FEDERAL USURPATION 



BY 



FRANKLIN PIERCE 



OF THE NEW YORK BAR 



Author of "The Tariff and the Trusts" 



                    COPYRIGHT, 1908, BY 



D. APPLETON AND COMPANY 



                     ISBN: 0-8377-1007-3 



"If, in the opinion of the people, the distribution of the constitutional powers

be in any particular wrong, let it be corrected in the way which the

Constitution designates. 



"But let there be no change by usurpation, for this, though it may in one

instance be the instrument of good, is the ordinary weapon by which free

governments are destroyed.." 



WASHINGTON. 



"It is my duty and my oath to maintain inviolate the right of the States to order

and control under the Constitution their own affairs by their own judgment

exclusively. Such maintenance is essential for the preservation of that balance

of power on which our institutions rest.." 



LINCOLN. 



Published January, 1908 



          



NEW YORK 



           D. APPLETON AND COMPANY 1908 





COPYRIGHT, 1908, BY 



D. APPLETON AND COMPANY 



TO MY WIFE ANNA SHEPARD PIERCE 



WITHOUT WHOSE AID THIS BOOK COULD NOT HAVE BEEN WRITTEN 



Published January, 1908 





"Evil for evil, a good despotism in a country at all advanced in civilization is

more noxious than a bad one, for it is more relaxing and enervating to the

thoughts, feelings, and energies 



of the people." 



JOHN STUART MILL. 



"As we cannot, without the risk of evils from which the imagination recoils,

employ physical force as a check on misgovern-ment, it is evidently our wisdom

to keep all the constitutional checks on misgovemment in the highest state of

efficiency, to watch with jealousy the first beginnings of encroachment, and

never to suffer irregularities, even when harmless in themselves, to pass

unchallenged, lest they acquire the force of precedents." 



MACAULAY. 





PREFACE 



THIS book is a plea for the sacredness of the Constitution of the United States. I

do not mean by this that I consider our Constitution, framed a hundred and

twenty years ago, well suited to the needs of our existing government. Its rigid

provisions, its system of checks and balances, are an obstacle to popular

government, and they should be radically changed by amendment, but never by

construction or usurpation. This book was suggested by the President's speech

at Harrisburg in 1906, in which he declared that the power of the Federal

Government should be increased "through executive action . . . and through

judicial interpretation and construction of law." A little later, at the Pennsylvania

Society in New York, Mr. Root, the head of the Cabinet and the close friend of

the President, declared that if the people desire it "sooner or later constructions

of the Constitution . . . will be found" to vest additional power in the National

Government. Hitherto governmental usurpation generally has advanced by

silent and gradual attacks upon constitutional safeguards. Never before in

human history, I believe, has the head of a constitutional government who had

sworn to protect, preserve, and defend its fundamental provisions publicly

advised their subversion "through executive action and through judicial

interpretation." In recent 





days every abuse on the part of corporations engaged in interstate commerce

has been eagerly grasped by the President as the reason for an encroachment

upon constitutional guarantees, while every opposition to such encroachment

has been seized as a reason for a stronger national government to put down

opposition. Unless the people are stirred to a recognition of the danger of such

usurpations, they will never be checked. 



Well-defined usurpations of power by the National Government had a

commencement in our Civil War. They gathered force during the Reconstruction

period, but were slightly checked in the administrations of Presidents Hayes and

Arthur and the first administration of Mr. Cleveland. In the present

administration they have increased with amazing rapidity. We are told by the

President that "such interpretation as the interests of the whole people demand

" should be given to the Constitution, leaving this to be determined by tlie

National Government. Impelled by such conceptions of constitutional law, a

National Employers' Liability Act, applying to railway servants, has been

passed, a National Pure Food Law has been enacted, and the Department of

Agriculture now claims the power of "making the standards of composition for

food products." About every industry, however remotely connected with

interstate commerce, is sought to be controlled by child-labor laws,

commissions, or licenses, and ere long we will fully adopt the methods of

Continental Europe by which the local and domestic affairs of the people are

under the supervision of the central government. Unless a determined body of

citizens arise and oppose such usurpations, the doom of our state governments

is already sounded. 



There is no doubt that there is a natural evolution 





in our times toward centralization. A hundred agencies combine to bring men

and industries to great central points. This tendency cannot be stopped, but

centralization which results from natural causes should be sharply distinguished

from concentration of power through usurpation. It is usurpation for the

National Government to take over the powers of the states without employing

the proper means of acquiring them through amendments to the National

Constitution. "State rights," says President Roosevelt, "should be preserved

when they mean the people's rights, but not when they mean the people's

wrongs." Even Alexander Hamilton, the most pronounced advocate of a strong

centralized national government, entertained no such conception of state rights

as this. In the debates before the New York Constitutional Convention, he said: 



"The state governments are essentially necessary to the form and spirit of the

general system. As long, therefore, as Congress have a full conviction of this

necessity, they must, even upon principles purely national, have as firm an

attachment to the one as to the other. This conviction can never leave them,

unless they become madmen. While the Constitution continues to be read, and

its principles known, the states must, by every rational man, be considered as

essential, component parts of the Union; and therefore the idea of sacrificing the

former to the latter is wholly inadmissible." The difficulty in our day is found in

the fact that when we speak of state rights the minds of men naturally go back to

the Civil War and the claims of the South in that contest. We who oppose

usurpation by the National Government of the rights of the states plant

ourselves upon the same principles as those for which the North waged that

war. The National Government 





has no more right to destroy the reserved powers of the states than the South

had to destroy the powers delegated by the states to the National Government.

The Constitution of the United States secures to the states their reserved rights

in the same way that it secures the rights delegated by the states to the National

Government. 



In each of the chapters of this book, after the first, I have sought to gather the

facts illustrating usurpations of government at some particular period or by

some particular department. I am aware that it may be said that the public interest

in such facts is temporary rather than permanent and that political parties will

uncover these facts. Our political parties to-day are mere political machines

living upon the spoils of office and giving little heed to great public questions.

The leaders of these parties deal in glittering generalities, the one seeming to

favor centralization of power in the National Government and the other

espousing the cause of state rights, but it is apparent that they do not widely

differ in reality as to details. The very existence of these parties depends upon

extending the power of government, multiplying commissions, licenses, offices,

and special privileges. Exposure of usurpations will never come from those who

profit by usurpations. 



The most important public affairs are unknown to the people. Law-making in the

House of Representatives to-day is as carefully hidden in its secret committees

from popular gaze as was the action of the Council at Venice in the Middle Ages.

In January, 1907, Mr. De Armond introduced a bill in the House of

Representatives conferring upon the President of the United States the right to

remove from office, without charges and without a hearing, any one or all of the 





twenty-nine United States Circuit Court judges and the eighty-two District Court

judges of the United States District Courts, and the bill gave him the power of

appointment of new judges in their places by and with the advice and consent of

the Senate. This proposed bill, conferring as despotic powers upon the

President as was ever exercised by any ruler in the history of the world, was so

hidden from the American people behind the door of the secret Congressional

committee that probably not one citizen in a hundred thousand ever heard of its

existence. 



The United States Supreme Court, recognizing that the National Government is

one of delegated powers, recently decided, in the case of Kansas v. Colorado,

that the powers conferred upon the Supreme Court were an exception to the rule,

and that as respects their judicial power there was practically no limitation. Do

the people know of this proposed law and of the danger of this recent decision?

Has any alarm of danger been sounded by political parties as to these measures?

Are such measures questions only of temporary interest? Is there anything

which should concern free men so greatly as the preservation of their freedom?

The individual man is the essential unit of any society that hopes to retain the

principles of growth and progress. His personal liberty is the source of personal

initiative and national wealth and strength. Our progress in wealth has depended

more upon that individual liberty than upon all other causes combined. But

liberty has higher ends tlian to fire the soul of the individual to action and to

urge him to the attainment of high political ends. Lord Acton well said: "Liberty

is not a means to a higher political end. It is of itself the highest political end."

Liberty nourishes self-respect, self-reliance, and every 





impulse to a higher life. It gives birth to art, literature, and culture. It ever has

been the source of all the higher impulses and aspirations of men. On the other

hand, a usurping government destroys these qualities, turns the attention of the

citizen to foreign politics, dazzles him with military glory, and destroys his

aspirations for liberty. Surely the importance to the individual man and to our

country of the preservation of liberty justifies a discussion of the present danger

from usurpation of power. 



