest of every true American, — the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid, on points of inferior magnitude, than might have been otherwise expected; and thus, the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable."
§ 82. What was the real meaning of all these proceedings? The Convention knew that they were not amending the Articles of Confederation; for in that case the proposed alterations must be submitted to Congress, and then to the state legislatures, and approved by all; but in no instance would any direct reference to the people be necessary. They knew, on the contrary, that they were proposing a new government, and that in creating this government, neither they, nor Congress, nor the legislatures of the states, had the slightest power, the smallest voice; that such a creation was the work of the people alone, of the nation in its imperial capacity, by virtue of imperial powers which existed in them indissoluble and incommunicable, above and beyond all existing forms, all congresses, legislatures, and state organizations. To the people, then, they appealed. But the people could only express their will by voting, and to vote requires some organized method. The Convention itself could not provide means for taking, ascertaining, and publishing this vote, for they were in fact, a mere body of volunteers, without any power except
1 Resolution of Convention, Elliot's Debates, Vol. 1, p. 16.
2 Constitution, Art. VII.
that moral influence which knowledge and worth always give. Nor could Congress make the provision, for this was an emergency which the Articles of Confederation had not anticipated;
any attempt of Congress to submit the proposed plan to the people, would have been without warrant, a mere nullity. The state governments were the only bodies which possessed the requisite ability to call upon the people, duly and in order to register their supreme and sovereign decree in reference to the question before them, and thus to render the popular act legal in form as well as in substance. Therefore the Constitution was handed over to the various state legislatures as mere depositaries and agents, for them to submit to the people. Were this to be done in our own time, the submission would doubtless be direct; but ideas of popular government were not quite so advanced at the close of the last century as they are in our own day; and the only act of the people deemed possible was that of delegating their powers to special representatives who should meet and ratify the instrument in their name. This was the proceeding advised by the framers of the Constitution and followed by the state authorities. All were acting merely as the channels, the mechanical means, to ascertain, convey, and publish the will of the real nation.
§ 83. While the Constitution was before the people awaiting their approval, the friends and partisans of the state-sovereignty theory marshalled their forces and attacked it with a virulence and malignity of which we can now hardly form a conception. They understood the effect of the change; they knew that local power was slipping away from them, and that local pride must be humbled before the majesty of the nation. But they felt that it would be unsafe to discuss the question of ratification from this standpoint alone, and therefore assailed the government as a mere scheme of tyranny. They declared that it would be destructive of all liberty. They pronounced the Executive to be worse than an absolute monarch, and predicted that he would soon be able to usurp all power, and to reign for life, without the aid of Congress and without reference to the people. These attacks called forth from the pens of Hamilton, Madison, and Jay, a series of letters since known
as The Federalist, which exerted a most powerful influence in producing the final result, and which have been, and will remain, an authority to the courts, and a text-book to political students, one of the most complete and profound expositions of the science of government that has ever appeared.
§ 84. Conventions in eleven states having ratified the Constitution,1 Congress, on the 13th of September, 1788, took measures for the election of officers, and on the 4th of March, 1789, the present government commenced the exercise of its functions. North Carolina did not ratify until the 21st of November, 1789,2 and Rhode Island until the 29th of May, 1790.3
Having thus sketched the external history of the adoption of our Constitution, and examined the nature of the various acts which preceded that event, to the end that the true national character of the political society and of its organic law might be discovered, I shall, in the following chapter, interrogate the instrument itself with the same intent.
1 See the official ratifications of the several states, Elliot's Debates, Vol. 1, pp. 319-331.
2 Elliot's Debates, Vol. 1, p. 333.
3 Ibid. p. 334.
CHAPTER III.
THE NATIONAL ATTRIBUTES INVOLVED IN THE PROVISIONS OF THE CONSTITUTION.
SECTION I.
DISTINCTION BETWEEN THE GOVERNMENT AND THE NATION.
§ 85. IN the preceding chapter I have spoken of those grand salient facts in the history of our people which seem to stamp a distinctive character upon our political society, — the combined revolt, the united declaration of independence, the subsequent receding from the high ground of nationality during the short and disastrous period of the Confederation, and the final return to the early and true idea of unity and nationality by the voluntary act of the people in pushing aside the crumbling fabric of government built on the foundation of state sovereignty, and adopting one emanating directly from themselves, as the expression of their organic will. We are now prepared to interrogate the Constitution itself, and to discover if the answers which it shall return accord with the principles and doctrines contained in the facts of our history.
§ 86. It is natural to expect that the work will represent, in some measure, the condition and thought of the artificer; and if the one people of these United States are the authors of an organic law, we may well ask if they have left any trace of their oneness and nationality in the product of their sovereign political action.
But here it is necessary to repeat and elaborate a general doctrine which has already been dwelt upon with some emphasis, and which must be constantly recalled to mind through the whole course of the present inquiry as the solution of many a difficulty and apparent contradiction. This truth is, the
absolute and necessary distinction between the nation which is the source of political power, and the government which is the creature of that power, established to act, in certain cases, instead of, or as the agent of, that nation.
§ 87. We affirm that the People of these United States are the nation, possessed of supreme powers, and that the government of the United States is their creature and agent. All those theorists who deny the original and essential unity and nationality of this people, declare that the separate states are or were the original nations. As a consequence it is either expressly maintained, or tacitly assumed, that there is no United States apart from the limited government created by the Constitution; in a word, that the United States, and the government thereof, which we recognize as distinct, are one and the same existence. In this short sentence are summed up the differences between the advocates of nationality, and those of state sovereignty. If we fail to apprehend the truth of the doctrine which I have stated, we shall fail to obtain any adequate conception of the imperial character of the people as an organic political society.
§ 88. Nor is the thought peculiar to our own social condition; it is a dogma which lies at the basis of all political science. The French nation has continued one and the same,
while its government has taken the successive forms of Mon
archy, Republic, Empire, Monarchy, Republic, and Empire, again. These several forms were, for the time being, the recognized organs and channels for the utterance and execution of the organic will of the people, in whom alone, as the final source, reside all the attributes and functions of legislation.
The English people remained one nation through the whole gradual but grand progress of constitutional change and development, from the time of the earliest Norman kings down to the temporary overthrow of the monarchy under Cromwell, to its unqualified restoration in the persons of the second Charles and the second James, to its subsequent limitation on the accession of William of Orange, and to its present existence as a splendid but empty pageant.
The people, the nation, live on, subject only to destruction by overwhelming force or by the gradual decay of race life;
the governments come and go, with no inherent qualities of their own, but only as the representatives of the nation's will.
§ 89. The powers which can be lawfully wielded by a government may range through an ascending scale, from those so feeble that the agent has hardly an appreciable existence, to those so complete that they express the entire sovereignty of the nation. Over the form of its own government, a nation has an absolute control. It may declare that no powers shall be given to delegated rulers; that itself shall deliberate, shall determine, act, and execute in every emergency; or, in other words, it may itself use all the sovereign authority which inheres in every nation, without the intervention of any constituted agents. It is evident, therefore, why a pure democracy must be the most terrible of tyrannies, because there is no check, no limit upon the exercise of authority; since the people, who are everywhere, and at all times, the source of power, and who, in other forms of political society, place some restraint upon the use of that power by themselves, now wield it to its full measure, with no organic law compelling them, no guide but their own wish.
§ 90. On the other hand, the people, the nation, may clothe the government constituted by them with all the political attributes and functions which they themselves enjoy, and may thus remove the necessity of any direct formal interference by themselves to make changes in the organic law.1 This, as it seems to me, is true in Great Britain. The government is Parliament, consisting of King, Lords, and Commons. This parliament is, in fact, omnipotent. The British Constitution is nothing more than the will of the people, not expressed by them directly in a written instrument or in any other positive manner, as in our own country, but expressed by and through the Parliament; and over this constitution the legislature has complete power to amend, alter, or destroy. When we talk
1 It should be remarked that no form of government can prevent or destroy the extra-legal, or revolutionary capacity of the people to interfere.
or read of the constitutional rights of the British subject, we mean such rights as Parliament has conferred, or has suffered him to enjoy; and the same body that bestowed may take away. Parliament deposed one king, and established a military rule under the name of the Protectorate; declared that another king had abdicated, and presented the crown, under many restrictions, to a successor. Parliament might abolish Magna Charta, the Bill of Rights, the Habeas Corpus; it is, as far as human government can be, omnipotent. That it has not exercised its fall power; that it is bound by traditions and the received law; that it represents and acts for the people and not against their interests; that it is, in a true sense, conservative and not destructive; — are not denied as facts: but I am not speaking of what may probably, but of what may possibly, happen. The same government which abolished the disabilities of Roman Catholics, and admitted Jews to a seat in the House of Commons, may destroy the English Church as a temporal organization; the same government which passed the Reform Bill in 1832, and thus accomplished what has been called a "bloodless revolution," may grant universal suffrage,3 and at last dispense with royalty and privileged orders. I do not predict such changes in England; I only say that should they ever come about, they may be effected by the existing government, in the regular course of administration, without an appeal to the people in their collective capacity as the final depositaries of all political powers.
§ 91. While, therefore, the people, the nation, is sovereign, and not the machinery which it has established in order that its power, or some portion thereof, may be regularly exerted;
and while this machinery may be arranged according to an infinite variety of plans, we cannot expect to find in the detail of these plans an unerring index of the character of the society which exists behind and superior to them. The nation may have so limited the attributes of the government as hardly to suggest the existence of a national authority; or it may have
1 The act lately passed by Parliament is certainly a long step toward universal suffrage, and it may not be rash to assume that before many years Parliament will complete the work thus begun.
so enlarged them, that the body politic is apparently lost in its own creation.
The government ordained and established in the Constitution of the United States is not to be ranked with either of these extremes. It is limited indeed. Very many legislative and administrative powers are withheld from it; but those conferred are national in their essence and in their extent;
while the nationality of the body which created it, appears in characters too plain to be misunderstood. It should also be remembered that, at the time of the adoption of the Constitution, ideas of state sovereignty were very prevalent, and had for a time been generally accepted; and that, as the Constitution — that is, the form and functions of the government — was the result of a compromise between the advocates of two contending principles, we shall find in its provisions evident traces of the doctrine of separate state sovereignty. But this fact does not militate against our position; for, in truth, the whole organic law might have been framed so as to leave the administration of affairs entirely in the hands of the individual states, and yet have been the work of one sovereign body politic.
SECTION II.
THE IMPORTANT AND DISTINCTIVE NATIONAL ELEMENTS IN THE CONSTITUTION ITSELF; IN THE ATTRIBUTES AND FUNCTIONS OF THE GOVERNMENT.
§ 92. The immediate subject upon which we are engaged, to wit: the independent and paramount sovereignty of the nation, which is the people of the United States, will be concluded by a brief reference to those portions of the organic law wherein that fact is either openly and directly expressed and declared, or tacitly admitted.
1. The Preamble.
§ 93. The Constitution opens with the grand announcement, confirming the result of our historical analysis, that this fundamental law, and the government created thereby, are the
work of the people of the United States, ordained and established by them and not by the several states; and as an inevitable consequence, that the powers conferred on this new-made government were not delegated by the states in any sovereign independent capacity of theirs, but by the people of the United States as a municipium or nation.
"We, the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquillity, provide for the common defence, promote the genera welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
§ 94. Here is the calm, sublime statement of self-existence, of inherent and unlimited power, — a power of national and fundamental legislation for the purposes of protection to themselves as a body politic, and not to the states as separate political societies. No amplification or argument can add force to this short and simple expression of an organic will. However much the states may have exercised usurped attributes of sovereignty during the unhappy Confederation; however much the conception of one people acting as an unit may have been forgotten or abandoned amid the jealousies and destructive rivalries of the commonwealths claiming substantial independence; the people had now arisen, reasserted the original idea, repudiated the assumptions of local supremacy, and uttered their organic will in terms which we hope will have a meaning and a power to the end of time. This is the rock upon which many of the great champions of nationality among American statesmen have planted themselves in their conflicts with opposing schools, and from which they were never dislodged by the fiercest assaults of extreme or moderate partisans of state sovereignty.
§ 95. Finally, this solemn preamble was understood to be so complete an answer to the claims of the separate commonwealths to any independent supremacy, that when the seceding southern states, asserting this claim, and basing their right to act thereon, met to frame a new constitution for their confederacy, they rejected the preamble set forth by their fathers
and adopted one which reads as follows: "We, the people of the Confederate States, each state acting in its sovereign and independent character, in order to form a permanent federal government, establish justice, .... do ordain and establish this constitution for the confederate states of America."1 Thus have the opponents of our nationality, by their most solemn and deliberate acts, conceded the correctness of the construction which has been placed upon this utterance of the sovereign people of the United States.
2. The Enacting Clauses. § 96. If we pass from this preamble or preface, to the substantial grants of power contained in the Constitution itself, we shall find equally strong evidence of nationality in the essential character of these powers. It must be remembered, however, that it is not the form but the attributes of the government, that testify as to the nature of the political society which creates it, and over which it dominates. There is nothing in the threefold division into Executive, Legislative, and Judicial departments, which necessarily implies the existence of sovereignty. The government of each state, and of many cities, is formed upon the same model. It is the jurisdiction of these several departments — that which they may lawfully do, or that from which they are bound to forbear — which stamps their authors as sovereign or subordinate.
§ 97. It is a maxim of political as well as of private law, that an agent cannot hold and exercise functions transcending those possessed by the principal who appoints him and authorizes him to act. The powers he enjoys may be less in extent and fewer in number than those which inhere in that principal, but they cannot be greater or more numerous. When, therefore, we find the government of the United States clothed with functions which the several states have never possessed, either before or since the Declaration of Independence, we may infer without hesitation, that such functions were not derived from them.
We are now prepared to examine some of the most impor-1 See Appleton's Ann. Am. Cyclo. for 1861, p. 158.
tant of these features of the Constitution and attributes of the government which testify to the nationality of the one body politic, and against any assumed sovereignty of the several commonwealths.
§ 98. I. The Declaration of Supremacy. — First and foremost: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the Land, and, the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding."1
What is the full import of this often-quoted declaration? It means that so far as the people of the United States, the nation, have seen fit to delegate a portion of their own inherent powers of legislation and government to their appointed rulers, just so far those appointed rulers are supreme throughout the land in the exercise of those delegated powers. It confers an absolute supremacy upon the general government, commensurate with the capacities which are granted at all. It also recognizes and proceeds upon the truth that the political society which assumed thus to transfer legislative and administrative functions to its creature, had the right to make such a transfer, — in a word, had inherent and absolute sovereignty in itself.
§ 99. It should be noticed also that this affixing the character of absolute supremacy to the laws of the United States, made in pursuance of the Constitution, is not confined to the direct legislation of Congress. According to the political organization which we have in common with England, a portion only of the actual law-making is done by the Congress or the legislature. The courts are also possessed of a function not only to expound and apply rules already known and recognized, but in reality to enact others whenever a proper occasion may arise in the decision of cases before them. A very large part of the law which regulates the affairs of business and the private rights of persons, has never received the sanc- 1 Constitution, Art. VI. § 2.
tion of the legislature, but has found its sources and authors in the independent judiciary.1 The judgments of the United States courts, expounding a statute, construing the Constitution, or adding a new rule to the vast body of judicial legislation within their especial jurisdiction, are as much laws of the United States as the formal acts which have been passed by Congress and have received the assent of the President. The character of supremacy belongs to all these; the language of the Constitution is general, and includes every form and species of legislation which can exert a binding force upon the citizen. This is a truth which most writers have either entirely overlooked, or have failed to consider with the care that its importance demands.
§ 100. Interpretation of the Tenth Article of the Amendments. — The force of the constitutional provision which we are considering (Art. VI. § 2), is not at all weakened by the tenth article of the Amendments, when the latter is correctly read and understood. This amendment is in the following words: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." That a true construction may be put upon this amendment, it should be read in connection with the one which immediately precedes it, and which was adopted at the same time, as follows: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people."2
§ 101. The tenth article just quoted is often assumed to be a clear recognition of the former sovereignty of the separate states; but nothing can be more unfounded and fallacious than this claim. Those who insist upon this meaning must alter
1 See Pomeroy's Introduction to Municipal Law, Part I. chap. iii., where this subject of judicial legislation is considered at large.
See also Austin's Province of Jurisprudence, Vol. 2, Lects. XXXVII. and XXXVIII., in which the character of judicial decision as law is demonstrated, its peculiarities explained, and its merits and demerits, as compared with statute law, are set forth. The theory of Blackstone, that courts only declare what has always been law, and do not create, is conclusively shown to be not only false, but absurd.
2 Ninth Art. of the Amendments.
the language, and read it as though the reservation of powers were made by the states and not to them. The clause should be compared with the second of the Articles of Confederation, which reads: "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not expressly delegated," &c. The change of prepositions in the tenth amendment would apparently be a slight one, but it would be mighty in import and results. Powers are said to be reserved; and it is plain enough to whom the reservation is made, — to the states and to the people. This provision, however, does not tell us by whom the reservation is made; that fact must be gathered from the history of the nation, from the whole tenor of the Constitution, from its entire scope and design, and from its preamble. The body which conferred portions of its powers upon the government which it had created, is alone capable of reserving the residuum to itself, or to any other body. This single political society which confers and which reserves is the people of the United States, the nation itself. By reading the two amendments together, this meaning is made plain. The ninth article speaks of rights retained by the people; the tenth, of powers reserved to the states. The former recognizes the people as the one source of all power, as they could not retain what they were not before possessed of; the latter speaks of some powers which had not been conferred by the people on its general government, as allotted to the states. The former points out the giver; the latter, the recipients.
I remark, in passing, that the term "United States," in the tenth amendment, plainly describes the government established by the Constitution, and not the political society which lies back of that organic law, and which was its author. The same term is often applied to both these subjects, although the Constitution generally uses the word "people" to designate the latter.
§ 102. II. The Status of Citizenship. — The Constitution recognizes our nationality by assuming that the status of citizenship, and the consequent duty of allegiance, exist independently of that instrument. In this, the present organic law is in
bold contrast with the Articles of Confederation. Were our government a mere federation of equal, sovereign states, united for certain purposes of administration, there could be no real nation and no citizenship. The status of the citizen had been clearly defined, and the word had attained a definite meaning, long before our fathers employed it in the Constitution. It implies a political society, — a nation, — of which the individual is a member, to which he owes allegiance, and which is bound to give him protection. Now, it is to be observed that, while the Constitution nowhere in terms defines the status of citizenship, or declares what persons shall be admitted thereto, it does assume its existence, and provide for all the consequences that flow from the relation; the general government has exclusive power to admit persons of foreign birth to that condition; while the article in relation to treason1 recognizes the duty of allegiance, for the essence of the crime of treason is the violation of allegiance. The word "allegiance" is fruitful in meaning. Etymologically it is the binding of the citizen by a chain of duty to the body-politic of which he is a member. It therefore implies a nation and his own membership thereof. Senator Mason, of Virginia, and other partisans of state sovereignty, were strictly logical in asserting that they owed allegiance only to their own commonwealth, and not to the United States.
§ 103. III. The Proprietorship of Public Lands. — The Constitution recognizes our nationality in providing for the ownership by the United States of all new, unappropriated public lands within the borders of the states and territories.2 The King of Great Britain is said to be the ultimate owner of the soil, and is the proprietor of all the domain not allotted to private holders. The United States succeed to his title. During the Confederation, while the idea of nationality was obscured, the states separately ceded to the general government whatever title had been claimed by either of them to all unappropriated Western lands, and only retained the proprietorship of that within their immediate territorial limits. This title has been continued, and has been extended over all sub- 1 Art. III. Sec. III. 2 Art. IV. See. III. § 2.
sequent acquisitions by purchase or conquest. Nor does the ownership pass from the United States, and vest in a particular state, when the latter becomes organized as a separate commonwealth, throws off its territorial character, and is admitted as a state into the Union; but the nation retains its property, and from it must all private purchasers derive their rights. This original and paramount dominion in the newly acquired soil which may be added to the territory of the country, is a high attribute of sovereignty, and indicates that the United States is an independent body-politic, and not a mere agent to carry on certain governmental acts.
§ 104. IV. The Legislative Powers. — The Constitution recognizes our nationality in the essential character of the legislative powers that are conferred upon Congress. It will be remembered that it is not the number, but the extent, of these powers which stamp them as national. The people have all powers; they may retain some dormant; they may delegate others to the general government; they may permit others to be exercised by the separate states. Now, it is evident that those which they have entrusted to their immediate agent — the general government, which represents the whole nation — are of a far higher class, more imbued with the essential attributes of sovereignty, than those which they have permitted to be exercised by the state governments, which represent local and partial communities. What are some of the more important of these powers which the Congress may wield and enforce against the individuals who compose the total aggregate?
§ 105. Those which are held exclusively by the United States, or, in other words, which are denied to the separate states, are the following: The regulation of commerce; the admission to citizenship by naturalization; the coining of money;
the establishment of post-offices; the granting of patent and copy rights; the declaring of war; the raising and support of armies and navies, and the government of the same. In addition, the Congress has unlimited power to lay taxes of all kinds, — some to the exclusion of the states, — as duties on imports; others in connection with the states; with the further
prerogative that the taxing power of the general government is superior and paramount, and must first be satisfied before the local commonwealths can put into operation their subordinate function of taxation. Finally, the general government is to be the sole judge of what particular measures are fit, proper, and necessary in order to carry these general grants of power into practical execution. I have not here enumerated all of the legislative functions of the United States Congress, but only noticed those most important for the purposes of the present inquiry.
§ 106. The mere recital of these tells its own story. Can that political society possess any attribute of sovereignty, which is forbidden to wage offensive or defensive war, and thus to maintain its own existence; and which is unable to raise and support an army or navy; and which is deprived of the right to coin money; and which possesses no control over commerce; and which must exercise its power of taxation in subordination to another body-politic? To predicate sovereignty of commonwealths debarred from these functions, is to ignore the meaning of terms and the nature of attributes.
§ 107. V. The Executive Powers. — The Constitution recognizes our nationality in the essential nature of the powers conferred upon the Executive. He is the commander-in-chief of the forces of the United States, and, as such, has the entire, exclusive control and direction of war, after hostilities have been declared and armies and navies raised by Congress. He, with the advice and consent of the Senate, must enter into all treaties with foreign countries, and appoint all important officers in the general service. He holds intercourse with other nations through means of ambassadors. Finally, he is charged with the duty of executing all laws of the United States. These are attributes of independent sovereignty, capable of being conferred on an official only by the political society in which that sovereignty resides.
§ 108. VI. The Judicial Powers. — The Constitution recognizes our nationality in the essential character of the powers conferred upon its judiciary. Many of these are exclusively held by the courts of the nation, and are commensurate with
the legislative functions granted to the government. I need now refer but to a single one of the judicial powers, but that one is of the utmost importance. As the Supreme Court has jurisdiction in all cases arising under the Constitution, the laws of the United States, and treaties made under their authority, it follows that this tribunal is the final interpreter of the Constitution and of all laws and treaties made by the United States, and of all laws made by the several states so far as they conflict with the organic law; and its decisions, forming a part of the great body of unwritten jurisprudence, are the supreme law of the land. State constitutions and laws, as well as acts of Congress, may be reviewed, questioned, condemned, and declared null and void by the national judiciary. No other court in the world is clothed with such functions.
