THE
GENERAL PRINCIPLES
OF
CONSTITUTIONAL LAW
IN THE
UNITED STATES OF
AMERICA.
BY
THOMAS M. COOLEY, LL.D.,
AUTHOR OF
"CONSTITUTIONAL LIMITATIONS," ETC.
THIRD EDITION BY ANDREW C. McLAUGHLIN, A.M., LL.B.
PROFESSOR OF AMERICAN HISTORY, UNIVERSITY OF MICHIGAN.
BOSTON: LITTLE, BROWN, AND COMPANY.
1898.
Copyright, 1880, BY THOMAS M. COOLEY
Copyright, 1891, 1898, BY LITTLE, BROWN, AND COMPANY.
UNIVERSITY PRESS
JOHN WILSON AND SON, CAMBRIDGE
FOURTH EDITION EDITED BY JON ROLAND
2002
PREFACE.
THE manual which follows has been prepared for the use of students in law schools and other institutions of learning. The design has been to present succinctly the general principles of constitutional law, whether they pertain to the federal system, or to the state system, or to both. Formerly, the structure of the federal constitutional government was so distinct from that of the States, that each might usefully be examined and discussed apart from the other; but the points of contact and dependence have been so largely increased by the recent amendments to the federal Constitution that a different course is now deemed advisable. Some general principles of constitutional law, which formerly were left exclusively to state protection, are now brought within the purview of the federal power, and any useful presentation of them must show the part they take in federal as well as state government. An attempt has been made to do this in the following pages.
The reader will soon discover that mere theories have received very little attention, and that the principles stated are those which have been settled, judicially or otherwise, in the practical working of the government.
THOMAS M. COOLEY.
UNIVERSITY OF MICHIGAN, ANN ARBOR,
March, 1880.
PREFACE TO THE SECOND EDITION.
IN the preparation of this edition, such changes in the text and notes of the first edition have been made as have been required by the many important decisions upon constitutional questions rendered within the last ten years. While the aim has been to keep the book a manual and not to make it a digest, it will be found, it is hoped, to treat briefly all important points covered by the cases decided up to this time.
ALEXIS C. ANGELL.
DETROIT, August, 1891.
PREFACE TO THE THIRD EDITION.
IN the preparation of the third edition of this work, I have been guided and aided by the results of ten years' experience in using the book with my classes. While I have endeavored to leave the text unaltered as far as seemed consistent with a careful revision, I have made occasional alterations, usually by expanding condensed statements, sometimes to correct a principle altered or modified by recent decisions. Because of the great development of some branches of constitutional law, for example, the law of interstate commerce, I have found it necessary to rearrange, and in large measure rewrite, some pages of the earlier editions. I should have preferred to leave the text as it was written by its distinguished author; but inasmuch as the book is widely used by students in colleges and law schools, it seemed unwise simply to use footnotes to call attention to new and important decisions which have modified the statements of the text. Besides new matter inserted in the pages of the earlier edition, I have added a chapter dealing with State Constitutions. This chapter is in large measure a condensation of Chapters III. to VI. of Judge Cooley's Constitutional Limitations, and where possible I have used the language of that treatise in preference to my own.
ANDREW C. McLAUGHLIN.
UNIVERSITY OF MICHIGAN, ANN
ARBOR, September, 1893.
PREFACE TO THE FOURTH EDITION.
This digital edition is essentially the third edition, but the Table of Cases has been moved to a position before the Index, and the footnotes will have been moved to the ends of their chapters, and will have had the page numbers prepended, followed by a colon, when complete. As time permits, I intend to add notes to bring the work up to date.
JON ROLAND
AUSTIN, TEXAS, July 19, 2002
CONTENTS.
Page
TABLE OF CASES ............... xi
CONSTITUTION OF THE UNITED STATES ....... xxxv
CHAPTER I. THE RISE OF THE AMERICAN UNION ........ 3
CHAPTER II. DEFINITIONS AND GENERAL PRINCIPLES ....... 21
CHAPTER III. DISTRIBUTION OF THE POWERS OF GOVERNMENT .... 44
CHAPTER IV. THE POWERS OF CONGRESS ........... 55
SECT. 1. Taxes, Loans, and Debts ....... . 55
SECT. 2 Regulation of Commerce ......... 66
SECT. 3. Naturalization ............ 88
SECT. 4. Bankruptcy ........ .... 89
SECT. 5. The Currency ............ 90
SECT. 6. Bills of Credit ............ 93
SECT. 7 Weights and Measures ........ 94
SECT. 8. Couiiteifeiting ............ 94
SECT. 9. Post Offices and Post Roads . ...... 94
SECT. 10. Copyrights and Patents ......... 95
SECT. 11. Piracies, Felonies on the High Seas, &c.. . . . 97
SECT. 12. War ............... 98
SECT. 13. Ceded Districts ............ 102
SECT. 14. Treason .............. 104
SECT. 15. Non-enumerated and Implied Powers ..... 105
SECT. 16. Restrictions on the Powers of Congress .... 111
CHAPTER V. THE POWERS OF THE FEDERAL EXECUTIVE ...... 114
CHAPTER VI. THE JUDICIAL DEPARTMENT OP THE FEDERAL GOVERNMENT ................ 123
CHAPTER VII. CHECKS AND BALANCES IN GOVERNMENT ...... 160
CHAPTER VIII. THE GOVERNMENT OF THE TERRITORIES ....... 183
CHAPTER IX. THE ADMISSION OF NEW STATES ......... 187
CHAPTER X. CONSTITUTIONAL RULES OF STATE COMITY ...... 196
CHAPTER XI. THE GUARANTY OF REPUBLICAN GOVERNMENT TO THE STATES ............... . 213
CHAPTER XII. THE AMENDMENTS TO THE CONSTITUTION ...... 218
CHAPTER XIII. CIVIL RIGHTS AND THEIR GUARANTIES ....... 224
SECT. 1. Religious Liberty ........... 224
SECT. 2. Security of the Dwelling, and of the Person and Papers .............. 228
SECT. 3. The Prohibition of Slavery ........ 233
SECT. 4. The Guaranties of Life, Liberty, and Equality . . 240
SECT. 5. Jury Trial in Civil Cases ......... 263
CHAPTER XIV. POLITICAL PRIVILEGES AND THEIR PROTECTIONS .... 268
SECT. 1. Citizenship ............. 268
SECT. 2. Suffrage and Elections .......... 275
SECT. 3. The Right of Assembly and Petition ..... 294
SECT. 4. The Right to keep and bear Arms ..... 297
SECT. 5. Freedom of Speech and of the Press ..... 299
CHAPTER XV. PROTECTIONS TO PERSONS ACCUSED OF CRIME ..... 310
SECT. 1. Legislative Adjudications ........ 310
SECT. 2. Treason: its Definition and Punishment .... 314
SECT. 3. The Writ of Habeas Corpus ........ 315
SECT. 4. Accusations of Crime .......... 317
SECT. 5. Bail ................ 318
SECT. 6. Incidents of the Trial and Punishment .... 319
CHAPTER XVI. PROTECTIONS TO CONTRACTS AND PROPERTY ..... 328
SECT. 1. Laws impairing the Obligation of Contracts . . 328
SECT. 2. Protection to Property ......... 345
SECT. 3. The Eminent Domain .......... 363
CHAPTER XVII. MUNICIPAL CORPORATIONS ........... 378
CHAPTER XVIII. THE FORMATION AND CONSTRUCTION OF STATE CONSTITUTIONS ................ 381
INDEX .................. 393
CONSTITUTIONAL LAW.
CHAPTER I. THE RISE OF THE AMERICAN UNION.
Independence. — The declaration which severed the political connection between the thirteen American Colonies and the British Crown bears date July 4, 1776, and was made by the representatives of the Colonies in General Congress assembled, severally empowered by the respective Colonies to make it. By this manifesto the representatives declare to the world that "appealing to the Supreme Judge of the world for the rectitude of our intentions, [we] do, in the name and by 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." For more than a year previous to this the Colonies had been in the exercise of sovereign powers in hostility to the government of Great Britain, but without a repudiation of their allegiance; and they now severally assumed the position of independent States, limited only by the concessions of authority, mostly tacit, which they made to their general Congress.
Colonial Legislation. — The people of the Colonies had previously exercised a somewhat indefinite power to make their own laws, which was very general in some Colonies and greatly restricted in others. In all of them the proprietary or royal governor might defeat legislation by refusing his assent; and in some a council not chosen by the people formed a second legislative chamber, whose concurrence was necessary. Colonial legislation was also sometimes nullified in England, by the authority of an executive board or council, or by Parliament. Parliament itself also exercised the power to make laws for the Colonies, and in some cases the power was conceded, though its exercise in particular instances was complained of as an abuse, while in other cases the power itself was denied. It was conceded that, in all matters of what may be denominated imperial concern, the common legislature of the realm must legislate for all the dominions of the Crown, and that under this head fell the commerce of the Colonies with the mother country and with other nations and colonies. The most severe instances of the exercise of this authority were the Navigation Laws and the laws respecting manufactures in the Colonies, the general purpose of which was to subject the commerce and manufactures of the Colonies to such regulations and restraints as should be beneficial to the commerce and general business interests of the mother country. It was never disputed that the Colonies, like all other portions of the British dominions, must necessarily come under the control of the Crown and the Parliament in respect to all their foreign relations; and, though Indian affairs were for the most part left to the control and management of colonial authorities, yet these also were brought under imperial control to any extent that to the home government at any time seemed politic or desirable.