Without any desire to influence men's political associations, I have attempted in

this book to show the causes of present conditions, to arouse the citizen to an

appreciation of the dangers of usurpation, and to point out remedies for existing

evils through amendments to the Constitution of the United States. I shall be

happy if this examination may aid in any way the present growing interest in the

preservation of constitutional guarantees. The age of the birth of the

Constitution produced our greatest constructive statesmen. The period between

1820 and 1850, when its meaning was so thoroughly discussed, called forth the

great powers of Webster and Calhoun. A nonpartisan discussion today of the

dangers which exist from usurpation may happily lead to that elevation of public

character and public life which will regenerate political parties and lead them to

make fighting issues on the fundamental principles of government. 



FRANKLIN PIERCE. December 1, 1907. 





CONTENTS 



CHAPTER PAGES I. — THE BIRTH OF THE CONSTITUTION . . . 3-38 



The checks and balances in the Constitution upon popular government, 3-6,

Democratic spirit of early state governments, 7-8; Causes of reactionary spirit of

the Constitution, 8-13; Constitutional Convention, 14-21; State conventions for

adoption of the Constitution, 21-22; Powers conferred upon Congress, 22-24; No

inherent powers in Congress, 24-25; Executive and judicial powers, 25;

Amendments to the Constitution, 25-28; Sources of the Constitution. 29-31;

Local self-government in New England and paternalism in Canada, 31-33; 



Alien and Sedition Laws, 34-36; Veneration for the Constitution, 36-37. 



II. — USURPATION IN THE CIVIL WAR AND RECONSTRUCTION PERIOD

...... 41-75 



Origin of existing usurpation found in this period, 41-42; Suspension of writ of

habeas corpus by President Lincoln and imprisonment of thousands of Northern

men, 42-46, Writ of habeas corpus suspended by a national statute which was

declared unconstitutional, 46-50; Lincoln's comments upon his acts of

usurpation, 50-51; The Confiscation Act, 51-52; Centralization through National

Bank and Tariff Acts, 52-57; Attitude of the President and Congress upon the

effect of secession, 57-59; The Reconstruction Acts and the despotic powers

exercised by the generals of the Military Departments, 59-63; The Ku Klux Law

and the Civil Rights Bills held unconstitutional, 65-67; Laws of carpetbag

governments 





declared unconstitutional, 67-68; Supervision of elections in the North by United

States marshals, 69; Ejection of legislators in Louisiana by United States troops,

70-71; Partisan spirit of reconstruction, 74-75. 



III.—EXECUTIVE USURPATION ..... 79-121 Power of President exceeds that of

any constitutional monarch, 79-84; Popular election no restraint on arbitrary

power, 84-86; Separation of coordinate departments of the national government,

86-87; 



The acts and criticisms of the President tend to destroy the separate power of

the Judiciary. 87-96; Proposed bill giving the President arbitrary power of

removal of Federal judges, 93; President's attempts to influence the action of

Congress, 96-99; States prompt to remedy evils in comparison with Congress,

99-104; Opinions of Hamilton and others on state rights, 104-107; Executive

pension order, 107-109; Collection of customs duties in San Domingo, 109-111;

The seizure of Panama, 111-114; The discharge of negro troops without trial by

court-martial, 114-118; The justification of usurpation, 119—120; The unwritten

law should preclude the President from dictating his successor, 120-121. 



IV.—PATERNALISM AND IMPERIALISM . . . 125-155 



The universal seeking of aid from an all-powerful President is a menace to

liberty, 125-128; Governmental favors to farmers and bankers and their effect

upon the people, 128-132; Statutes considered a panacea for evils, 133-134; Race

suicide, a result of tariffs and trusts, 135-139; 



Effect of imperialism upon home institutions, 139-143; Playing the part of a world

power results in socialism, 143-144; The methods and characteristics of

imperialism, as described by Sir Henry Campbell-Bannerman, appearing in the

United States, 145-152; The United States ruled from 





Washington as Prance is from Paris, 152-154; 



Growth of arbitrary methods, 154; Existing conditions a presage of empire,

154-155. 



V.—CONGRESSIONAL USURPATION .... 159-193 Decline of popular branch of

Congress and contemporaneous growth of this branch in Europe, 159—162; 



Government by committees and absence of public discussion the causes of

decay, 162-164; Great volume of legislation and the arbitrary methods of its

passage, 164-170; Extravagant expenditures, 170-171; Hasty and ignorant

legislation, 171-172; Absence of debate stifles worthy ambitions of members and

destroys public interest in legislation, 172-174; Senators representatives of

property, 174-175; The Senate's rapid growth in power and its close relation to

the President in the government of the country, 176—180; Government of

Congress undemocratic and a shelter for usurpation, 180—181; The Department

of Agriculture our most prolific source of usurpation, 182-187; Appropriations

for irrigation unconstitutional, 187-188; Detailed acts of usurpation, 188-192;

Such usurpations lead to socialism and absolutism, 192-193, 



VI.—THE UNITED STATES SUPREME COURT THE ABSOLUTE POWER .......

197-237 



Possesses the most absolute power ever conferred upon a court, 197-201; The

sources of its power to declare a national statute unconstitutional, 201-205;

Before the Civil War reluctant to declare national statutes unconstitutional,

205-206; 



Our reverence for courts, 207-209; Danger that it may increase its powers by

construction, 210-212; 



The Legal Tender cases, 212-219; The Income Tax cases, 220-226; The Mankichi

case, holding that indictment by grand jury and conviction by unanimous

verdict in a murder case were not fundamental rights, 226-232; The increasing

use 





CHAPTER PAGES 



of injunctions in criminal cases, 232-234; Temporary injunctions, granted by a

single judge, holding, upon mere affidavits, state statutes unconstitutional,

234-237. 



VII. — TREATY POWER AND STATE RIGHTS . . 241-265 



A treaty is the supreme law of the land, binding all the states, 242; The facts

establishing this contention, 243-250; Calhoun's opinion, 251-252; 



The decisions of the courts unanimously sustain this contention, 253-256; The

authority for the state rights contention, 257; Difficulty with Italy over killing of

her citizens by mob at New Orleans, 258-260; Political leaders allow violent

treatment of aliens for party reasons, 260-261; The California school statute,

262-263; The present treaty with Japan has an express provision exempting state

laws, 263-264; Treaty power was never intended as a means of acquiring Asiatic

territory, 264-265. 



VIII. — THE INTERSTATE COMMERCE CLAUSE . . 269-305 



President Roosevelt's contention that state rights should be preserved only

when they mean the people's rights, 269-272; The right of commercial intercourse

belonged to the people before the Constitution, 272; The Constitution is to be

interpreted by the facts existing at its birth, 273-274; The regulation of commerce

by the nation was intended to prevent obstructions to commerce, 274-279; The

Interstate Commerce Employers' Liability Act, 284-289; Proposed Interstate

Commerce Child Labor Law, 289-291; Judge Parrar's plan of government

ownership of all interstate railways approved by the President, 291-294; The

Lottery Case, its important bearing upon the police powers of the states,

294-301; 



The blessings of free trade between the states, 302; Are national officials more

efficient than 





those of states? 303; The great and dangerous power exercised "by the

President through commissions, 304-305. 



IX. — STATE CENTRALIZATION THROUGH COMMISSIONS 



AND COURTS ....... 309-341 



The source of local self-government and its value, 309-311; Government by

commissions in Massachusetts, 311-313; New York, 313-316; Connecticut,

316-317; New Hampshire, 317-318; 



South Carolina, 318; Benefits of commissions and dangers therefrom, 318-321;

The Pennsylvania "Ripper" Bills and State House appropriations, 321-323;

Bipartisan commissions and government of cities from state capitals, 323-324;

Legislation by committees, 324-325; Overlegislation, sumptuary laws, and special

legislation, 325-327; 



A revolution in the practice of appellate courts as to setting aside verdicts as

against the weight of evidence, 327-330; Reversals of judgments for technical

defects, 330-331; The requirement of unanimous verdicts in jury trials, 332; The

slaughter through negligence, 333; The Star Chamber of Colorado, 334-335; John

Doe warrants and exercise of arbitrary power in New York City, 335-336; Abuses

a pretext for interference by the national government, 337; The remedy, 338-339;

The President's paternal interest in the Governors of New York and

Massachusetts, 340-341. 



X. — USURPATION IN ADMINISTRATIVE LAW . . 345-374 Nature and growth

of administrative agencies, 345-347; The Ju Toy Case, 347-354; Mail stoppage

orders, 355-363; Our censors compared with those of Europe, 364-366; Recent

instances of usurpation in Administrative Law, 366-370; 



Judge Gaynor on danger of commissions, 370-371; 



Administrative courts in Continental Europe, 371-373, Whither our President is

leading us, 373-374. 