§ 109. VII. Finally, the Constitution recognizes our nationality in providing means for the sovereign people to make amendments in their organic law. This power of amendment, when exercised in the appointed manner, is absolutely unlimited. Article V. explains the methods which must be followed by the people in availing themselves of this inherent and absolute control over the fundamental law. "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 a part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year 1808, 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."
§ 110. Here is no limit upon the power of amendment, but only upon the modes in which that power shall be exerted. The proviso with which the article closes, plainly implies that
amendments may be adopted which oppose further and greater limitations upon the several states, than those under which they now hold certain restricted legislative functions. It may be remarked, in passing, that the first eleven articles of the amendments, which were adopted almost immediately after the establishment of the present government, are all restrictive of the powers of that government, while the last amendment abolishing slavery is restrictive of the powers of the states, and enlarges those of Congress.
Whatever was the political society that formed the Constitution and government for itself, may change that Constitution and government. This is a proposition self-evident. I need not repeat the reasons which have been already advanced to show that the one people of the United States, — the nation, — is the sole author of this scheme of organization.
§ 111. The people, if they were the original authors, may decree a revision. If, on the contrary, the separate states were the original creators, they alone can remodel their work, and no one of them can bind the others: each has only authority within its own jurisdiction; the very idea of sovereignty excludes any power in another body-politic to limit the functions of a state against its consent. We find, therefore, that those who have opposed particular amendments — as the one abolishing slavery — on the ground that they were beyond the authority of the people to make, have been compelled to place themselves on the dogma of state sovereignty, as the sole foundation and support of their position. But the Constitution in this very article recognizes the fact that states may be brought under the sanction and obligation of an amendment, without their assent, and even with their decided opposition; and thus another is added to the many features of our organic law, which are utterly inconsistent with any assumed sovereignty in the separate commonwealths. For, granting the correctness of the theory that the several states were once political sovereignties, and that each surrendered a portion of its inherent powers to the general government, such surrender would go no further than the express
provisions of the Constitution; as to all other matters not reached by that instrument, their sovereignty would remain intact. By this theory, then, it is entirely impossible that three fourths of the states can compel the remaining one fourth to give up a farther portion of their attributes, contrary to their will.
§ 112. But our nationality does not need to be supported by arguments so apparently technical. It rests secure on the broad ground that the one people made, and they alone can unmake; that they reared the original structure, and have full power to enlarge and extend it. The capacities residing in them are boundless; their will, under God, is supreme;
Constitutions and governments are their instruments and servants, not their masters.
§ 113. Nor is the force of this general truth weakened in the case of our own nation, by the carefully arranged formulas according to which the people must proceed to ascertain and record their sovereign will in any attempt at amendment. As all power originally and now resides in the one body politic, that society had, among others, the attribute of determining the means and methods by which alone it could effect, in an organized and lawful manner, a revision of its organic law;
of marking out the channel through which alone its reconstructive force could be directed. Among a thousand different schemes it had an unlimited choice; and having once chosen it could declare that this selection was irrevocable except by revolution. For revolution is nothing but the people acting above and beyond the constituted order of things, in defiance of what has been considered law, but still in pursuance of inherent powers which they hold superior to law. I am, therefore, not speaking of the right of revolution, for that is not constitutional, but extra-constitutional.
§ 114. Our forefathers, when they adopted the present fundamental law, might have declared that amendments thereto should require only the assent of a majority of citizens entitled to suffrage; or should require absolute unanimity. They Blight, on the other hand, have committed the entire subject to Congress, and thus have made our government similar to
that of Great Britain in the omnipotence of its legislature. Of the motives which led them to the very choice they made, it is not necessary for us now to inquire. It is sufficient for our purpose that they chose a certain plan, while they might have adopted any other. The form, therefore, which must be pursued, has nothing in it essential; it does not modify, limit, or abridge the powers which can be wielded by and through that form. All the separate votes of Congress and state legislatures or conventions are but the machinery that was thought serviceable for ascertaining and publishing the popular will. If the Constitution had required absolute unanimity among voters, then any amendment might have been passed by unanimous consent; if it had required only a majority of all voters, then any amendment might have been passed by such majority; if the reconstructive power had been committed to Congress, as representatives of the people, then any amendment might have been passed by Congress. The fact that the people are now to be consulted, not in the aggregate, but as they are collected into local communities or commonwealths, does not affect this unlimited power of revision;
for there was nothing which compelled the adoption of this particular method, it was only chosen from motives of expediency.
§ 115. The result of this discussion is, that the People of the United States, by virtue of their inherent, absolute attributes as a nation, may, by following the order prescribed in the Constitution, adopt any amendments thereto, whether such changes would enlarge or diminish the functions of the general government, whether they would widen or contract the scope of state legislation. Nay, it is possible that the idea of local self-government, which underlies our present civil polity, might be entirely abandoned, and the plan of complete consolidation substituted in its stead; even a monarchy might be reared in the place of the present republic. It is true that the people have placed an almost insurmountable obstacle to such action on their part, for they have required a species of unanimity as a prerequisite to a reconstruction which should destroy the states as distinctive elements in our political organ-
ization. "No state, without its consent, shall be deprived of its equal suffrage in the Senate." God forbid that the people should ever be led to give up the safeguard of the local commonwealths, the idea of local self-government which has been to England and to us the life of liberty. God forbid that the people should ever import the imperial policy of consolidation, which has made France the sport, now of a despot, now of a mob, at Paris. I have spoken, not of what is probable, but of what is possible.
§ 116. Legality of the amendment abolishing slavery. — In the present connection it is proper to examine briefly the legality of the late amendment abolishing the status of slavery. While the measure was in the form of a proposal before Congress and the people, it was opposed on the ground that it was unconstitutional; that three fourths of the states could not make it binding upon the dissenting one fourth. Since its adoption, there has still remained a feeling in some portions of the country, there has still been expressed an opinion by certain public men and jurists, that it is a mere nullity. These facts furnish an ample reason for dwelling a moment upon the subject.
The amendment is as follows: "Article XIII. of the Amendments: Section I. Neither slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or in any place subject to their jurisdiction. Section II. Congress shall have power to enforce this article by appropriate legislation."
§ 117. The most important objection to the legality of this additional article of the Constitution which has been urged by its opponents, will be found, when examined, to rest upon a denial of the national supremacy, and an assertion of state sovereignty. It is urged, with most logical accuracy of deduction from the assumed premises, that as each state is originally sovereign, its inherent attributes and capacity cannot be any further limited or restrained without its consent; and that as the Constitution is the work of the independent supreme states, the provision as to amendments must be confined to
changes in the detail of the organization, or at all events to such changes as do not interfere with the rights and powers of the local commonwealths.
I need not repeat the argument which has already been advanced against this entire theory. If the national theory be the correct one, this amendment is plainly within the power and capacity of Congress to propose and people to adopt.
§ 118. But certain opponents of the measure seem to have joined to their general denial of authority in the people, a special denial in this case, grounded upon the assumed peculiar character of the institution of slavery. They have urged that it is a domestic institution of the states, and is therefore beyond the reach of the nation even in the exercise of its reconstructive functions. Now it is true that all rights which flow directly from state legislation are in exactly the same sense domestic; and unless all such are absolutely secure from limitation and restraint by a constitutional amendment, there is no special element of domesticity in slavery which can protect it. Slavery derives its existence solely from state laws;
so also do the rules which regulate the status of marriage, the ownership and descent of lands, the execution of wills, the administration of the estates of deceased persons, the jurisdiction of local tribunals, the creation of local corporations, the determination of what persons may vote for members of the lower House of Congress, and a thousand other rights, duties, and capacities. Do not all of these subjects rest upon the same foundation, and are they not all finally subordinate to the higher power of the one body politic? The lawfulness of an amendment cannot be doubted which would take away the present right of the states to prescribe the qualifications of congressional electors, and transfer the control over that matter to Congress. No one except a partisan of state sovereignty will deny that the people may withdraw from the separate commonwealths all power to create banks, and may commit the currency entirely to the care of the general government. If it were thought expedient, an amendment might plainly be adopted giving Congress the power to establish throughout the county uniform rules respecting marriage, the ownership and
descent of lands, the execution of wills, the administration of estates. Such a change would only introduce provisions of the same general character as that which now confers the right to establish uniform rules respecting bankruptcies, and many strong reasons of convenience could be urged in favor of the step. But marriage, ownership, succession, and the like, are as clearly domestic in their character as slavery; because they relate to individuals in their private, and not in their political capacities, and because they are at present regulated by state laws alone. Indeed, those who intelligently deny the power of the people to adopt the amendment abolishing slavery, must fall back upon the view which considers the separate states as originally and now sovereign communities, in whose policy and functions no change can be made without their own consent. The denial of power to amend would, therefore, extend to many other subjects besides the institution of slavery.
§ 119. I have now finished the first general division of the subject, and have answered the question proposed at the outset, What is the Constitution, and by whom was it created? I think that it has been demonstrated from the history of the country, from the controlling provisions of the instrument itself, and from the dormant powers which it recognizes as existing in the people, that the Constitution was created by one indivisible nation, one civil society possessing political sovereignty — the people of the United States, — and that it is the organic law of that nation.
§ 120. I hardly need apologize for dwelling so long and so minutely on this theme. The important lesson in which the public mind now demands to be instructed, is that of our own inherent nationality. It cannot be denied that an attachment, a devotion to the Union, pervades the great mass of citizens. The blood which has been poured out, the treasure which has been expended, the burdens which have been cheerfully assumed, abundantly attest this fact. But this has been rather the result of a sentiment, than of an enlightened conviction The sentiment is powerful in impelling to action, but it should be rooted in a deliberate opinion. For many years prior to the late war the claims of the states to supremacy had been
persistently advanced; the true theory ignored; the teachings of our fathers forgotten. This process had wrought its complete results in the Southern States; that it had not done the same in the Northern, was not owing to any lack of endeavor. Now, when it is universally conceded that the extreme theory of state sovereignty is, as a fact, overthrown; now, while old things are passing away, and we are in the midst of a general awakening to our higher and better interests, should the true ideas of nationality be deeply impressed upon the public consciousness.
PART SECOND.
IN WHAT MANNER AND BY WHOM IS THE CONSTITUTION TO BE AUTHORITATIVELY CONSTRUED AND INTERPRETED; OR, THE MEANS AND COMBINATIONS FOR ASSURING THE OBSERVANCE OF THE FUNDAMENTAL LAW.
§ 121. IT was shown, in the Introductory Chapter, that the study of Political Law involves not only the questions, In whose hands is placed the exercise of governmental powers? and, To what laws is this exercise subjected? but also the question, By what means and combinations is the observance of these laws assured?1 In other words, this department of jurisprudence includes the formal organization of the government, the distribution of powers and functions, and the checks and sanctions by which officials are kept within the limits assigned to them. I now proceed to a brief examination of the last of these questions.
§ 122. The Constitution of the United States is a Law, issued by the Supreme Power in the nation, — the people, as a collective political unit. This law, thus uttered by the people in their sovereign capacity, is, in some respects, addressed to and binding upon the individual members of the body politic; in most respects, it is addressed to and binding upon the different classes of officials who make up the government. Now, that an utterance of the Supreme Power may have a compulsive character, that it may truly be a law, there must be connected with it some sanction, some means of insuring obedience, of protecting the rights and enforcing the duties which it creates. Without this sanction, it would lose all the elements of a command, and become a mere request. This principle, which is confessedly true of ordinary legislation directed against the individual members of society, is no less true of the organic law directed against the govern-1 See § 10.
ment itself. A sanction mast be connected with the latter as well as with the former. The great difference in the nature of the two classes of laws, in the persons to whom they are addressed, and in the acts or forbearances which they enjoin, must, of course, involve a corresponding difference in the sanctions appropriate to them. As the Constitution enjoins political acts and forbearances, the means for enforcing these commands will be, in a great measure, political. Since official persons, whether their functions be legislative, administrative, or judicial, must, from the very nature of their position, be clothed with an ample discretion, the ordinary punishments of the criminal law would be very inappropriate to restrain them within their prescribed limits of action. Should the transgression, however, be, not a mere mistake in the exercise of discretion, but wilful, intentional, or corrupt, there is no reason why the official person should not incur and suffer the same kind of penalties that are inflicted on private offenders. But the civil society which has constructed a government, and carefully denned the limits of the political powers which can be exercised thereby, may be as deeply injured by the honest misconceptions, the well-meant transgressions of its agents, as by their wilful and corrupt usurpations. Some remedy, therefore, must be provided for these violations of the organic law, these political acts which, though not wilful, are unwarranted by the Constitution.
There are three kinds or classes of sanctions which may be applied to the persons who compose the government, and by which a due observance of the provisions of the Constitution may be procured. (1) A civil officer may be impeached when his transgression is wilful, or corrupt. (2) The ordinary punishments of the criminal law may be inflicted when the transgression is made a crime. (3) The political act which is beyond the limits of power defined in the Constitution may be judicially pronounced a nullity. The first and second of these sanctions are personal penalties inflicted upon the offender, and do not affect the nature and quality of the act which he has done; the third is not a personal punishment, it is not directed against the official, but attaches to the
act which he has done, and deprives it of any validity. If this act is in the form of a statute, it is void, creating no rights and duties; if in the form of an administrative measure, its political character is gone, and it becomes a mere private trespass.
§ 123. To apply these sanctions, and especially the third, the Constitution must be interpreted. In order to ascertain whether any political measure is in excess of the powers conferred upon the government, the number and extent of those powers must be fixed in an authoritative manner. Unless there exists some means of determining the meaning of the organic law, and thus of furnishing a criterion which may be applied to the acts of official persons, all attempts to enforce that law and restrain its violations would result in confusion. The first point to be examined, therefore, is, whether the Constitution can be authoritatively construed and expounded, and if so, by whom?
§ 124. This question must be divided, and its complete answer involves two others. 1. Does the function of interpreting and construing, in a final and authoritative manner, reside in the United States as a body politic, or in the separate states? And 2. Does it reside in all the departments of government, or in some one of them? These latter inquiries are entirely distinct; neither involves the other. It may be conceded that the authority in question belongs to the nation, to the exclusion of the states; but it does not necessarily follow that it is committed to any particular department of the government, or that it is shared in common by all.
The discussion of these two branches of the general subject, must, therefore, be kept distinct.
§ 125. I. Does the function of interpreting and construing the Constitution in a final and authoritative manner, reside in the United States as one body politic, or in the separate states? I need not dwell upon this portion of the theme in any extended manner. The course of reasoning which has been thus far followed applies here with equal force; and the conclusions that were reached through that reasoning are a definite answer to the present inquiry. If the Constitution of these United
States was formed by one self-existent political society, by the one people of this country, in virtue of their inherent attributes of sovereignty, then it follows, as a matter of course, that the capacity to interpret, construe, and give force to the provisions of that organic law, must exist in and through them;
that the government which they have organized and set up, must have sole jurisdiction to pronounce upon the extent and character of the powers delegated to it by its own authors.
§ 126. In truth, as a practical fact resulting from the nature of our institutions, the people themselves, the aggregate of individuals who compose the body politic, are, through their electors, the final arbiters who must judge of the acts of their national rulers, and give construction to the instrument which they themselves have framed. All questions both of power and policy must finally be resolved by them. In the course of time their will becomes represented in all departments of the government, and is felt in all proceedings of that government. There are times, indeed, when the constituted authorities do not reflect the present thought and wish of a majority of the citizens; and the whole scheme was so contrived with checks and balances, that the governmental action should be steady, the changes gradual, the progress uniform. But elections are so frequent, and all officers, whether elective or appointed, so completely derive power from their constituents, that in the long run the deliberate conviction of the nation is executed by their agents. However much we may theorize, this is a fact which cannot be gainsaid or avoided. It is a fact which gives a practical and complete answer to the claims of state sovereignty, and the schemes for state aggrandizement and independence. Our whole history testifies to this inherent capacity of the people to interpret their own organic law.
§ 127. But while the people are thus the final judges, their decision can only be made by and through the government which they have ordained and established. This nation is not a democracy, and the constituted order of things must be strictly observed in all political acts. The government, through some or all of its departments, although it draws its inspiration from the people, is the sole actor in giving force and effect to
the popular will; it is the proximate interpreter of the Constitution; it practically decides as to the extent and character of the powers which it may wield. If the people are dissatisfied with the judgment, they put other persons in the place of those rulers who have failed to represent the nation's wish; a new policy is inaugurated, and the error is thus corrected. In the two great political departments, the Legislative and the Executive, this change can be speedily made, and Congress and President readily brought into accord with the people. In the judicial department the process must be slower, but it is none the less finally certain; judges, though appointed for life, will, at last, utter the opinion of the nation upon questions of constitutional power. The courts are a balance-wheel; they give steadiness to the progress; they equalize the development;
they cannot be a barrier in the way of all onward movement.
§ 128. To these general propositions all schools of theorists assent, except the ultra partisans of complete state sovereignty and independence. Madison, Jackson, and Taney, are as strong and pronounced in their opinion that the general government possesses the sole capacity to interpret and expound the organic law finally and authoritatively, and that whatever function may belong to the states is subordinate and auxiliary, as are Hamilton, Jay, Marshall, or Story. It is the settled conviction of the country; a dogma which has been so generally accepted that it has passed into the common law of the land, in accordance with which the action of the national and state governments has proceeded with few interruptions. None but those who have accepted the teachings of Mr. Calhoun as the true exposition of our civil polity, have formally denied, or do now formally deny, this proposition. But, as has already been stated, these disorganizing views of Calhoun and his disciples have never been controlling in any department of the United States government, nor in many of the separate states.
§ 129. It is true that there have been a few exceptions to the almost uniform acquiescence of the local commonwealths to the claim of the United States to this branch of paramount sovereignty, even before the breaking out of the late war. A
few of the states, at an early period of our history, under the influence of political leaders who were opposed to the general government, declared their opinion by formal resolves, that the power of interpretation and construction resided alone in themselves. These expressions of opinion, however, were mere brutum fulmen; they were generally repudiated at the time; they led to no practical results; they did not impede the harmonious working of our Institutions.1
§ 130. In a very few instances, prior to the late war, certain states, by some one or by all of the departments of their governments, formally resisted the authority of the nation to decide upon its own powers. The three most notable of these attempts will be mentioned. One was the Nullification Ordinance of South Carolina, which I pass by with this simple reference.
Another occurred during the presidency of General Jackson. The State of Georgia had passed certain laws respecting the Indian tribes within her territory, forbidding, among other things, any communication by white persons with such Indians except in the manner authorized by those statutes. Two missionaries, deeming this legislation to be in contravention to the Constitution of the United States, and therefore null and void, did have communication with the Indians in the prosecution of their calling as religious teachers. For this offence they were tried by Georgia courts, condemned and punished. Attempting to bring their case before the Supreme Court of the United States to be reviewed, the state government of Georgia at first refused to recognize the jurisdiction of that national tribunal; and after the Supreme Court had heard and decided the cause, pronouncing the law in question unconstitutional and void, and the imprisonment of the parties illegal, the state still refused to be bound by the judgment, and, in fact, never did yield to its authority.2
1 See the "Virginia Resolutions of 1798," and the answers thereto of Delaware, Rhode Island, Massachusetts, New York, Connecticut, New Hampshire, and Vermont. Elliot's Debates, Vol. 4, pp. 528-539.
See also, especially the "Kentucky Resolutions of 1798 and 1799." — Ibid. p 540.
2 Worcester v. The State of Georgia, 6 Peters' R. 515.
§ 131. The last instance which I shall notice occurred in our own times. A case arose in Wisconsin which grew out of the Fugitive Slave Law. An United States marshal had been engaged in arresting a person claimed as a fugitive slave, and was brought before the state courts in a proceeding wherein he relied upon the statute of Congress as his justification. The Supreme Court of Wisconsin decided that the act called the Fugitive Slave Law was unconstitutional and void. An attempt having been made to carry the case to the national court for review, the judicial authorities of Wisconsin held that their own action was final, and refused to obey the mandate from Washington.1
§ 132. Whatever opinion we may have in regard to the policy of Georgia's treatment of her Indian tribes, and of the expediency, morality, or even validity of the Fugitive Slave Law, we must insist that both these states acted in a revolutionary manner. If they were right, our whole political fabric has no coherence; is nothing more than a heap of sand, to be disintegrated by the slightest force that can separate the component particles. But these instances are exceptions only, never in future, let us hope, to be followed.
§ 133. While the doctrine is insisted on with the utmost emphasis, that the capacity to interpret and construe the Constitution in a final and authoritative manner belongs alone to the nation, to be exercised through its imperial government, it is not contended that the several states do not possess the same function in a subordinate and auxiliary manner. In fact, it is absolutely necessary that each commonwealth should, in many instances, primarily give a construction to the national organic law. This may be done either implicitly by their legislature in enacting, and by their governor in executing, a statute, or expressly and formally by their judiciary in passing upon the validity of such statute. For the Constitution, in many particulars, speaks directly to the states as political societies, limiting their legislative powers, and restraining them from adopting certain classes of laws. The question whether a proposed statute is forbidden by the Constitution must then, 1 Ablemann v. Booth, 21 Howard's R. 506.
in the first instance, be presented to the state legislature; the question as to its validity when passed, may, in the first instance, be presented to the state courts. While the function of interpreting the organic law of the United States belongs, therefore, to the states, its exercise by them lacks the element of finality, of conclusive authority; their determinations may be reviewed, disregarded, and reversed by the general government.
§ 134. II. Does this power reside in all departments of the national government, or in some one of them?
Although it has thus been settled as a part of our civil polity, that the United States possesses the sovereign attribute of giving effect to its own Constitution, there has been more conflict of opinion in times past — and that conflict still exists to some extent among theorists — in respect to the question, what department of the general government is the final depositary of this power to interpret and expound the organic law, and to define the extent and character of the functions committed by the people to their national rulers, and to the several states. It has been urged by some that each department — the Executive, the Legislative, and the Judicial, — is, in this respect, entirely independent of the others; that each must decide, in regard to its own powers, for and by itself, and is not in the least controlled by the decisions and judgments of the others upon the same questions.
It has been held by others, that the Judicial Department, the Supreme Court, is, from the very nature of its official powers and capacities, the final arbiter; and that its decisions are binding, not only upon the parties to suits litigated before it, but upon the several states, and upon the Executive and Congress.
§ 135. This latter opinion has practically been adopted and acted upon by the government and the people from the commencement of our present organization. In the great majority of instances, Presidents and Congresses, as well as states, have yielded to the expositions of law as uttered by the national judiciary. So constant has been this practice, that it forms the rule; any deviations from it have been exceptional, rather
the results of individual opinion, than of any settled and definite policy.
I might rest my preference for the doctrine that the national Judiciary alone is clothed with the high power which it has exercised, upon this general assent; but the correctness of that position can be established by considerations drawn from the Constitution, and from the nature of our government, which seem to be absolutely irresistible.