The distinct claim of a right in the Colonies to make their own laws was not made until Parliamentary legislation appeared to threaten oppression. The first actual resistance which assumed general importance was when an attempt was made to impose internal taxation by authority of the imperial Parliament. The proposed taxes were not in themselves a serious burden, and might possibly have passed unchallenged, if it had been certain that the tax law was not to be the herald and the pioneer of others of a different sort, and which would touch the colonists in particulars in which they were even more sensitive than in respect to their pecuniary interests. The power which could tax New England could impose an episcopal hierarchy upon it, and the disposition to do this, not only in New England but in New York, had often manifested itself to an extent that excited the most serious alarm. What vital powers of sovereignty in respect to American concerns might be asserted and exercised, no one could foresee; and the tax laws were therefore resisted rather as the representatives of unknown dangers than for the burdens they imposed. The government for a time abstained from pushing its claims to an extreme, but, lest its doing so might be understood as an assent to the claims of the Colonies, Parliament, when repealing the Stamp Act, which had been rendered abortive by the resistance of the people, took occasion to assert an unqualified right to legislate for the Colonies on all subjects whatever.[5:1] This claim afterwards assumed practical form in an attempt to collect a tax on tea imported for consumption in the Colonies. The levy of the tax was resisted as an invasion of the undoubted rights of Englishmen, who, in taking up their home in the Colonies, had not lost their right to the protection of the ancient laws of the realm. In Massachusetts and New York cargoes of the taxed tea were destroyed by armed mobs; in Maryland the importer was compelled to set fire to the vessel by means of which he had offended, and in other colonies the taxed commodity was either refused a landing, or not suffered to be sold after the landing had been effected; and the tax law was by these means completely nullified.[6:1]
Liberty a Birthright. — The resistance in the cases mentioned, and in some others, was grounded on the claim that the colonists, as Englishmen, according to the Constitution of the realm, were entitled to certain rights which the government was attempting to override by the exercise of tyrannical power.[6:2] The evidence of these rights was to be found in part in certain historical documents which in both England and America had been looked upon and revered as the charters of liberty. The first of these was
Magna Charta, extorted from King John in 1215, as a restriction upon what was then an almost unlimited kingly power; the most important provision of which was, that "No freeman shall be taken or imprisoned or disseized or outlawed or banished or anyways destroyed, nor will the King pass upon him or commit him to prison, unless by the judgment of his peers or the law of the land." In the same instrument is foreshadowed parliamentary taxation in the clause which requires the common consent of the realm to the levy of unusual burdens.[6:3] Grounded upon this charter the fabric of constitutional liberty was slowly and patiently erected; parliamentary institutions acquired form and strength under the House of Lancaster; and though the promise of a regular administration of the law was as often violated as kept, the right of the subject to its benefits was never surrendered, and at length, at the beginning of the reign of Charles I., it received further assurance and confirmation in the royal assent to
The Petition of Right.[7:1] — By this petition it was prayed, among other things, "that no man be compelled to make or yield any gift, loan, benevolence, tax, or such like charge, without common consent by act of Parliament; that none be called upon to make answer for refusal so to do; that freemen be imprisoned or disseized only by the law of the land, or by due process of law, and not by the king's special command without any charge." In the next reign was enacted
The Habeas Corpus Act,[7:2] the purpose of which was to give speedy relief from all unlawful imprisonments, and to enforce upon judicial and other officers the duty of deliverance. The fourth of the great charters of English constitutional liberty was
The Bill of Rights,[7;3] which embodied in statutory form the principles enumerated in the Declaration of Rights presented by the Convention Parliament to the sovereigns called by that body to the throne on the Revolution of 1688. The purpose of this act was to enumerate and reaffirm such rights of the people as the House of Stuart in any of its reigning representatives had set aside, encroached upon, or ignored.
The Common Law. — The charters above mentioned declared general principles, but the common law was the expositor of these, and the extent of the protection they should give could only be determined by its rules. That law was the growth of many centuries; its maxims were those of a sturdy and independent race of men, who were accustomed in an unusual degree to freedom of thought and action, and to a share in the administration of public affairs.[7:4] So far as they declared individual rights, they were a part of the constitution of the realm, and of that "law of the land" the benefit of which was promised by the charter of King John to every freeman. They were modified and improved from age to age, by changes in the habits of thought and action among the people, by modifications in the civil and political state, by the vicissitudes of public affairs, by judicial decisions, and by statutes.
The colonists claimed that this code of law accompanied them, as a standard of right and of protection in their emigration, and that it remained their law, excepting as in some particulars it was found unsuited to their circumstances in the New World. Relying upon it, they had well known and well defined rules of protection; without it, they were at the mercy of those who ruled, and, whether actually oppressed or not, were without freedom.[8:1]
Violations of Constitutional Right. — The complaints of violation of constitutional right were principally directed to four points: — 1. Imposing taxes without the consent of the people's representatives. 2. Keeping up standing armies in time of peace to overawe the people. 3. Denying a right to trial by a jury of the vicinage in some cases, and providing for a transportation of persons accused of crimes in America for trial in Great Britain. 4. Exposing the premises of the people to searches, and their persons, papers, and property to seizures on general warrants. If Americans were entitled to the constitutional rights of Englishmen, it was unquestionable that in these particulars their rights were invaded; but the imperial government denied that the colonists could claim rights as against the exercise of its powers.
Independence. — The sovereignty passed forever from the British Crown and Parliament when the war of the Revolution was actually begun, waged on the one side by the government of Great Britain to reduce the colonists to submission, and directed on the other side by a Continental Congress which assumed the sovereign power of conducting belligerent affairs. This great fact was not perceived, and indeed not assured, for more than a year, and it was then proclaimed to the world in the solemn document known as the Declaration of Independence, and which has already been mentioned.
In pronouncing the dissolution of the political bonds with the mother country, the signers of this instrument declare that "we hold these truths to be self-evident, that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute a new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness." And proceeding to an enumeration of the grievances which justify their action, they close by declaring the dissolution of the ties that bind the Colonies to the British Crown, and asserting their independence in the terms already given.[9:1]
Revolutionary Government. — The government of the Union under the Continental Congress was strictly revolutionary in character, and was constituted by an acquiescence of the people and the several States in the exercise by the Congress of certain undefined powers of general concern, the chief of which were the power to declare war, to conclude peace, to form alliances, and to contract debts on the credit of the Union.[10:1] The governments of the several States were also at first revolutionary, but their previous organization was such that the war disturbed them but little, and modified forms more than substance. All of them had local governments and the common law, which remained undisturbed; all of them had legislative bodies, which continued to perform their functions, but without the recognition of the pre-existing executive authority. The States, however, soon proceeded to adopt formal constitutions, apportioning, defining, and limiting the powers of the several departments of government, and with two exceptions they had completed this work before independence was acknowledged by Great Britain.[10:2] The liberal charter granted to Rhode Island by Charles II. in 1663 was found sufficient for the purposes of a free commonwealth, and was tacitly adopted as the constitution of the State, and remained such for two thirds of a century.[10:3] The charter of Connecticut was not superseded by a constitution until 1818.
But a merely revolutionary government could not long answer the purposes of the Union. The powers of the Continental Congress having never been formally conferred, or indeed agreed upon, by the States, that body was regarded by the people and by the State authorities as an advisory body rather than as a government, and the pressure of external necessity determined the degree of obedience its commands or advice should receive. In most important matters they were often disregarded, and the Confederation seemed at the point of falling to pieces for the want of a legal bond of union and of legal power to compel the performance of duties owing to it by its several members.
Articles of Confederation. — This evil it was sought to remedy by "Articles of Confederation and Perpetual Union," prepared by the Congress and submitted to the States in 1777, and ratified subsequently by representatives of the States empowered by their respective legislatures so to do.[11:1]
These Articles declared that "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this Confederation expressly delegated to the United States in Congress assembled;" that "The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever; "and that, "for the more convenient management of the general interests of the United States," delegates from the several States shall meet in a Congress, in which each one shall have an equal vote.
They further declared that "No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance, or treaty with any king, prince, or state;" that "No two or more States shall enter into any treaty, confederation, or alliance whatever between them without the consent of the United States in Congress assembled;" that "No State shall lay any imposts or duties which may interfere with any stipulations in treaties entered into by the United States in Congress assembled, with any king, prince, or state;" that "No State shall engage in any war without the consent of the United States, in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted;" and that except in such cases "the United States in Congress assembled shall have the exclusive right and power of determining on peace and war;" also of sending and receiving ambassadors, entering into treaties and alliances, establishing rules and courts for the determination of cases of capture and prize, granting letters of marque and reprisal in time of peace, and appointing courts for the trial of piracies and felonies committed on the high seas. Also that the United States in Congress assembled shall be the last resort on appeal in all disputes and differences between two or more States concerning boundary, jurisdiction, or any other cause whatever.
The United States in Congress assembled were also empowered to borrow money, or emit bills on the credit of the United States, to build and equip a navy, to agree upon the number of land forces, and to make requisitions upon each State for its quota, in proportion to the number of white inhabitants of such State, but with the right to vary from this quota when the circumstances rendered it proper.
The delegates in Congress were to be maintained by their States respectively; but it was declared that "All charges of war, and all other expenses that shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States in proportion to the value of all land within each State, granted to or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint." The United States in Congress assembled were given the right and power of regulating the alloy and value of coin struck by their own authority or by that of the respective States, of fixing the standard of weights and measures, and of establishing and regulating post-offices and postage.
It was further declared, that "The United States in Congress assembled shall never engage in a war, nor grant letters of marque and reprisal in time of peace, nor enter into any treaties or alliances, nor coin money, nor regulate the value thereof, nor ascertain the sums and expenses necessary for the defence and welfare of the United States, or any of them, nor emit bills, nor borrow money on the credit of the United States, nor appropriate money, nor agree upon the number of vessels of war to be built or purchased, or the number of land or sea forces to be raised, nor appoint a commander-in-chief of the army or navy, unless nine States assent to the same; nor shall a question on any other point, except for adjourning from day to day, be determined, unless by the votes of a majority of the United States in Congress assembled."
The Congress was empowered to appoint an executive committee, consisting of one from each State, to sit during the recess of Congress, who would be authorized "to execute such of the powers of Congress as the United States in Congress assembled, by the consent of nine States, shall, from time to time, think expedient to vest them with." It was declared that the United States and the public faith were solemnly pledged for the public debts previously contracted by authority of Congress; that the States should abide by all the determinations of the Congress on all questions by the Confederation submitted to that body; and that "The Articles of this Confederation shall be inviolably observed by every State, 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 legislatures of every State."
Failure of the Confederation. — The defects in the Confederation were such as rendered speedy failure inevitable. It accomplished a temporary purpose in a very imperfect manner, but it was impossible that it should do more. The Confederation was given authority to make laws on some subjects, but it had no power to compel obedience; it might enter into treaties and alliances which the States and the people could disregard with impunity; it might apportion pecuniary and military obligations among the States in strict accordance with the provisions of the Articles; but the recognition of the obligations must depend upon the voluntary action of thirteen States, all more or less jealous of each other, and all likely to recognize the pressure of home debts and home burdens sooner than the obligations of the broader patriotism involved in fidelity to the Union; it might contract debts, but it could not provide the means for satisfying them; in short, it had no power to levy taxes, or to regulate trade and commerce, or to compel uniformity in the regulations of the States; the judgments rendered in pursuance of its limited judicial authority were not respected by the States; it had no courts to take notice of infractions of its authority, and it had no executive. A further specification of defects is needless, for any one of those mentioned would have been fatal. "Obedience is what makes government, and not the names by which it is called;"[14:1] and the Confederation had neither obedience at home nor credit or respect abroad. The people was one in promising and thirteen when performance was due, and it became at last difficult to enlist sufficient interest in its proceedings to keep up the forms of government through the meetings of Congress and of the executive committee.[15:1]
The Constitutional Convention. — In February, 1787, a resolution was adopted by the Congress recommending a convention in Philadelphia, in the May following, of delegates from the various States, "for the 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, under the Federal Constitution be adequate to the exigencies of government and the preservation of the Union." This was in strict conformity with the provision for amendment contained in the Articles, and was acted upon by all the States except Rhode Island, which alone sent no delegates. The Convention when it met, after full consideration, determined that alterations in and amendments to the Articles would be inadequate to the purposes of government, and proceeded to recommend a new Constitution, and to provide that "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." As this was in disregard of the provision in the Articles of Confederation, which required the assent of every State, it was a revolutionary proceeding,[15:2] and could be justified only by the circumstances which had brought the Union to the brink of dissolution.