XI. — HOW TO RESTORE THE DEMOCRATIC REPUBLIC, 377-407 



The characteristics of our people endanger their liberties, 377-380; Materialism

the foe of liberty, 380-384; Instances of public virtue and its immortality, 384-386;

We must destroy bosses and monopolies, 386-387; The solution of public

questions and the removal of evils rests directly upon the people, 387-389; The

first legal change should be an easier method of amending our Constitution,

389-391; Real party government impossible at present, 391-392; House of

Representatives should be supreme in lawmaking, 392-393; The heads of

departments should be heard in Congress, as in England, 393-394; The flood of

legislation should be stopped, 395-396; 



The right kind of party government a blessing, the wrong one a public curse,

396-397; Presidential term should be lengthened and power of independent

appointment extended, 397-399; 



Popular election of U. S. Senators, 399-400; 



Second Session of Congress should not follow a Congressional election,

400-401; Tax monopolies, 401; Private bills and special legislation the source of

corruption, 401-402; Corrupt governments produce dictators, 403; The

Referendum, 404-405; An indignant, fighting people can obtain their rights, 407. 



APPENDIX . . . . . . . . . . .411 



INDEX ............ 431 





I THE BIRTH OF THE CONSTITUTION 





"Though small in their mere dimensions, the events here summarized were in a

remarkable degree germinal events, fraught with more tremendous alternatives of

future welfare or misery for mankind than it is easy for the imagination to grasp."



JOHN FISKE. 



"The Constitution has found many learned and intelligent commentators; but

they have all considered its excellence to be an undoubted and universally

admitted fact. What should have been only the result of their investigation they

made the premises of their arguments. . . . The historical fact is that it was

'extorted from the grinding necessity of a reluctant 



people.'" 



VON HOLST. 



"The English Constitution, in a word, is framed on the principle of choosing a

single sovereign authority, and making it good; the American, upon the principle

of having many sovereign authorities, and hoping that their multitude may atone

for 



their inferiority." 



BAGEHOT. 





CHAPTER I 



THE BIRTH OF THE CONSTITUTION 



A CONSIDERABLE proportion of our American people have ever deprecated

any criticism of the Constitution of the United States. Any suggestion that the

constitutional adjustment of Congress, the President, and the Supreme Court is

defective is considered unpatriotic and un-American. They appear to think that

it is the duty of the true patriot to ignore imperfections lest they throw discredit

upon the sacred provisions of the Constitution. No free government can exist

long unless there are a considerable number of men ready for unsparing

examination and criticism of its weaknesses. 



It is uncommon to see the laws and constitution of a state openly disregarded. It

is the silent and gradual attacks that the citizen should watch with jealous care.

When government inspectors supervised the elections for representatives in

Congress in the reconstruction days, and counted ballots for state candidates as

well as for members of Congress, the citizen felt the indignity and assailed it with

resentment. When, however, usurpations may be hidden behind a government

so complicated by checks and balances that the citizen cannot perceive them,

the nature of the government may entirely change and the spirit of the original

constitution 





be lost before he awakes to the danger. Such a form of government, which hides

usurpation and is a constant temptation to usurpation, we certainly have. 



Prior to the formation of our National Government the people imposed limitations

upon the monarch or upon some centralized power of the government. Magna

Charta, the Petition of Right, the Bill of Rights, all were imposed as limitations

upon the power of the English king. In all modern parliamentary governments

the power of the people in the representative body of the government is

supreme. We alone have limited the power of our House of Representatives to

such an extent as to cripple effective action on their part. A bill introduced in the

House of Representatives and there passed must receive the assent of the

Senate, a body elected not by the people but by the State Legislatures, before

becoming a law. If the Senate does assent, it then goes to the President, who can

reject the same giving his reasons therefor. If passed a second time by a

two-thirds majority of each House, the Supreme Court of the United States may

still hold it unconstitutional. 



The chief value of a constitution in a democratic form of government, such as we

are supposed to have, is to afford ready means for the expression in laws of the

will of the people through responsive legislative action. The best form of party

government is found where two parties espouse conflicting principles and fight

out the question of their value in the open. The Constitution of the United

States does not give such free and effective play to public opinion in

government. 





The checks and balances which it has created make the free expression of the

convictions of the people by a political party almost impossible. In eleven

different Congresses since the adoption of the Constitution both the President

and the Senate have been of a different political faith from the House of

Representatives. During a period of eighty-four years of our constitutional

history a majority in the House of Representatives has not been supported by all

the other branches of the Government. Between 1874 and 1896 there were but

two years, the Fifty-first Congress, during which the same party had a majority

in all the branches of the Government.1 



Clean-cut issues between parties upon principles of government are impossible

with such a Constitution, whereby the President and the Senate may represent

one party, and the House of Representatives another party, and where both

parties, hidden behind Congressional committees, may be acting collusively. If

public opinion upon national questions is to be made effective in government,

the House of Representatives, elected directly by the people, must eventually

become the governing power in this country. Its decay during the last thirty

years is an omen of great danger. 



We hear much said in these days about the extension of the powers of the

National Government by judicial construction, but no appeal is made by the

President and Mr. Root to the people or to Congress for an amendment

conferring such extension. And why not? Such an amendment cannot be

considered by the people 1 Smith, The Spirit of American Government, p. 227. 





unless two thirds of both Houses of Congress shall deem it necessary and shall

propose the amendment to the People for their adoption, or two thirds of the

several states shall call a convention for proposing the amendment, and in each

case it must be ratified by the legislatures of three fourths of the several states.

We are fold that during the fifteen years from 1889 to 1904 435 amendments to

the Constitution were proposed in Congress,1 and not one passed both Houses.

No force less than the force of revolution can be expected to move this

cumbrous machinery. The President and Mr. Root well know this. They know

the difficulties of bringing about an amendment, and so we are told that the

results will be accomplished by the exercise of judicial discretion in the

construction of the Constitution. 



Such a constitution, with so many checks and balances, with so many

difficulties of amendment, is a constant temptation to President and Secretary, to

Senate and House, to usurp power. Unless the American People awaken to the

danger of usurpation and make one supreme struggle to modify the conditions

on which the Constitution may be amended, we are in imminent danger of an

entire change in our institutions through gradual encroachments upon the

power of the states. Our state constitutions are amended with ease. Many of

them provide for constitutional conventions each twenty years to consider the

changes which new conditions have made necessary. But our National

Constitution continued from early in the nineteenth century for 



1 Smith, The Spirit of American Government, p. 47, note. 





over sixty years without a single amendment, and from the Reconstruction

Period until the present time without another. 



Let us now inquire how this undemocratic Constitution came into existence.

Who conceived all these checks and balances upon the representatives of the

people in the lower House, and what considerations impelled the making of such

a Constitution? That the people had no such fear of their representatives is

shown by the fact that the first constitutions of the thirteen states in nearly

every case gave almost unlimited power to the popular branch of the Legislature.

In nine states the judges were appointed by the state legislatures, either with or

without the consent of the Council. The appointing power of the governor was

largely restricted in nearly all these states. In six of them this power was given to

the Legislature or to the Legislature and Council. The veto power was given the

governor in only two states, Massachusetts and New York. The Assembly in

each state was hampered but little by executive veto or by the courts. Madison,

speaking in the convention which framed the Constitution, said: "Experience

shows a tendency in our government to throw all power into the legislative

vortex. The executives of the states are little more than ciphers; the legislatures

are omnipotent." 



England had parliamentary government with Pitt as Prime Minister at the time

when our Constitution was framed, but the English Government of that time was

by no means so popular in form as the governments of the thirteen states. The

masses of the people were just 





as strong then in the sincerity of their belief in liberty as we are to-day in the

cynicism of our single-hearted faith in riches. They had staked everything in the

world for the vindication of the principles of liberty. No people in the world at

that time would have been so quick to resent and so ready to scrutinize and so

brave to fight attacks upon their liberties. They took alarm at once at a

Constitution which they feared would imperil those liberties. The fear of kings

might be a reason why they should erect barriers against the encroachments of

the President, but why they should place limitation after limitation on the powers

conferred upon the House of Representatives elected by their direct vote is not

so easily explained. That explanation, however, is found in the opinions of the

men who drafted the Constitution. They had great fear of popular government,

and their fear would seem to have had considerable ground at that time for its

existence. 



We shall not appreciate why the limitations in the Constitution upon popular

action were created if we do not understand clearly the conditions of the people

in the thirteen states at the time of its formation. John Fiske, in his book entitled

"The Critical Period of American History," has described fully those conditions.

The characteristic feature of the Constitution, putting limitation after limitation

upon popular action, was a direct result of the reaction which came from popular

tumult and popular abuses during that critical period. 