§ 136. Mr. Jefferson announced the principle that each department of the government was the sole judge of the extent and character of its powers under the Constitution, — or, in other words, was an independent interpreter of that instrument. In his private and public political writings he advocated this view with great earnestness, and acted upon it, in some instances, while President. After him, President Jackson reiterated the same dogma, brought it into bold relief, and based much of his official action upon it. I cannot but believe that the opinion adopted by these eminent men was in very great measure the result of personal qualities and temperament. The whole course of Mr. Jefferson's public life, and especially his private correspondence, show that he was bitterly hostile to the national judiciary from the very commencement of our Union. He was decidedly in favor of a form of government more democratic than ours, and looked upon the checks and balances contrived to restrain the action of the more immediate representatives of the people, with no favor. Mr Jackson possessed an iron will and determination, and was unable to yield his own opinions to those of another. In our own times the dogma under consideration has been asserted by some public men and political writers who are warm partisans of the intrinsic and absolute nationality and sovereignty of the United States. Most of these gentlemen, however, belong to a school which is disposed to unduly exalt the Congress above the other coordinate departments of the government. None of these theorists would probably admit that the President had an independent and equal capacity with Congress to interpret the Constitution and to judge of the validity of a statute This modern school — for the ideas they represent are new
in this country, — would raise the Congress to a position equal in power to that of the British Parliament, would reduce the Executive to the political level of the British Crown, and entirely destroy the Judiciary as a coordinate department of the government. It seems to be plain, to be, indeed, self-evident, that if the conclusions reached by Jefferson and Jackson should be adopted as practical guides in the administration of public affairs, our whole organization would at once fall in pieces; but that if the later notions as to the sole authority of Congress should be accepted, the government would rapidly change into an irresponsible tyranny, for the legislature would not be restrained by those deep rooted and ancient social and traditionary sentiments which are so strong a conserving power in Great Britain.
§ 137. The national government is composed of three separate departments, to each of which is confided a distinct class of functions and duties. Yet it is not in accordance with the truth to say that each is independent of the others. Each is so completely dependent on the others that without them it could practically do nothing. Congress is to pass laws, but not to execute or expound them. It is the province of the President to execute, but he cannot make. The Judiciary must expound, and apply to particular individual suitors, but can neither make nor execute. Each is therefore a complement of the others. Of these three classes of functions, that possessed by the Congress is undoubtedly by far the most important and efficient, affecting more immediately the interests of the people. That body holds the initiative in almost all public affairs; the President cannot execute, nor the Judiciary expound, a law until Congress has acted. The legislature must, therefore, in the very exercise of the capacities bestowed upon them, expressly or tacitly pass upon the meaning of the Constitution, and the extent of the powers they may wield. Their decision must be regarded as primâ facie correct, and must stand and be enforced by the Executive until the Judiciary shall have pronounced it wrong, and the statute a nullity. The independent power of the President would seem to be limited to the exercise of his veto, by which he
may call the Congress to a second examination of the proposed measure, and require the unusual majority of two thirds to give it a compulsive character.
§ 138. What ruinous, destructive consequences would immediately result, if it should be practically admitted that the several departments might independently judge and decide as to the extent and character of the powers conferred by the Constitution! The collisions would as readily and as often arise between the Executive and the legislature as between either and the Judiciary. To illustrate: Congress passes a statute, which the President, deeming unconstitutional, vetoes. It is passed again, notwithstanding his objections, and thus becomes a law. The duty devolves upon the President to execute this law; but he, still regarding it as contrary to the provisions of the Constitution, and judging thereof independently, refuses to carry it into operation, although perhaps the courts may have pronounced it valid, and have adjudicated upon rights created by it; the law is thus made a dead letter. How often must such circumstances arise to render the government an object of contempt, rather than of veneration and love?
§ 139. Again: Congress passes a statute which is approved by the Executive. Certain individuals, affected thereby, bring their case before the Supreme Court for examination. The law is decided by that tribunal to be null and void. This decision is admitted by all theorists to be binding upon the immediate parties to the suit in which it is rendered, so that they are released from the obligations of the law. If it be not also binding upon the government, we then have the astounding anomaly of Congress and the President insisting upon the validity of a statute which is obligatory upon those persons alone who may choose to assent to it; while all persons who refuse that assent, and bring their cases before the supreme tribunal, will be relieved from the duty of obedience. In other words, this law would be entirely deprived of all sanction; it would become a mere request; no obedience could be enforced; every recognition of its authority would be voluntary; the distinctive and essential element which constitutes law would be utterly lost.
§ 140. Such cannot be the true meaning of the Constitution. Our fathers never prepared for us such a mockery of government. No one but an impracticable theorist or a headstrong dogmatist would ever have thus read and understood the organic law. The calm good sense of the people has led them to the true doctrine, and in that they rest content, and in that their rulers must also continue.
§ 141. There must, therefore, be some judge, some single umpire, to whose arbitrament the government as well as the citizen are subject.
The very nature of the whole Constitution as a written grant of certain limited powers, as well as definite provisions of that instrument, show that this umpire can only be the Judiciary. The American Constitution is not, like that of Great Britain, traditional and elastic, consisting only in the acts and precedents of Parliament, which that legislature may either follow or avoid. It is a fundamental statute of the whole people, passed by them in their organic capacity, binding upon themselves and upon all the agents which they have set up and clothed with limited functions. Beyond this statute neither Congress nor President can lawfully go; going beyond, their acts are nullities and not laws. This is a position universally conceded.
§ 142. Now, it is a part of the essential province of the Judiciary, exercised without question not only by the courts of Great Britain and of the United States, but by those of every country possessing a systematic jurisprudence, to explain, expound, construe, and interpret statutes. It is their duty to determine what rights and obligations arise from these written declarations of legislative will; to declare upon whom and to what extent they confer rights, and upon whom and to what extent they lay obligations. It is a part of the same function which empowers the courts of this country to adjudicate upon the written constitutions of the nation and of the states. It is true that the jurisdiction is more momentous, more fraught with consequences for good or evil, demanding more ability, learning, and integrity, than the mere interpretation of ordinary statutes; but only so because the parties to
be affected are not simply private individuals, but organized governments; the rights and obligations to be ascertained and enforced are not those which belong to or rest upon separate citizens, but those which belong to and rest upon the constituted rulers. There is no difference here in kind, but in degree.
§ 143. It is true that the courts of Great Britain do not possess this high attribute, but only because there is no written British constitution superior to Parliament. The powers of that legislature are not limited; the constitution is, in effect, what Parliament may at any time pronounce it to be. It is not possible, therefore, that a question should arise whether, in the passage of any statute, Parliament has exceeded its powers. In our civil polity, this jurisdiction of the Supreme Court plainly results from the very nature of our organic law as a fixed written statement and enumeration of certain rights and powers conferred upon the general government; from the fact, in short, that it is a fundamental statute, which must be expounded and interpreted by the Judiciary in the same manner and for the same reasons as any other enacted law.
§ 144. But we may go beyond the general nature of the whole instrument, and refer the power of the Supreme Court as final arbiter to express provisions of the Constitution which recognize or create such a function. Article VI., Section 3, declares that "this Constitution, and the laws of the United States which shall be made in pursuance thereof, ... shall be the supreme law of the land." It was shown in a former chapter1 that the term "laws of the United States," in this section, is not confined to statutes of Congress, but includes every thing which has the binding efficacy of law, the unwritten or judicial as well as the written or enacted; and therefore embraces the decisions of United States courts upon subjects which are specially, exclusively, or finally committed to their jurisdiction.
In respect to some matters, the national Judiciary has an exclusive, or at least a final, jurisdiction growing out of the very character itself of the subjects adjudicated upon. In
1 See § 99.
respect to other matters, the same courts have a jurisdiction neither exclusive nor final, but concurrent with that of the state tribunals, resulting not from the character of the subject adjudicated upon, but from the situation of the parties to suite brought before them. Of the first class are questions in regard to admiralty, to ambassadors, and many others; of the latter class, are questions touching ordinary private rights of ownership, of contract, and the like, when the parties are citizens of different states. Now, the decisions of the national Supreme Court involving subjects of the former class are "the supreme law of the land;" and, in rendering its judgments, that tribunal is always guided by its own convictions of what the law of the United States is or ought to be. On the other hand, its decisions involving subjects of the second class are not the supreme law of the whole land, but expositions of the local law of the particular state in which the controversy arose, and, in rendering them, the court always assumes to follow that law. Thus, in a suit between parties residing the one in Ohio and the other in New York, concerning lands in the latter state, the court would adopt and enforce the rules already settled by the legislature and the judiciary of New York.
§ 145. Article III., Section 2, declares that "the judicial power of the United States shall extend to all cases in law and equity arising under this Constitution and the laws of the United States." Cases of this kind which arise under the Constitution clearly belong to the first of the above-named classes. The considerations referred to in the former portion of this chapter apply here with peculiar emphasis. Over these cases the national tribunal has final control. However much the state courts may primarily adjudicate upon the same questions, their conclusions may be reviewed and set aside by the Supreme Court of the United States. Its judgments, therefore, giving construction and interpretation to the Constitution, are "laws of the United States made in pursuance of the Constitution," and, as such, are the "supreme law of the land;" and, if thus paramount, they must control the Executive and the Congress as well as private citizens.
§ 146. It might be urged that, if the national Judiciary are
to be entrusted with the capacity to decide in a final and authoritative manner upon the meaning of the Constitution, and the powers thereunder which may be wielded by the government and by the states, their interpretation would be fixed, unchangeable, unyielding to the demands of the people's progressive development; that the judicial habit of mind is such, so affected and guided by precedent and by technical methods, as to unfit them for the duty of giving construction to an instrument entirely political. There is no truth in this objection. The courts do yield to the pressure of the popular will, do move with the popular progress, slower perhaps than legislatures and Presidents, but as certainly and as efficiently. In truth, the independent judiciary in England and the United States have been the most important instruments in developing the private law so as to keep it commensurate with the wants of an advancing society. Old political precedents may be as easily disregarded as those which affect the personal rights and duties of the citizen. But it is true that the movement of the Judiciary will be generally more slow and uniform than that of legislatures and executives. This fact, instead of being an objection, is a consideration of great weight in favor of giving to the national Supreme Court the function of interpreting the Constitution. That instrument, as the organic law of the whole people, is the source of all other legislation. Its meaning should be measurably fixed and certain. Congress may readily and frequently change its policy; its work may be done under the influence of a momentary pressure; it may commit mistakes which require speedy amendment; and the consequences, though evil, are transitory; they do not reach to the very foundation of the political structure. But rapid and sudden alterations in the construction of the organic law, assumptions of powers one day which are denied the next, affect the entire body-politic; they place every citizen in a state of constant uncertainty as to his rights and duties; they produce a condition of partial anarchy. England has its traditions, its social classes, its reverence for the past, to give steadiness to political progress. We have rejected these as inconsistent with our republican institutions. If we also reject the Judi
ciary as a controlling element in our civil polity, we shall be left without any thing to give stability to the administration of affairs, to render the growth which all desire, healthy and permanent, the progress continuous and sure.
§ 147. But it is sometimes objected with more plausibility, that to concede the attribute of finally and authoritatively interpreting the Constitution to the Supreme Court, would be to exalt the Judiciary above both the other departments, to make it, practically, the only law-giving power. This objection, is, however, based upon an entire misconception. The function of the court is essentially a secondary one, inferior in every respect to that belonging to Congress. It cannot move until the legislature has acted. It cannot pronounce beforehand upon the validity of a proposed measure. It cannot proceed directly against the other departments. It must wait until a "case" be brought before it by litigant parties, and as such case may involve a construction of the Constitution, the rights and duties of these parties cannot be ascertained and declared without passing upon the meaning of the fundamental law. Important, therefore, as is the function in question, it is intrinsically subordinate to those of the legislature and the Executive. It should be remembered, also, that the Supreme Court, as a distinct and co-ordinate department, was created, and the judicial powers which it may exercise, were conferred, by the same sovereignty that created the legislature and the Executive, and endowed them respectively with their political capacities. The people could ordain and establish such agents as they pleased, and distribute functions in the manner which seemed to them best. Each department rests upon the same foundation; each wields an authority granted by the same giver; and the action of each within its appointed sphere cannot be regarded as an infringement upon the prerogatives of the others.
§ 148. I have purposely thus far refrained from citing any judicial authorities in support of the position that the national Judiciary is the final arbiter as to the meaning of the Constitution. In fact, the whole history of the Supreme Court is an authority. Every case involving a construction of the Con-
stitution, and a judgment as to the validity of a statute of Congress or of a state legislature, or act of an executive officer, is an implied assumption of the power under discussion. In several important and leading cases, the question was raised and examined by the Supreme Court of the United States with a cogency of argument which never has been, and never can be, answered. It is sufficient to refer to the very early case of Vanhorne's Lessee v. Dorrance,1 and to the cases of Martin v. Hunter's Lessee,2 and Cohens v. The State of Virginia,3 for the opinions of Chief Justice Marshall and of Mr. Justice Story, and to the recent case of Ablemann v. Booth,4 for the judgment of Chief Justice Taney. These cases should be diligently and carefully studied, not only by all gentlemen preparing for the legal profession, but by all who are preparing for the higher duties of active American citizenship, both as models of juridical learning and ability, and as statements of the principles upon which our whole political system is based. If any matter can be put at rest by an unvaried course of judicial decision, and by an almost constant assent of the Executive and the legislature, and by an acquiescence and approval of the people, the truth that the national courts are the final judges of the meaning of the Constitution, and the extent and character of the powers conferred upon the United States government and upon the several states, may be considered as established.
§ 149. It was stated in § 122 that there are three classes of sanctions applicable to official persons by which the observance of the organic law may be assured. It remains to describe, in a brief manner, the method of applying these coercive means. Two of these sanctions are personal in their nature, applied directly to the offender. The first is impeachment, which may be prosecuted against the President, Vice-President, and all civil officers of the United States for treason, bribery, or other high crimes and misdemeanors.5 The whole subject of impeachment will be examined at large in a subsequent chap
1 2 Dallas' R. 304. 2 1 Wheaton's R. 304. 3 6 Wheaton's R. 264. 4 21 Howard's R. 506. 5 Const. Art. II. Sec. 4.
ter. It is sufficient now to say that the House of Representatives has the sole power of inaugurating the proceeding,1 and the Senate are the sole judges for trying the accusation.2 It is generally conceded that impeachment is a sanction applicable not only to acts which are made crimes by the law, but also to political acts which are wilful, intentional, and corrupt, and of course, to intentional violations of the Constitution by a civil officer.
But the law regards many wilful and corrupt political acts done by official persons as positive crimes; and for these the offender is liable to be indicted, tried, convicted, and punished according to the ordinary course of administering the criminal law. This subject, however, hardly falls within the scope of constitutional law, and will be passed by without further comment.
§ 150. By far the most important means for assuring the observance of the fundamental law, is the power residing in the courts to declare a statute of Congress or of the state legislatures void, and an executive act unauthorized, when in contravention to the provisions of the Constitution. The other sanctions punish the offender, this relieves the citizen; the others do not affect the wrongful measure, this takes away its power to injure; the others look chiefly to the guilt of the official agent, this to the rights of the people. Assuming that the Supreme Court of the United States is the final depositary of this power, we are to inquire how that tribunal is to proceed in the exercise of its most important attribute. The Constitution which creates the Supreme Court, defines its jurisdiction. The exercise of this jurisdiction is confined to "cases" and "controversies."3 "Cases" and "controversies" plainly refer to the same thing, and are general words to describe the ordinary proceedings by which the contentions of litigant parties are brought before a judicial tribunal for decision. A "case" or "controversy" involves the idea of a party prosecuting in a court to establish or maintain some right or enforce some duty against another party. The Supreme Court, there
1 Const. Art. I. Sec. 2, § 5. 2 Const. Art. I. Sec. 3, § 6 3 Const. Art. III. Sec. 2, § 1.
fore, can only exert its function of interpreting the Constitution, by hearing and determining some case or controversy brought before it. The adjudication upon the rights and duties of the parties is the principal thing, the construction of the Constitution is incidental. The Supreme Court cannot, under the form of a case brought before it, interfere with the political functions of the President or of Congress. Thus an injunction could not be issued to restrain the President from enforcing a statute on the ground that it was contrary to the Constitution and void; a suit demanding such relief against the Executive would not even be entertained. The same would be true of any attempt to restrain Congress as a body, or individual members of the legislature, from passing a proposed measure. This point was expressly decided in the recent extraordinary case of the State of Mississippi v. Andrew Johnson, to which a more extended reference will be made in a subsequent chapter.
Thus the duties of the Congress, the President, and the Supreme Judiciary are kept distinct; the work allotted to each is left in its own hands; it is only the results of that action, the juridical rights and duties created by it, which can give rise to an opportunity for the Supreme Court to examine the work itself and pronounce upon its validity.
PART THIRD.
WHAT POWERS, CAPACITIES, AND DUTIES ARE CONFERRED OR IMPOSED UPON THE NATIONAL GOVERNMENT, AND WHAT ARE CONFERRED OR IMPOSED UPON THE SEVERAL STATES.
CHAPTER I.
THE LEADING IDEAS OF CIVIL POLITY WHICH ENTER INTO THE ORGANIZATION OF THE UNITED STATES.
§ 151. I NOW pass to the third grand division of the subject, which is the one of most practical importance, and in respect to which the most minuteness of detail and illustration is needed: What are the powers and capacities of the government of the United States?
In treating of this theme I shall proceed in the following order: —
First. To develop, in a brief manner, the leading ideas of civil polity which are involved in the whole complex system of political organization;
Secondly. To describe the external form of the government, and the methods by which the machinery is kept in motion;
and
Thirdly. To state and discuss the powers and functions of the Legislative, the Executive, and the Judicial Departments separately.
§ 152. What are the leading ideas of civil polity involved in the complex system of political organization, which the people of the United States has contrived?
Thus far our thoughts have been constantly directed to the nationality of the one people of the United States, and to the
capacities which inhere in them by virtue of that nationality. I have purposely refrained from speaking with any emphasis and at any length of the limitations which the people has placed upon its rulers. The division of powers and the rights of the separate states under the Constitution have been designedly kept out of view. The phrase, "rights of the states," is used advisedly. The quality of sovereignty is denied to these local communities; the term "sovereign states," I deem to be illogical, absurd, opposed to the truth of history. But, still, the states have rights as perfect within their sphere, in the present condition of our organic law, as those of the general government. Their only badge of inferiority is, that the people, if they see fit to proceed by the means of amendments to the Constitution, may abridge, or even destroy them.
§ 153. But while our fundamental law stands untouched, the powers of legislation and administration held by the several states, are derived from the same source, rest upon the same foundation, are affected by the same attribute of inviolability, as those reposed in the government of the United States. That single source, that common foundation, is the people. It is true that the powers and functions intrusted to the central organization have a wider field of activity, are, in their essence, higher and more national than those intrusted to the local commonwealths; but within their respective limits of operation, each class is uncontrolled by the other.
§ 154. Such is the plan of the entire political structure, and its wisdom and efficiency have been proved by the whole course of our history. Those affairs which are peculiarly national, which affect the body of citizens, are managed by the one central government created by the people. Those affairs which are local, which affect the individual citizen in his private capacity abstracted from his relations to the whole political society, are managed by the separate state governments which were found in existence and left remaining in existence by the same Constitution.
§ 155. The whole civil polity is thus based upon two grand ideas as its foundations and supports; the idea of Local Self-Government, and the idea of Centralization. The first was
borrowed from the tribal customs of the Saxons and other Germanic tribes who invaded Western Europe; the second is a heritage from Rome. The one is the safeguard of liberty the other the source of power; — liberty and power, two elements which should enter into every political society. The history of the world is the history of struggles between these contending forces. In a perfect State they would be so combined that there should be just so little power as was necessary to protect and guarantee the largest amount of liberty. It is a nice equation to adjust so that these variables may exactly counterbalance each other. The endeavors of the one force to rise, and of the other to repress, have checkered the annals of every people with wars, anarchy, oppression, and revolt. History points to but few instances in which an equilibrium has been reached and for any long period of time maintained. England and our own country are, perhaps, the only countries in our own age in which it can be pretended that the contending forces have settled to rest.
§ 156. A single, centralized government is necessary in order that there should be power to maintain the integrity of the nation. Local self-governments are necessary in order that there should be individual liberty enough to meet the encroachments of the central power and maintain the freedom of the citizen. As political writers have regarded the one or the other of these results the more important, they have favored the one or the other form of administration.
Jefferson was, in theory, a passionate lover of liberty, and he was fearful that the Constitution gave too much scope to the national rulers. Other public men of a former day dwelt more on the necessity of a strong force at the centre to keep together the parts whose natural tendency was outward; and they feared that the several states had been left in possession of too many and great capacities, which would finally be destructive of unity, and, as a consequence, of liberty. We believe that both these schools of theorists were wrong. We believe that the Constitution grants to the agents appointed to manage the national affairs, power enough to meet any emergency. We also believe that it has clothed the separate states
with capacities to limit and restrain any unlawful exercise of that power, and to preserve our liberties to all time. Our fathers, by an almost divine prescience, struck the golden mean, and devised a scheme in which these opposing forces meet, not to neutralize and destroy, but to support and strengthen each other.
§ 157. Both of these elements are necessary to the highest good of the nation. Blot out the states, or reduce their functions to a mere form, and the general government, although elective, would ere long, become a despotism. We should have repeated, in our own country, the imperial policy of the French, of an emperor who was chosen by the almost unanimous vote of his subjects. Blot out the general government, or reduce it to a shadow, and we should destroy our prosperity, and with it the means of maintaining our position and influence among nations; we should inaugurate a condition of prostration and anarchy worse even than that of the Confederation. While, therefore, I oppose any attempts on the part of the separate states to assert their own sovereignty, I would oppose, with equal earnestness, any attempts on the part of the nation towards consolidation.
§ 158. Let us examine a little more closely the manner in which the idea of local self-government has been applied in organizing the American people. The principle is made effective at the very foundation of the system. We have the ascending scale of towns, counties, states, nation. Villages and cities are modifications of towns, created under special acts of incorporation, rather than by the general laws of the commonwealth. In each of these four grades, rights, powers, and capacities are exercised, which are limited by the territory and the peculiar local needs of the particular class. The people of a town meet to discuss and settle certain matters which relate solely to their own small vicinage. The people of a county choose a legislative body which manages the concerns of that community, consisting of several towns. The people of a state delegate their powers to a government, whose jurisdiction extends through the limits of that commonwealth, and includes all subjects of legislation which affect the citizen in
his personal and private relations, which define his rights of security and property, and the obligations he incurs by virtue of his being a local inhabitant, or by virtue of his acts towards others. Finally the people of the United States delegate a portion of their powers to rulers, who may legislate for them in respect to all matters which peculiarly concern them as a nation.
§ 159. According to our present policy, this gradation is fixed. It might, indeed, be destroyed. Any state might so change its organic law as to dispense with the divisions into towns and counties, and might, commit to the state legislature the entire control over subjects of the most trivial and local interest. That body might be invoked to lay out every road, build every bridge, or lay every partial tax and assessment.
Such an alteration would be antagonistic to principles which are a part of our race life. For we did not invent this method of distributing legislative and administrative functions among local communities, this scheme of dividing the labors and duties of government, and allotting a special portion to that body most capable of performing it. The germs of this policy are to be found among the rude Saxons in England at the earliest period which history permits us to reach in our explorations of the past. The other Germanic tribes who settled in Western Europe, exhibited traces of the same ideas among them, before being overwhelmed by the barbaric force of feudalism, and buried under the imperial policy borrowed from the traditions of Rome. The Saxon Hundreds and Shires are the historical representatives of American towns and counties.