Its revolutionary character appears more distinctly from the action under it, since eleven States only had ratified the Constitution when the government was organized in pursuance of its provisions,[16:1] and the remaining two, North Carolina and Rhode Island, were for a time excluded from the Union. Both gave their assent, however, and became members of the Union, the first in November, 1789, and the other in May, 1790.
Sovereignty of the States. — The term sovereignty in its full sense imports the supreme, absolute, and uncontrollable power by which any independent state is governed.[16:2] From what has already been said it appears that, although the States were called sovereign and independent in the Declaration of Independence, they were never in their individual character strictly so, because they were always, in respect to some of the higher powers of sovereignty, subject to the control of some common authority, and were never separately recognized or known as members of the family of nations. This common authority was, first, the Crown and Parliament of Great Britain; second, the Revolutionary Congress; third, the Congress of the Confederation; and at length the government formed under the Constitution. The powers of these differed greatly, but in one most important particular there was uniformity: each had control of affairs of war for all the Colonies or States, and of all intercourse with foreign nations. Only North Carolina and Rhode Island are to be considered exceptions to this general statement: these for the little time while they were excluded from the Union by their neglect to ratify the Constitution were relieved from all common authority, and became wholly independent. It is to be said of them, however, that they remained in that condition for a period so brief that as sovereignties they neither obtained nor sought for recognition by foreign nations.[17:1]
Bill of Rights. — The several charters of English liberty to which reference has already been made had been much relied upon by the American people in the controversies resulting in independence, and their clear assertion of individual rights was of inestimable value in inspiring the people to resist tyrannical action of the government. Each of these charters had been more specific and enlarged in its provisions than that which preceded, and it might have been expected that the Convention of 1787 would have followed the examples, and that in their completed work would have been found a clear and full enumeration of those rights which were deemed indefeasible, and which might lawfully be asserted against the government itself. The importance of this, however, did not impress itself on the minds of the members of that body.[17:2] The Constitution did indeed insure the benefits of the habeas corpus; it precluded constructive treasons; it prohibited bills of attainder and ex post facto laws; and it provided for the trial of criminal accusations by jury; but there was no attempt at a systematic enumeration of fundamental rights, and the absence of this was made a ground of persistent opposition to the ratification of the Constitution. / Some of the leading States, indeed, were only induced to ratify in reliance upon a bill of rights being added to the Constitution by amendments,[17:3] and this was done in eight articles, which were proposed and adopted as speedily as the necessary forms could be gone through with. For a proper understanding of these provisions it is essential to keep in mind that their purpose, as well as that of similar provisions in the original instrument, was to put it out of the power of the government now being created to violate the fundamental rights of the people who were to be subjected to its authority. They constitute limitations, therefore, upon the power of the Federal government only. The exceptions to this general statement are only of those few cases in which the States are named, and the exercise of certain powers by them expressly prohibited. For example, when the Constitution, in Art. I. § 9, declares that "no bill of attainder or ex post facto law shall be passed," it is still necessary, in order to extend the prohibition to the States, to provide, as is done in the next section, that "no State" shall pass such a bill or law. To state the rule of construction concisely, it is this. The restrictions imposed upon government by the Constitution and its amendments are to be understood as restrictions only upon the government of the Union, except where the States are expressly mentioned.[18:1]
This rule of construction is a very important and fundamental one, and should be kept in mind in the study of the succeeding pages. In the course of the book many of the restrictions upon governmental action mentioned in the Constitution are discussed as general principles affecting the relations of the citizens of the State to their State government, as well as the relations of the citizens of the United States to the Federal government. But this method of treatment is used, not because restrictions or prohibitions in favor of individual liberty mentioned in the Federal Constitution are limitations upon the power of the States when the States are not expressly mentioned, but because like restrictions and prohibitions are contained in State Constitutions directly limiting the action of State governments. Although the courts of the one government when interpreting its Constitution are not bound by the decisions of the courts of another government interpreting similar provisions in its Constitution, as a matter of fact a series of constitutional principles has come into being which are recognized by both Federal and State courts in the interpretation of constitutional provisions.[19:1]
[5:1] Pitkin, Hist. of U. S., ch. 6; Frothingham, Rise of the Republic, ch. 5, 6.
[6:1] Frothingham, Rise of the Republic, ch. 5; Pitkin, Hist. of U. S., ch. 7.
[6:2] Pitkin, Hist. of U. S., ch. 3.
[6:3] Blackstone's Charters; 4 Bl Com. 424; Story on Const., § 1779; Stubbs, Const. Hist., ch. 12; Cooley, Const. Lim., ch. 11.
[7:1] 3 Ch. I., ch. 1 (1628).
[7:2] 31 Ch. II., ch. 2 (1679).
[7:3] 1 Wm. & Mary, Ses. 2, ch. 2 (1689).
[7:4] Cooley, Const. Lim., 6th ed., p. 33. Van Ness v. Pacard, 2 Pet 137, 144.
[8:1] "Not the man alone who feels, but who is exposed to tyranny, is without freedom." — Sir William Meredith, quoted in Life of Iredell, i. 212.
[9:1] Curtis, History of the Constitution, chap. 3. This author well says: "The body by which this step was taken constituted the actual government of the nation at the time, and its members had been directly invested with competent legislative power to take it, and had also been specially instructed so to do." (p. 51.)
[10:1] Curtis, Hist. of Const., ch. 1, 2.
[10:2] See Mr. Bancroft's admirable chapter on "The Rise of Free Commonwealths," Hist. of U. S., vol. x. ch. 10; Centennial ed., vol. vi. ch. 46.
[10:3] Of the original States, Delaware, Maryland, New Hampshire, New Jersey, North Carolina, Pennsylvania, South Carolina, and Virginia adopted constitutions in 1776, Georgia and New York in 1777, Massachusetts in 1780, and Rhode Island in 1842.
[11:1] Curtis, Hist. of the Const., ch. 5. All the States except two ratified the Articles in 1778; Delaware delayed till the next year, and Maryland till 1781. The delay in the case of Maryland was for the purpose of obtaining a permanent and satisfactory settlement of the claims to Western lands. See Maryland's Influence upon Land Cessions to the United States, by H. B. Adams, in Johns Hopkins Studies, etc., vol. iii. p. 1.
[14:1] Burke, Speech on Conciliatian [sic] with America.
[15:1] The reasons for the failure have been dwelt upon at length by many writers, particularly Story on Const., ch. 4; Pitkin, Hist. of U. S., ch. 17; Curtis, Hist. of the Const., book 2; Von Holst, Const. Hist., ch. 1; Fiske, The Critical Period of American History; Schouler, Hist. of U. S., vol. i. ch. 1; and Madison, Hamilton, and Jay, in the Federalist.
[15:2] Van Buren, Political Parties, p 50; Federalist, No. 43, by Madison; Burgess, Political Science and Comparative Constitutional Law, vol. i pp. 101-108.
[16:1] March 4, 1789, was the time fixed for the organization of the government, but it was not in fact inaugurated until the 30th of the following month.
[16:2] Burlamaqui, Politic. Law, ch. 5; 1 Bl. Com., 49; Story on Const., § 207; Wheat. Int. Law, pt. 1, ch. 2, § 5; Austin, Prov. of Juris., ch. 6; Chipman on Gov., 137.
[17:1] Life and Writings of A. J. Dallas, 200-207; Von Holst, Const Hist., ch. 1; Chisholm v. Georgia, 2 Dall. 419, 470, per Jay, Ch. J.; Texas v. White, 7 Wall. 700, 724.
[17:2] For reasons that might be urged against it, see Federalist, No. 84; compare Jefferson's Works, vol. iii. pp. 4, 13, 101, vol. ii pp. 329, 358; Life of Madison, by Rives, vol. ii. p. 38 et seq.; Hamilton's Hist. of the Republic, vol. iv. p. 23.
[17:3] See the recommendations by Massachusetts, South Carolina, New Hampshire, Virginia, New York, North Carolina, and Rhode Island, in Elliott's Debates, i. 322-334.
[18:1] Barron v. Baltimore, 7 Pet 243; Smith v. Maryland, 18 How. 71; Pervear v. Commonwealth, 5 Wall 475; Twitchell v. Commonwealth, 7 Wall. 321; Justices v. Murray, 9 Wall. 274; Edwards v. Elliott, 21 Wall. 532; Walker v. Sauvinet, 92 U.S. 90; Presser v. Illinois, 116 U. S. 252; Spies v. Illinois, 123 U. S. 131. The Bill of Rights is interpreted in the light of the law as it existed at the time of its adoption. "Many of the provisions of the Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution and not interfering at all with its spirit." Mattox v. United States, 156 U. S. 237.
[19:1] See, for example, post, Ch. XIV. Sec. V., where freedom of speech and of the press are considered.
CHAPTER II. DEFINITIONS AND GENERAL PRINCIPLES.
Nation and State. — A State may be defined to be a body politic or society of men united together under common laws for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.[1] The term 13 often employed as importing the same thing with nation; but the latter is more nearly synonymous with people, and while a single state may embrace several different nations or peoples, a single nation will sometimes be so divided politically as to constitute several states.
In the following pages the word State will sometimes be employed in the general sense above expressed, but more commonly it will refer to the several members of the American Union, while the word Nation will be applied to the whole body of the people coming under the jurisdiction of the federal government.
A State is either sovereign or dependent. It is sovereign when there resides within itself a supreme and absolute power, acknowledging no superior, and it is dependent when in any degree or particular its authority is limited by an acknowledged power elsewhere.[2] It is immaterial to this definition whether the supreme power reposes in one individual, or one body or class of individ-
[1] Vattel, b. 1, ch. 1, § 1; Wheat. Int. Law, pt. 1, ch. 2, § 2; Story on Const., § 207; Burlamaqui, Pol. Law, ch. 5; Cooley, Const. Lim., 1.
2 Vattel, b. 1, ch. 1, § 2; Chipman on Government, 137; Halleck, Int. Law, 65.
uals, or in the whole body of the people; whether, in other words, the government is a monarchy, an aristocracy, a republic, or a democracy, or any combination of these; for the form only determines the methods in which sovereign powers shall be exercised.
All civilized states recognize a body of rules or laws which is called the Law of Nations, and the rules are either rules of public international law, as they relate to and regulate the intercourse of states with each other, or of private international law, as they define and protect the rights, privileges, and obligations of the citizens or subjects of one state passing into another, or owning property, making contracts, or conducting operations that may be governed by the laws of another. In contemplation of the law of nations, all sovereign states are and must be equal in rights, since from the very definition of sovereign state it is impossible that there should be in respect to it any political superior.