During their seven years' war the 2,500,000 people of the thirteen states had

placed nearly 300,000 troops in the field, and had raised $170,000,000. The army, 





however, had dwindled from 46,901 toward the middle of the war to 13,832 in

1781, and the revenue had dwindled from $22,000,000 to $2,000,000 annually. But

for the timely aid of France the Revolution could never have been successful. At

the end of the war the resources of the country were so exhausted that no

money was left to pay the arrears of the soldiers in the field nor the running

expenses of government. 



The treaty between the Confederation and England in 1783, while it terminated

the war, at the same time destroyed the foreign commerce of the states. Prior to

the Revolution the New England States had been largely engaged in the carrying

trade between the colonies and the West Indies. The building of ships and the

sailing of ships was the great industry of New England. The treaty of 1783

closed the ports of every English colony to New England ships. The English

Navigation Act impaired very greatly the ability of the Southern and Middle

States to export their products. The result was that New England and the South,

without money in gold and silver, with only their continental currency, and with

their trade destroyed, were crippled in all their industries. Suffering intensely

from these conditions, a large body of the people, heavily indebted, subject to

judgments and imprisonment for debt, developed such bitter feelings as to cause

the reaction shown by the framers of the Constitution. 



By the Articles of Confederation the central government had no power to

impose taxes upon the people of the several states, but depended entirely upon

requisitions made upon the states for their proportion of 





the supply necessary to meet the demands of government. New Hampshire,

North Carolina, and New Jersey refused to respond to these requisitions. New

York, Pennsylvania, and Connecticut were the only states which responded in

full. Of the continental taxes assessed in 1783 only a fifth part had been paid by

the middle of 1785. The Government had become so helpless that it was actually

forced to make loans abroad, not only to pay the interest upon the public debt,

but to pay the actual current expenses of government. 



The several states imposed direct taxes as they do to-day, and also laid duties

upon exports and imports, each according to its own view of its local interests.

Connecticut imposed duties upon goods coming from Massachusetts and from

New York, Pennsylvania upon goods coming from Delaware, and New York

upon goods coming from Connecticut and New Jersey. The State of New York

raised from £60,000 to £80,000 by duties upon foreign imports. Connecticut

consumed probably one third of these goods imported, consequently she paid

one third of this amount of duties in enhanced prices for the goods which she

purchased from New York. Pennsylvania, Virginia, and South Carolina were each

importing states. Madison quaintly describes the condition of the times as

follows: "Some of the states had no convenient ports for foreign commerce and

were subject to be taxed by their neighbors through whose ports their commerce

was carried on. New Jersey placed between Philadelphia and New York was

likened to a 'cask tapped at both ends,' and 





North Carolina between Virginia and South Carolina, to a 'patient bleeding at

both arms.'" 



The states shared with Congress the powers of coining money, of emitting bills,

and of making promissory notes legal tender for debts. This power left to the

states was the one which brought untold evil. With little or no gold or silver in

the country, with no medium of exchange, bending under their indebtedness,

their commerce destroyed, no markets for their products, exhausted by the great

burdens of the Revolutionary War, and disappointed because liberty had not

brought blessings to them, the people in all the states but Connecticut and

Delaware provided for the issue of paper money. 



In Rhode Island the farmers gave mortgages on their land for the loan of paper

money issued by the State, and when they tendered the money to a storekeeper

in payment for goods he refused to accept it. Then laws were passed in Rhode

Island and in many other states requiring creditors to accept the money in

payment of debts, and, in case of refusal, permitting debtors to go before any

magistrate and tender this money in payment of a debt, whereupon a certificate

was given by the magistrate as evidence of payment. In North Carolina the

money was used by the State to purchase tobacco, the State paying twice the

value of it in order to get the people to take the money. Finally, South Carolina,

Georgia, and Rhode Island were driven to pass penal statutes punishing those

who would not accept the money in full payment. So little of currency was there

in the country that the people reverted to the 





practice of barter, whisky in North Carolina and tobacco in Virginia doing duty

as money. Some states even passed laws permitting their products to be given in

payment of debts at a certain price. The result was mobs in Rhode Island that

attempted to intimidate the court in passing upon the constitutionality of its

Legal Tender Act, and an insurrection in Massachusetts which broke up courts

and was finally put down by armed troops. 



That this turbulence and passion naturally inspired a very grave distrust of the

people in the men who framed the Constitution is well established. More than

fifty years after the formation of the Constitution the notes of Madison, giving

the sentiments of the men who drafted the Constitution, were published. Then

for the first time the world knew what these men thought of the people and why

they created so many limitations upon the action of the House of

Representatives. Governor Randolph of Virginia said in the convention: 



"In tracing these evils to their sources every man has found it in the turbulence

and follies of democracy." George Mason of the same State said: "The injustice

and oppression experienced among us arises from democracy." Roger Sherman

of Connecticut thought "that the people would never be sufficiently informed to

vote intelligently on all candidates that might be presented." Elbridge T. Gerry of

Massachusetts declared that "the follies which we experience flow from the

excess of democracy." Hamilton, Gouverneur Morris, and many of the other

delegates made like expressions. 





Reading Madison's notes (the only complete statement of what occurred in the

National Convention), there can be but one conclusion: that the limitations upon

the popular branch of Congress were created because of the deep-seated

distrust of democratic government on the part of the men who framed the

Constitution. They believed that a popular majority was a menace to liberty and

feared the people, so they created the Constitution with the idea of making

control by the people ineffective. Governor Clinton, before the convention in

New York called for the purpose of considering the adoption of the Constitution,

well said: "I ever lamented the feebleness of the Confederation, for this reason,

among others, that the experience of its weakness would one day drive the

people into an adaption of a constitution dangerous to our liberties. I know the

people are too apt to vibrate from one extreme to another." 1 



The conditions resulting from the control by the states of commerce, as

permitted by the Articles of Confederation, were simply intolerable. The National

Assembly in 1785 requested the several states to allow the Confederation to

impose duties upon imports of tea, coffee, sugar, and other like articles, to

provide for the current expenses of government. Ten states consented, but

attached such conditions to their consent as made them of no value. 



Finally, at a meeting at Mount Vernon, in 1785, of commissioners from the States

of Maryland and Virginia to define their respective jurisdiction, a suggestion

was 



1 Elliot's Deb., vol. ii, p. 359. 





made that a general convention of the states should be held to provide plans for

the common control of all foreign and interstate commerce. The Legislature of

Virginia thereupon sent to the Legislatures of the states an invitation to send

representatives to Annapolis in 1786 to devise common commercial regulations

of foreign and interstate trade. Only the States of Virginia, Pennsylvania, New

York, and Delaware responded. With so few states present the convention at

Annapolis deferred action, but through Alexander Hamilton drafted a report to

Congress. Hamilton prepared this report with careful reference to a convention

of all the states, not to amend the Articles of Confederation, but to create an

entirely new government, urging Congress to call a convention to devise "such

further provisions as shall appear to them necessary to render the Constitution

of the Federal Government adequate to the exigencies of the Union, and to

report to Congress such an act as, when agreed to by them and confirmed by the

Legislature of every state, would effectually provide for the same." Congress

neglected to act until a culmination of evils forced them to issue an address to

the different states asking that commissioners be sent, and adopting the

language of Hamilton in his report of the Annapolis convention. 



In May, 1787, fifty-five delegates, representing all the states but Rhode Island,

assembled in Philadelphia. Mr. Fiske tells us that twenty-nine of these delegates

were university men, graduates of Yale, Harvard, Princeton, Columbia, William

and Mary, Oxford, Glasgow, and Edinburgh. Among the twenty-six who were

not uni 





versity men were Washington and Franklin. John Adams and Thomas Jefferson

were in Europe. Samuel Adams, Patrick Henry, and Richard Henry Lee

disapproved of the convention, and remained at home. The convention selected

George Washington for its president. 



The first resolution passed by the convention is in the following words:

"Resolved, That it is the opinion of this committee that a national government

should be established, consisting of a supreme, legislative, executive, and

judiciary." Six states, Massachusetts, Pennsylvania, Delaware, Virginia, North

Carolina, and South Carolina, voted for this resolution. Connecticut voted no;

New York was divided. It often has been claimed that the separation of these

departments of government in our Constitution was the result of the teachings

of Montesquieu, who had published his "Spirit of the Laws" about thirty years

before the Constitution was adopted. Montesquieu was a great admirer of the

English Constitution, and attributed its success to the fact that there was a

division of the government into executive, legislative, and judicial departments.