§ 160. "The free Anglo-Saxons and their territory were divided up, for the purposes of civil administration and the preservation of peace and mutual protection, into separate local organizations. At the basis of this lay two elementary principles, the tie of the family, kindred or clan, and the tie of territory. During the period of Anglo-Saxon history with which we are acquainted, the Tything was the elemental division. This does not seem to have been founded upon a territorial basis, but was composed of ten families or households of freemen not in the 'mund,' or under the protection, as vas
sals, of a superior lord. The head or officer of this small organization was the tything-man, answering to the 'Decanus' among the Franks. Each head of a family was answerable for the good behavior of all the other members of his tything, and thus the whole society was organized upon the principle of local and personal suretyship.
§ 161. "The division next in order to the Tything was the Hundred. It has been assumed by different writers to have been composed of a hundred hydes of land, of a hundred free families, of a hundred tythings, or of a hundred freemen. One supposition would make its basis territorial, the others numerical. It is certain, however, that the Hundred contained a considerable number of free households; that it was a permanent association; that it had a chief officer or head called the Hundred-man; that once in each month the freemen assembled in a district court, where they not only transacted judicial business, but conferred and determined upon all other matters of local interest. This union of the free men of each hundred into a local tribunal was, indeed, the distinguishing feature of the association. The Burgh was only a hundred or an union of hundreds in a more compact form, surrounded by a moat, or stockade, or wall.
§ 162. "The Shires were strictly territorial divisions. Some were in their origin ancient Kingdoms, as Kent, and Sussex;
others were formed by a dismemberment of these states. The shire, having definite boundaries, included within its limits free inhabitants grouped into tythings and hundreds, and kings' thanes with their vassals, and religious houses and corporations with their tenants and dependents. The chief officer was the Ealdorman. The local affairs were administered through the shire-courts.
§ 163. "These territorial divisions of the Anglo-Saxons, together with some of their powers and privileges, have been retained to the present time in England and most of the American states. Our own counties and states, with their local legislation, represent the Saxon idea of a political organization, in withdrawing the administration of much that concerns the interests of the people, from the central or imperial govern
ment of the state, and confiding it directly to the body of citizens within the limits of the district."1
§ 164. We have thus a plain, historical origin of the principle of local self-government. This element lay at the foundation of the whole Saxon polity. It has been preserved in the English shires and ancient municipal corporations or boroughs, with their immemorial privileges. In many of the American states it is guarded with even more jealousy than in the mother-country. We have extended the principle a step farther; to our towns and counties we have added the states. But all of this scheme is but the outgrowth from the primitive germ that existed in the Saxon Tything.
As these local divisions, with their gatherings of the people, and their territorial jurisdiction, preserved the seeds of liberty in England, and finally triumphed over the crown in the progress of their development into a complete representative form of government, so are the same and similar local communities among us necessary to the preservation of liberty and the maintenance of that due balance which shall at once prevent anarchy and absolutism.
1 Pomeroy's Introduction to Municipal Law, §§ 386-390.
CHAPTER II.
THE EXTERNAL FORM AND ORGANIZATION OF THE GOVERN
MENT.
§ 165. THE subjects presented in the present and succeeding chapters require a constant and careful examination of the very letter of the Constitution. Thus far the organic law has rather been treated as a whole, as the work of one people, as the expression of the national will. An endeavor has been made to obtain a just conception of its general character, and of some elemental ideas of civil polity which find utterance in its provisions; we now pass to the instrument itself, and commence to investigate its several parts, and answer the most important and practical inquiry, What are the Powers of the National Government?
In the discussion of this question, I now proceed to describe the external form, structure, and organization of the government which the people contrived and established as the means of creating, interpreting, and enforcing a system of national law for themselves. This scheme, so far as it is a mere external form, may be readily comprehended; the written provisions which describe and set it forth are concise and plain:
little amplification of the very text is needed. The point which naturally suggests itself is, whether this plan be well adapted to work out those grand results which were proposed to themselves by the framers of the Constitution, — the formation of a perfect union, the establishment of justice, the maintenance of domestic tranquillity, provision for the common defence, promotion of the general welfare, and security of liberty to ourselves and our posterity. For these high purposes was the Constitution ordained, and the government established. Are the means the most appropriate to the ends? But, as was
stated in the Introductory chapter, no attempt will be made to enter into a full examination of these topics, or to present in any detailed manner the considerations which would enable us to arrive at a final decision of the question whether our government is so constituted as to promote in the best manner the interests of the people. For a complete discussion of this and kindred subjects, the student is referred to works professedly treating of civil polity, — to Dr. Lieber's "Essay on Civil Liberty and Self-Government," his "Treatise on Political Ethics," and to "The Federalist."
There are some salient features of this political organization, some fundamental principles upon which it is based, which enter into and give form to the whole structure, to which our attention may well be directed. These features will, therefore, be examined in the succeeding sections of the present chapter.
SECTION I.
THE SEPARATION OF THE GOVERNMENT INTO THREE CO-ORDINATE DEPARTMENTS.
§ 166. We are met at the outset by the fact that the government is separated into three departments, acting in a great measure independently of one another, to each of which is assigned an essentially different class of functions, and yet between which there is so strong a tie of mutual support and correlation that each would be powerless without both the others. These departments are the legislative, the executive, and the judicial.1 When we turn to the separate states, we find all their governments constructed upon the same plan. Was this contrivance accidental, was it based upon any a priori
1 Falck (Cours d'Introduction Générale a l'Étude du Droit, chap. i. § 40, note 33,) denies that the judicial power is a separate branch of sovereign power, or that the judiciary is a separate department in the government. He asserts that it is only a special manifestation of the executive. No doubt a continental theorist finds it difficult to comprehend the independence of the English, and particularly of the American judiciary.
theory, or had it an historical origin? It was both theoretical and historical.
§ 167. If we look to Great Britain, whence we hare derived so many ideas of civil polity and so many forms of administration, we discover that her imperial government is modelled after the same pattern. The American President, Congress, and Judiciary are reproduced in the British monarch, Parliament, and Courts. But there is danger in pushing the analogy too far. Nothing has been productive of more confusion than the habit of arguing from the English to the American Constitution. General resemblances there are; but the essential difference in all the practical details, and in many of the fundamental principles, renders it very unsafe to draw analogies from the British organic law as aids in construing our own. When we look close into the English system, we shall perceive that the separation of the three departments with them is not so complete as with us. The actual executive of Great Britain, upon whom rests all the responsibility of administration, — the ministers of the crown, — have seats in Parliament, and are directly amenable to, and under the control of, that legislature. The highest judicial officer — the Chancellor — is a member of the Cabinet, and presides over the House of Lords; while other judges may be members of the same body. The Chamber of Peers is the supreme tribunal of appeal, which may review the decisions of the courts of law and of equity; while a committee of the Privy Council has a very extensive appellate jurisdiction over other classes of courts.
§ 168. Should a survey be extended over the modern nations of Europe, or over the peoples of ancient times, no others will be found in which this type of government is so distinctly followed; and many have existed in which it has been entirely disregarded. In Rome, during the Republic, there was an approach towards such a division of functions among the Consuls, the Praetors, the Senate, and the People. But when the Empire had become firmly established, and the imperial policy completely organized, the traditions of the Republic were forgotten or abandoned; and all legislative, executive, and judi
cial authority was theoretically and practically lodged in the hands of the august ruler who presided over the destinies of half the world. In France, Austria, Prussia, and especially in Italy, some approach has been made to a constitutional government, and to a separation of legislative and executive powers. In none of these countries, however, except in Italy, does this separation approach in completeness and efficiency that which exists in Great Britain; and in none of them can the judiciary properly be called an independent, co-ordinate department of the government.
§ 169. One fact of history may be considered as established,
— that there has been and is the greatest amount of individual and political liberty in those nations whose governments are framed upon this tri-partite model; and that just so far as the civil polity approaches towards a despotism are all species of power centred in one ruler or body of rulers. If the entire governmental force of a nation is wielded by a single person or class of persons, if he or they may at once make, interpret, and execute laws, there is inevitably abuse of power, destruction of private rights, whether the one ruler be monarch, legislature, or the entire mass of the people themselves.
§ 170. A proposition which is thus historically true, must have some firm foundation in the nature of things. The possession of power is one of the most dangerous gifts which can fall to the lot of humanity. The tendency is always to its abuse. Power grows upon itself. In a perfect state, it is not enough that the rulers at any given time should be perfect men. There must be checks so contrived as to resist the encroachments of authority, which are to be apprehended even from the purest and most patriotic rulers. No other check has proved so effectual as the division of functions into legislative, executive, and judicial, and their assignment to classes of officials physically separate. If the legislature were also judges, their decisions would not be based upon the law as it is; but, as it would be impossible for the same men to keep their two characters entirely distinct, their judgments would rather be arbitrary enactments, special measures of legislation for each particular case. Thus all certainty as to the law
would be lost. If the same person or class of persons were to make and execute the laws, the results would be still more disastrous; for, in applying any particular statute, whatever deficiencies in its provisions had been left by the rulers in their legislative capacity, could be easily supplied by them while acting in their executive capacity. Thus the laws, instead of being general commands enjoining the observance of general rules, would become special commands addressed to individual members of society. This uncertain and special nature of the law is the very essence of an arbitrary and tyrannical government.1
§ 171. Divide these functions, and each is met by resistance from the others; all must conspire to give efficacy to any attempt against personal liberty and private rights. Have the Congress erred, the courts may recall them to their duty. Does the President transgress the limits of his authority, the legislature may force him into his legitimate sphere. Thus the whole government is a nicely-contrived balance, in which the equable poise cannot long be disturbed.
§ 172. The Constitution provides, in Art. I. Sec. I., that "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives;" in Art. II. Sec. I. § 1, that "the executive power shall be vested in a President of the United States;" and, in Art. III. Sec. I., 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."
§ 173. This language is clear, precise, and apparently without exception or limitation. Yet, when we compare it with other clauses of the Constitution, we shall discover that the separation of functions is not thus perfect; that the several departments are not thus absolutely independent of each other. Indeed, such an ideal independence is impracticable. While the classes of functions committed to the legislature, the executive, and the judiciary may be generally or in the mass distinct, there must be, in the very nature of things, some 1 Montesquieu, Book II. chap. vi.
points of contact, some overlapping, some commingling. All this threefold machinery tends towards one object, — the creation and protection of legal rights, and the creation and enforcement of legal duties. It is impossible to keep the lines of communication perfectly separate until they meet in the very point at which they are directed. How much of this intermingling shall be permitted will, of course, depend upon the opinions and convictions of those who frame and adopt a form of government. We do not admit as much as is found in the British constitution. It cannot be denied that the government is stronger, more compact and harmonious, from these partial interferences of the various departments. The problem presented to the people was, to frame a constitution which secured the largest amount of liberty with a sufficient degree of strength and unity in the entire administration to maintain and perpetuate our free institutions. A perfect ideal, therefore, had to give way to some practical necessities.
§ 174. Although the Constitution, in its general language, vests the legislative power in a Congress which is declared to consist of a Senate and a House of Representatives, yet a reference to other portions of the organic law shows that this Congress does not, in fact, possess the sole legislative function. No law can be passed without the consent of the Executive, unless two thirds of both houses shall finally concur therein. The assent of the President is as necessary to the enactment of any measure having the nature of law, as that of a majority of both branches of Congress. In this the President legislates. His affirmative or negative decision is a step in the process of creating, and not of executing, laws. By virtue of the various provisions of the Constitution, the Congress is In fact, though not formally and in terms, composed of three distinct bodies, — President, Senate, and House of Representatives; and all must concur, with the single exception just noticed, that a two-thirds vote of both the other branches avails against the dissent of the Executive.
§ 175. But the legislative function of the President is in every way inferior to that held by the Senate and by the House of Representatives. This inferiority consists, first, in
the fact that his negative vote may be overruled by two thirds of the Congress, or, in other words, that a majority of two thirds practically dispenses with his concurrence; and, secondly, in the fact that the President cannot originate any legislative measure. He may communicate information, and recommend measures to the consideration of Congress (Art. II. Sec. III.), but he cannot directly set in motion any scheme of legislation; he must await the definitive action of the two Houses, and add or refuse his consent to their perfected work.
§ 176. It is evident that our own national legislature is, in respect to the power of the Executive, copied from that of Great Britain, which consists of three orders, — King, Lords, and Commons. But here, as in many other important features of the American civil polity, it is dangerous to push the analogy too far. While the resemblance between the power of the Crown and that of the President lies on the very surface and at once arrests attention, the differences, which lie deeper, are far more important both in theory and in practice. These differences inhere in the very constitution of the British Parliament, as compared with that of the American Congress. In pure theory, the Parliament is composed of King, Lords, and Commons. At one time this theory represented an existing and potent fact. Its outward form is preserved to the present day; and not a statute is now passed which does not purport to be "enacted by the Queen's Most Excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same." But, while the form is clung to, the substance has gone; the crown is a mere pageant; the executive department is virtually merged in the legislative; the ministers, who are and must be members of Parliament, possess, as such members, the function of originating measures; but the power to refuse the Executive consent to measures that have passed the two Houses has practically ceased to exist. While, therefore, the words which are generally used to describe the legislative function of the British Crown are far stronger than those which define the similar
capacity of the American President, the substantial power of the latter is by far the greater. It is said that the King has the prerogative of an absolute veto; the exercise of this prerogative would doubtless produce a revolution. As the ministers who constitute the responsible executive are members of Parliament, it follows as a matter of course that the British Legislature has grasped and now wields both the creative and the administrative function, and that the assent of two Houses or branches only is practically necessary to the enactment of law.
§ 177. The President's power of legislation is far more substantial. His independence of the Congress constitutes him an effective check upon the acts of that body. Nothing less than a two-thirds majority of both Houses can reduce him to the level of the British Crown. The doctrine has been advanced and maintained with some earnestness, both in former times and recently, that the President can only refuse his assent to a proposed measure when he deems it to be unconstitutional, to be a step beyond the limits of legislative authority, an usurpation of power by the Congress. There is no ground whatever for this notion. The Constitution places no restraint upon the discretion of the Executive. He may be guided by motives of expediency in granting or withholding his affirmative vote, as well as any Senator or Representative. Art. I. Sec. VII. says: "Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States. If he approve, he shall sign it; but, if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered; and, if approved by two thirds of that House, it shall become a law. .... 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 prescribed in the case of a bill."
Here are no restrictions upon the nature and quality of the objections which the Chief Magistrate may oppose to any statute. That Presidents have seldom exercised their right to stop the passage of any measure because they deemed it to be inexpedient, while they admitted its constitutionality, is no ground for denying the existence of the power. They have generally deferred to the direct representatives of the people on all questions of mere policy.
§ 178. Is the assent of the President necessary to amendments of the Constitution proposed by the Congress? In other words, is such an amendment a bill, order, resolution, or vote, which must be submitted to the Executive for his approval? The uniform practice of the legislative and the executive departments has answered this question in the negative; and the construction thus placed upon the Constitution may be considered as final. Several independent considerations lead to this result. The language of Art. V. is quite different from that used in Art. I. Sec. VII.: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution," &c. "Con-gress" is here used in its technical sense as descriptive of the two Houses. As two thirds of each House are necessary to initiate the process of amendment, it would seem unnecessary to require the assent of the President, when a majority so great may overrule his dissent. Finally, a proposed amendment does not seem to be an "order, resolution, or vote" intended by the § 3 of Art. I. Sec. VII. Such an act of Congress is in no sense legislative; it is a mere proposal; it has
none of the elements of law; it is a laying before the people certain propositions for their consideration; and the people, through their state legislatures or conventions, are the sole legislators. This subject has received much attention in very recent times, as well as at the earliest period of the present government, and has been settled so far as the joint action of President and legislature can settle a question of construction.
§ 179. The Executive possesses another legislative function of an exalted character. Treaties entered into by the United States are declared by the Constitution to be the supreme law of the land.1 Their quality as law is so high that Congress can only destroy them by a single act of legislation, namely, by a declaration of war against the nations with whom they are made. Yet the treaty-making power, this authority to pass laws which shall be supreme even over the ordinary proceedings of Congress, is confided to the President, under the single limitation that his work must be submitted to the Senate and ratified by two thirds of that body.2 He, however, holds the initiative; the upper House can only accept or reject his decrees, they cannot dictate a treaty.
§ 180. I will very briefly mention some further instances in which the peculiar functions of one department are partially shared by another. The appointment of officers is plainly an executive act, and the power to appoint is conferred upon the President, or some of his subordinates. Yet most appointments made by the President must receive the concurrence of the Senate.3 The trial of impeachments is peculiarly a judicial act, yet the Senate is the only court for that purpose.4 In addition to these cases of direct interference, there exist features in the general organization which afford opportunities for the exertion of a vast influence by one department upon another. The judges are not chosen independently of the President and the Senate, but are placed in office by the concurring assent of both. The House of Representatives may be called upon to elect the Chief Magistrate himself in the event that a
l Const. Art. VI. § 2. 3 Ibid.
2 Const. Art. II. Sec. II. § 2. 4 Ibid. Art. I. Sec. III. § 6
majority of electors have failed to unite upon the same person for that office.1
§ 181. While, therefore, the general plan of the government assumes three co-ordinate, independent departments, and while these several departments are, in the main, free from each other's control, they are, from necessity, linked together by many ties, both of function and of influence. One does, at times, perform some of the peculiar duties of another.
I have here purposely refrained from speaking of the vast legislative attributes which inhere in a free judiciary under our own and the English system, because this would lead into an extended discussion foreign from the immediate purposes of the present work.
§ 182. Among these three departments there will always be a tendency in each to encroach upon the special province of the others, or to enlarge the sphere of its own governmental action. The Constitution endeavors to draw the lines of demarcation between them; they are placed as checks upon each other; the whole system was carefully planned so as, if possible, to prevent any and all acts of usurpation, by making one department necessary to the others. But the organic law must, of necessity, use genera] terms; it cannot descend to any minuteness of detail without becoming a code of special precepts rather than a guide to the government in its work of legislation. The checks and counterpoises of the Constitution, are also, in a great measure, moral; the sanctions are slow in their operation, and may never be put in motion. Admirable, therefore, as is the system, it cannot entirely prevent those results which naturally flow from the possession of power;
each department will strive to increase the scope of its own functions, even at the expense of the others.
§ 183. In this inevitable struggle the popular branch — the legislature — will always obtain and hold the ascendant. The superiority which thus belongs to Congress results from two causes, — the greater power of that body, and its greater inclination to use that power. It is in itself plainly the most powerful in that the function of creating law is higher, and more
1 Const. Art II. Sec. I. § 3.
forcible than that of applying or expounding. The other departments must await the action of the legislature, which always holds the initiative; and neither of them can bring any sanction to bear directly upon that body, and thus prevent its contemplated acts. It, therefore, more than the others, can break over the barriers which the organic law has raised to restrain its lawlessness. The history of England shows how Parliament has advanced, step by step, in its acquisitions of power, until it has reduced the crown to a cipher, and made the ministers of the King its own servants; and how, finally, the Commons has substantially drawn all these vast accumulations of power to itself, and forced the Lords into a position of comparative insignificance. It may be said that Parliament has been restrained by no written Constitution defining the exact measure of its functions. This is true; but it has been restrained by influences more potent than written enactments can be, unless the will and consent of the people is constantly upholding and giving life to the positive provisions of the organic law; it has been restrained by the habits of thought of the English subjects, by the tremendous power of class interests and prejudices, by a traditionary system which has left its mark upon every public act of the British government.
§ 184. If the English King, with his ancient despotic power, and his present influence as theoretical head of the nation, to whom the allegiance of his subjects is due, aided by the support of a civil and an ecclesiastical hierarchy, has not been able to resist the rising tide of parliamentary progress, how shall the President of the United States, with his limited and defined functions, his liability to impeachment, his responsibility to the people, and his brief term of office, be able to oppose any permanent obstacle to the steady advance of Congress, much less to turn that advance backward and despoil the legislature of their rightful attributes? The prerogatives once held by the British Crown which he might use against the Parliament, were immeasurably more efficient than any Dower lodged in the hands of the President, but these have been either directly wrested from him, or they have been so completely abandoned by non-user, that any exercise of them
would be the signal for a revolution. The President cannot coerce the Congress; the Supreme Court cannot directly interfere with the proceedings of Congress; hut the House of Representatives may impeach, and the Senate may condemn, both President and judges; and although the Congress may not abolish the national judiciary, they may curtail its functions and reorganize the tribunals. The legislature is, therefore, the most powerful both in the essential nature of its general functions, and in the special capacities which have been committed to it.
§ 185. But Congress has also greater inclination and more opportunities to use and enlarge its power than are possessed by the other departments. This disposition is not peculiar to our own national legislature, it belongs, and must of necessity belong, to all popular assemblies. Whatever motives may act upon a single chief magistrate, impelling him to amplify his field of action, will also act upon each individual legislator. But the single magistrate must be restrained in some measure by the force of public opinion, and by the sense of a responsibility shared with himself by no one; the responsibility rests upon the legislator with a lessened weight as it is divided between him and all his fellows; the force of public opinion is broken in his case by its encounter with the whole body of law-makers. That this tendency does exist in a legislature to enlarge its jurisdiction, to encroach upon that of other departments, to usurp power, is proven by the history of the British people; it is no less clearly shown in our own history, and especially in that of the past few years.
§ 186. I am strongly of opinion that the people of the United States are not in so much danger from an undue stretch of authority by President or by judges, as from unlawful assumptions by Congress. The Constitution is well so far as it goes;
the design was good; the checks and balances were carefully and skilfully arranged; but no mere organic law can place a lasting barrier to the advance of a popular legislature. Step by step their powers are exceeded; the nation acquiesces;
the precedent becomes established; and a system of construction is finally elaborated which takes the place of the written
Constitution as a practical guide to the government in its official duties.
One power alone can stay the legislature in its gradual march towards the possession of all political attributes, — that of the people. If the people shall always give a life to the provisions of the Constitution, if they shall impart their own force as a constant energy in the complicated machine, their servants and agents may easily be kept within the bounds assigned to them. But without this life and force, the process I have described is sure; we may regret, but we cannot prevent it.
§ 187. The evils which would result from a substantial concentration of all power in Congress cannot be enumerated. Unless our forefathers were wholly wrong, unless the organic law is framed upon an entire misconception of the needs of a free people, and of the objects of government, the three departments, legislative, executive, and judicial, must be kept separate, independent, co-ordinate. The question of the power to be wielded by the legislature was discussed and settled. If the tendencies of the present day are right, then all the framers of the Constitution, and the people who adopted it, were wrong. Should Congress, as now organized, practically draw all the attributes and functions of government to itself, and reduce the executive and judiciary to a condition of substantial dependence upon itself, the next step would inevitably follow;
and this would be the consolidation of the national legislature into one body. The Senate would be pronounced an unnecessary and hurtful clog upon the free activity of the more popular branch. Even now such a step is publicly advocated. Should this result be accomplished, the liberties of the people would be gone, only to be regained by another revolution. Nothing could withstand a legislature consisting of one house, practically wielding all governmental power, restrained by no checks of organization or function. No tyranny could equal its tyranny.