In theory sovereignty must be a unity, and the sovereignty of a state must extend to all the subjects of government within the territorial limits occupied by the associated people who compose it, so that the dividing line between sovereignties must be a territorial line. In the law of nations for the purposes of international intercourse some encroachment upon the theory is admitted, and the sovereignty of one state is projected within the jurisdiction of another, so as to retain within its rule its ambassadors and ministers resident abroad, and its ships of war in foreign ports. In American constitutional law a peculiar system is established; the powers of sovereignty being classified, and some of them apportioned to the government of the United States for its exercise, while others are left with the States. Under this apportionment the nation is possessed of supreme, absolute, and uncontrollable power in respect to certain subjects throughout all the States, while the States have the like unqualified power, within their respective limits, in respect to other
subjects.[1] Over certain other subjects the States have a qualified dependent or defeasible power, inasmuch as their action is liable at any time to be overruled, and their powers to become dormant, by the exercise of a superior power which is conferred upon the nation over the same subjects.[2]
Constitution. — The term constitution may be defined as the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.[3] A constitution is valuable in proportion as it is suited to the circumstances, desires, and aspirations of the people, and as it contains within itself the elements of stability, permanence, and security against disorder and revolution. Although every state may be said in some sense to have a constitution, the term constitutional government is only applied to those whose fundamental rules or maxims not only define how those shall be chosen or designated to whom the exercise of sovereign powers shall be confided, but also impose efficient restraints on the exercise for the purpose of protecting individual rights and privileges, and shielding them against any assumption of arbitrary power.[4] The number of such governments is not as yet great, but is increasing.
A constitution may be written or unwritten. If unwritten, there may still be laws or authoritative documents which declare some of its important principles; as we have seen has been and is still the case in England. The weakness of an unwritten constitution consists in this, that it is subject to perpetual change at the will of the
[1] License Cases, 5 How. 504, 588; Ableman v. Booth, 21 How. 506, 516; United States v. Cruikshanks, 92 U. S. 542; Barbier v. Connolly, 113 U. S. 27; Mugler v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1.
[2] Cooley v. Wardens, &c., 12 How. 299, Mobile v. Kimball, 102 U. S. 691; Willamette Bridge Co v. Hatch, 125 U. S. 1; Morgan's S. S. Co v. Louisiana, 118 U. S. 455; Smith v. Alabama, 124 U.S 465.
[3] Duer, Const Juris., 26; Cooley, Const. Lim , 2.
[4] Calhoun, Disquisition on Government, Works, 1, 11.
law-making power; and there can be no security against such change except in the conservatism of the law-making authority, and its political responsibility to the people, or, if no such responsibility exists, then in the fear of resistance by force. In America the leading principle of constitutional liberty has from the first been, that the sovereignty reposed in the people; and as the people could not in their collective capacity exercise the powers of government, a written constitution was by general consent agreed upon in each of the States. These constitutions create departments for the exercise of sovereign powers; prescribe the extent of the exercise, and the methods, and in some particulars forbid that certain powers which would be within the compass of sovereignty shall be exercised at all. Each of these constitutes for the State the absolute rule of action and decision for all departments and offices of the government, in respect to all the points covered by it, which must control until it shall be changed by the authority which established it. Whatever act or regulation of any department or officer is in excess of the power conferred by this instrument, or is opposed to any of its directions or regulations, is altogether void. The constitution, moreover, is in the nature of a covenant of the sovereign people with each individual thereof, under which, while they intrust the powers of government to political agencies, they also divest themselves of the sovereign power of making changes in the fundamental law except by the method in the constitution agreed upon. The Constitution of the United States creates similar governmental trusts and imposes similar restrictions. The weaknesses of a written constitution are, that it establishes iron rules, which, when found inconvenient, are difficult of change; that it is often construed on technical principles of verbal criticism, rather than in the light of great principles; and that it is likely to invade the domain of ordinary legislation, instead of being restricted to fundamental rules, and thereby to invite demoralizing evasions. But, the written constitution
being a necessity in America, the attendant evils are insignificant as compared with the inestimable benefits.
In the following pages, where the Constitution is spoken of, the Constitution of the United States will be intended unless otherwise explained.
Unconstitutional Law. — A law is sometimes said to be unconstitutional, by which is meant that it is opposed to the principles or rules of the constitution of the state. An unconstitutional enactment is sometimes void, and sometimes not; and this will depend upon whether, according to the theory of the government, any tribunal or officer is empowered to judge of violations of the constitution, and to keep the legislature within the limits of a delegated authority by annulling whatever acts exceed it. According to the theory of British constitutional law the Parliament possesses and wields supreme power,[1] and if therefore its enactments conflict with the Constitution, they are nevertheless valid, and must operate as modifications or amendments of it. But where, as in America, the legislature acts under a delegated authority, limited by the Constitution itself, and the judiciaiy is empowered to declare what the law is, an unconstitutional enactment must fall when it is subjected to the ordeal of the courts. Such an enactment is in strictness no law, because it establishes no rule: it is merely a futile attempt to establish a law. The remedy for unconstitutional enactments in England must therefore be political or revolutionary, while in America they may be found in the ordinary process of the courts. Still even in America some cases must be beyond the reach of judicial cognizance, because the questions involved are purely political. Such, for example, were questions involved in the reconstruction of the States recently in rebellion, and the question growing out of the
[1] 1 Bl. Com., 161; Broom, Const. Law, 795; De Tocqueville, Democracy in America, ch 6, Dicey, The Law of the Constitution, pt. 1, ch 1.
attempt to overthrow the charter government of Rhode Island.[1]
The Might of Revolution. — The authority of the British Crown over the Colonies was rejected, and a government created by the people of the Colonies for themselves, and this afterwards radically changed and reformed in the adoption of the Federal Constitution under the great and fundamental right of every people to change their institutions at will, — in other words, under the right of revolution. It is true that the colonists in the incipient period of the change planted themselves upon established rights, instead of seeking or desiring a revolution. Their purpose, therefore, was to maintain old established principles of the Constitution, instead of overturning them; and they occupied a conservative position, resisting innovations which the imperial government was attempting to force. Nevertheless there was no settled principle of the constitution that limited in any manner the sovereign right of Parliament to change at will the laws protecting the life, liberty, and property of the subject; and had the same laws which in this particular oppressed the people of the Colonies been applied to the people of the realm, they would have been within the acknowledged power of the Parliament. So in regard to the Colonies the right of the imperial government to rule in all respects might be defended on precedent, and the leading publicists of the day affirmed it. It was nevertheless the fact that the exercise of imperial power in the particulars complained of was tyrannical and in disregard of constitutional principles, and that resistance was directly in the line of English precedents which at the time were almost universally approved in England itself. There was consequently ample ground for resistance, and if the other conditions for revolution existed, the colonists were right in attempting it.
The right of revolution may be said to exist when the [1] Luther v. Borden, 7 How. 1; Mississippi v. Johnson, 4 Wall. 475.
government has become so oppressive that its evils decidedly overbalance those which are likely to attend a change, when success in the attempt is reasonably certain, and when such institutions are likely to result as will be satisfactory to the people.[1] In this last particular the probability of success will depend largely on the extent of the revolution attempted, — whether it extends to the laws in general, or only to the head of the government. In America only a change in the general sovereignty was intended; in respect to the general laws, the revolution was strictly preservative. It became necessary, nevertheless, to make considerable changes in state laws and institutions before the revolution was perfected, and when these were completed in the adoption of the Federal Constitution, the revolution was fully justified in the establishment of more satisfactory institutions than had existed before.
The Constitution: by whom adopted. — To a proper understanding and construction of the Constitution it becomes important to know at the outset who were the parties to it, — by whom it was adopted, and what it was meant to accomplish. In these particulars the present work cannot enter into the field of speculation or discussion, nor would it be important to do so. The general principles governing the case have been judicially determined, and the political departments of the government have accepted the conclusions. It therefore becomes sufficient for our purposes to say here, that the Constitution was agreed upon by delegates representing the States in convention; that it was submitted to the people of the several States by their respective legislatures; that it was adopted by the people through delegates elected for the express purpose of considering and deciding upon it, and that the people of the States, as well as the States themselves, thereby became parties to it. It was therefore properly declared in the preamble, that "We, the people
[1] Woolsey, Pol Science, i. 402.
of the United States, do ordain and establish this Constitution for the United States of America."[1] By the adoption of the Constitution the people of the States before united in a confederation became a nation under one government,[2] and the citizens of every State became also citizens of the United States.[3] The purpose of the Constitution is forcibly and clearly declared in the preamble. It was "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." These purposes collectively, it has been well said, "comprise everything requisite, with the blessing of Divine Providence, to render a people prosperous and happy."[4] By the new amendments to the Constitution the freedmen become a part of the people, and all the purposes for which it was made and established are to be deemed to have them in view, and to contemplate their protection and benefit as a part of the body politic.
Not a mere Compact. — The confederation of the States had existed by force of a mere compact, and for want of power in the common authority had so completely failed in the purposes of its formation as to justify its being superseded by revolutionary, though peaceful, means. Among its chief defects was the fact that it operated on States only, and that the highest sanction it could give to its lawful determinations was that of advice, or entreaty; it could not command, and it could not enforce. The Constitution which was adopted to supersede it, on the other hand, is an instrument of government, agreed upon and established, and rendered efficient as such by being made
[1] Martin v. Hunter, 1 Wheat. 304, 324; Cohens v. Virginia, 6 Wheat. 264, 413.
[2] Lane County v. Oregon, 7 Wall. 71, 76.
[3] Minor v. Happersett, 21 Wall. 162; United States v. Cruikshanks, 92 U. S. 542.
[4] Chisholm v. Georgia, 2 Dall. 419.
Operative upon the people individually and collectively, and, within the sphere of its powers, upon the States also.[1] This was the judicial view of the Constitution from the first,[2] and it has been practically and finally settled against opposing theories, by the action of the several departments of the government, extending over the whole period of the existence of the Union under the Constitution; by the acquiescence of the people in this view, and their forcible resistance to the attempt made to supersede it; and, finally, by the adoption of the thirteenth, fourteenth, and fifteenth articles of the amendments to further strengthen and consolidate the Union under the government of the Constitution.[3]
The Union Indissoluble. — By the Articles of Confederation "the Union was declared to be 'perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ' to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble, if a perpetual union made more perfect is not?"[4] When a State is once in the Union, there is "no place for reconsideration or revo-
[1] Webster, "The Constitution not a Compact," Speeches, iii. 349; Jackson's Proclamation on Nullification in 1833, Elliott's Debates, iv. 610, Statesman's Manual, i. 890.
2 Martin v. Hunter, 1 Wheat. 304, 324; M'Culloch v. Maryland, 4 Wheat 316, 402; Gibbons v. Ogden, 9 Wheat. 1, 187; Rhode Island v. Massachusetts, 12 Pet. 657, 720; Texas v. White, 7 Wall. 700, 726.
[3] Views either radically or in part opposed to those which have prevailed are presented in Calhoun's Discourse on the Constitution and Government of the United States, Works, i. 11; and Address on the Relations of the State to the General Government, Works, vi. 59, Upshur on the Federal Constitution; Construction Construed and Constitution Vindicated, by John Taylor; New Views of the Constitution of the United States, by the same; The Constitutional View of the War between the States, by A. H. Stephens; The Kentucky and Virginia Resolutions of 1798-9, Elliott's Debates, iv. 566, 572. and other publications too numerous for mention here.