He held this up to his readers as a model form of government, and described at

great length the advantages to be derived from this separation. From time to

time, later in the debates of the convention, the writings of Montesquieu were

referred to, but no reference to them was made in connection with the passage of

this resolution. Certainly Montesquieu was mistaken as to the real condition of

the English Government at the time when he wrote. The men who framed the

Constitution were prob- 





ably better acquainted with its actual workings than was the author of the "Spirit

of the Laws." They well knew that Lord North, as Prime Minister during the

Revolutionary War, had been controlled by George III. They appreciated that

the subservient parliaments of the administration of Lord North represented the

estates and the money of the peers and the influence of the king rather than the

great body of the English people, and there is much more reason to believe that

they had in mind the tyranny of George III in providing for this separation rather

than the teachings of Montesquieu. 



Two plans of government were presented to the convention, one known as the

Virginia plan and the other as the New Jersey plan. The Virginia plan had been

carefully drafted by James Madison and given to Governor Edmund Randolph

for presentation as the leading representative of the State of Virginia. The

Virginia plan went at once to the root of the whole evil of the Confederation by

creating a new government with power to enforce its decrees upon the people of

the states. In the convention in New York for the adoption of the Constitution,

Lansing said: "I know not that history furnishes an example of a Federated

Republic coercing the states composing it by the mild influence of laws

operating on the individuals of those states." James Madison states that Noah

Webster, in the winter of 1784-85, first proposed "A new system of government

which should act, not on the states, but directly on individuals, and vest in

Congress full power to carry its laws into effect." 1 The New Jersey plan

proposed to 



1 Elliot's Deb., vol. v, p. 118. 





leave the states instead of the people of the states as the basis of government,

thus permitting the very causes of the existing evils to continue. 



The great contest before the convention was over the questions of the control

of commerce and of the institution of slavery in the Southern States. New

Hampshire, Massachusetts, and Rhode Island had united in passing in the

Legislatures of each of those states what were known as Navigation Acts,

providing that no goods should be shipped in English vessels, with other

provisions tending to destroy English commerce in our ports. The ships of the

New England States transported most of the exported products of the South. So

exceedingly fertile and profitable were the lands of South Carolina that, in the

single port of Charleston, a hundred large ships were loaded yearly with rice and

indigo. The annual exports of tobacco from Virginia alone were 700,000 or

800,000 pounds. 



The imposition of duties upon foreign commerce being left with Congress, the

South feared that New England and the Middle States would unite and control

commerce against her interests, imposing heavy freight charges upon her

exports and obstructing the importation of goods to her ports by protective

tariffs. Massachusetts was the only state in the nation at that time which did not

own slaves, and though slaves were held in all the other Northern States the

system of slavery was rapidly dying out in the North. The Massachusetts

delegates, as well as the delegates from Virginia, favored limitations upon the

importation of slaves. The result was that a committee consisting of one dele- 





gate from each state was appointed to adjust the questions of slavery and the

control of foreign commerce. The Southern men insisted that no Navigation Act

or act controlling commerce should be passed without a majority vote of two

thirds of the members of each branch of the Congress. The Northern men, on the

other hand, urged that limitations should be put upon the existence of slavery,

and that the evil should be gradually destroyed. The result was a compromise

permitting the importation of slaves until the year 1808, and consenting that

commerce should be controlled by Congress upon a mere majority vote. This

compromise was baleful seed for the new nation, producing two of the greatest

evils which this country has ever known. We destroyed slavery by the sacrifice

of the blood of a million men and of billions of treasure, but we continue to allow

Congress, by a mere majority vote, to pass navigation and high tariff acts that

obstruct commerce for the profit of manufacturing interests, and thus we

prolong an all-pervasive source of corruption. "By an inevitable chain of causes

and effects Providence punishes national sins with national calamities." 



When James Wilson and Charles Pinckney suggested that the executive power

should be intrusted in the hands of one man, it is said that a profound stillness

fell upon the convention and no one spoke for several minutes, until

Washington from the chair asked if he should put the question. Sherman and

other members of the convention spoke of the executive as "nothing more than

an institution for carrying the will of the legislature into effect." After it had been

determined that the executive 





power should be intrusted to one man, the question of the time of office was

discussed and terms of one, two, three, four, ten, and fifteen years were

suggested, but Rufus King of Massachusetts remarked: "Better call it twenty, it

is the average reign of princes." 



After four or five weeks of constant sittings of the convention grave doubt

existed as to whether any agreement could be reached. Dr. Franklin, who was not

conspicuous for his religious fervor, seeing the danger and lamenting it, arose

and said: "Mr. President: The progress we have made after four or five weeks'

close attendance and continual reasoning with each other — our different

sentiments on almost every question, several of the last producing as many

'noes ' as 'ayes' — is methinks a melancholy proof of the imperfection of the

human understanding — in this situation of this Assembly groping, as it were,

in the dark to find political truth, scarcely able to distinguish it when presented

to us, how has it happened, sir, that we have not hitherto once thought of

applying to the Father of Lights to illuminate our understandings?" He then

moved that each session of the convention be opened with prayer. Hamilton and

several of the other members suggested that it was too late a day for this

innovation, and after several unsuccessful attempts to adjourn the convention

without acting upon the proposition, it was at length carried.1 



Madison's notes show that again and again expressions were made by members

of the convention to the effect that such language must be used in the

Constitu-1 Elliot's Deb., vol. v, pp. 253, 254. 





tion as would not arouse apprehension on the part of the people that their

liberties were being affected lest they reject it. A single instance of the spirit of

many of the men of the convention is shown by a letter written by Gouverneur

Morris in Jefferson's administration. Our country had just secured the great

Louisiana Territory from France by a treaty which provided that the territory

should be divided up into states and eventually made part of the Union. While

the right to acquire territory by treaty was conceded, Jefferson believed that it

could not be divided into states and received into the Union without an

amendment to the Constitution, as his letters written at the time to Breckinridge,

Gallatin, Dunbar, and Nicholas clearly establish. The final draft of the

Constitution was made by Gouverneur Morris, and he, more than any other

member of the convention, was responsible for the wording of each section.

Article 4, Section 3, provides: "The Congress shall have power to dispose of and

make all needful rules and regulations respecting the territory or other property

belonging to the United States; nothing in this Constitution shall be so

construed as to prejudice any claim of the United States or of any particular

State." 



Gouverneur Morris, writing to his friend Henry Livingston with reference to the

right of the United States to purchase this territory and take it into the Union as

states, said: "I always thought that when we would acquire Canada and

Louisiana it would be proper to govern them as provinces and allow them no

voice in our councils. In wording the third section of the fourth article I went as

far as circumstances would 





permit to establish the exclusion. Candor obliges me to add my belief that had it

been more pointedly expressed, a strong opposition would have been made."l

The leading men of the state conventions who adopted the Constitution well

knew that a democratic republic could not govern subject races, and that every

democracy which had attempted empire had met with disaster. Yet Gouverneur

Morris intended, according to his own admission, to draft this section in such a

way as not to disclose the intent to hold the people of newly acquired territories

as subjects, well knowing that if the intent was understood the Constitution

would be defeated. 



The Constitution was now sent by Congress to the several states for their

consideration and adoption, and with its submission arose one of the most

vigorous struggles upon questions of political principles which our country has

ever seen. The columns of newspapers were filled with articles by writers, ardent

for its adoption or its rejection, who concealed their personalities under such

classic and sonorous names as Cassius, Agrippa, Cato, Cæsar, or Aristides. The

struggle was carried on most vigorously in Virginia, Massachusetts, and New

York, the Constitution being passed in each state only after long discussion and

by very small majorities. Those engaged in commerce and residing in the cities

were uniformly favorable to the Constitution, while those settled in the remoter

parts of the states and engaged in agriculture were quite as uniformly opposed

to it. In New York, Albany and Tryon Counties were arrayed against the

southern part of the State. In Mas- 



1 Columbia Law Review, March, 1905, p. 195. 





sachusetts, Boston and the surrounding country was opposed by the central

and western part of the State. The Constitution never could have been adopted

had it not been for the desperate conditions of the different states at that time. In

Virginia, Patrick Henry, George Mason, Benjamin Harrison and John Tyler (the

fathers of the two future presidents) and James Monroe each opposed its

adoption. 



Article 1, Section 1, of the Constitution1 provides that "All legislative powers

herein granted shall be vested in a Congress of the United States which shall

consist of the Senate and House of Representatives." The powers referred to as

granted to Congress are limited by the words "herein granted," and they are

found enumerated in Section 8 of Article 1. No power is conferred upon

Congress except those specified in the seventeen subdivisions of that section.

The eighteenth subdivision, providing that Congress shall have power "to make

all laws which shall be necessary and proper for carrying into execution the

foregoing powers," is the provision in the Constitution over which much of the

litigation as to the constitutionality of acts of Congress has arisen. This may

seem strange to the reader, because that provision is no more than would be

implied from the granting of an express power, since every power carries with it

by implication the right to exercise all necessary and proper powers for its

execution. These words would therefore seem to be unnecessary. Yet under this

last clause have arisen the questions of the constitutionality of the Bank of the

United 1 A copy of the Constitution may be found in the Appendix. 