SECTION II.
THE SEPARATION OF THE LEGISLATURE INTO TWO CO-ORDINATE BRANCHES.
§ 188. The second feature in the organization of the government which I shall notice is, the division of the Legislature into two co-ordinate branches, the Senate and the House of Representatives, — the one chosen directly by the people, the other appointed directly by the legislatures of the several states. Art. I. Sec. I. declares that the Congress "shall consist of a Senate and House of Representatives." Art. I. Sec. II. § 1, says that "the House of Representatives shall be composed of representatives chosen every second year by the people of the several states." Art. I. Sec. III. § 1, provides that "the Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years, and each senator shall have one vote."
Of the advantages and even necessity of this dual arrangement, I do not now intend to speak. The subject is fully discussed In Dr. Lieber's "Treatise on Civil Liberty," and in "The Federalist." This double legislature has approved itself so well that all the states have formed their local assemblies upon the same model.
§ 189. But the framers of the Constitution did not invent this scheme; they had an example ready at hand to imitate;
they evidently copied from the British Parliament. Like that the Congress, in its law-making function, truly represents three estates. Not indeed royalty, nobility, and commons; but the President represents the people in their collective, imperial capacity; the Senate represents the same people gathered into their local commonwealths; while the lower House represents the same people as divided into small and single communities. Thus we have all interests united. The nation, as one body-politic, speaks through the President. The states, as separate political societies, speak through the Senate; the local districts speak each through their own delegates. All varieties of opinions and interests are thus instrumental in moulding the
national legislation. The tyranny of majorities is weakened;
all claims may be heard and fairly considered; and a policy suited to the general good of the whole may be evolved from this conflict.
§ 190. And here we see again involved in the formation of our national Congress, the two ideas which were referred to in a former chapter, that of local self-government, and that of centralization, united and balanced in such a manner that neither can destroy, but each may aid and strengthen the other. The provisions of the Constitution which regulate the choice of Senators, and confer the power of selection upon the state legislatures, and yield to each commonwealth an equal voice in the upper House, were the result of a spirit of compromise. So tenacious were the states of this equality that an express restriction upon the power of amendment is inserted in the Constitution; it cannot be destroyed without an unanimous consent.1 Thus have we fast anchored in our fundamental law the principle of local self-government. While we recognize the nation, while we glory in our unity, we have guarded against a central power of such magnitude as to endanger the liberties of the citizen. To a popular branch of the legislature, fresh from contact with small constituencies, frequently elected, partaking of the momentary passions and errors of the people, and therefore endeavoring to reflect their immediate wishes, is joined the more conservative Senate, fewer in numbers, with longer duration of office, appointed by the legislatures, and therefore somewhat removed from the fitful flow of the popular will. One house is the force which drives, the other the anchor which holds fast; one is the instrument of progress, the other tempers the vehemence of advance; one communicates speed, the other steadiness. Yet as each is finally responsible to the people, and draws its inspiration from the same source, the Senate is not, like the British House of Lords, the representative of class interests and of privileged orders. It does not interpose itself as an obstruction to all progress, hindering the onward march by the mere force of passive resistance. It is conservative be 1 Const. Art. V.
cause it has the opportunity to be calmer and more deliberate, to look beyond the present, to study the effect of measures upon the future.
§ 191. When we turn from the Senate to the more numerous and popular branch, the question meets us, how are the members to be apportioned to their constituents; according to what ratio shall they be allotted among the several states. As the principle of local self-government had been preserved in the organization of the Senate by giving each commonwealth an equality of representation, so after some struggle the principle of centralization, the idea of an empire, triumphed in constructing the lower House. All state equality is here abandoned, and the members are to represent either property or population. But it was perceived that any definite distribution which should be made at the time when the Constitution was adopted, and which might then be just and equable, would, probably, as years passed by, and the nation developed in resources, become extremely unfair and one sided. Some rule must, therefore, be established which would hold good for all subsequent generations; by which the representation might be rearranged from time to time whenever a necessity should require.
§ 192. It was easy to determine that the number of delegates given to each particular state should, be ascertained by the amount of the population, and not by the amount of property. It was therefore provided that at the outset each state should be entitled to a certain definite number of representatives; that the number of representatives should never exceed one for every thirty thousand; but that each state should always have at least one delegate; and that as the basis of the subsequent apportionment, an enumeration of inhabitants should be taken within three years after the first meeting of Congress and at intervals of ten years thereafter.1
§ 193. But in fixing upon the exact basis of apportionment by means of this census, a difficulty presented itself so great that it could only be evaded by a compromise. Had the inhabitants of the states been all freemen no such difficulty could 1 Const. Art. I. Sec. II. § 3.
have arisen; but most of the original thirteen states contained a mixed population of freemen and slaves, and in the Southern States the latter class bore a large proportion to the former. Should these slaves be reckoned as persons in determining the number of inhabitants in a state for the purpose of ascertaining how many delegates that state should send to the national Congress? On the one side it was urged that slaves were property, and therefore not to be included in the aggregate of population; on the other hand it was replied that slaves were actual persons, and were as much entitled to be represented as women and minors and all others who are forbidden to exercise political rights. This contrariety of opinion on so vital a question could only be arranged by a compromise, and it is thus that the Constitution settled the difficulty.
"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 determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons."1 The term "free persons" includes all inhabitants of every age, sex, and color who are not in a condition of slavery, except Indians not taxed; "all other persons" is the constitutional euphemism for slavery.
§ 194. During the continuance of slavery this rule of the Constitution resulted in giving to the Southern States a far larger representation in Congress than would have been due simply from the number of freemen in those communities, and thus greatly added to the power of the ruling class at the South. For the slaves were, to all intents and purposes, property, made so by the state laws, and no more appropriate to be taken as the basis of an apportionment, than the cattle and horses of the Northern farmer. The claim that, being actual persons, they were to be regarded as in the same condition as women and minors, was plainly fallacious. Women and minors, though having no political capacities, are clothed with all civil rights, rights for whose protection governments are 1 Const. Art. I. Sec. III. § 3.
instituted. Slaves have no such rights; as members of the society they are completely swallowed up in their masters;
even the laws for their personal safety are rather enacted in the interests of the masters, to protect their property. As the slaves could not, under any supposable circumstances, exert the slightest influence in the actual choice of legislators, the Southern freeman, while voting on behalf of a fraction of his slave population, was just so far out voting his Northern fellow-citizen.
§ 195. This preponderating influence may be increased in the future rather than diminished. An amendment to the Constitution has abolished slavery, and the bondmen have become free. There are now no more "other persons" to whom the constitutional provision can apply. Representatives must be apportioned equally over the whole country. The same number of free citizens in every part of the Union will now speak through the voice of every delegate to the national Congress. This will immediately increase the number of Southern representatives in the lower House; for the total representative population of a state will no longer be ascertained by adding to the number of freemen three fifths of the slaves, but by adding to the former freemen the whole of the former slaves. This result will be unobjectionable if the vast aggregate of persons thus suddenly raised into the status of freedom and taken as the numerical basis of apportionment, can have any actual voice, can exert any positive influence in the choice of representatives. If this power be not conferred upon them, the former governing classes at the South will have received an accession to their political importance; the balance will be even more inclined in their favor. In no other portion of the country will there be such an enormous number of free persons, who, by state laws, are deprived of all active co-operation in the management of the government, and yet who are reckoned as persons that must be fully represented in the Congress of the nation.
§ 196. This result was probably overlooked at the time when the amendment abolishing slavery was adopted. Various plans are now suggested to evade it. A second amend
ment is proposed changing the basis of representation, and providing, in substance, that the apportionment be made according to the number of those persons in each state who, by state laws, are declared to be electors. The number of delegates in Congress would then depend upon the number of those who are clothed with the capacity of voting; and a state would obtain a larger influence in Congress as it extended wider the electoral franchise among its inhabitants. The adoption of such an amendment would, doubtless, indirectly compel the several state governments in time to confer the right of voting upon negroes. A second plan assumes an amendment either defining in terms the qualifications of electors, or empowering Congress to define them. These changes would affect the entire country. A third measure applies alone to those Southern States which declared themselves separated from the Union, and consists in requiring, as a condition to a complete restoration to their political rights, that they should severally provide in their fundamental laws for conferring the electoral franchise upon negroes. I purpose, in the sequel, to offer a few observations upon these plans, and therefore pass them by, at present, with this simple statement.
SECTION III.
METHOD OF CHOOSING OFFICIAL PERSONS.
§ 197. General Features. — A third element in the organization of the government to which our attention should be directed, is the method of choosing those persons to whom the labor and duty of administering the public affairs are intrusted. When we examine the provisions of the Constitution we are struck with the fact that among the thousands of officials who may be needed to carry on the operations of the national government, only one small class — the members of the House of Representatives — are to be elected directly by the people. Amid the almost universal acceptance of the modern doctrine that the right of suffrage is an essential attribute of citizenship, and while the tendency has, for many years, been to extend,
and not to contract it, this element in our organic law stands out in bold contrast to the practice of most of the states in the management of their domestic concerns. Indeed, our fathers, who framed and adopted the Constitution, though sternly republican, had not yet conceived the idea that the people were to interfere directly in the choice of all rulers. Their scheme of giving effect to the popular will was through the means of delegation. The people were to speak once in the selection of certain officials; and these representatives were afterwards to be the mouth-pieces of their constituents. This principle runs through the whole Constitution; and it was applied even in the first adoption, and in any subsequent ratification of amendments.
§ 198. The President and Vice-President. — Article II. Section I., as amended in Article XII. of the Amendments, provides for the choice of President and Vice-President 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. The electors shall meet in their respective states, and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President."
[The ballots are to be counted by the President of the Senate in the presence of the Senate and House of Representatives.] ....."The person having the greatest number of votes for President shall be the President if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately by ballot, the President. But in choosing the President the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the states, and a majority of all the states
shall be 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 thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.
"The Congress may determine the time of choosing the electors, and the day on which they shall give their votes, which day shall be the same throughout the United States."
§ 199. How these electors may be appointed, whether directly by the people, or by the state legislatures, or otherwise, the Constitution does not assume to determine. It leaves the settlement of that matter entirely to the several states. There need be no uniformity in their practice; in fact, until recently there never has been. Formerly the method of choosing by the state legislatures was common. At the present day the choice is made by the body of voters in all the states.
§ 200. What was the idea contained in these constitutional provisions? Was it that the people were to be directly instrumental in the selection of their chief executive officers? Plainly not. The scheme is complicated, and seems to have been contrived expressly to prevent what is often called the tyranny of majorities. Even now, when the college of electors is chosen by the body of voters, it is possible that a person shall receive the ballots of a large majority of the presidential electors, while a majority of the actual voters have preferred another candidate. In fact, the people of the United States, as one collective aggregate, are not appealed to in the selection of the President, but that people as segregated into their
local commonwealths. The idea of original state equality and sovereignty has here left its impress upon the organic law, When, therefore, we hear, at the present day, a complaint that a person may be the President of the minority, it should be remembered that this fact is the result of a concession to the demands of state independence, which were insisted upon with so much pertinacity when the Constitution was framed and adopted. In those clauses which provide for an election by the House of Representatives, this idea of state sovereignty is absolutely controlling; the old feature of state equality in the legislature is expressly preserved.
§ 201. But aside from the influence which the theory of state independence and sovereignty exerted upon these provisions of the organic law, the whole scheme assumes that the people were not to interfere directly in the selection of their chief executive officers. "By the theory of the Constitution, the evident intention of its framers, and the early practice, it was not designed that the President and Vice-President of the United States should be directly or indirectly voted for by the people in such a manner that a citizen, casting his ballot, should be understood as designating any particular person for either of these offices. Their choice was to be removed from the excitement and distractions of popular elections, and was to be intrusted to the cool and deliberate judgment of a few special electors appointed for that purpose by the several states in such manner as their laws should prescribe. These special electors were assumed to enter upon the discharge of their functions, untrammelled by any pledges, and left only to the guidance of their own personal convictions of what were the best interests of the country.
§ 202. "But the rapid spread of the idea of popular sovereignty has swept away these checks planned by the founders of the government, so that while the letter of the Constitution is strictly obeyed, its intention is directly violated in the election of the chief magistrate. This has been accomplished by the abandonment of the choice of the electors to the people of the several states, and by the closely drawn lines of party discipline; so that sets of electors, unequivocally pledged to a
particular candidate, and directly voted for by the people, have become, in fact, the mere passive instruments of the majority of voters in each state, in carrying out their will as expressed at the ballot-box. The electoral college is thus reduced to a mere machine, a mere conduit through which may flow the stream of popular suffrage. We do now, in fact, vote for the President and Vice-President as really as though their names were inscribed upon the papers we deposit. We have thus, in this respect, virtually made to ourselves a new constitution, which exactly resembles the original in form, but is vastly different in substance. This complete change in the manner of electing the President is a remarkable instance of the way in which written laws and constitutions, however carefully guarded, may be made to yield to a change in the popular feelings and wishes; so that, while not a clause is repealed or modified, the effect of the whole is entirely transformed. On the letter of the Constitution there has grown up an unwritten law, not, indeed, enacted by courts, but devised and voluntarily obeyed by those who manage the machinery of popular elections.1
§ 203. I would not return to the ancient theory. I am persuaded that our fathers had not faith enough in the intelligence of the people. I believe that the whole body of voters is less liable to err in the choice of those rulers whose functions are political, than any small and select number of men specially appointed, however pure and patriotic they may be. I believe that our general elections fairly express the popular will, and that the decision is, on the whole, in accordance with the best interests of the nation. We might well, therefore, abandon the idle and useless form of interposing the machinery of an electoral college between the people and their choice, and allow the votes to be cast directly for the persons designated to the offices of President and Vice-President. I have called this form idle and useless; it certainly is so, unless it be purposely retained as a check upon the power of a majority. If it be thought best that a majority of voters in the United States should not necessarily determine the selection of President, 1 See Pomeroy's Introduction to Municipal Law, § 731
then this expedient of an electoral college is well contrived to thwart the wishes of such majority. But all this is entirely opposed to the tendencies of the age, and to the principles upon which the state governments are organized and administered. There are theorists who have suggested plans by which minorities may be the more efficiently represented; but no one has, as yet, contended that, in a republican form of government, the minority should possibly control.
§ 204. The Senate. — Article I. Section III. provides that "the Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote."
Provision is made for classifying those who are first chosen, so that the terms of office of one third shall expire every second year. "If vacancies happen by resignation 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."
The same Article, Section IV., declares that, "the times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time, by law, make or alter such regulations, except as to the places of choosing Senators."
The body which appoints the Senators is fixed beyond the reach of Congress or state legislation, — the legislatures of the respective states. The places of choosing are also fixed, — the place where each legislature, by the local law, is to hold its sessions. The times and manner of holding elections are left to the states, unless Congress should, by a general law, prescribe some common rule. Congress has not availed itself of this power so plainly conferred upon it by the Constitution, and there is some diversity in the manner of choosing Senators among the different states. In some the two houses meet in joint session, and a majority of the whole united body is sufficient; in others the houses vote separately, and do not meet in joint session until a majority of each has made its selection,
and then if the choice of both branches has fallen upon the same person the election is complete, if not, a resort is had to a joint ballot.
§ 205. The House of Representatives. — The Constitution determines the method of electing members to the lower House in the following manner: — Article I. Section II. § 1, "The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature."
The first paragraph of Section IV. of the same Article, cited in § 204, applies to the election of Representatives as well as of Senators.
In this connection may be read Section IV. of Article IV. as follows: "The United States shall guarantee to every state in this Union a republican form of government."
§ 206. As to the times, places, and manner of holding elections of Representatives, the Congress has complete control, so far as positive provisions of the Constitution do not interfere; in the event that Congress does not exercise its authority, the states have a like complete control. Thus Congress may prescribe the day and month for holding the election, and make them the same throughout the country, with the limitation that the election must be once in two years. Congress may also prescribe whether the choice shall be by single districts, or by a general vote in each state; and may, no doubt, divide the states into congressional districts. The national legislature has not, however, exercised the full power conferred upon it, and most of the regulations governing the choice of Representatives have been left to the separate states. Over the qualifications of the electors, Congress has no control further than may be included in the clause by which the United States is to guarantee a republican form of government to each state.
§ 207. Here we perceive that the general government has no voice in deciding who shall be privileged to vote for Representatives in Congress. The whole subject is controlled by
state laws. The states will, of course, in their own constitutions or statutes, declare which of their inhabitants may take a part in choosing members of the popular branch of their local legislatures, and such persons are entitled also to vote for Congressmen in that state.
We are thus met by this peculiarity of the organic law, that it nowhere attempts to define what persons may exercise the right of suffrage, nor does it confer upon the general government any such power. In the only instance where provision is made for a popular election, the states are left to designate the individuals who may unite in electing.
§ 208. This fact is a complete answer to the somewhat common notion that United States citizenship implies the right of voting. Nothing can be further from the truth. Not a vote is cast, from one end of the country to the other, by any person in virtue merely of his being a citizen of the United States. The Constitution recognizes the status of citizenship, and provides for admitting foreigners to that condition; but it does not create any class of voters. What the several states may do in this respect, is a matter entirely for their own consideration. It is true, as a fact, that, by the state laws, the great mass of voters for Representatives in Congress are white male citizens of the United States, who have attained the age of twenty-one; but there is no necessity in the Constitution for this practice. A state may deny to some citizens the right of suffrage entirely, as most do to the free negro, and all do to women and minors; or may deny it to persons of foreign birth for a certain period after naturalization, as does New York. Others still may confer the privilege upon persons who are not citizens of the United States, as do a few of the Western states.
§ 209. It is plain, therefore, that mere citizenship of the United States does not involve the right of suffrage. It is also plain that the United States have no power or authority to interfere with the discretion of the states in determining what
class of persons possess the "qualifications" for electors. The state laws may throw open the door as wide as possible, or may place any limitation which is not inconsistent with a re
publican form of government. In some, a property qualification has been demanded from the voter, and this practice was almost universal in the earlier years of our government; in a few, a literary or educational qualification is required. In a small number of commonwealths, free negroes are admitted on an equality with whites; in others, only those who possess a certain amount of property; while in most they are rejected altogether.1
§ 210. Notwithstanding the control over this subject which the Constitution gives to the states is so great, so nearly absolute, it is limited by Art. IV. Sec. IV. which says that the United States shall guarantee to every state a republican form of government. It seems to be evident that a state, under pretence of prescribing qualifications for electors, might place the governmental power in the hands of an oligarchy, and might erect such a political fabric as was in no respect republican in form. Should this be done. Congress might undoubtedly interfere in that particular state, and restore a republican form. But to say that Congress may decide by a general rule what regulations governing the status of electors are consistent with the existence of a republican form of government, and may pass laws imposing those regulations upon the several states, is to ignore and destroy not only the spirit, but the very letter of the organic law. To say that a republican form of government implies universal suffrage, or that it forbids the imposition of qualifications which do not directly affect the voter's capacity to judge properly of his political act of voting, is to violate all the fundamental rules of interpretation, to blot out all history, to declare that even the government of the United States is not republican. The plain common sense view which the people have always taken of these provisions is the correct one. The clause "the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature" has been uniformly
1 I hardly need say that I am speaking here of those states alone which
remained true to the Union, and which have voluntarily acted upon the question of suffrage; I do not include those states which attempted to secede, and upon which Congress is now imposing universal suffrage.
construed to mean that the states may decide who of their Inhabitants shall vote; and it has been left to the good sense of the people of each commonwealth to enlarge the class of voters from time to time as the ideas of popular sovereignty obtained more power.
§ 211. It is certainly, however, an anomaly that the genera] government of the United States should have no control over the choice of its own delegates in Congress; that it should be powerless to define the qualifications of congressional electors. It must be conceded that this is a defect in our organic law which needs amendment; it was an unnecessary and unfortunate concession to the theory of state sovereignty and independence. One code of rules should certainly prevail throughout the country to regulate the choice of representatives, and this should be the work of Congress, or of the people in its sovereign capacity. The nation should dictate in the selection of its own legislators. The integrity of the separate states is sufficiently guarded by allowing to each an equal voice in the Senate, and by permitting them to appoint Senators, and to control the selection of Presidential electors; the more national branch of Congress, that which comes directly from the people, should be entirely under the management of the one body politic which is represented in the general government.
§ 212. Here I wish to offer a few considerations upon the curious result of the amendment abolishing slavery referred to in §§ 195, 196, and upon the second amendment proposed to obviate that result. This latter amendment which has passed both houses of Congress, and been ratified by several state legislatures, is as follows: Art. XIV. Sec. II. "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."
There can be no doubt that the amendment, when adopted, would have the effect to extend the right of suffrage to the class of new-made citizens in the Southern states, and to free negroes in other states, and thus to increase the number of voters for delegates to Congress, by making it directly for the interest of the states to admit the same class of citizens to vote for members of the popular branch of their own local legislatures, and for other state officers.
§ 213. While this plan would, therefore, tend to accomplish the object designed, it would do so by a violation of ideas and principles which are wrought into the very fibre of our government. In regard to matters purely local, and which do not and cannot have a national aspect or influence, it has been the policy of the United States not to interfere with the separate states. The Constitution was framed upon this idea. The people, as the source of all power, gave to their central government exclusive control over all subjects which are national and imperial, and to the separate states a control over all subjects which are local. I deem this policy as essential as is its counterpart, that the several states shall not interfere with the nation in the administration of its appropriate functions. Now the determining who may vote for members of the state legislatures, and for other state officers, is a matter peculiarly local, and the United States should not be able, either directly or indirectly, to dictate rules thereon to the various commonwealths. But, on the other hand, the determining who may vote for Representatives in Congress is a matter purely national, and the several states should not be permitted to dictate rules thereon to the general government.
§ 214. A remedy, therefore, should be proposed, which would not interfere with functions strictly belonging to the states, but would restore to its own control functions that of right belong to the nation. Such a remedy would be an
amendment, not of the clause apportioning representatives, but of the clause relating to the qualifications of congressional electors. An idea might be borrowed from the seceding states themselves and extended to its legitimate results. When the constitution of the so-called Confederacy was formed, the convention perceived the impropriety of permitting the states to have complete power over the choice of Congressmen, and although their revolt was based upon an assumed existence of separate state sovereignty, they imposed restrictions upon the discretion of the several commonwealths in the matter of determining who may exercise the right of suffrage.1 In this single instance their example is worthy of imitation; but I would go further and take away the discretion altogether.
§ 215. The amendment suggested is to Art. I. Sec. II. § 1, of the Constitution, so that it should read substantially as follows: "The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors shall have the qualifications which Congress may from time to time prescribe, and which shall be uniform throughout all the states." The clause in regard to apportionment may be left as it now stands.
Thus should we remedy any unequal consequences of the amendment abolishing slavery; Congress might extend the right of suffrage among all free persons; and at the same time purely state functions would not be interfered with, while a symmetry would be given to the organic law, which, it must be confessed, is now lacking.