[4] Texas v. White, 7 Wall. 700, 725.
cation, except through revolution, or through the consent of the States."[1]
The States Indestructible. — "But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Without the States in union there could be no such political body as the United States.[2] Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may not unreasonably be said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States."[3]
The Constitution a Grant of Powers. — The government created by the Constitution is one of limited and enumerated powers, and the Constitution is the measure and the test of the powers conferred. Whatever is not conferred is withheld, and belongs to the several States or to the people thereof.[4] As a constitutional principle this must result from a consideration of the circumstances under which the Constitution was formed. The States were in existence before, and possessed and exercised nearly all the powers of sovereignty. The Union was in existence, but the Congress which represented it possessed a few powers only, conceded to it by the States, and these circumscribed and hampered in a manner to
[1] Texas v. White, 7 Wall. 700, 726.
[2] Lane County v. Oregon, 7 Wall 71, 76.
[3] Texas v. White, 7 Wall. 700, 725
[4] Calder v. Bull, 3 Dall. 386; Gibbons v. Ogden, 9 Wheat. 1, 187 Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 713; Slaughter House Cases, 16 Wall. 36; United States v. Cruikshanks, 92 U. S. 542, 650.
render them of little value. The States were thus repositories of sovereign powers, and wielded them as being theirs of inherent right; the Union possessed but few powers, enumerated, limited, and hampered, and these belonged to it by compact and concession. In a confederation thus organized, if a power could be in dispute between the States and the Confederacy, the presumption must favor the States. But it was not within the intent of those who formed the Constitution to revolutionize the States, to overturn the presumptions that supported their authority, or to create a new government with uncertain and undefined powers. The purpose, on the contrary, was to perpetuate the States in their integrity, and to strengthen the Union in order that they might be perpetuated. To this end the grant of powers to the Confederacy needed to be enlarged and extended, the machinery of government to be added to and perfected, the people to be made parties to the charter of government, and the sanction of law and judicial authority to be given to the legitimate acts of the government in any and all of its departments. But when this had been done, it remained true that the Union possessed the powers conferred upon it, and that these were to be found enumerated in the instrument of government under which it was formed. But lest there might be any possible question of this in the minds of those wielding any portion of this authority, it was declared by the tenth article of the amendments that "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."[l]
From what has just been said, it is manifest that there must be a difference in the presumption that attends an exercise of national and one of State powers. The differ-
[1] The corresponding article in the Confederation was: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled." — Art. II.
ence is this. To ascertain whether any power assumed by the government of the United States is rightfully assumed, the Constitution is to be examined in order to see whether expressly or by fair implication the power has been granted, and if the grant does not appear, the assumption must be held unwarranted. To ascertain whether a State rightfully exercises a power, we have only to see whether by , the Constitution of the United States it is conceded to the Union, or by that Constitution or that of the State prohibited to be exercised at all. The presumption must be that the State rightfully does what it assumes to do, until it is made to appear how, by constitutional concessions, it has divested itself of the power, or by its own Constitution has for the time rendered the exercise unwarrantable.[1]
It is Supreme. — By Article VI. it is declared that "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges, in every State, shall be bound thereby, anything in the Constitution and laws of any State to the contrary notwithstanding."[2] Upon this it is to be observed: —
1. The Congress of the United States derives its power to legislate from the Constitution, which is the measure of its authority; and any enactment of Congress which is opposed to its provisions, or is not within the grant of powers made by it, is unconstitutional, and therefore no law, and obligators upon no one.[3]
2. As between a law of the United States made in pursuance of the Constitution and a treaty made under the
[1] Calder v. Bull, 3 Dall. 386; Golden v. Prince, 3 Wash C.C.313; Slaughter House Cases, 16 Wall. 36; United States v. Cruikshanks, 92 U. S. 642.
[2] Const. U. S., Art. VI. § 2.
[3] Ableman v. Booth, 21 How. 506, 520; United States v. Cruikshanks, 92 U. S. 542; United States v. Harris, 106 U. S. 629; Civil Rights Cases, 109 U. S. 3.
authority of the United States, if the two in any of their provisions are found to conflict, the one last in point of time must control.[1] For the one as well as the other is an act of sovereignty, differing only in form and in the organ or agency through which the sovereign will is declared. Each alike is the law of the land in its adoption, and the last law must repeal everything that is of no higher authority which is found to come in conflict with it. A treaty may therefore supersede a prior act of Congress; [2] and, on the other hand, an. act of Congress may supersede a prior treaty.[3]
3. A State law must yield to the supreme law, whether expressed in the Constitution of the United States or in any of its laws or treaties, so far as they come in collision,[4] and whether it be a law in existence when the "supreme law" was adopted, or enacted afterwards.[5] The same is true of any provision in the constitution of any State which is found to be repugnant to the Constitu-
[1] Foster v. Neilson. 2 Pet. 253, 314; Doe v. Braden, 16 How. 635.
[2] Foster v. Neilson, 2 Pet. 253.
[3] The Cherokee Tobacco, 11 Wall. 616; Head Money Cases, 112 U. S. 580; Chinese Exclusion Case, 130 U. S. 581; Taylor v. Morton, 2 Curt. C. C. 454. For a statement of the result of the Acts of Congress contravening the Chinese treaties, see Wan Shing v. United States, 140 U. S. 424; Fong Yue Ting v. United States, 149 U. S. 698; Wong Wing v. United States, 163 U. S. 228.
[4] "The United States is a government with authority extending over the whole territory of the Union, acting upon the States and the people of the States. While it is limited in the number of its powers, so far as its sovereignty extends it is supreme. No State government can exclude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or withhold from it for a moment the cognizance of any subject which that instrument has committed to it." Tennessee v. Davis, 100 U. S. 257, per Strong, J. See also In re Debs, Petitioner, 158 U. S. 564; Logan v. United States, 144 U. S. 263.
[5] Ware v. Hylton, 3 Dall. 199; Hauenstein v. Lynham, 100 U. S. 483; Parrott's Chinese Case, 6 Sawy. 349. In these cases a treaty was held of superior authority to an existing State statute, to a subsequent State statute, and to a subsequent State constitution, respectively.
tion of the Union.[1] And not only must "the judges in every State" be bound by such supreme law, but so must the State itself, and every official in all its departments, and every citizen.
4. The Constitution itself never yields to treaty or enactment; it neither changes with time, nor does it in theory bend to the force of circumstances. It may be amended according to its own permission; but while it stands it is "a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times and under all circumstances." Its principles cannot, therefore, be set aside in order to meet the supposed necessities of great crises. "No doctrine involving more pernicious consequences was ever invented by the wit of man, than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government within the Constitution has all the powers granted to it which are necessary to preserve its existence, as has been happily proved by the result of the great effort to throw off its just authority."[2]
State Rights. — This phrase is common in political discussions, and especially in those which relate to the powers of the Federal government, and its proper sphere of action under the Constitution. The meaning is likely to differ as do the constitutional views of those who make use of
[1] Dodge v. Wolsey, 18 How. 331; Jefferson Branch Bank v. Skelly, 1 Black, 436; Cummings v. Missouri, 4 Wall. 277; Railroad Co. v. McClure, 10 Wall. 511; White v. Hart, 13 Wall. 646; Gunn v. Barry, 15 Wall. 610; Pacific Railroad Co. v. Maguire, 20 Wall. 36; St. Louis, &c. Ry. Co. U. Vickers, 122 U. S. 360. A State cannot control the conduct of an agency of the Federal government within its limits, if the result would be a conflict with national law or an impairment of the efficiency of the agency. Davis v. Elmira Savings Bank, 161 U. S. 275; McClellan v. Chipman, 164 U. S. 347. Compare Reagan v. Mercan tile Trust Co., 154 U. S. 413.
[2] Ex parte Milligan, 4 Wall. 2, 120.
it. At certain constitutional crises it has been insisted by some persons that the right to nullify any congressional enactments which were deemed to be unauthorized by the Constitution, and the right when the Union became oppressive to withdraw the consent of the State thereto, and thereby secede from it, were within the compass of the reserved rights of the States; and therefore State rights, as a generic term, would in the minds of such persons include these. By their opponents the term would then be used as a term of reproach, and as indicating that those who professed to be their advocates held disorganizing views, and perhaps indulged revolutionary purposes. These extreme views are now for the most part abandoned, and those who profess to be the special advocates and supporters of State rights put forward as their leading principle a strict construction of the Federal Constitution, and insist that that instrument has been greatly perverted from its original purpose, and federal powers greatly enlarged at the expense of the States, under the doctrine of a grant of powers by implication. Among those who profess to be the special advocates of national rights are also persons of extreme views, some of whom contend that the nation is to be considered the fountain and source of all sovereignty, and the States as emanations from it; a view that would change radically the rules of constitutional construction which the courts have laid down. Thus the extreme views on one side tend to disintegration, and on the other to centralization; but the adherents to the national, as distinguished from the State rights idea, may be said to advocate only a liberal construction of national powers as being essential to accomplish the purposes for which the Union was formed, and therefore within the intent of those who formed it.
In a constitutional view, State rights consist of those rights which belonged to the States when the Constitution was formed, and have not by that instrument been granted to the Federal government, or prohibited to the States.
They are maintained by limiting the exercise of federal power to the sphere which the Constitution expressly or by fair implication assigns to it. This is a statement of the legal principle, but the parties who accept it may still in applying it find ample occasion for differences respecting the proper scope of national and State powers respectively.
When a particular power is found to belong to the States, they are entitled to the same complete independence in its exercise as is the national government in wielding its own authority. Each within its sphere has sovereign powers.[1]
Concurrent Powers. — The mere grant of a power to Congress does not of itself necessarily imply a prohibition upon the States to exercise the like power. The full sphere of federal powers may, at the discretion of Congress, be occupied or not, as the wisdom of that body may determine. If not fully occupied, the States may in some instances legislate within the same sphere, subject, however, to any subsequent legislation that Congress may adopt. It is not the mere existence of the national power, but its exercise, which is incompatible with the exercise of the same power by the States.[2] The power of the Federal government, said the writer in the Federalist, would be exclusive "where the Constitution in express terms granted an exclusive authority to the Union; where it granted, in one instance, an authority to the Union, and in another, prohibited the States from exercising like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant."[3] In
[1] Golden v. Prince, 3 Wash. C. C. 313; Calder v. Bull, 3 Dall. 386; Ableman v. Booth, 21 How. 506; Tarble's Case, 13 Wall. 397, 406.
[2] Sturges v. Crowninshield, 4 Wheat. 122, 196.
[3] Federalist, No. 32. "Whenever the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively by Congress, the subject is as completely taken from the State legislatures as if they had been expressly forbidden to act." Marshall, C. J., in Sturges v. Crowninshield, 4 Wheat. 122.
some few instances it may be that the State and the Federal government could occupy the same field concurrently and simultaneously. For example, the power of Congress to levy taxes is not incompatible with a like power on the part of the States.[1] In other instances the field of legislation may be occupied by the State governments until the Federal government enters it. Such is the case with regard to bankrupt laws, the States being allowed to legislate on the subject when Congress has not exercised the power.[2] But where the nature of the power is such that it should be exercised exclusively by the national government, the subject is completely taken from the States.