States; of the Legal Tender Acts; of the vast works of internal improvement; of

the power to use billions of dollars of the people's money to foster agriculture

and irrigate arid lands; of the power to lay embargoes on shipping, and of

enacting protective tariffs and navigation acts. 



In Section 9 of Article 1 are the provisions prohibiting acts on the part of

Congress, while in Section 10 of Article 1 are gathered the prohibitions upon the

actions of the different states. In this connection it is most important to observe

that the grants of power found in Section 8 of Article 1 on the part of the states

to the National Government are not exclusive in their nature except in those

cases where the state is forbidden in Section 10 from doing the same act. Thus

the state is forbidden from entering into any treaty, alliance, or confederation,

from coining money, emitting bills of credit, making anything but gold or silver

coin a payment of debts, passing any bill of attainder, ex post facto law, or

impairing the obligation of contracts. Until Congress has exercised these powers

of Section 8, the state can continue to exercise such of them as are not thus

prohibited to the states and are not national in their nature.1 So for a hundred

years after the passage of the Constitution the state governments imposed

quarantine against other states, and that power recently has been absorbed by

the National Government. Each state 



1 Cooley v. Port Wardens, 12 How., 310, 319; Pound v. Truck, 95 U. S., 459;

Cardwell v. Am. River Bridge Co., 113 U. S., 205; 



Leisy v. Hardin, 135 U. S., 100; Louisiana v. Texas, 176 U. S., 1; Compaignie v.

Board of Health, 186 U. S., 399. 





may pass bankruptcy laws which exist until the National Government has

provided for a system of uniform laws on the subject of bankruptcy throughout

the United States. Each state may provide for the punishment of counterfeiting-

the securities and current coin of the United States, and each state may regulate

foreign and interstate commerce upon subjects which are of such a nature that

Congressional legislation is not necessary to reach them, such as inspection of

pilotage, port regulations, and improvements of harbors.1 In all the cases

referred to above, and others not enumerated, the state has what is called

"concurrent power " to execute powers which were delegated to the National

Government, until Congress has passed a statute controlling the matter. 



There is no such thing as an inherent right in Congress to exercise any power

not specified in the seventeen subdivisions of Article 1, Section 8.2 When a

power is implied by the courts it must be implied as necessary and proper for

carrying into execution an express power granted. "The powers affecting the

internal affairs of the states not granted to the United States by the Constitution

nor prohibited by it to the states are reserved to the states respectively, and all

powers of a national character which are not delegated to the National

Government by the Constitution are reserved to the people of the United

States."3 So all 



1 Bowman v. Chicago Ry. Co., 125 U. S., 215, 507; Cooley's Constitutional Lim.,

pp. 215, 723. 



2 Kansas v. Colorado, 206 U. S., 89. 



3 Kansas v. Colorado, 206 U. S., 90. 





powers not affecting the internal affairs of the states, and at the same time being

national in their nature, but not delegated by the people to the National

Government, are reserved to the people of the United States and they, if they

desire, can confer them, by an amendment to the Constitution, upon the United

States.1 



Turning now to the executive power in Article 2, Section 1, and to the judicial

power, Article 3, Section 1, we find that neither executive power nor judicial

power are limited to powers "herein granted." Section 1 of Article 2 provides

that "The executive power shall be vested in a President of the United States of

America." Section 1 of Article 3 provides that "The judicial power of the United

States shall be vested in one Supreme Court." So that notwithstanding each of

these general grants of power are followed by an enumeration of special powers

granted, the general grant of power we are told to our surprise by the United

States Supreme Court is not limited by the enumeration.2 



The first eight amendments to the Constitution enumerate popular rights, the

origin of which can be traced to some event or series of events in English

history where the right was won as the result of years of struggle. The

Constitution of the United States creates none of these rights. Every one of

these enumerated safeguards exist under the common law or in the Constitution

of each state, and the only result of their incorporation by amendment in the

Constitution of the 



1 Kansas v. Colorado, 206 U. S., 90. 2 Kansas v. Colorado, 206 U. S., 82. 





United States is as a restraint upon the action of the United States Government.1



Next it is important to observe that the ninth and tenth amendments to the

Constitution preserve to the states all powers not delegated to the United States

by the Constitution, nor prohibited by it to the states, and that the enumeration

of certain rights delegated to the National Government shall not be construed to

deny or disparage others retained by the people. These amendments, say the

United States Supreme Court in a recent case, were "adopted with prescience "

under "fear that the National Government might, under the pressure of a

supposed general welfare, attempt to exercise powers which had not been

granted."2 This august court long ago declared "that the maintenance of the

state 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 thirteenth amendment, besides abolishing forever slavery and involuntary

servitude, gives power to Congress to protect all persons within the jurisdiction

of the United States from being in any way subjected to such slavery or

involuntary servitude, except as punishment for crime. 



1 Presser v. Illinois, 116 U. S., 252; Maxwell v. Dow, 176 U. S., 581, Barrington v.

Missouri, 205 U. S., 483. 



2 Kansas v. Colorado, 206 U. S., 90. 



3 Texas v. White, 7 Wallace, 725; South Carolina v. United States, 199 U. S., 453. 





The object of the fourteenth amendment to the Constitution was to secure the

negroes from discrimination on the part of the state governments. Before its

adoption a Civil Rights Act had been passed seeking to secure that end, but had

been declared unconstitutional. The fourteenth amendment was then framed,

passed by a two-thirds majority through both Houses of Congress, and

approved by three fourths of the States. It recognized, if it did not create, a

national citizenship as contra-distinguished from that of the States. It provided

that no state should make or enforce any law which should abridge the

privileges and immunities of citizens of the United States; and it was contended

later with great vigor that these words referred to the first eight amendments of

the Constitution, and thus secured to the citizens of every state in the Union all

of the privileges and immunities set forth in detail in those amendments. 



If this claim had been sustained it would have made the United States Supreme

Court a guardian of the personal rights of the citizen of every state. The citizen's

rights would have been measured, not by the guarantees of personal liberty

assured by his own state constitution, but by the National Government's

standard as set forth in the first eight amendments; and the United States

Supreme Court would have been called upon in thousands of cases to enforce

upon the states the observance of these amendments. This contention,

however, was not sustained.1 The construction put by the 



1 The Slaughter House Cases, 16 Wallace, 36; Minor v. Happersett, 21 Wallace,

162; Maxwell v. Dow, 176 U. S., 594; 





United States Supreme Court upon the words, "nor shall any State deprive any

person of life, liberty, or property without due process of law," in the fourteenth

amendment, is a narrow one, securing to the citizen of the state few rights. This

provision has been construed to mean simply that liberty and property has not

been taken without due process of law when it is taken in the course of the

regular administration of the law in established state tribunals. If the regular

administration of the law in the established tribunals of the states authorize a

particular act, the United States Court will not interfere.1 



The fifteenth amendment relates to the right of a citizen to vote. It does not

confer the right of suffrage on anyone. It merely invests the authorities of the

United States with the constitutional power of protecting citizens in their

enjoyment of the elective franchise from discrimination on account of race, color,

or previous condition of servitude.2 



So the reader will see that although the United States Government, within the

last four or five years, has held the attention of the citizen because it promises to

rectify great abuses, still his State Government controls him exclusively as to

taxes, schools, trades, inheritance, marriage, divorce, courts, police, local boards,

and in a hundred other different ways, and that the proper place to rectify evils

is at home, where he 



Dounce v. Bidwell, 182 U. S., 244, Cooley, Constitutional Lim., 4th ed., p 497,

marg , p 387. 



1 Ballard v. Hunter, 204 U S , 242. 



2 United States v. Reese, 92 U. S., 214; United States v. Cruikshank, 92 U. S., 542. 





sees and appreciates them and can apply a direct remedy. 



The sources from which the men who framed the Constitution drew their plan

and material has ever been a subject of interest. Mr. Gladstone spoke of the

Constitution as "the most wonderful work ever struck off at a given time by the

brain and purpose of man." The trouble with this statement is that the

Constitution was not struck off at a given time by the brain and purpose of man,

but was the result of a progressive growth reaching back to the time of the

Anglo-Saxon invasion of England. The Anglo-Saxons had developed in

Germany the mark and the hundred and the tribe which present in detail the

gradations of local independence and central authority. In England the mark

became the town. The federation of Anglo-Saxon townships constituted the

Anglo-Saxon kingdom or what later became the shire. The shire possessed a

general assembly made up of all the freeholders together with the representative

element comprising, like the hundred court, the head men and four chosen men

from each town of the shire. The shire assembly elected its own chief magistrate,

the earldorman, and its sheriff. The judicial executive exercised an authority over

the general affairs of the whole shire quite similar to that exercised by our

National Government over the several states. The Norman Conquest impaired

these institutions, but their remembrance, and to some extent their existence,

continued, and the Pilgrims brought them to this country. 