§ 216. Other Officers. — All other officers are appointed by the President with the advice and consent of the Senate, or by the President alone, or by the Heads of Departments, or by Courts of Law, (Art. II. Sec. II. § 2), with the exception of the Speaker and other officers of the House, and the President pro tempore and other officers of the Senate, which are chosen by those bodies, respectively. (Art. I. Sec. II. § 5, Sec. III. § 5.)
1 See Appleton's Ann. Am. Cycl. for 1861, p. 158. The article in question restrains the several states from allowing persons of foreign birth and not citizens of the Confederate States, to vote for any officer, civil or political state or federal.
SECTION IV.
SOME RULES RESPECTING THE QUALIFICATIONS OF OFFICERS AND THE ORGANIZATION OF THE HOUSES OF CONGRESS AND THE CONDUCT OF BUSINESS THEREBY.
§ 217. There are certain precise and detailed rules respecting the qualifications of officers, and the organization of the houses of Congress, and the conduct of business thereby, which do not need amplification or comment, but may be arranged in order substantially in the terms used by the Constitution itself.
1. Qualifications in respect to Age, Citizenship, and Inhabitancy.
The President and Vice-President must be natural-born citizens, at least thirty-five years of age. Art. II. Sec. I. § 5;
Art. XII. of the Amendments, § 3.
Senators must be at least thirty years of age; if of foreign birth and naturalized, must have been citizens for at least nine years; and must when elected be inhabitants of the state from which they are elected. Art. I. Sec. III. § 3.
Representatives must be at least twenty-five years of age;
if of foreign birth and naturalized, must have been citizens for at least seven years; and must when elected be inhabitants of the state from which they are elected. It is not required that they should be inhabitants of the district from which they are chosen. Art. I. Sec. II. § 2.
2. Terms of Office. The President and Vice-President, four years. Art. II.
Sec. I. § 1.
Senators, six years. Art. I. Sec. III. § 1.
Representatives, two years. Art. I. Sec. II. § 1.
§ 218. Certain regulations respecting the organization of
Congress, and of each House.
There are a few special rules which apply to the Congress
as a legislative body; others apply to each house by itself;
and others still to the members of each house individually. The Congress, as such, shall assemble at least once in every
year, and the day of meeting shall be the first Monday in December, unless they shall, by law, appoint a different day. Art. I. Sec. IV. § 2.
Under this provision Congress may appoint two or more sessions for one year, and may set any day for the commencement of such sessions.
§ 219. Rules applicable to each House separately. — In respect to the matters involved in these rules each house acts independently of the other, and these acts are not laws in any true sense of the term. It may be doubted whether Congress could, by any law, bind either house in regard to these subjects which are thus committed to the discretion of each branch of the legislature.
Each house shall be the judge of the elections, returns, and qualifications of its own members. A majority of each shall be a quorum to do business; but a smaller number may adjourn from day to day, and may compel the attendance of absent members. See Art. I. Sec. V. § 1.
The power given to the Senate and to the House of Representatives, each to pass upon the validity of the elections of its own members, and upon their personal qualifications, seems to be unbounded. But I am very strongly of the opinion that the two houses together, as one Congress, cannot pass any statute containing a general rule by which the qualifications of members as described in the Constitution, are either added to or lessened. Such a statute would not seem to be a judgment of each house upon the qualifications of its own members, but a judgment upon the qualifications of the members of the other branch. The power is sufficiently broad as it stands;
indeed there is absolutely no restraint upon its exercise except the responsibility of representatives to their constituents. Under it the House inquires into the validity of elections, going behind the certificate of returning officers, examining witnesses, and deciding whether the sitting member or the contestant received a majority of legal votes. The House has also applied the test of personal loyalty to those claiming to be duly elected representatives, deeming this one of the qualifications of which it might judge. The Senate has also passed upon the valid
ity of the election of a Senator by the legislature of his state, determining whether the choice had been made in accordance with the state law. This body has also inquired into the loyalty of a member, and has expelled Senators for alleged treasonable or seditious practices.
§ 220. Each house may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two thirds expel a member. Art. I. Sec. III. § 2.
Under these provisions each house has the entire control over its own parliamentary proceedings, its methods of doing business, its rules of order, the observance of order on its floor, and the conduct of its members. The power of expulsion is unlimited, and the judgment of the two thirds majority is final.
§ 221. Each house shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may, in their judgment, require secrecy; and the yeas and nays of the members of either house on any question shall, at the desire of one fifth of those present, be entered on the journal. Neither house, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two houses shall be sitting.
Neither of these provisions requires any remark, except that giving one fifth of the members present the power to demand that the yeas and nays on any question shall be entered on the journal. This regulation, simple in itself, is most important and salutary. It is a safeguard against the acts of a reckless or corrupt majority. By placing in the hands of so small a minority the power to demand the yeas and nays, and to make a lasting record of all votes, which shall go before the people, it keeps each member alive to his personal responsibility to his constituents, and effectually prevents all subsequent concealment as to acts for which he may be called in question.
§ 222. All bills for raising revenue shall originate in the House of Representatives, but the Senate may propose, or concur with amendments, as on other bills. Art. I. Sec. VII. § 1.
This provision is substantially copied from the British Constitution. No principle is more firmly settled in the administration of the British government, than the doctrine that the Commons hold the purse. This power of the House of Commons to grant or withhold supplies has been contended for during centuries of conflict; it has been the instrument of success in every contest with the royal prerogative; it has finally raised the Commons to a position of absolute supremacy above all other departments of the government. And yet there does not seem to be any good reason for importing it into our Constitution. The whole frame of our government, the whole state of our society is so different from that of England, that there is no class distinction, no permanent conflict of interest between the House of Representatives and the Senate; there is no reason why the lower house should be more careful of the public moneys, and more economical in the public expenditures than the Senate. The constituents which both represent are finally the same, and together bear the burdens of taxation. I believe the opinion is becoming general that the provision in question is not only useless, but is an absolute hindrance in the course of legislation.
§ 223. Rules applicable to the members of the two Houses individually. — 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. Art. I. Sec. VI. § 1.
The privilege from arrest, and from being questioned in any other place for any speech or debate, has ever been considered indispensable to a free representative government. These provisions in our Constitution are substantially the same as those of the English law.
§ 224. 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, 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 continuance in office. Art. I. Sec. VI. § 2.
The latter of these clauses is in striking contrast with the law and practice in England. As Parliament is organized the principal administrative officers must be members of one or the other house.
CHAPTER III.
GENERAL LIMITATIONS UPON THE POWERS OF THE UNITED
STATES GOVERNMENT.
§ 225. THUS far, in the coarse of this work, I have endeavored to explain what the Constitution is, and who were its authors;
then passing from this general survey to the instrument itself, have exhibited the fundamental ideas upon which the government of the United States is based, and described its outward form and structure. We now proceed to consider its powers. In explaining and illustrating the positive powers which are conferred by affirmative language of the Constitution, the natural order requires us to take up separately the Legislative, the Executive, and the Judicial. But before commencing this special investigation, there are some considerations to be submitted which affect the whole government, which apply to all departments alike.
§ 226. As has already been stated more than once, the government of the United States is one of limited powers. The people have not committed to It their own complete functions of legislation and administration. One portion they have retained dormant in their own hands; special capacities and attributes they have conferred upon the national government;
the residue they have intrusted to the separate states. In order to confine their immediate agents within the proper bounds, the people have inserted in the organic law various restrictions, stated with the utmost care, so that the rights of the individual shall be guarded from the encroachments of power.
Let us now direct our attention to the limitations upon the governmental power; let us endeavor to ascertain their nature, and the extent of their negative influence.
They are of two classes. 1st. Those which are expressed in the Constitution in positive terms; and 2d. Those which are implied from the general nature of the government, and the design of the instrument by which that government is created.
SECTION I.
EXPRESS LIMITATIONS UPON THE WHOLE GOVERNMENT.
§ 227. We are to examine those restraints and limitations which are imposed upon the general government and are embodied in express negative language of the Constitution. An examination of the various provisions of the organic law will disclose the fact that most of these express negative clauses apply with equal force to the Legislature, the Executive, and the Judiciary. Some, however, are confined in their operation to a single one of these departments, generally to Congress. These latter will be passed by for the present, and will be examined in those subsequent chapters which treat of the legislative, administrative, or judicial functions.
General Statement and Nature of these Limitations.
§ 228. The Constitution, as proposed by the convention and adopted by the people, contained almost none of the express, general, negative provisions which impose a limit upon the entire functions of the government. This omission of a Bill of Rights was made one of the strongest grounds of objection to that instrument during the canvas which preceded its final ratification. To meet this objection, it was urged by the authors of "The Federalist" and others, that our whole Constitution was in itself a Bill of Rights; that no arguments drawn from English history would apply to our condition; that while the Parliament of Great Britain could do every thing, our own government had only those attributes which were granted to it; and that a denial of express powers not formally conferred, would be idle and absurd. These arguments, however, did not carry conviction, and immediately after the
assembling of the new Congress, amendments were proposed and speedily ratified, which consist in a series of negations of any assumed power to perform certain enumerated acts. These express denials of the existence of certain attributes in the general government, constitute our national bill of rights, and apply to each department, and to all classes of officials. They are contained in the first eight articles of the amendments.
§ 229. The following is the substance of these important restraints.
No form of religion shall be established, nor shall the free exercise of religion be prohibited. The freedom of the press or of speech shall not be abridged. The right of the people peaceably to assemble, and to petition the government shall not be curtailed. Art. I.
The right of the people to bear and keep arms shall not be infringed. Art. II.
Soldiers shall not, in time of peace, be quartered in houses without the consent of the owners, nor in time of war, except in the manner prescribed by law. Art. III.
Unreasonable searches and seizures of persons, houses, papers, and effects are forbidden. No warrant shall be issued except upon probable cause, supported by oath, and particularly describing the place to be searched, and the persons or things to be seized. Art. IV.
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. No person shall be subject, for the same offence, to be put twice 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. Art. V.
In all criminal prosecutions, the accused shall enjoy the right of a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed and must be informed of the nature and cause of the accusa
tion; and must be confronted with the witnesses against him, and may have compulsory process to obtain his own witnesses; and may have the assistance of counsel in his defence. Art. VI.
The trial by jury shall be preserved in suits at common law, where the value in controversy shall exceed twenty dollars. Art. VII.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. Art. VIII.
§ 230. The separate states have also adopted constitutions which contain these or similar limitations upon the local governments. It is a fact, therefore, that the entire legislative and administrative power of the whole country, whether wielded by the nation or by the states, is subject to restraints of the same general nature as those expressed In these clauses, and the rights and liberties of the people are guarded at all hands against encroachments from any source, as much as is consistent with the safety of the nation. It is true that the same construction may not be given to a provision identical in language, in all the states; the same exercise of governmental power may be regarded in one commonwealth as in accordance with, and in another as opposed to, the Bill of Rights which forms a part of both constitutions. This is a result which must flow from the delegation of functions to bodies politic that are in a measure independent of each other.
To whom are these negative Provisions addressed?
§ 231. The first inquiry which suggests itself, and which I shall proceed to answer, is, upon whom are the provisions of the United States Constitution just quoted, binding; to whom are they addressed? They are expressed in the most general language; do they therefore restrain the states as well as the nation? or are they only applicable to the latter? This question has not often arisen in a practical form, for as the state constitutions, with few exceptions, have contained the whole of these muniments of individual liberty, their legislatures have
been restrained by their own organic laws, if not by that of the nation. But the question may easily assume a very practical form and become of paramount importance. A state
whose constitution contains limitations similar to those found in the fundamental law of the nation, may, through its legislative, administrative, and judicial departments, put an interpretation upon these provisions which is oppressive to its own inhabitants and destructive of their liberties. Could these inhabitants appeal to the national authorities, and bring these negations of the national Constitution to bear upon the local government?
Or the state may abolish these restrictions in its own organic law, and, so far as itself is concerned, leave its government free to act at pleasure. There is certainly a growing feeling that the methods of administering justice both in civil and criminal cases, which we have borrowed from our English ancestors, are too cumbersome, and are as often hindrances as helps to the right. It has been suggested that the interests of the public would be advanced by abolishing the grand jury, and trial by jury, and introducing the more severe methods which are used in the continental nations of Europe. If public opinion in any state should become ripe for such a change, could that state so amend its own constitution as to abolish all of this time-honored procedure, and allow a person to be held to answer for a capital or otherwise infamous offence, without a presentment or indictment of a grand jury? Could the state deprive the accused of the trial by jury, or compel him to be a witness against himself? Could the state take the private property of its inhabitants without making just compensation? or deprive them of life, liberty, or property, without due process of law? or impose excessive fines, or inflict cruel and unusual punishments? Some of the assumptions contained in this series of questions may well be called impossible; but others are certainly within the range of probability.
§ 232. The answer is that the general limitations contained in the United States Constitution, and which have been quoted, have reference only to the national government, and do not apply to the several states. They were not intended
as restrictions upon the powers of the local commonwealths, but only upon the various departments which administer the public affairs of the entire nation, and which were created by the organic law. So far, then, as the states do not infringe upon express provisions in the Constitution specially addressed to them, or upon those implied in the whole scope of that instrument and in the grants of power to the general government, they may regulate their own internal economy as seems best to themselves. The United States are forbidden either by the legislative, executive, or judicial departments, to deprive a person of any of the immunities and privileges guarded by the Bill of Rights. The states may, in respect to their own inhabitants, if consistent with their own organic laws, infringe upon them all.
§ 233. This construction of the Constitution is supported by the judgments both of the national and the local courts. In the case of Barron v. The Mayor of Baltimore1 the Supreme Court of the United States gave an authoritative interpretation to these clauses. The facts, it is true, applied only to one provision, — that which forbids the taking of private property for public use without just compensation. The plaintiff claimed that the city of Baltimore had taken his property for public use without just compensation, and that a statute of the Maryland legislature authorising the act was void as being opposed to the negative clause of the United States Constitution already quoted. The reasoning of the court is equally applicable to all these general provisions of the Bill of Rights. C. J. Marshall says: "The plaintiff contends that the case comes within that clause of the fifth amendment to the Constitution, which inhibits the taking of private property for public use without just compensation. He insists that this amendment, being in favor of the liberty of the citizen, ought to be so construed as to restrain the legislative power of a state as well as that of the United States. The question thus presented is, we think, of great importance, but not of much difficulty. The Constitution was ordained and established by the people of the United States for themselves, for their own 1 7 Peters' R. 243.
government, and not for the government of the individual states. Each state established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers to be conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument. They are limitations of power granted in the instrument itself, not of distinct governments, framed by different persons, and for different purposes. If these propositions are correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states. In their several constitutions they have imposed such restrictions upon their respective governments, as their wisdom suggested; such as they deemed most proper for themselves. It is a subject on which they judge exclusively, and with which others interfere no farther than they are supposed to have a common interest."
§ 234. The interpretation thus formally given by the Supreme Court of the United States is authoritative and final, and it has been repeatedly confirmed by the judgments of state tribunals. In New York it was decided by the Supreme Court in the case of Murphy v. The People,1 that a statute of that state, providing for the summary trial and conviction of a person charged with petty larceny, not being opposed to the local constitution, was not controlled by any
of the amendments to the United States Constitution. In the case of Barker v. The People,2 the subject was considered and decided by the Court of Errors — then the tribunal of last resort — of the same state. Barker had been indicted and convicted for the offence of sending a challenge to fight a duel. The punishment awarded by the statute was, that the party so convicted "shall be incapable of holding, or 1 2 Cowen's R. 815. 2 3 Cowen's R. 686.
being elected to, any post of profit, trust, or emolument, civil or military, under this state." The defendant insisted that this statute was in derogation of that clause in the amendments to the United States Constitution, which forbids the infliction of cruel and unusual punishments. The court arrived at the conclusion that the provision in question only regulates the legislative and judicial action of the United States, and has no application to the punishment of crimes against a state. The same doctrine has been held by the Supreme Court of Pennsylvania in James v. The Commonwealth.1 It has also been decided in New York and in Connecticut, that the provisions of the amendments, declaring that no person shall be deprived of his property without due process of law, and that in suits at common law, where the amount in controversy exceed twenty dollars, the trial by jury shall be preserved, are restrictive only upon the general government and its officers. § 235. The rule of interpretation is thus firmly established, but the rule itself is certainly an unfortunate one. The United States, as the sovereign, as supreme over all state governments, should be able to afford complete protection to its citizens. It is not enough that this protection should be extended to citizens while abroad; it should be as powerful at home. The citizen should be guarded in the enjoyment of his civil rights of life, liberty, limb, and property, against the unequal and oppressive legislation of the states. The rule under consideration, taken in connection with another principle which I will now merely mention, effectually prevents the national courts from maintaining the rights of citizens against the encroachments of the states, so far as those rights are affected by positive restrictions. This second principle was briefly alluded to in § 144. In respect to cases arising under the Constitution and laws of the United States, the jurisdiction of the national tribunals is final and conclusive, and to their judgments the state legislatures and courts must yield. But in respect to cases arising solely under state laws, where the national Constitution is not brought in question, the jurisdiction of the United States courts is not final and conclusive, 1 12 S. & R. 220.
and their decisions are based upon, and follow, the expositions of those laws which have been made by the state judiciary.
§ 236. To illustrate: in a case arising under the clauses of the Constitution forbidding a state to pass bills of attainder, ex post facto laws, or laws impairing the obligation of a contract, the Supreme Court would finally and absolutely decide the question whether a given state statute was in fact opposed to these clauses, and would not be bound at all by the opinions and judgments of the state courts upon the same matter in controversy. The national government may thus give its citizens complete protection against the state legislation which is inhibited by these salutary provisions. But in a case arising under the clause in a state constitution which forbids a person to be deprived of life, liberty, or property without due process of law, the Supreme Court of the United States cannot pass directly and independently upon the question whether a given state statute, or a given act done under the authority of the state, is opposed to this clause, but must defer to, and be controlled by, the judgments of the courts of the same commonwealth which have settled the construction given to their own organic law. Here is plainly a vast field open for injustice and oppression by individual states, which the nation has now no means of preventing. Thus, let it be supposed that the constitution of a certain state contains clauses securing to the people the right of keeping and bearing arms; and declaring that no person shall be deprived of life, liberty, and property
without due process of law. Let it also be supposed that the legislature of the same state passes statutes by which certain classes of the inhabitants — say negroes — are required to surrender their arms, and are forbidden to keep and bear them under certain penalties; and also statutes by which the same class of persons are required to be hired out and to labor in a certain prescribed manner, and in case of failure to comply with these regulations, these persons are declared to be vagrants, and liable to be seized, and by a summary proceeding, bound out to service for a term of years. An individual of the class mentioned in these statutes incurs some or all of their penalties; is proceeded against. He insists that the stat-
utes in question are opposed to the Bill of Rights in the state constitution; the local courts settle the law against him, and hold that all this legislation is in conformity with the organic law of the commonwealth. Now, this person could obtain no redress from the national courts under the amendments to the United States Constitution which we are considering. Whatever might be the opinion of the judges, they must administer the local law as it has been administered by the local judiciary.
§ 237. This is a result which is dismaying, and a remedy is needed. Such a remedy is easy, and the question of its adoption is now pending before the people. The first section of the proposed fourteenth amendment to the United States Constitution is in these words: "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." I consider this amendment to be by far more important than any which has been adopted since the organization of the government, except alone the one abolishing the institution of slavery. It would give the nation complete power to protect its citizens against local injustice and oppression; a power which it does not now adequately possess, but which, beyond all doubt, should be conferred upon it. Nor would this amendment interfere with any of the rights, privileges, and functions which properly belong to the individual states. When the Constitution has from the beginning contained prohibitions upon the power of the states to pass bills of attainder, ex post facto laws, or laws impairing the obligation of contracts, it is strange that a provision forbidding acts which deprive a person of life, liberty, or property, without due process of law, was not also inserted at the outset; it is more than strange that any objection can be urged against the proposition to now remedy the defect.
§ 238. The constitutional guaranties contained in the first eight amendments, being thus solely intended as barriers against any encroachments of the general government upon the liberties of the citizen, are binding with equal force upon
the legislature, upon the executive, and upon the judiciary. The will of the people has spoken through their organic law, and the government which they have created, and even themselves who called that government into being, must alike bow to these declarations of right. Furthermore, as the clauses in question are mandatory and peremptory in their nature, and directed at once to each branch of the government, they require no statute of Congress, decision of judge, or act of President, to execute them, and give them binding efficacy. They execute themselves without the aid of an inferior law. Any proceeding of the government in derogation of their command would be void; any proceeding declaratory would be useless.
Examination and Discussion of these Limitations.
§ 239. I shall now proceed to discuss, in a brief manner, the meaning and nature of these several restrictions, the objects for which they were incorporated into the organic law, the dangers they were intended to guard against, and the extent of their application. It may be remarked that whatever construction is given to these clauses, will also apply to the same or similar provisions in the state constitutions.
1. The right of the people to keep and bear arms. The object of this clause is to secure a well-armed militia. It has always been the policy of free governments to dispense, as far as possible, with standing armies, and to rely for their defence, both against foreign invasion and domestic turbulence, upon the militia. Regular armies have always been associated with despotism. But a militia would be useless unless the citizens were enabled to exercise themselves in the use of warlike weapons. To preserve this privilege, and to secure to the people the ability to oppose themselves in military force against the usurpations of government, as well as against enemies from without, that government is forbidden by any law or proceeding to invade or destroy the right to keep and bear arms. But all such provisions, all such guaranties, must be construed with reference to their intent and design. This constitutional inhibition is certainly not violated by laws forbidding persons to
carry dangerous or concealed weapons, or laws forbidding the accumulation of quantities of arms with the design to use them in a riotous or seditious manner. The clause is analogous to the one securing freedom of speech and of the press. Freedom, not license, is secured; the fair use, not the libellous abuse, is protected.
§ 240. 2. The quartering of soldiers upon private citizens is forbidden in time of peace, and only allowed in time of war when done according to law. This provision is of more historical interest than practical importance. It was borrowed from the Petition of Right, passed by Parliament In the reign of Charles I., under whom the practice of billeting soldiers upon the citizens had grown to be an enormous abuse.
§ 241. 3. Unreasonable searches and seizures are forbidden, and no warrants of search or arrest must issue except upon probable cause, supported by oath, and describing the place to be searched, and the person or thing to be seized.
This provision is of the utmost importance in the administration of justice. It protects the liberty and property of the citizen against the inquisitorial proceedings set in motion by mere suspicion or surmise. It demands some proof to substantiate a charge before the machinery of the law is set in motion, and requires that some person shall assume the responsibility of sustaining the charge by his oath. It prevents all vague accusations by insisting that the person or thing to be seized, or the place to be searched, shall be particularly described.
This clause of the Constitution was particularly aimed at what were known in the English law as general warrants. These general warrants were used more especially in the case of political offences, and were issued by the government, directing the officers to search all suspected places, and seize all suspected persons, without describing any place or person. The execution of the warrant was left to the caprice of the individual who had it in charge. Although these warrants were so plainly contrary to the spirit of the English common law, and destructive of individual rights, and liable to become instruments of tyranny in the hands of an unscrupulous official, they continued in use down to a time immediately prior to the
American Revolution. The practice was finally declared illegal by the Court of King's Bench during the presidency of Lord Mansfield, in the case of Money v. Leach.1 The case arose on a warrant issued by one of the Secretaries of State requiring the officers "to make diligent search for the authors and publishers" of a certain seditious libel, "and them or any of them having found, to apprehend and seize, together with their papers."
