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 famil