Reserved Rights. — In the incorporation in the Constitution of a bill of personal rights and liberties by the first ten articles of the amendments, it was deemed important to declare in the ninth article that "the enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." The occasion for this article is supposed to have been found in the apology of the Federalist for the absence of a bill of rights in the Constitution as first adopted, where the writer suggested that such a bill might be dangerous, since it would contain various exceptions to powers not granted, and on this very account would afford a tolerable pretext to claim more than were granted.[3] However unfounded such a fear might be, there could be no harm in affirming
[1] "Both may exist without interference, and if any interference should arise in a particular case, the question of supremacy would turn, not upon the nature of the power, but upon the supremacy of right in the exercise of the power in that case." Story, Com. § 438. With regard to the punishment of certain crimes, the Supreme Court has said: "The same act or series of acts may constitute an offence equally against the United States and the State, subjecting the guilty party to punishment under the laws of each government." Cross v. North Carolina, 132 U. S. 131; Fox v. Ohio, 5 How. 410, 433; Ex parte Siebold, 100 U. S. 371, 390.
[2] Ogden v. Saunders, 12 Wheat. 213; Butler v. Goreley, 146 U. S. 303
[3] Federalist, No. 84.
by this amendment the principle that constitutions are not made to create rights in the people, but in recognition of, and in order to preserve them, and that if any are specially enumerated and specially guarded, it is only because they are peculiarly important or peculiarly exposed to invasion.
The Territories. — The Constitution was made for the States, not for Territories. It confers power to govern Territories, but in exercising this the United States is a sovereign dealing with dependent territory according as in. its wisdom shall seem politic, wise, and just, having regard to its own interests as well as to those of the people of the Territories.[1] It is believed, however, that the securities for personal liberty which are incorporated in the Constitution were intended as limitations of its power over any and all persons who might be within its jurisdiction anywhere, and that citizens of the Territories as well as citizens of the States may claim the benefit of their protection.
In this dependence of the Territories upon the central government there is some outward resemblance to the condition of the American Colonies under the British Crown; but there are some differences which are important, and indeed vital. The first of these is that the territorial condition is understood under the Constitution to be merely temporary and preparatory, and the people of the Territories while it continues are assured of the right to create and establish State institutions for themselves so soon as the population shall be sufficient and the local conditions suitable; while the British colonial system contained no promise or assurance of any but a dependent government indefinitely. The second is that
[1] American Ins. Co. v. Canter, 1 Pet. 511; Scott v. Jones, 5 How. 343; National Bank v. Yankton Co, 101 U. S. 129. It may exclude polygamists from the right of suffrage in the Territories. Murphy v. Ramsey, 114 U. S. 15. See on the government of the Territories post, Ch. VIII.
above given, that the people of the American Territories are guaranteed all the benefits of the principles of constitutional right which protect life, liberty, and property, and may defend them under the law, even as against the action of the government itself; while in the Colonies these principles were the subject of dispute, and, if admitted, would be within the control of an absolute imperial legislature, which might overrule them at will. There is also a difference in respect to taxation, which, though not so striking, is still important. The Territories levy their own taxes for all local purposes, and they are never taxed separately for national purposes, but only as parts of a whole country, and under the same rules and for the same purposes as are the States. Nor is it intended to realize from them any revenue for the national treasury beyond what is expended by the United States in their interest.
Amendments. — In the adoption of the Constitution provision was made for amendments to be made under regular forms, which should not only give to the people an easy method of removing any evils that might be found to exist in their institutions, and of keeping them in sympathy with the prevailing sentiments and desires of the people, but should take away all reasonable excuse for attempts at revolution by force. Two methods of amendment were provided for. First, by Congress — two thirds of both houses assenting — proposing amendments for ratification by the legislatures or by conventions of the States, which shall be valid to all intents and purposes when ratified by three fourths of the States; and second, by Congress on the application of two thirds of the States calling a convention for proposing amendments, which when ratified in like manner shall be valid as aforesaid. The only restriction imposed on the power to amend is this: that "No State without its consent shall be deprived of its equal suffrage in the Senate."[1] In theory, [1] Const., Art. V,
except as changes are so made, the Constitution is to remain the settled and definite law of the nation; meaning the same thing to-day, to-morrow, and forever; its written provisions, stipulations, and guaranties being subject to no such growth, amplification, and modification as inheres in the unwritten constitution of Great Britain.
But it is not in the nature of institutions to remain stationary, however they may be formulated and declared, especially when the government has within itself the power to determine its own jurisdiction, and to solve in its own favor at discretion all questions of disputed authority. It has been truly said that " power, when it has attained a certain degree of energy and independence, goes on generally to further degrees. But when below that degree the direct tendency is to further degrees of relaxation, until the abuses of liberty beget a sudden transition to an undue degree of power."[1] The government of the United States was below the degree of self-protecting energy while the Articles of Confederation constituted the bond of union, but it attained at a bound to due energy and independence under the administration of Washington and Hamilton, while the judiciary was in accord with their views, and if the period of relaxation ever came, its influence upon the authority asserted for the government was not great, and was only temporary. The principles that at one time applied the power over commerce to the regulation of navigation,[2] at a later day are found equally applicable to traffic and travel by railroad,[3] and communication by telegraph[4] and telephone;[5] and though these new applications of principle do not in the least depart from or enlarge former doctrines, they nevertheless strengthen greatly the national power by the
[1] Madison, Life by Rives, ii 641.
[2] Gibbons v. Ogden, 9 Wheat 1.
[3] Railroad Co. v. Richmond, 19 Wall 584.
[4] Pensacola Tel Co v. West Un Tel Co, 96 U. S. 1.
[5] In re Penn. Tel. Co., 48 N. J. Eq 91.
immensity of the interests it is thus invited to take under its control. So the authority to purchase territory at one time is found equal to the annexation of an independent State at another. The gradual energizing of federal authority has been accomplished quite as much by the course of public events as by the new amendments to the Constitution; and however careful every Federal and State official and every citizen may be so to perform all political functions as to preserve under all circumstances the true constitutional balance of powers, and to sanction no unconstitutional encroachments, there can be no question that the new interests coming gradually within the purview of federal legislation, and the increase in magnitude and importance of those already under federal control, must have a still further tendency in the direction indicated.[1]
Majority Rule. — Government in the United States and in the several States, in all its grades, is representative; the body of the people performing very few acts directly, except that of adopting the Constitution. When they act directly, the result of their will must be ascertained by such preponderating vote as the law shall prescribe. This may be a majority vote, or it may be merely the vote in which the largest number of electors agree. In determining upon a majority or plurality, those only are counted who actually participated in the election, except in a few cases where by some constitutional provision an actual majority of all the electors is required.
American government is frequently spoken of as a government based on faith in majorities, and the machinery of election as being provided merely to ascertain what the will of the majority is. But the government is never handed over to the absolute control of the majority, and many precautions are taken to prevent its expressing exclusively their will: — 1. In the Constitution many per-
[1] For a discussion of this subject see Bryce, American Commonwealth, 3d Am. ed., vol. i, ch. xxxi.-xxxv.
manent rules are prescribed which control the majority absolutely, and which cannot be changed except by the slow process of constitutional amendment. 2. The times and methods of election of legislative and executive officers are so contrived that in different branches of the government the majority of one period will be restrained and checked by the majority of another, and it is scarcely possible that any considerable minority shall not have its representatives, and be entitled to be heard through them in the legislature, in ways that shall at least hold the majority to due accountability for their conduct and measures. It must often be the case that one house of the legislature will represent the views of a popular majority, and the other those of a minority only; but for all purposes of enacting laws, the latter has as much authority as the former. 3. The electoral system is so contrived that the President is sometimes chosen by a minority of the people; but unless a majority is overwhelming, he may generally defeat its measures by his veto. 4. All the safeguards which under kingly government were ever interposed against the tyrannical power of rulers are incorporated in the bills of rights in the American constitutions as absolute limitations laid on the power of the majority for the protection of the liberty, property, privileges, and immunities of the minority, and of every individual citizen; and the judiciary is given a power to enforce these limitations, irrespective of the will or control of the legislature, such as it has never possessed in any other country. So far then from the government being based on unlimited confidence in majorities, a profound distrust of the discretion, equity, and justice of their rule is made evident in many precautions and checks, and the majority is in fact trusted with power only so far as is absolutely essential to the working of republican institutions.[1]
[1] See the discussion in Boutmy, Const. Law (English translation), p. 110.
Instruction of Representatives. — The care taken to impose restraints on the action of temporary majorities is sufficient to demonstrate the want of constitutional basis for the opinion that representatives are bound to obey the instructions of their constituents from time to time communicated to them. But it would be conclusive also against such an opinion, that no method is provided, or is available, by means of which instructions can be authoritatively given. A representative in Congress is chosen by popular vote, at an election of which all must take notice; but there is no machinery for gathering the voice of all electors again until the next general election, and it is then gathered only in the ballots which express a choice between candidates. Between the elections the constituents may speak through the press and by petitions, but these are not authoritative, and it can seldom be known from such expressions what is the popular will. Senators sometimes consider themselves bound to respect and obey the instructions of State legislatures; but these are composed only of delegates of the people, and they may represent the sentiments of the constituency no more than the senator himself.
But aside from practical difficulties, the right to instruct representatives cannot on principle be sustained. Representatives are chosen in States and districts; but when chosen they are legislators for the whole country, and are bound in all they do to regard the interest of the whole. Their own immediate constituents have no more right than the rest of the nation to address them through the press, to appeal to them by petition, or to have their local interests considered by them in legislation. They bring with them their knowledge of local wants, sentiments, and opinions, and may enlighten Congress respecting these, and thereby aid all the members to act wisely in matters which affect the whole country; but the moral obligation to consider the interest of one part of the country as much as that of another, and to legislate with a
view to the best interests of all, is obligatory upon every member, and no one can be relieved from this obligation by instructions from any source. Moreover, the special fitness to legislate for all, which is acquired by the association, mutual information, and comparison of views of a legislative body, cannot be had by the constituency, and the advantages would be lost to legislation if the right of instruction were recognized.
CHAPTER III.
DISTRIBUTION OF THE POWERS OF GOVERNMENT
Necessity of Separation of Powers. — When all the powers of sovereignty are exercised by a single person or body, who alone makes laws, determines complaints of their violation, and attends to their execution, the question of a classification of powers can have only a theoretical importance, for the obvious reason that nothing can depend upon it, which can have practical influence upon the happiness and welfare of the people. But inasmuch as a government with all its powers thus concentrated must of necessity be an arbitrary government, in which passion and caprice is as likely to dictate the course of public affairs as a sense of right and justice, it is a maxim in political science that, in order to the due recognition and protection of rights, the powers of government must be classified according to their nature, and each class intrusted for exercise to a different department of the government. This arrangement gives each department a certain independence, which operates as a restraint upon such action of the others as might encroach on the rights and liberties of the people, and makes it possible to establish and enforce guaranties against attempts at tyranny. We thus have the checks and balances of government, which are supposed to be essential to free institutions.