§ 242. 4. The course of proceeding in criminal trials for all offences except those of a petty character, is established: an indictment or presentment by a grand jury as the initiative; a speedy and public trial of the accusation by a jury; information as to the nature of the charge; public examination of the witnesses for the prosecution in the presence of the accused;
opportunity for the prisoner to procure his own witnesses; to maintain silence respecting the imputed crime, and to be defended by counsel.
It is thus that the Constitution endeavors to protect the liberties of the citizen against any oppressive acts of the government, by absolutely prohibiting that government, through its officers, from deciding first, whether a person shall be put upon trial for an alleged offence, and secondly, whether he is guilty of the offence which may be alleged against him. Both of these questions must be determined by bodies of men chosen from the people at large. The grand jury as the accusers, and the petit jury as the judges of the fact, are a part of the English system of administering justice, and have been thence borrowed by us. No doubt they have been greatly instrumental in maintaining the liberties of the British subject. It may well be questioned, however, if the grand jury is not now so cumbersome and inefficient, that any theoretical advantages which may flow from it, are not far outweighed by the practical defects and hindrances which are inseparable from its use in administering the criminal law. Indeed, it has been already abolished in some states. I am strongly of the opinion, also, that some others of these time-honored principles of English and American criminal procedure have outlived their usefulness, and are l 3 Burr. R. 1742.
obstacles to the proper investigation and punishment of crime. The provision that no person shall be compelled to be a witness against himself can only be supported by that intense reverence for the past which is so difficult to be overcome. This ancient rule of the English law has been entirely repudiated in civil cases, and there is no reason for preserving it in criminal trials. A judicial trial is in theory, and should be in fact, a means of ascertaining the truth; but this maxim of the law closes at once the most direct and certain road which leads to the truth. There can be no doubt that the states will gradually abandon this provision, and reject it from their constitutions.
§ 243. The fifth amendment excepts from its operation a class of cases; and this exception applies in fact to the whole course of criminal investigations as regulated by the Bill of Rights. These cases are those "arising in the land or naval forces, or in the militia when in actual service in time of war or public danger." It is evident that the navy and regular army, at all times, and the militia when in actual public service, cannot be governed by the code of laws which applies to the great body of citizens. Military exigencies require, not individual liberty, but subordination, obedience. The very rules which are framed to protect the individual rights of the people, would destroy an army. The Constitution, therefore, gave Congress the power to make rules for the government of the land and naval forces, and of the militia employed in the service of the United States.1 These rules constitute that department of the municipal law known as the "Military Law;" and the methods of trial and punishment are military in their character.
§ 244. 5. No person shall be twice put in jeopardy of life or limb for the same offence. The same guaranty is contained in most or all of the state constitutions; indeed, the general maxim which includes this particular case, is as old as the common law. I shall not attempt to quote or comment upon the many cases which have given a construction to this clause. The rule which is settled by them all is, that a person shall 1 Const. Art. I. Sec. VIII.
not be tried a second time for the same offence after a verdict of conviction or acquittal has passed upon him. But this rule must be taken with the following exceptions: After acquittal the state, or the United States, cannot procure the case to be reviewed for any error committed by judge or jury, and obtain a new trial; for this would be to put the party twice in jeopardy. But after conviction, the accused may, if error has been committed, obtain a new trial; and such new trial is not considered to be a second jeopardizing of the prisoner.
§ 245. 6. No person shall be deprived of life, liberty, or property, without due process of law.
The same provision is contained in the state constitutions. It was borrowed from Magna Charta, and appears in that celebrated instrument in the following form: "Nullus liber homo capiatur, vel imprisonetur, aut dissaisiatur, aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae." No freeman can be taken, or imprisoned, or disseized, or outlawed, or in any other manner injured, nor will we proceed against him, unless by the lawful judgment of his peers, or by the law of the land.
The phrase, "law of the land," as originally used, referred to the trial by wager of battle or by ordeal, as distinguished from trial by one's peers; but it has long been settled in England and America, that under the modern law and institutions, this phrase, and "due process of law," are identical in import. Let us endeavor to obtain a clear idea of their meaning and application.
§ 246. It is plain that any statute which Congress or legislature may see fit to pass, is not, in the sense in which the words are used in the Constitution, "due process of law," or "the law of the land." Otherwise this safeguard of private rights would become a mere empty form. Due process of law implies, primarily and principally, that regular course of judicial proceeding to which our fathers were accustomed at the time the Constitution was framed; and, secondly, and in a subordinate degree, those more summary measures, which are
not strictly judicial, but which had long been known in the
English law, and which were in familiar use when the Constitution was adopted. These summary measures generally, though not universally, form a part of that mass of regulations which many juridical writers term Police, and which relate to the preservation of public quiet, good order, health, and the like. The regular judicial proceedings, which thus constitute due process of law, differed in different courts, but they were all well known and acknowledged. They all required a judicial trial to determine the rights of parties, a public charge, an opportunity to answer, and a verdict of jury or decision of judge. It must not be understood that trial by jury is an essential element in due process of law. Courts of equity and admiralty dispensed with this method of determining the facts in litigations; while in common law cases, and in criminal trials, it was in general use.
The summary measures which may form a part of due process of law are those which have been admitted from the very necessities of the case, to protect society by abating nuisances, preserving health, warding off imminent danger, and the like, when the slower and more formal proceedings of the courts would be ineffectual. Such measures of administration have been common in England since the epoch of Magna Charta, and in this country from the colonial times. Still, no statute of Congress or of a state legislature authorizing such summary methods would be in accordance with due process of law, unless these methods were substantially identical with those in existence when the Constitution was framed, and which might, therefore, be considered as within the meaning and intent of the people who adopted the organic law.
§ 247. The cases which have given a definition or illustrations of due process of law are exceedingly numerous; and, as they substantially agree in their conclusions, I shall only refer to a few, in which the judges have expressed themselves with great clearness, precision, and accuracy. Mr. Webster thus defined the phrase: "By the law of the land is most clearly intended the general law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold
his life, liberty, and property, under the protection of general rules which govern society. Every thing which may pass under the form of an enactment is not the law of the land."
Mr. Justice Bronson, certainly one of the ablest jurists that ever sat on the Supreme Bench of New York, thus defined the phrase in Porter v. Taylor:1 "The words 'by the law of the land' do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the Constitution into mere nonsense. The meaning of the section seems to be, that no member of the state shall be deprived of his rights and privileges, unless the matter shall be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. The words, due process of law, cannot mean less than a prosecution or suit according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property."
§ 248. This language must be taken with the important limitation, that the forms and solemnities required must be such as were essentially in existence at the time of forming the Constitution, as a part of the ordinary means of administering justice. Different courts employed different methods of procedure, and were appropriate for the determination of different classes of rights. But the essential elements in all judicial proceedings were the same. The legislature may change the outward form, the mere practice, but cannot alter the substance without interfering with the due process of law.
But the definitions and descriptions quoted would give a one-sided view of the phrase under consideration, unless it be remembered that they refer to one branch only of due process of law, — that which consists in orderly judicial proceedings, — and do not apply to the more summary and quasi-judicial modes which are also supported by the constitutional requirement. The legality of these latter is sustained by the highest authority.
§ 249. The following language was used in Wynehammer 1 4 Hill's R. 140.
v. The People,1 a case decided with great consideration by the court of last resort in New York: "I doubt whether this clause necessarily imports a jury trial as a part of all due process of law. If it does, then it is difficult to say on what ground equity proceedings, in which trial by jury is quite unusual, and by which men are often deprived of property, can be sustained."
In Murray's Lessee v. The Hoboken Land Co.,2 the Supreme Court of the United States examined this whole subject with great care, and gave an authoritative interpretation to the clause. The case was somewhat peculiar. The controversy related to the title to a certain tract of land. The land had been formerly owned by a person who was a public officer of the United States. In accordance with a general statute of Congress authorizing the proceeding, this land had been seized and sold by a process called a distress warrant, issued by the Secretary of the Treasury against this public officer, on account of an alleged balance due from him to the United States, although this balance had not been ascertained by any trial, nor had the warrant been issued in any judicial investigation. One of the parties to the suit claimed the land by virtue of this sale. The original owner subsequently transferred the land, and the other party succeeded to the rights thus created. The question to be decided was, whether the statute of Congress and the summary proceeding of seizure and sale under it were in accordance with the clause of the Constitution requiring due process of law. After stating that the phrase was equivalent to the other words, "the law of the land," and that its meaning was to be ascertained from the practice of the English legislature and courts subsequent to the time of Magna Charta, and after referring to many statutes of England and of the American states similar to the one under review, Mr. Justice Curtis concludes as follows:
"Though due process of law generally implies and includes actor, reus, judex, regular allegations, opportunity to answer, and a trial according to some settled judicial proceedings, yet this is not universally true. There may be, and we have l 3 Kernan's R. 425. 2 18 Howard's R. 272.
seen that there are, cases under the law of England after Magna Charta, and as it was brought to this country and acted on here, in which process in its nature final issues against the body, lands, and goods of certain public officers without any such trial." The statute of Congress was held to be valid. This case fully and necessarily sustains the position, that methods which had been known to the English and American law, and were familiar to the people at the time when the Constitution was adopted, although not judicial in their character, do constitute a portion of the due process of law by which a person may be deprived of life, liberty, or property.
§ 250. The limitation under consideration has been applied in numberless instances. Of course it forbids any act of legislature or of executive which takes one person's property and gives it to another; or which would imprison or otherwise punish a person without any of the forms of judicial procedure. The difficulty of its application arises in two classes of cases: (1) in those where a semblance of regular judicial action has been preserved, while its substance has perhaps been abandoned; and (2) in those instances where property is taken or destroyed, or persons restrained in a summary manner, and the contention is whether these acts can be fairly included among those measures of police which have been allowed by the English and American law from time immemorial.
§ 251. 7. Private property shall not be taken for public use without just compensation. A similar provision is found in the state constitutions.
The nation, or the state, may take private property in virtue of two capacities inhering in the body politic, — the right of taxation, and the right of eminent domain. The subject of the taxing power will be considered at large in the succeeding chapter. I will now only remark that it is not at all curtailed or restrained by the clause in the Bill of Rights under examination. In levying all taxes the government is assumed to make compensation to the payer, in the security which is afforded by a well-ordered administration. Every individual is charged with a duty to contribute towards the support of
the government his share of the public expenses, and, as will be shown, the government rests under no restriction as to the amount which it may claim.
§ 252. But the right of eminent domain rests upon different principles. The government, in the exercise of this attribute, takes, not the proportionate share which every individual is bound to contribute, but something over and above his share, and is therefore bound to return to him not only the general compensation which it gives to all persons who pay taxes, but particular compensation for the property seized. These principles are very clearly stated and illustrated by Mr. Justice Ruggles in the case of Griffin v. The Mayor of Brooklyn,1 in which case it was held that local assessments made upon property-holders by the municipal authorities of cities and villages to defray the expenses of opening and improving streets, are not made by virtue of an exercise of the right of eminent domain, but by virtue of the taxing power, and are not, therefore, in derogation of the clause which forbids the taking of private property for public use without just compensation.
§ 253. The power to take private property for public use is often, and indeed quite generally, delegated to corporations which form no part of the government, but which are constituted for the purpose of constructing some works of public utility, as canals, railways, turnpikes, bridges, and the like. It may seem somewhat startling that private persons, associated only for private ends, for their own private gains, should be permitted to wield a power which by its very nature belongs to the government, simply because the works which they construct may incidentally be a benefit to the community at large. The rule permitting such a transfer of functions from the state or nation to private individuals was not adopted without a struggle; but it is now too well settled to admit of any question, although the power is plainly liable to abuse.
§ 254. It may be asked whether the United States may not, in any conceivable case, take the private property of its citizens without making compensation. May not military 1 4 Comstock's R. 419.
officers in command of troops engaged in actual hostilities, seize the lands and effects of citizens when impelled by a military necessity? It must be remarked, that whatever the officers, either civil or military, of the United States may do, whether in obedience to a statute of Congress, order of judge, or command of President, the United States is not legally liable to the injured party. He cannot enforce his claim by a suit against the government; the nation as a supreme political society cannot be prosecuted. If the act was unlawful, the officer or agent doing it makes himself personally responsible as a trespasser; the direction of his superior, or even the void statute of the legislature is no protection or justification. If he be not thus personally responsible, it follows as a necessary consequence that the act was lawful. The United States may be morally bound to make compensation, but this duty is one of imperfect obligation; the claimant can only appeal to the discretion of Congress, not to the compulsory power of the courts. The test of the legal, constitutional authority of the government is, therefore, the personal responsibility or non-responsibility of its officers and agents. These remarks are necessary to explain the language of Mr. C. J. Taney, which is now to be quoted.
§ 255. The Supreme Court of the United States had occasion to examine the power of the government to seize the private property of a citizen without making compensation, in the case of Mitchell v. Harmony,1 growing out of events in the Mexican War. Mitchell, a military commander, had seized property of Harmony, an American citizen, claiming the right to do so under a military necessity. Being sued for the value of such property, the question of fact presented for decision was, whether the necessity actually existed. The court were of opinion that it did not, and held the officer responsible. But in rendering his judgment, Mr. C. J. Taney laid down the following most important doctrines: — "There are, without doubt, occasions in which private property may lawfully be taken possession of or destroyed, to prevent it from falling into the hands of the public enemy; and also l 13 Howard's R. 115.
where a military officer charged with a particular duty may impress private property into the public service, or take it for public use. Unquestionably, in such cases, the government is bound to make full compensation to the owner, but the officer is not a trespasser." I pause in the citation to remark that this duty is only moral and not legal. Were it legal, it could only be so because the act was done without authority, in which case the officer would be a trespasser. The judge proceeds: "But we are clearly of the opinion that in all these cases the danger must be immediate and impending, or the necessity urgent for the public service, such as will not admit of delay, and where the action of the civil authority would be too late in providing the means which the occasion calls for.
It is impossible to define the particular circumstances of danger or necessity in which this power may be lawfully exercised. Every case must depend upon its own circumstances. It is the emergency which gives the right; and the emergency must be shown to exist before the taking can be justified. In deciding upon this necessity, however, the state of the facts as they appeared to the officer at the time he acted, must govern the decision; for he must necessarily act upon the information of others, as well as his own observation. And if, with such information as he has a right to rely upon, there is reasonable ground for believing that the peril is immediate and menacing, or the necessity urgent, he is justified in acting upon it; and the discovery afterwards that it was false or erroneous, will not make him a trespasser."
§ 256. These rules must be applicable to many cases arising in an internal war, whether of invasion or rebellion. To inquire how far they are applicable would lead me into a discussion too extended for my present purpose. It is plain that military commanders may seize and occupy lands of private citizens when needed for encampments, battles, temporary fortifications; and the houses of private citizens when needed for quarters, and hospitals; and timber, growing and cut, when needed for fuel or works of defence; and provisions when needed for subsistence; and cattle or horses when needed for transportation. When the necessity actually exists, and the
commander acts upon it, he is not personally responsible; and the only duty which rests upon the government is the universal moral duty to do right and justice under all circumstances, a duty which in this rase can only be voluntarily performed by Congress, and not enforced by the courts. The Congress, if it deems best, may specially provide for each claimant, or it may pass general statutes under which all demands may be examined and settled; it cannot be compelled to do either.
§ 257. The restrictive clauses of the Constitution, which have thus been passed under a rapid review, were intended to oppose an effectual barrier against any encroachments by the government upon the private rights of the citizen. Even the administration of justice in the ordinary procedure of the courts is made to lean strongly in favor of the accused. It has been thought better that the state should be unable to punish crimes in certain instances, than that the rulers should have the power through a perversion of judicial proceedings, to oppress and wrong the people. While we retain our love of civil liberty, while the blood of our Saxon ancestors yet runs in our veins, these safeguards will not be relaxed. They were wrested from the Crown by the people of England through generations of conflict. We inherited the benefits which our fathers had obtained; we shall not readily suffer them to be taken from us.
§ 258. But here a most important question presents itself. Do these restrictions apply with equal force, and under all circumstances, while the nation is operating by its military, rather than by its civil arm? Does a condition of internal war, and do the exigencies of military movements, ever discharge the government from the restraining effect of this Bill of Rights? Must arrests of citizens not in the military service be made in all instances upon special warrants? charges in all instances be preferred by grand juries? trials had in all in stances by petit juries? Must due process of law be observed under all circumstances? These are questions which, as all know, have attracted much attention during the past six years. I do not purpose to consider them here, and shall postpone any examination of the subject until those chapters are reached
which treat of the war powers of the government. It is sufficient now to refer to the late case of Ex parte Milligan,1 in which the Supreme Court of the United States expressed an opinion that partially covers these questions.
SECTION II.
IMPLIED LIMITATIONS.
§ 259. I come now to consider the second class of limitations upon the government, namely, those which are implied from the general nature of the government itself, and the design of the instrument by which it was created.
It is conceded by all that the government of the United States is one of limited powers; limited by the very nature and essence of its construction. It can wield only such attributes as are conferred upon it by the Constitution. Now the grants contained in the organic law are all expressed in the most general language; they do not descend to details; they do not assume to point out the means and methods by which the various powers are to be made operative. To illustrate:
Congress is authorized "to regulate commerce with foreign nations." Nothing is said as to the meaning of the words "regulate" and "commerce," or as to the extent to which the regulation may be carried. All this is left to construction, and, as we have seen, it must be a judicial construction which is to settle the import of this and all other grants of power.
§ 260. Two schools of interpretation have existed among the statesmen and politicians of the country. The one has taught that a strict and close construction is to be placed upon all the grants of power contained in the organic law, so as to limit. the government to those acts and means which are absolutely necessary to give force and operation to the grant. The other has maintained that the instrument is to be construed liberally, so as to enable the government to adopt any means which would fairly and reasonably conduce to make the grant of power operative; and that among such means the government l 4 Wallace's R. 2.
has an unrestricted choice, which cannot be limited by the judiciary. Those who have thus read the Constitution, assert that the powers of the government are full, complete, and absolute within the range of the subjects committed to its care;
that it may adopt whatever means it prefers which may tend to give effect to the general provisions of the fundamental law;
that among such means the selection is entirely a matter of policy and expediency, and not of constitutional power. No other question has been so vigorously debated, so fiercely contested as this. It has been at the bottom of most of the differences which have separated political parties from the adoption of the Constitution unto the present day.
§ 261. Still it cannot be denied that the practice of the government has been in accordance with the latter more liberal theory of construction. The Supreme Court of the United States has uniformly affirmed this view with the greatest emphasis, and applied it to cases of the highest importance. The tribunals of most of the states have followed the lead of the national judiciary, although some of them have adopted the opposing theory, and enforced it with great earnestness. The history of their legislation, and the character of their legislative acts, show beyond a cavil or doubt that the same method of interpretation has guided Congress in the discharge of their duties.
§ 262. A brief reference to a few examples of legislation will serve to illustrate and confirm the latter statement. The Constitution gives to the government the power to regulate commerce. A strict construction would restrain this function to the passage of such statutes as were absolutely necessary to the regulation; such as those relating to the registry and enrolment of vessels, the mutual rights and duties of owners, masters, and seamen, the government of ports and harbors, and the like. Yet, under this grant Congress has assumed to enact laws for the improvement of harbors, the construction of piers, the erection of an astronomical observatory, the conduct of a coast survey. It has invaded the common law by limiting the liability of carriers on the ocean and the great lakes; it has sent out expeditions to observe an eclipse, and to
explore the topography of the Dead Sea. All of these acts are, indeed, means which plainly tend to the regulation of commerce; none of them are indispensable to it. Yet, I think it is not assuming too much to assert that the nation has settled down to the opinion that these and similar measures are proper and lawful.
Again; Congress is authorized to lay taxes, duties, imposts, and excises. The partisans of a strict construction have urged that the levying of duties must be confined to so much as may be necessary for a tax. But during a large portion of our history a tariff has been in operation, which was designed, and did operate to protect certain home interests. A protective tariff is certainly not indispensable to the execution of the power to lay taxes; but it is as certainly one of the methods of exercising that power.
Again; Congress is authorized to borrow money on the credit of the United States. No power is given in terms to create a corporation. Yet, for a great part of the time since the Constitution was adopted, an United States bank has been in existence, created by Congress; and within the past few years a system of national banks has taken the place of the state institutions. Under the same grant of power, the Congress has authorized the issue of paper currency by the Secretary of the Treasury, and has declared such notes to be legal tender in the payment of debts public and private.
Numberless other instances might be cited, but these will suffice to substantiate the statement that the actual legislation of the United States has been conducted upon the principle of giving a free and liberal construction to the various clauses of the Constitution which contain grants of power. This uniform practice, commenced at the very origin of the government, and continued to the present day, is evidence of the most cogent character that the system of interpretation upon which it has been based, is correct.
§ 263. When we turn to the authoritative utterances of the Supreme Court of the United States, we shall find that high tribunal from the very outset adopting the same view of the organic law, and steadily adhering thereto until their very
latest decisions. I cannot refer to all the cases in which this principle has been either explicitly announced and acted on, or implicitly involved. Such a multiplication of authorities would be unnecessary. But my exposition of the subject would be very incomplete did I not quote some of the language which has been employed by that court in leading cases where the question has been brought before it for careful consideration and settlement.
§ 264. In the early case of Fisher v. Blight,1 Mr. C. J. Marshall said: "It would be incorrect and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means which are in fact conducive to the exercise of a power granted by the Constitution." The rule was applied to a statute of Congress giving the United States a priority over other creditors in collecting its demand from the estate of an insolvent debtor.
§ 265. In Martin v. Hunter's Lessee,2 the Supreme Court used the following language: "The government of the United States can claim no powers which are not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication. On the other hand, this instrument, like every other grant, is to have a reasonable construction, according to the import of its terms; and where a power is expressly given in general terms, it is not restrained to particular cases, unless that construction grows out of the context expressly, or by necessary implication. The Constitution unavoidably deals in general language. It did not suit the purposes of the people, in framing this great charter of our liberties, to provide for minute specifications of its powers, or to declare the means by which those powers should be carried into execution. Hence its powers are expressed in general terms, leaving to the legislature from time 1 2 Cranch's R. 396. 2 1 Wheaton's R. 304, 326.
to time to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require."
§ 266. In McCulloch v. The State of Maryland,1 the subject was presented to the Supreme Court in the most formal manner. The question at issue was the validity of a statute creating the United States Bank. Certainly, no direct power is given to establish such an institution; nor was it indispensable to the execution of the power to borrow money, to collect taxes, or to pay debts. Either and all of these acts may well be performed without a bank. The constitutionality of the measure was rested entirely on the ground that such an institution was a legitimate means of carrying out the general powers, and that the degree of its necessity was a question of legislative discretion and not of judicial cognizance. The counsel engaged in the argument were among the very ablest in the nation, including Webster, Pinckney, and Wirt. The opinion of the court was given by C. J. Marshall, and is a masterpiece of judicial reasoning and eloquence. After a long and exhaustive discussion on the nature of the government, and the rules by which the Constitution is to be interpreted, in the course of which he observed, "if any one proposition could command the universal assent of mankind, we might expect it would be this, that the government of the Union, though limited in its powers, is supreme within its sphere of action," he concludes his argument with the following language: "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."
l 4 Wheaton's R. 316.