The central government of each of the New Eng- 





land colonies was based partly upon the people and partly upon the towns as

integral elements of the colony. The governor, deputy governor, and assistants,

who constituted the upper House in the Colonial Assembly, were chosen in a

general election by the whole body of freemen when not appointed by the

Crown, while the deputies, who constituted the lower House, were chosen by an

equal representation from the several towns. Each citizen was responsible to the

central government of the colony and to the government of his own town. This

form of government was taken into Connecticut by the emigrants from the

Massachusetts Bay Colony, and in Connecticut we find the same disposition of

general and special powers between the central government of the colonies and

the governments of the constituent communities. This relationship was most

instrumental in bringing about the peculiar form of our National Government,

with its representation by states in the United States Senate and its

representation of the people in the House of Representatives. The government

of Rhode Island was the same as in Connecticut; and when each of these charter

colonies at the time of the Revolution desired to change their form of

government they did it by simply declaring that the people had ascended the

throne of the deposed king, and this was all that was deemed necessary to

change the charter of each into a constitution. Connecticut continued under her

old charter as a constitution until 1818, and Rhode Island until 1842. 



Our ancestors sought a new country, and they found not only a new country

but a new condition of mind. 





Here, face to face with Nature, they were taught to rely mainly on themselves,

and manhood became a fact of prime importance. The neglect of England became

their opportunity. Nowhere had local self-government reached so high a degree

of efficiency as in New England. They believed it to be all important that people

should manage their own affairs instead of having them managed by a strong

central government. How different their attitude toward government than was

that of their Canadian neighbors. The more the citizen obeys the inclination to

rely on help from others, the community or the state, the less is his force of

initiative developed, the less is he inclined to exert himself, not alone with the

idea of making a living but of attaining the highest development. Never was

there a more striking contrast than between the government of the people of

New England and the French Canadians of Quebec. 



Twelve years before the Pilgrims landed at Plymouth Quebec was founded, and

this was only one year after the first permanent settlement in America at

Jamestown in Virginia. The colony grew and developed under the benevolent

government of Louis XIV. The omnipresent, inquisitorial nose of the French

Intendant followed the peasant into every detail of his life. The price of wheat

and the price of about every necessary of life were regulated by imperial edicts.

The question of race suicide was ever one of great importance. Girls for the

colonies were taken from the houses of refuge in Paris and Lyons and sent by

shiploads to Quebec. There they were provided husbands 





with little delay. All single men arriving in the country were obliged to marry

within a fortnight after the landing of the prospective brides, and the Intendant

Talon forbade them while unmarried to fish, hunt, or go into the woods with the

Indians under any pretense whatever. Upon their marriage the governor general

gave the newly married couple an ox, or a cow, or a pair of swine, or a pair of

fowls, or a few crowns of money.1 



Large families were greatly encouraged by the Government. The king, in council,

passed a decree that all the heads of families who should have living children to

the number of ten born in lawful wedlock should be paid a pension of 300 livres,

and those who should have twelve children a pension of 400 livres.2 The king

devoted 40,000 livres for the purpose of encouraging the art of shipbuilding, and

the Intendant Talon built a ship to show the people how they were built, and to

lead them to imitation. Louis XIV trusted the intendant to issue an ordinance

having the force of a law whenever he thought necessary and, in the words of

his commission, "to order everything as he shall see just and proper." 3 The

in-tendants, under such directions, controlled public meetings, restrained the

people from speaking their minds, regulated them in all the details of their life,

destroyed individual initiative, and stunted and exhausted the energy of the

people. The New Englander learned how to govern himself because he lived in a

society in which each man worked as his own master, where he depended 



1 The Old Regime, Parkman, 221, 226. 2 The Old Regime, Parkman, 227. 3 The Old

Regime, Parkman, 275. 





on his individual action for promotion, and where he controlled the government

in which he lived. These little democracies of New England prided themselves in

being sufficient unto themselves, and out of them came the liberties of the states

and the greatness of our country. 



Most of the provisions of the Constitution can be found in the first

constitutions of the states.1 The provision for vesting the legislative power in

two chambers finds its counterpart in the constitution of six different states. The

term of service of the members of the Maryland Senate suggested the six years'

term in the United States Senate; and the election of the Maryland senators was

the model of the provision for electing the President through electors named by

the legislatures of the different states. The provision for the impeachment of the

President of the United States or of any official is almost identically the same as

that existing in the Constitution of 1777 of the State of New York. The provision

associating the Senate with the President in the exercise of the appointing power

is very similar to a system pursued under the New York Constitution, which

provided that the governor should make his appointments "by and with the

consent of a select committee of the Senate." The provision requiring the

consent of the President before an act of Congress could become a law and

permitting him to veto the same is copied almost word for word from the

Constitution of Massachusetts. 



1 Am. Academy of Political and Social Science, pamphlet No. 9. 







In every one of the states, with the exception of New York and North Carolina,

the upper House was denied the right of originating money bills, and in

Maryland, Virginia, South Carolina, and New Jersey the Senate was denied the

right of even amending such bills. The qualification for senators in ten states

which had bicameral legislatures was on a distinct basis of taxable property, and

a higher qualification was required for electors and members of the Senate in

several of the states. Gouverneur Morris and other members of the

Constitutional Convention contended that the United States Senate should be

regarded as representative of property; while the House of Representatives,

immediately elected by the people, should be regarded as representative of the

people. From one third to one half of the members of the Federal Convention had

been members of the conventions which had framed the several state

constitutions. It certainly is not a violent presumption when we find provisions

in the state constitutions similar to those in the National Constitution, to assume

that the model was found in the state provision. 



George Mason, in the Virginia Convention, in discussing the proposed

Constitution, said: "Now suppose oppression should arise under this

government, and any writer should dare to stand forth and expose to the

community at large the abuses of those powers, could not Congress, under the

idea of providing for the general welfare and under their own construction, say

that this was destroying the general peace, encouraging sedition, and poisoning

the minds of the people? And could they not, in order to provide against this,

lay a dangerous 





restriction on the press? Might they not thus destroy the trial by jury?" Just

what Mr. Mason apprehended actually occurred. Hardly had Washington left

the Presidency when, in July, 1798, a statute was passed by Congress making it

a crime to write, print, utter, or publish or cause to be written, printed, uttered, or

published, or to knowingly assist in publishing any false, scandalous, and

malicious writing against the Government of the United States with intent to

defame the said Government, or either House of the said Congress, or the

President, or to bring them into contempt.1 The statute made this an offense,

subject to prosecution in the national courts, which, under the reserved powers

of the states, could be cognizable only in the state courts. Matthew Lyon, of

Vermont, was convicted under this statute and sentenced to four months'

imprisonment in jail, and a fine of $1,000, because he declared that the

President's Mes- 



1 It is interesting to observe that a statute almost identical with the sedition law

was passed a few years ago in the Philippines. The statute reads: 



''Every person who shall utter seditious words or speeches, write, publish, or

circulate scurrilous libels against the Government of the United States or the

insular government of the Philippine Islands, or who shall print, write, publish,

utter, or make any statement or speech or do any act which may tend to disturb

or obstruct any lawful officer in executing his office, or which may tend to

instigate others to cabal or meet together for unlawful purposes, or which

suggest or incite rebellious conspiracies or riots, or which tend to stir up the

people against the lawful authorities or to disturb the peace of the community,

the safety and order of the government, or who shall knowingly conceal such

evil practices, shall be punished by a fine not exceeding $2,000 or by

imprisonment not exceeding two years, or both, at the discretion of the courts." 





sage to Congress "was a bullying speech which the Senate in a stupid answer

had echoed with more servility than ever George III experienced from either

House of Parliament." 



At the same time a statute was passed, called the Alien Law, which declared

"that it shall be lawful for the President to order all such aliens as he shall judge

dangerous to the peace and safety of the United States, or shall have reasonable

ground to suspect are concerned in any treasonable or secret machinations

against the government, to depart," etc. The President, by this statute, was made

judge of what was dangerous to the peace and safety of the United States. He

was permitted to determine what was a reasonable ground to suspect a man of

secret machinations and, having determined as judge this judicial question, he

was permitted to send the man out of the country. Thomas Jefferson, writing to

Abigail Adams, wife of John Adams, years after these acts were passed, said of

these alien and sedition laws that he considered them "unconstitutional, and a

nullity as absolute and palpable as if Congress had ordered us to fall down and

worship a graven image." The result of these acts was that the old Federal Party

was swept out of power, and for forty years Jefferson and his successors in the

Presidency carried on the government. 