Classification. — The natural classification of governmental powers is into legislative, executive, and judicial. The legislative power is the power to make laws and to alter them at discretion; the executive power is the power
to see that the laws are duly executed and enforced; the judicial power is the power to construe and apply the law when controversies arise concerning what has been done or omitted under it. Legislative power therefore deals mainly with the future, and executive power with the present, while judicial power is retrospective, dealing only with acts done or threatened, promises made, and injuries suffered.[1] The line of division is nevertheless somewhat indefinite, since in many cases the legislature may designate the agents for the execution of its enactments, and the judiciary is expected to enforce the law in such controversies as are brought before it; while the executive and the judiciary may respectively make rules which are in the nature of laws, for the regulation of its own course in the discharge of its duties. There are then powers strictly legislative, others strictly executive, and others strictly judicial; while still other powers may be exercised by one department or by another, according as the law may provide. For illustration the case may be taken of rules for regulating the practice of courts, which are sometimes made by the legislature and sometimes by the courts; and also the case of the appointment of officers and agents, subordinate to the chief executive, to see to the enforcement of the laws; which can be made by law except as the Constitution has conferred the power upon the executive.[2] And whenever a power is not distinctly either legislative, executive, or judicial, and is not by the Con-
[1] Wayman v. Southard, 10 Wheat 1, 46; Bales v. Chapman, 2 Chip. (Vt ) 77; Greenough v. Greenough, 11 Penn. St 489, Jones v. Perry, 10 Yerg (Tenn ) 59; Shumway v. Bennett, 29 Mich. 451; Taylor v. Place, 4 R I 324; Ex parte Burns, 1 Tenn Ch 83
2 Field v. People, 3 Ill 80, Bridges v. Shallcross, 6 W Va 562; People v. Freeman, 80 Cal 233, People v. Osborn, 7 Col 605. The legislature may create a board of civil service commissioners who shall prescribe the qualifications of all officers except those provided for in the Constitution Opinion of Justices, 138 Mass 601. In Indiana legislative power to prescribe the manner of appointing does not empower the legislature to appoint. State v. Denny, 118 Ind 449.
stitution distinctly confided to a department of the government designated, the mode of its exercise, and the agency, must necessarily be determined by law; in other words, must necessarily be under the control of the legislature.[1]
But when a department is created for the exercise of judicial authority, the act itself constitutes a setting apart to it for exercise of the whole judicial power of the sovereignty with such exceptions only as the Constitution itself may make.[2] As therefore the determination of a controversy on existing facts where there are adverse interests is judicial action, the act is not within the compass of legislation; neither is the setting aside of judgments and granting of new trials;[3] nor the opening of controversies after remedy under the general law is gone;[4] nor, it seems, the giving of an appeal after the time allowed by law has expired,[5] though as to this last there are decisions contra.[6] Neither can the legislature bind parties interested by a recital of facts, or prescribe conclusive rules of evidence, for either of these would be only an indirect method of disposing of controversies.[7] These
[1] Calder v. Bull, 3 Dall. 386.
[2] Greenough v. Greenough, 11 Penn. St. 489; Alexander v. Bennett, 60 N. Y. 204; Van Slyke v. Ins. Co., 39 Wis. 390; Risser v. Hoyt, 53 Mich. 185; In re Cleveland, 51 N. J. L. 311. Courts established by the legislature cannot exercise jurisdiction to the exclusion of that
conferred by the Constitution on other courts. Montross v. State, 61 Miss. 429. But if the Constitution does not distribute the judicial power, the legislature has the power to distribute it. Com. v. Hippie, 69 Penn. St. 9; State v. Brunswick, 42 N. J. L. 51.
[3] Lewis v. Webb, 3 Me. 326; Dorsey v. Dorsey, 37 Md. 64; Oliver v. McClure, 28 Ark 555; Hooker v. Hooker, 18 Miss. 599.
[4] Bradford v. Brooks, 2 Aik. (Vt) 284; Brent v. Chapman, 5 Cranch, 358; Leffingwell v. Warren, 2 Black, 599.
v Hill v. Sunderland, 3 Vt. 507; Burch v. Newberry, 10 N. Y. 374. See Carleton v. Goodwin's Executor, 41 Ala. 153.
[6] Prout v. Berry, 2 Gill (Md.), 147; Page v. Mathew's Admr., 40 Ala. 547; Wheeler's Appeal, 45 Conn. 306. To take away a statutory right of appeal is not an exercise of judicial authority. Ex parte McCardle, 7 Wall. 506.
[7] Parmelee v. Thompson, 7 Hill (N. Y.), 77; Lothrop v. Stedman,
cases will sufficiently suggest the proper rule of decision for others.[1]
The Departments of Government. — The Constitution of the United States creates three departments of government, and directly or by implication determines their powers.
The Legislature. — All the legislative powers granted by the Constitution are vested in a Congress consisting of a Senate and House of Representatives,[2] subject to a qualified veto in the President.
The House of Representatives is composed of members chosen every second year by the people of the several States, and the electors in each State must have the qualifications requisite for electors of the most numerous branch of the State legislature.[3] Each State will determine for itself what these qualifications shall be.
No person can be a representative who has not attained the age of twenty-five years, and been seven years a citizen of the United States, or who at the time is not an inhabitant of the State in which he is chosen.[4]
Representatives are apportioned among the States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.[5]
The Senate is composed of two senators from each State, chosen by the legislature thereof for six years, and divided into three classes, so that one class is chosen every second year. If vacancies happen, by resignation or otherwise, during the recess of the legislature of any State, the ex-
42 Conn. 583, 592; McCready v. Sexton, 29 Iowa, 356; Groesbeck v. Seeley, 13 Mich. 329.
[1] In Cooley, Const. Lim, ch. 5, is a large collection of authorities on this general subject.
[2] Const., Art. I. § 1. [3] Const., Art. I. § 2.
[4] Const., Art. I. § 2, cl. 2. It is not necessary that a representative should be a resident of the district from which he may be elected.
[5] Const. Amendment 14, § 2. Note the qualification in the latter part of the section.
ecutive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies.[1]
No person shall be a senator who shall not have attained the age of thirty years and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of the State from which he shall be chosen.[2]
The House chooses its own Speaker, and other officers.[3] The Vice-President of the United States is President of the Senate, but without a vote except in case of equal division. The Senate chooses its other officers, and also a President pro tempore in the absence of the Vice-President, or when he shall exercise the office of President.[4]
The times, places, and manner of holding elections for senators and representatives shall be provided in each State by the legislature thereof; but Congress may at any time by law make or alter such regulations, except as to the place of choosing senators.[5]
It is provided by law that representatives in Congress shall be chosen in single districts;[6] and that the elections shall take place on the Tuesday next after the first Monday of November.[7] Vacancies are filled as may be provided by State laws.[8] All votes for representatives in Congress must be by written or printed ballot, and all votes received or recorded contrary to this provision are of no effect.[9]
For the election of senators it is provided that the legislature of each State which is chosen next preceding the expiration of the time for which any senator was elected to represent such State in Congress, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a senator.[10] If an election fails to be made the first day, at least one vote is required to be taken
[1] Const., Art. I. § 3.
[2] Const., Art I. § 3.
[3] Const., Art V. § 2.
[4] Const., Art I. § 3. [5] Const., Art. I. § 4.
[6] Rev. Stat. U. S., § 23. [7] Rev. Stat. U. S., § 25.
[8] Rev. Stat. U. S., § 26.
[9] Rev. Stat. U. S., § 27.
[10] Rev. Stat. U. S., § 14.
every day thereafter, during the session of the legislature, until a senator is chosen.[1] An existing vacancy is filled at the same time and in the same way;[2] and a vacancy occurring during the session is filled by election, the proceedings for which are had on the second Tuesday after the legislature has organized and has notice of such vacancy.[3]
When Congress convenes, the President of the Senate administers the oath to its members,[4] and takes charge of the organization. The clerk of the next preceding House of Representatives makes a roll of the representatives elect, and places thereon the names of those persons, and of those only, whose credentials show that they were regularly elected in accordance with the laws of their States respectively, or the laws of the United States.[5] In case of vacancy in the office of clerk, or of his absence or disability, the sergeant-at-arms of the next preceding house performs this duty; and, in turn, it may devolve upon the doorkeeper in case of vacancy in the office of sergeant-at-arms, or his absence or disability.[6] The clerk acts as temporary presiding officer of the House until a Speaker is chosen. The Senate is supposed to have a presiding officer at all times.
Each house is judge of the elections, returns, and qualifications of its own members, and may determine the rules of its proceeding,[7] punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.[8] Each house shall also keep a journal of its
[1] Rev. Stat. U. S., § 15. [2] Rev. Stat. U. S., § 16. [3] Rev. Stat. U. S., § 17
[4] Rev. Stat. U. S., § 28. [5] Rev. Stat. U. S., § 31. [6] Rev. Stat. U. S., §§ 32, 33.
[7] The House may pass a rale providing that the names of members present but not voting may be noted by the clerk, reported to the Speaker, and counted in determining the presence of a quorum. United States v. Baffin, 144 U. S. 1.
[8] This is a power that by common parliamentary law would exist without being expressly conferred. It is "a necessary and incidental power to enable the house to perform its high functions, and is neces-
proceedings,[1] and from time to time publish the same, excepting such parts as in their judgment may require secrecy, and the yeas and nays of the members of either house on any question shall, at the demand of one fifth of those present, be entered on the journal.[2]
A majority of each house constitutes a quorum to do business, but a smaller number may adjourn from day to day, and compel attendance of absent members. But 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.[3]
Senators and representatives are paid by the United States a compensation determined by law.[4] They also, in all cases except treason, felony, and breach of the peace, are privileged from arrest during their attendance at the sessions of their respective houses, and in going to and returning from the same; [5] and for any speech or debate
sary to the safety of the State. It is a power of protection." And a member may be expelled for misconduct when away from the house on duty as a committee-man, as well as for misconduct during its sessions. Hiss v. Bartlett, 3 Gray (Mass.), 468. But if the house exceeds its authority in an attempted investigation, a person cannot be punished for contempt in refusing to answer before the investigating committee of the house. Kilbourn v. Thompson, 103 U. S. 168. See In re Chapman, 166 U. S. 661.
[1] Whether expunging a resolution, as was done by the Senate in the case of the resolution of censure of General Jackson, is not a violation of this provision, was much discussed in that case. Benton, Thirty Years' View, ch. 159-161; Webster's Speeches, iv. 259. If there is a variance between an enrolled act and the journal of Congress, the former will be held by the courts to be the unimpeachable law. Field v. Clark, 143 U. S. 649. The rule is different regarding State acts in some of the States. See cases cited, Ibid , pp. 661-666; and also Harwood v. Wentworth, 162 U. S. 547.
[2] Const., Art. I. § 5. [3] Const., Art. I. § 5.
[4] Const., Art. I. § 6.
[5] Const., Art. I. § 6. Holiday v. Pitt, 2 Strange, 985; Hoppin v. Jenckes, 8 R. I. 453. This privilege is that of the house to enable it to perform its functions with the aid of all its members, but it is also
In either house they shall not be questioned in any other place.[1]
All bills for raising revenue must originate in the House of Representatives, but the Senate may propose or concur with amendments.[2] All other bills may originate indifferently in either house, and any member of either house may introduce bills under its rules.