§ 267. In the great case of Gibbons v. Ogden,1 the same court, by the mouth of the Chief Justice, reasserted the same theory, and applied it to the grant of power to regulate commerce. The judgment contains the following language:
"This instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly. But why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws which shall be necessary and proper for the purpose. But this limitation in the means which may be used is not extended to the powers which are conferred;
nor is there one sentence in the Constitution, which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not, therefore, think ourselves justified in adopting it. What do the gentlemen mean by a strict construction? If they contend only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the terms, but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument — for that narrow construction which would cripple the government, and render it unequal for the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent — then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the Constitution is to be expounded."
§ 268. Nor must it be supposed that these liberal and high national views which prevailed in the Supreme Court during the presidency of C. J. Marshall, have been abandoned, or in
l 9 Wheaton's R. 1.
the least degree modified, in later times when the court has been composed of other judges under the leadership of C. J. Taney. The same principles have been constantly maintained, and the same doctrines asserted and enforced. Thus in The State of Pennsylvania v. The Bridge Company,1 it was decided that the power to regulate commerce confers upon Congress the right to pass a statute declaring that a bridge over the Ohio River should remain, although the court had before ordered it to be removed as a nuisance. In Ablemann v. Booth,2 C. J. Taney expressed himself in the following pointed manner. "The powers of the general government and of the states, although both exist and are exercised within the same territorial limits, are yet separate and distinct sovereignties, acting separately and independently of each other within their respective spheres; and the sphere of action appropriated to the United States, is as far beyond the reach of the judicial process issued by a state judge or a state court, as if the line of division was traced by landmarks and monuments visible to the eye." One of the latest decisions of the court during the life of C. J. Taney, was that of The Bank of Commerce v. New York City,3 which held that the power to borrow money conferred on Congress the right, as one of the means for making this power effective, to exempt the United States securities from state taxation; and a series of subsequent cases has reaffirmed the doctrine.4 Numerous judgments of the state courts might be quoted to the same effect, but it is sufficient to refer the student to The Metropolitan Bank v. Van Dyck,5 in which the Court of Appeals of New York examined the whole subject in a very exhaustive manner, and applied it to the Legal Tender Act of Congress.
§ 269. The following principles have thus been settled by the concurring action of the national legislature and judiciary.
The government is one of enumerated, limited powers, and
l 18 Howard's R. 421.
2 21 Howard's R. 506, 516. 3 2 Black's R. 620. 4 The Bank Tax Cases, 2 Wallace's R. 200; Van Allen v. The Assessors, 3 Wallace's R. 573; People v. Commissioners, 4 Wallace's R. 244. 5 13 Smith's (27 N. Y.) R. 400.
nothing is within its jurisdiction that is not contained in the constitutional grants either expressly or by reasonable implication. When any act is attempted by the government, authority for that act must be found within the provisions of the organic law.
But within the scope of functions assigned to it, over the subjects committed to its care, the powers of the general government are complete, supreme, absolute; as to these subjects of legislation, Congress is as omnipotent as the British Parliament.
In respect to particular governmental measures, the Constitution does not descend to any minuteness of detail in the recital of the various functions which it confers; it deals only in generals. Daniel Webster, with a power of insight and expression which condensed a volume of discussion into a single sentence, remarked that "our Constitution is one of enumeration, and not of description." It contains, in fact, a list of the grand subjects and purposes which must be the final objects of all legislation; but it does not attempt to define all the means and methods by which those objects may be attained. Congress has an unlimited choice among all the means and methods which tend to accomplish any end enumerated in the general grants of the Constitution. If the particular measure which the legislature has enacted, has a tendency to bring about the end, it is lawful, is within the scope of congressional action, and the courts cannot interpose and defeat this measure, although the judges may be of opinion that the means was not the best. In this manner the United States government, while pursuing the legitimate objects for which it was organized, may interfere with many subjects which are committed to the several states and which ordinarily fall under their exclusive jurisdiction.
Finally, the means and methods, the particular measures of legislation, which are adopted, must have some relation to an end included in the general grants of the Constitution; if there be absolutely no such relation. Congress has erred, not on a mere question of policy, but in an exercise of power; their work is unwarranted by the fundamental law, and is a nul
ity.
CHAPTER IV.
THE LEGISLATIVE POWERS OF THE UNITED STATES GOVERNMENT.
§ 270. I AM now to discuss the powers which the people of the United States have conferred upon their Congress. These powers are all legislative in their character. In considering them, and in ascertaining their extent, or, in other words, in determining what statutes Congress may lawfully pass, we must constantly bear in mind the important principle which was stated and illustrated in Section II. of the last chapter, — a principle to be freely applied in every case of doubt and difficulty. In connection with this subject it will be natural and proper to speak of those legislative functions and attributes which have been conferred upon, or withheld from, the several states.
The first power which we meet and are to consider is that of taxation.
SECTION I.
THE POWER OF TAXING.
§ 271. I will collect all the clauses of the Constitution which have reference to the general subject of taxation.
Art. I. Sec. VIII. contains an enumeration of legislative powers, of which the first is as follows: "Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States." Art. I. Sec. II. § 3, provides that "Direct taxes shall be apportioned among the several states which may be
included within this Union, according to their respective numbers." Sec. IX. § 4, declares that "No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken;" and § 5, that "No tax or duty shall be laid on articles exported from any state;" and § 6, that "No preference shall be given by any regulation of revenue to the ports of one state over those of another; nor shall vessels bound to or from one state be obliged to pay duties in another." Sec. X. § 2, provides that "No state shall, without the consent of Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws;" and § 3 that "No state shall, without the consent of Congress, lay any duty of tonnage."
§ 272. In examining this language, we may consider, first, What powers of taxation are held by Congress; and, secondly, What powers are held by the several states.
The first of these questions may be subdivided, so that we may separately examine (1) the purposes for which taxes may be laid and collected; (2) the kinds of taxes; (3) the means and methods of enforcing the power, and (4) its extent. This last subdivision will lead us to the final inquiry, how far the corresponding function of the states is limited.
First. What Powers of Taxation are held by Congress. I. The Purposes for which Taxes may be Laid and Collected.
§ 273. Congress has power "to lay and collect taxes, etc., to pay the debts and provide for the common defence and general welfare of the United States." Do these two clauses contain two separate and distinct powers, or is the latter a limitation upon the other? In other words, does the Constitution, by this language, confer upon the legislature a general faculty of taxation, and also another general capacity to pay public debts and provide for the common defence and general welfare; or does it confer a limited power of taxation, by restricting the purposes for which taxes may be laid, and con
fining them to the payment of debts and provision for the common defence and general welfare? The latter construction is the one which has been almost universally adopted, although the language, taken apart from the context, is susceptible of the other. There are two grounds for preferring the interpretation which has been generally received. Both these clauses are found in a subsection which relates to taxation;
and it would be doing violence to the context to wrest one of these from its natural connection and make it refer to a subject entirely different. But again: if the construction should be adopted which regards the second clause as an independent grant of power, it would, in effect, be making our general government unlimited. Providing for the common defence and general welfare includes every thing which any government could possibly do; and a grant of power in these broad terms would be the same as making Congress omnipotent, equal in the extent of its functions to the British Parliament.
§ 274. The subsection should, therefore, be understood as though it read, taxes may be laid and collected in order to pay debts and provide for the common defence and general welfare. Thus the Congress does not possess an absolutely unlimited power of taxation. It can only resort to this high attribute for one or more of three purposes, payment of debts, the common defence, the general welfare. The defence must be common, and the welfare general. But, after all, this leaves a sufficiently wide field for the legislative operations. Money may be raised to pay any debts however contracted, whether now existing or to become due at a future time. Common defence and general welfare are terms of the broadest generality; and within them can be easily included all the objects for which governments may legitimately provide.
§ 275. What measures, what expenditures will promote the common defence or the general welfare, Congress can alone decide, and its decision is final. It is certainly not necessary that any particular expenditure should be spread over the whole country, to bring it within the meaning of a defence which shall be common, or a welfare which shall be general. All the disbursements of the government must be met by
revenue of some kind, and must finally be paid by some species of taxation, except that small portion which may be provided for by the sale of public property. Congress expends vasts [sic] sums of money in the erection and adornment of a capitol, in furnishing a library, in the purchase of pictures, statues, and basts, in endowing a scientific institution; but it is not claimed that these disbursements are not made for the general welfare. A fort in New York is for the common, not local, defence. In short, the legislature is not trammelled by these provisions;
it has ample scope and verge in which to indulge its proclivities to raise and expend money.
II. The various Kinds of Taxes.
§ 276. Congress may lay and collect "taxes, duties, imposts, and excises." Another clause speaks of capitation and other direct taxes. Let us inquire into the meaning of these various terms. The word "taxes" is generic, and includes all species; the words "duties," "imposts," "excises," "capitation," "direct" and "indirect" taxes, are specific, instances and examples of the genus tax. It is plain that if the Constitution had said Congress may lay and collect taxes, and there had stopped, it would have conferred all the power which is now granted. The specifications were only added for greater caution. "Duties" and "imposts," as commonly used, are synonymous, although "imposts" is etymologically a word of broader meaning. They are especially applied to those sums of money demanded by the government for the privilege of importing or exporting merchandise; although "duties" also describes fixed sums paid on ships and other instruments of commerce, as tonnage duties and the like. "Excises" is a word of wide significance, and includes almost all forms of tax which are not direct, and which are not strictly "duties." The various payments required by the existing internal revenue laws are examples of excises. Payments of a percentage upon incomes, upon sales, upon the circulation of banks, upon the value of manufactured articles, upon the products of the soil; license fees for carrying on different
branches of trade and business; stamps upon written instruments, judicial proceedings, articles of manufacture, are all excises.
Capitation or poll taxes are fixed sums of money paid by or for each person without reference to his property or business.
§ 277. All taxes are separated into two classes, — the direct and the indirect. Direct taxes include those assessed upon land, and those which pass under the denomination of capitation or poll, and probably include no others. Indirect taxes would then embrace all the remaining species, and would be co-extensive with duties, imposts, and excises. I say this division is probably correct, for the question has never yet been authoritatively decided by the Supreme Court of the United States; although in an early case, which will be referred to in the following subdivision, the judges expressed a very decided opinion that no other taxes were "direct," within the meaning of the Constitution, but such as were laid upon lands, and such as were strictly capitation.
III. The Means and Methods of enforcing the Taxing Power.
§ 278. The Constitution provides that no capitation or other direct tax shall be laid unless in proportion to the census; that direct taxes shall be apportioned among the several states according to their population; that duties, imposts, and excises shall be uniform throughout the United States; and, in immediate connection with the last provision, that no discrimination shall be made in regulations of the revenue in favor of any state. Finally, Congress is forbidden to lay duties on articles exported from any state. What is the meaning of these provisions? Two principles apply to the entire subject of taxation: Apportionment of direct, and uniformity of indirect, taxes. Direct taxes are to be laid and collected in one manner; all others in a different mode.
§ 279. Direct taxes must all be apportioned among the several states according to their population. Thus, if Congress proposes to levy a direct tax, it must first fix the whole amount of money to be raised in this manner; and this amount it must
divide among all the states in sums proportioned to the number of inhabitants in each. That is to say, the same process must be gone through with which is adopted in ascertaining the number of representatives to which each state is entitled. It is evident, therefore, that the raising of direct taxes involves a large amount of labor, calculation, and adjustment. But the Constitution is peremptory, and a statute purporting to lay and collect a tax of this kind in any other manner, would be a mere nullity.
§ 280. Imposts, duties, and excises, whether laid upon imported goods, upon the instruments of foreign commerce, or upon internal articles, productions, and labor, are only required to be uniform throughout the United States; that is, the rate fixed for any article or subject must be the same in all parts of the country. It is not necessary that all articles should be subjected to the burden, or that all upon which a tax is laid should bear the same rate. But when a rate has been determined for any one subject, that must be retained for the same species in all the states. Neither is it necessary to ascertain at the outset the total amount to be raised, or to divide it among the states. In laying and collecting indirect taxes, the government touches the individual apart from any of his relations to the state of which he is an inhabitant. It requires no argument to show that this description of tax is by far the most convenient, the easiest to lay and collect; and for this reason it has been resorted to at all times by the general government.
§ 281. It becomes necessary, therefore, to inquire a little more particularly, what are direct, and what indirect, taxes? Few cases on the general question of taxation have arisen and been decided by the Supreme Court, for the simple reason that, until the past few years, the United States has generally been able to obtain all needful revenue from the single source of duties upon imports. There can be no doubt, how ever, that all the taxes provided for in the internal revenue acts now in operation are indirect.
This subject came before the Supreme Court of the United States in a very early case, Hylton v. The United States. 1 3 Dallas' R. 171.
In the year 1794 Congress laid a tax of ten dollars on all carriages, and the rate was thus made uniform. The validity of the statute was disputed; it was claimed that the tax was direct, and should have been apportioned among the states. The court decided that this tax was not direct, and the reasons given for the decision are unanswerable, and would seem to cover all the provisions of the present internal revenue laws.
§ 282. While thus determining that imposts of this nature are not direct, the court was not called upon to decide authoritatively as to the character of all direct taxes; but the several judges, in delivering their opinions, could not avoid discussing the general question. Mr. Justice Chase said: "I am inclined to think that the direct taxes contemplated by the Constitution were only two, namely, a capitation, or poll, tax, simply, without regard to property, profession, or other circumstance, and a tax on land. I doubt whether a tax by a general assessment of personal property within the United States is included within the term direct tax." Mr. Justice Patterson said: "It is not necessary to determine whether a tax on the produce of land be a direct or an indirect tax. Perhaps the immediate product of land in its original and crude state, ought to be considered as a part of the land itself. When the produce is converted into a manufacture, it assumes a new shape. Whether direct taxes, in the sense of the Constitution, comprehend any other than a capitation tax, and a tax upon land, is a questionable point. I never entertained a doubt that the principal — I will not say the only — objects which the framers of the Constitution contemplated as falling within the rule of apportionment, were a capitation tax and a tax on land." Mr. Justice Iredell said: "Perhaps a direct tax, in the sense of the Constitution, can mean nothing but, a tax on something inseparably connected with the soil, — something capable of apportionment under all circumstances. A land and a poll tax may be considered of this description."1
1 Mr. George T. Curtis, in an article contributed to Harper's Monthly Magazine for August, 1866, criticizes the language of the judges in this case. I cannot, however, adopt his speculations, they are opposed to the uniform practice of the government, as well as to judicial dicta.
§ 283. The clause which declares that "no tax or duty shall be laid on articles exported from any state," has always been considered as expressly prohibiting all duties and imposts on exports as such. Still, in order to fall within this restriction, the tax must be laid upon the article as a condition of its being exported, while it is, so to speak, in the act of transit out of the country. An export duty must be the counterpart of an import duty. It cannot for a moment be admitted that an impost upon internal articles of growth and manufacture, while they are internal, is forbidden, even though the principal, nay, even sole, use to which these articles are put in the trade of the country is to export them. Were such a position to be assumed, the power of the government to raise a revenue would be materially curtailed; the necessary result would be that the fact of subsequent exportation would be the test of the prior liability to be taxed, — an absurdity too great to have been contemplated by the framers of the Constitution. But the language of that instrument does not admit of such a construction. It is not said that no tax shall be laid upon articles which may possibly, or probably, or even certainly, be exported from a state, but upon "articles exported" from any state.
§ 284. The power to lay and collect taxes includes the power to adopt all measures which may tend to carry out the object of the general provision. Thus, the collection of duties on imports requires the appointment of the retinue of officers necessary for the purpose, and the establishment of all the means and checks requisite to secure and guard the public funds. The same is true of the internal revenue law. The laying and collection of excises includes all measures conducive to the effective working of the system: measures of discovery, penalties for frauds, punishments for criminal acts. The imposition of stamps requires that all instruments on which the stamp is made necessary, should be declared void if the parties interested have neglected to obey the law. To sum up: the general grant of power to lay and collect taxes involves the particular power to appoint large numbers of officers, to provide for their compensation, and to make rules for their guid
ance; the power to forfeit vessels, cargoes, and other property of persons who violate the laws; the power to punish by fines and imprisonment; the power to investigate the private circumstances of citizens; the power to interfere with private contracts between individuals, and to declare them void in case of failure to comply with the statute; and perhaps the power to interfere in like manner with judicial proceedings in the state courts.
IV. The Extent of the Taxing Power.
§ 285. The attribute of laying and collecting taxes belongs to the government from the very necessities of the case. To carry on the public affairs, to provide for the common defence, and to promote the general welfare, demand a revenue commensurate with the exigencies of the nation. This revenue must finally be supplied by some species of taxation. A resort to loans is always intended as temporary, for debts thus contracted must some time be paid off. The government, therefore, must be able to call upon the property of individuals, and there can be no limit to the extent of that call, within the legitimate purposes for which a revenue may be raised. In regard to the extent of the power to tax, C. J. Marshall said in Providence Bank v. Billings:1 "The power of legislation, and consequently of taxation, operates on all the persons and property belonging to the body politic. This is an original principle which has its foundation in society itself. It is granted by all for the benefit of all. It resides in the government as a part of itself, and need not be reserved where property of any description, or the right to use it in any measure, is granted to individuals or corporate bodies. However absolute the right of an individual may be, it is still in the nature of that right that it must bear a portion of the public burdens, and that portion must be determined by the legislature." The same eminent judge remarked in McCul-loch v. The State of Maryland:2 "It is admitted that the power of taxing the people and their property is essential to the very existence of government, and may be legitimately 1 4 Peters' R. 514, 561, 563. 2 4 Wheaton's R. 316, 428.
exercised on the objects to which it is applicable, to the utmost extent to which the government may choose to carry it. The only security against the abuse of this power is found in the structure of the government itself. In imposing a tax, the legislature acts upon its constituents. This is in general a sufficient security against erroneous and oppressive taxation. The people, therefore, give to their government a right of taxing themselves and their property; and, as the exigencies of the government cannot be limited, they prescribe no limits to the exercise of this right, resting confidently on the interest of the legislator, and on the influence of the constituents over their representative, to guard them against its abuse."
§ 286. These views have never been questioned; all accede to their correctness. Whenever, then, the United States may lawfully call for any revenue at all, there is no limit to the amount they may demand and collect. When they may tax at all, they may lay heavy or light burdens according to their own discretion. Judges and courts cannot interfere and control this discretion by deciding that any particular imposition is too much and shall not be collected. The amount of a tax is not a question of power, but of policy; not of constitutional law, but of political economy. If the people are weighed down by greater loads than they are willing to bear, they have the sure and speedy remedy in their own hands. The biennial election of Representatives in Congress gives frequent opportunity to change these public servants by removing those who voted for the tax, and filling their places with others who will repeal or modify the obnoxious law. Such an expression of public opinion would inevitably produce its effect upon the legislature. The people have constituted themselves the sole judges of this matter; they have not parted with any portion of this attribute to the courts, national or state.
§ 287. When Congress sees fit to lay and collect duties upon imported goods, they may demand any amount which is deemed proper in their own discretion. The only limit upon their power is that they must fix the same rate for the same article in all parts of the country. Uniformity is the constitutional rule.
When Congress sees fit to lay and collect a tax on land, they may demand any percentage of the land's worth; subject only to the restriction that the whole amount thus to be raised must be apportioned among the several states according to their respective populations.
When Congress resorts to the system of excises, they may demand any percentage of incomes, any sums as license fees for carrying on particular businesses, any portion of the amounts paid upon sales, any value of stamps upon written instruments or articles of merchandise. The only limitation is, that the rule of uniformity must prevail throughout the United States. This rule does not require that all trades, businesses, merchandise, written instruments, and the like, shall be taxed alike, or even taxed at all. It means that when an impost is placed upon one article, the same burden shall be borne by that subject in all parts of the country. Congress may discriminate between articles in all the several species of indirect taxes; the discrimination may be unfair and impolitic, but it is not illegal.
§ 288. There can be no question of the correctness of these general propositions; they are universally admitted. But there has lately arisen a question growing out of our new scheme of revenue legislation, which should be briefly discussed. Congress has provided in the internal revenue laws now in operation, that stamps of various denominations shall be fixed to certain private written instruments; and as a penalty for a violation of the statute, has declared that instruments which are without the requisite stamp, shall be void. There is no doubt as to the power of the national legislature to pass such a law. Stamp duties are, and long have been, a familiar species of excises; and the power to lay and collect such taxes implies the power to enforce obedience by imposing any penalty or punishment that may be thought necessary. A law without a sanction would be no law. There has been, therefore, a general acquiescence in the legality of these provisions.
§ 289. But in the same law the Congress provided that stamps of a certain denomination should be affixed to divers papers used in judicial proceedings; and as a penalty for a
disregard of the requirement, declared that the papers lacking the appropriate stamp, could not be used in the suit, or in the course of the proceeding. This law was made applicable to controversies and other matters in state courts.1 The public, the bar, and the judiciary, generally acquiesced in the lawfulness of this species of taxation. A few state courts, however, have denied its legality, and pronounced it unconstitutional. The Supreme Court of Indiana, in the case of Warren v. Paul,2 led the way in this opposition to the Congressional legislation, and the judges of other states have adopted its conclusions. These courts and judges have rested their objections upon some assumed sacred character of judicial proceedings, which exempts them from taxation. They have quoted certain writers upon political economy who pronounce such a stamp duty to be a tax upon justice. They have affirmed that Congress, by placing an impost on papers used in matters pending before the state tribunals, has interfered with, and endeavored to control, a subject entirely beyond its reach.
§ 290. It should be remarked that this is a question which must be decided in an authoritative manner by the Supreme Court of the United States, and until their decision, all reasoning upon the statutory provision must be, to a certain extent, speculative. But I have no doubt as to the legality of this application of stamp duties. The grounds of this opinion are briefly as follows: —
Even granting that such stamps do not fall within the category of ordinary excises, they are unquestionably a species of tax; and the national legislature has full and complete powers conferred upon it in the general provision that it may lay taxes. What kind of taxes is not designated; all kinds are included.
But, in fact, these stamps are excise duties as much as those affixed to notes or deeds. To say of them that they are a tax upon justice, is only to call them hard names. It does not
1 Although these provisions have been lately repealed, yet, as the subject is one of so great importance, at least as a matter of speculation, the discussion is retained in the text.
2 22 Indiana R. 276.
change their character as excises; it is only a strong expression of opinion that they are impolitic. Mr. John Stuart Mill, when he used this language, was only discussing the kinds of revenue laws which enlightened legislative bodies ought to pass; not those which they have power to pass. The stamps in question are really taxes upon property.
§ 291. Notes, deeds, and other instruments are the means by which persons acquire and hold a title to property. The papers in judicial proceedings are just as truly the means by which persons acquire, hold, or defend their title to property, or rights which result in property, or in property's worth. No court attempts to enforce a right which does not immediately or mediately result in property. Stamps on papers used in judicial proceedings are, therefore, not taxes upon the administration of justice, but taxes upon property or property rights. A note or check is given. This writing is only valuable as it shall result in a cert