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.[3]
The Veto Power. — The power to veto legislation, which is conferred upon the President, makes him in effect a third branch of the legislature. The power is legislative, not executive, and the questions presented to his mind are precisely the same as those the two houses of Congress must determine in passing a bill. Whether the proposed law is necessary or expedient, whether it is constitutional, whether it is so framed as to accomplish its
the privilege of the people, as well as of the member himself. Coffin v. Coffin, 4 Mass. 1.
[1] Const., Art. I. § 6. It is held in England that the privilege does not extend to the publishing by the member of his speeches The King v. Creevey, 1 M. & S. 273; The King v. Abingdon, 1 Esp. 226. Compare Davison v. Duncan, 7 El. & Bl. 229. But in this country, where all debates are published by authority of law, the rule, we should say, must at least cover the official publication. But the privilege is confined strictly to what is said in the house or in committee in the discharge of legislative duty. Coffin v. Coffin, 4 Mass. 1.
[2] Const., Art. I. § 7. In this provision is incorporated a principle of the English constitution, which requires all revenue bills to originate in the House of Commons. As to what are revenue bills, see May, Const. Hist., ch. 7. The subject was much considered in debates in Congress in the year 1872. See also Twin City Bank v. Nebeker, 167 U. S. 196.
[3] Const., Art. I. § 6
intent, and so on, are questions transferred from the two houses to the President with the bill itself.
The Executive. — The executive power is vested in a President, who holds his office during a term of four years, and, together with a Vice-President, chosen for the same term, is elected by electors appointed in the several States for the purpose.[1] The State legislatures have exclusive authority to determine the mode of choosing electors.[2] No person except a natural-born citizen, who has been fourteen years a resident within the United States, and has attained the age of thirty-five, is now eligible to the office of President[3] or of Vice-President.[4]
In case of the removal of the President from office, or his death, resignation, or inability to discharge its powers and duties, the same devolves on the Vice-President, and Congress may by law provide for the case of removal, death, or resignation, or inability both of the President and Vice-President, declaring what officer shall then act as President until the disability be removed or a President elected.[5]
The Judiciary. — The Constitution provides that the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress
[1] Const., Art. II. § 1; Amendment 12. The manner of making choice, where no candidate has a majority of electoral votes, is explained by this amendment.
[2] McPherson v. Blacker, 146 U. S. 1.
[3] Const., Art. II. § 1. [4] Const., Amendment 12.
[5] Const., Art. II. §1. If the Vice-President becomes acting President, he holds for the full term. Congress has provided by law that in case of removal, death, resignation, or inability of both the President and Vice-President, the office shall devolve upon one of his constitutional advisers in the following order: Secretary of State, Secretary of the Treasury, Secretary of War, Attorney-General, Postmaster-General, Secretary of the Navy, Secretary of the Interior. But the officer must be one who has been confirmed by the Senate, and who is constitutionally eligible to the office of President. He will hold until the disability is removed, or until the office is filled at the regular election. — Act of 1886, 24 Stat. at Large, 1.
may from time to time ordain and establish.[1] The judges both of the Supreme and inferior courts hold their offices during good behavior. As the Constitution does not determine the number of the judges of the Supreme Court, the number may be changed at pleasure, except that it cannot be diminished so as to deprive a judge of his office. The other courts exist at the will of Congress, and may be changed and modified at discretion, subject to a like limitation that a judge cannot be legislated out of his office while the office itself remains.[2]
In a time of war, when portions of hostile territory are in the military occupation of federal forces, the President as commander-in-chief may appoint provisional courts for the determination of controversies within such territory, and the administration of justice.[3] But such courts, established on foreign soil, are mere agents of the military power to assist in preserving order and protecting the inhabitants in their persons and property; and they cannot adjudicate upon questions of prize, or decide upon the rights of the United States or of individuals.[4]
The territorial courts are not created by Congress under , the power conferred by the articles above referred to, but in the exercise of the general sovereignty of the United States over the territory it may possess. The judges of such courts may therefore be appointed for definite terms, removable by the President.[5]
Upon judges as such no functions can be imposed except those of a judicial nature. They cannot therefore be
[1] Const., Art. III. § 1. The power "to constitute tribunals inferior to the Supreme Court" is conferred upon Congress by Article I. § 8, cl. 9.
[2] The legislative precedent is in favor of the power in Congress to indirectly deprive judges of their offices by abolishing courts. Reference is here made to the abolition of District Courts when Mr. Jefferson became President. There are State precedents of the same sort.
[3] Jecker v. Montgomery, 13 How. 498; The Grape Shot, 9 Wall. 129 See Edwards v. Tanneret, 12 Wall. 446. [4] Jecker v. Mongomery, 13 How. 498. [5] American Ins. Co. v. Canter, 1 Pet. 511
required to act as commissioners to determine questions subject to the consideration and supervision of Congress or of an executive officer;[l] or to make or review as appraisers the assessments that have been made of property for taxation;[2] nor can they by virtue of equity powers appoint officers to assess and collect taxes from municipalities, even to pay judgments against such municipalities, standing on their own records;[3] nor can they determine whether territory shall be incorporated as a village.[4] When judicial authority is conferred by law upon a court, it must be exercised by the judges sitting and organized as a court, and not by the judge out of court.[5]
[1] Note to Hayburn's Case, 2 Dall. 409; United States v. Ferreira, 13 How. 40. The remark in the text has no reference to courts like the Court of Claims, which, being a tribunal created to consider demands against the government, may have its authority restricted to any extent that seems wise.
[2] Auditor of State v. Railroad Co., 6 Kans. 500; Munday v. Rahway, 43 N. J. L. 338. In Massachusetts it has been held that courts cannot be empowered to appoint supervisors of election. Case of Supervisors of Election, 114 Mass. 247.
[3] Rees v. Watertown, 19 Wall. 107; Heine v. Levee Commissioners, 1 Woods, 246; 19 Wall. 655.
[4] Shumway v. Bennett, 29 Mich. 451; State v. Simons, 32 Minn 540; Galesburg v. Hawkinson, 75 Ill. 152 But it is held that the propriety of bringing territory into a municipality by extending its limits may be decided by a court, as being not purely a legislative question. Burlington v. Leebrick, 43 Iowa, 252; Wahoo v. Dickinson, 23 Neb. 426.
[5] Note by the Chief Justice to United States v. Ferreira, 13 How. 52. A judge cannot be empowered to determine which claimant of an office is entitled to hold it during a contest. If such power is executive, it cannot be given to a judge; if judicial, it must be vested in a court. In re Cleveland, 51 N. J. L. 311. But duties in connection with the adoption of children may be imposed by the legislature upon a judge without involving any exercise by him of judicial power. In re Stevens, 83 Cal. 322.
CHAPTER IV.
THE POWERS OF CONGRESS.
National Powers. — In any sovereign state, the lawmaking department is the repository of most power, and it is also the most immediate representative of the sovereignty. Not that the others are subordinate within their respective spheres, but the exercise of governmental authority begins with the making of laws, and the other departments execute and administer what the law-making department enacts. For this reason the Constitution, in enumerating the powers which shall be exercised by authority of the general government, confers them in terms upon Congress. But this in legal effect is conferring them upon the United States, and by implication a corresponding executive and judicial power is also given, though to a large extent the exercise of these powers respectively is left to be provided for in the discretion of Congress.
SECTION I. — TAXES, LOANS, AND DEBTS.
The Power. — In the specific enumeration of national powers, it is first declared that "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."[1] Thus a power is conferred which is essential to the maintenance of independent government, and the want of which was one of the principal causes of the failure of the Confederacy. The purposes for which
[1] Const., Art I. § 8, cl. 1.
the power may be exercised are also specified, but in such general terms that they comprehend all the needs of government. The requirement of uniformity in the levy of duties, imposts, and excises is an important limitation to a power which otherwise might have been exercised partially and oppressively.
Definition. — The word "taxes," in its most enlarged sense, embraces all the regular impositions made by government upon the person, property, privileges, occupations, and enjoyments of the people for the purpose of raising public revenue.[1] As duties, imposts, and excises are laid or imposed for this purpose, they are in a strict sense taxes, and no doubt might have been levied by the government under that designation, without being here specifically mentioned. But as the term "taxes" is sometimes used in contradistinction to these levies, it conduced to certainty to name them separately. It was also a convenience in view of the special rule which was prescribed for their levy. The terms "duties" and "imposts" are nearly synonymous, and are usually applied to the levies made by government on the importation or exportation of commodities, while the term "excises" is applied to the taxes laid upon the manufacture, sale, or consumption of commodities within the country, and upon licenses to pursue certain occupations.[2]
Taxes are distinguished from arbitrary levies in that they are laid according to some rule which apportions the burden between the subjects thereof. An exaction which is made without regard to any rule of apportionment is therefore not a tax, and is not within the constitutional authority of the government.[3]
[1] Montesq, Sp. of the L., b. 13, ch. 1; Perry v. Washburn, 20 Cal. 318, 350; Hilbish v. Catherman, 64 Penn. St. 154, 159; Loan Association v. Topeka, 20 Wall. 655, 664; Opinion of Judges, 58 Maine, 590.
[2] Cooley on Taxation, 3
[3] Sutton's Heirs v. Louisville, 5 Dana (Ky.), 28-31; Grim v. School District, 57 Penn. St. 433.
The power to tax is an incident of sovereignty, and is coextensive with the subjects to which the sovereignty extends. It is unlimited in its range, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax to the constituency who are to pay it.[1] A people, however, in establishing their constitution, and delegating to their representatives this power, may impose at discretion limits to its exercise; and many effective limitations have been imposed in the constitutions of the States.
The Power Discretionary. — As respects the kind of tax that shall be laid, or the subjects upon which it shall be imposed, every government will regulate its action according to its own view of what will best accomplish the end, and best subserve the general interest. Therefore, taxes may be levied upon either land or personalty to the exclusion of the other, or upon occupations in preference to either or both, or they may be collected in the form of duties on imports or excises on domestic productions. The United States for the most part has collected its revenues from duties on imports, but at exceptional periods has levied taxes on land, occupations, manufactures, incomes, deeds and other contracts, and many other subjects. The basis of apportionment in the case of imports and excises has sometimes been value, sometimes weight, quantity, or quality, and sometimes other standards, while upon deeds and contracts the apportionment has been according to number or importance, and the tax has been collected by the sale of stamps. By the Constitution the United States is precluded from laying any tax or duty on articles exported from any State.[2] The requirement that
[1] Veazie Bank v. Fenno, 8 Wall. 533, 548, McCulloch v. Maryland, 4 Wheat. 316, 428 , Howell v. State, 3 Gill (Md.), 14; People v. Brooklyn, 4 N Y. 419; Pullen v. Commissioners, 66 N. C. 361; Tay lor v. Palmer, 31 Cal. 240; State v. Newark, 26 N. J. 519 , Williams v. Cammack, 27 Miss. 209, 219; Parham v. Justices, 9 Ga. 341, 352.
[2] Const., Art. I. § 9, cl. 5.
an article intended for exportation shall be stamped, to prevent fraud and secure the carrying o