The generation that framed the Constitution looked upon the document as most

imperfect, but they adopted it after a most bitter experience under the

Confederation. Having adopted it, like good Americans, they set out to make the

Constitution popular, and they praised it far beyond its merits. The result was so

complete a can 





onization of our Constitution as to form an obstacle to its amendment. The men

who framed it were men of the greatest constructive statesmanship which our

country has ever produced, and the Constitution which they prepared was

indeed a blessing to the people during the eighteenth century, perhaps well

along into the nineteenth century. 



In those days the people were much more jealous of power than now, and more

vigilant in examining the actions of their public servants. George Mason, in

giving his reasons for not signing the Constitution, said: 



"This government will commence in a moderate aristocracy. It is at present

impossible to see whether it will, in its operation, produce a monarchy or a

corrupt, oppressive aristocracy. It will probably vibrate some years between the

two and then terminate in the one or the other." It will never terminate in a

monarchy in name. The forms of a democratic government charm the people long

after the spirit of democracy has fled. Politicians are wise enough to appreciate

this fact, and to continue with scrupulous care the form of a democracy. If the

people can be aroused to change the conditions of amendment so that the

change in our civil life will be accompanied by changes in our fundamental law,

the republic will live on in fact as well as in form for a long period of time. But if

our original Constitution is left unamended, if the limitations which it imposes

upon popular government are continued to hide the corruption which exists, and

the party in power continues irresponsible to the popular will, the days of real

liberty to the people are numbered. If consolidation, centralization, 





and usurpation in the National Government continue, long before we reach the

point where Washington rules the United States, as Paris rules France, the spirit

of liberty will have ceased. 



We will now see to what extent the Constitution has changed with time, to what

extent it has bent to the force of circumstances, to what extent the Executive and

Congress and the courts have set it aside to meet the supposed necessities of

great crises.



II 



USURPATION IN THE CIVIL WAR AND RECONSTRUCTION PERIOD 





"When dangers thicken, the only device may be the Roman one of a temporary

dictatorship. Something like this happened in the War of Secession, for the

powers then conferred upon President Lincoln, or exercised without

Congressional censure by him, were almost as much in excess of those enjoyed

under the ordinary law as the authority of a Roman dictator exceeded that of a

Roman consul." 



JAMES BRYCE. 



"In the plenitude of their powers as absolute rulers the generals" (of the

reconstruction period) "were above the constituent assemblies of the inchoate

new states as distinctly as they were above the governmental organs of the

expiring old states." 



PROFESSOR DUNNING. 



Those pitiless years of reconstruction! worse than the calamities of war were the

'desolating furies of peace.'" 



BISHOP GALLOWAY. 





CHAPTER II 



USURPATION IN THE CIVIL WAR AND RECONSTRUCTION PERIOD 



THERE is, in the mind of the younger generation which has come up since the

war, a tradition of an attack on the Union by men who believed in state rights.

By reason thereof state rights, in their mind, has a bad name. The usurpation of

power by the Government in our day is occurring in times of peace and so

secretly and so all-pervasively that men have become accustomed to it, and are

not moved as they were by such violent wrestings of liberty from large bodies of

people as occurred in many states during Reconstruction days. The period of

the Civil War and Reconstruction, better than any other in our history, shows

these violent usurpations of power. During the war, necessity took the place of

the Constitution, and we see the written guarantees of liberty grow dim in the

smoke of battle. During the Reconstruction period, however, with no necessity

to justify their action. Congress established a despotism in nearly every one of

the Southern States, which, when well known and fully understood by the

younger generation of to-day, will be condemned by them for its cruel injustice. 



There is no statute of limitations in the law of cause and effect, and the

usurpations of the war and Recon- 





struction days are the fundamental causes of the existing conditions to-day. Not

only the clear, unquestioned acts of usurpation of that period deserve

examination, but the origin of the great centralizing forces coming out of

protective tariffs and national banks and a paper currency and other legacies of

like kind from the Civil War are worthy of the reader's attention. It is not a

pleasant duty to recite the acts that make the darkest picture in all American

history, and nothing short of averting usurpation on the part of our National

Government to-day can justify such a recital. 



Early in the Civil War President Lincoln by proclamation authorized General

Scott to suspend the writ of habeas corpus at any point on the military line

between Philadelphia and Washington. The portion of the country covered by

the proclamation was not in insurrection, and the publishing of the proclamation

left hundreds of thousands of people in a region where there was no war without

any protection from this writ. There was much doubt as to whether the

President, under the circumstances, had a right to suspend its operation. Story

and other writers upon the Constitution had maintained that Congress alone had

the right to suspend the writ and the United States Supreme Court had indicated

its opinion to that effect.1 In 1807, when an act was proposed suspending the

writ in connection with the Burr conspiracy, there was no intimation in Congress

or the country that the power was in the President.2 



1 Bollman v. Swartout, 4 Cranch, 75. 2 Dunning, Essays on the Civil War and

Reconstruction, p. 41. 





Without warrant and without any sworn statement, but merely upon an order of

the Secretary of State or the Secretary of War, hundreds of men were arrested for

the expression of words construed as tending to inflame party spirit or as

sympathetic with the Southern cause, and hurried away to Forts Lafayette,

Warren, McHenry, Delaware, Mifflin, Old Capitol Prison, penitentiaries and

military camps in the different parts of the country. So many arrests were being

made that an attempt was made to test the validity of the President's action. In

1861 one John Merryman was held in detention at Fort McHenry by General

George Cadwalader, under one of these orders of Secretary Seward, on a charge

of treason. An application was made to Judge Taney, Chief Justice of the United

States Supreme Court, for a writ of habeas corpus requiring the production of

the prisoner before the judge on the ground that he was wrongfully detained.

Chief Justice Taney signed the writ commanding General Cadwalader to produce

Merryman before him and show cause for his detention. When the marshal of

the United States Court presented the writ to General Cadwalader at the fort,

Cadwalader refused to obey it, and when Taney issued a body attachment

against him the general shut the marshal out of the fort. Thereupon the chief

justice wrote an opinion as to the law, which was sent to the President, holding

that the prisoner was entitled to his liberty and should be discharged and that

Congress alone had the right to suspend the writ of habeas corpus. Lincoln

ignored this, but later, in a message to Congress, asserted his right to suspend

the writ of habeas corpus without limitation or interference. 





On September 24, 1862, the President issued a proclamation ordering that all

persons discouraging voluntary enlistments, resisting military drafts, guilty of

any disloyal practices, or of offering aid and comfort to the rebels, should be

subject to martial law and liable to trial by a military commission, and that the

writ of habeas corpus should be suspended in respect to all such persons

arrested or held by military authority. It is to be observed that this last order of

the President applied to all parts of the North where there was no insurrection,

yet it caused the arrest of men without warrant, detained them without a hearing,

and convicted them of treason and murder by a court-martial without a jury and

without observing a single one of the guarantees in the Bill of Rights of the

Constitution. 



The writ of habeas corpus was secured to English people by the Great Charter

which, Mr. Hallam tells us, was sent to all the sheriffs of England, was kept

posted in each cathedral and church, and publicly read twice a year,

accompanied by solemn sentences of excommunication against all who should

infringe it, and provided that "any judgments contrary to these provisions

should be invalid and 'holden for naught.'" This charter, made sacred by these

sanctions and handed down for five hundred years by the English people, was

deliberately disregarded. Thousands of men, without any evidence whatever of

treasonable words on their part, were dragged from their homes to the different

fortresses of the government upon a mere telegram from Washington to a United

States marshal or even a police officer of a state. The newsboys of the street 





were arrested for the offense of selling newspapers which some military

commander disapproved. Old men of seventy were dragged from their beds at

midnight and hurried to prison by squads of soldiers. Many loyal men of the

North were shocked by these brutal arrests, and all classes of men rose up in

protest against such usurpation of power.1 Even John Sherman wrote to his

brother of "a wanton and unnecessary use of power to arrest without trial." 



There lies before me as I write, a book under the title of "The American Bastile,"

written by one John A. Marshall, bearing date of August, 1869, in which he

describes the circumstances of the arrest of seventy citizens imprisoned in these

fortresses from all of the Northern States except New Hampshire, Rhode Island,

and Wisconsin. Among them were foreign ministers, United States senators,

members of Congress, members of state legislatures, judges, lawyers, ministers,

doctors, farmers, editors, merchants, and men from all the other walks of life. The

details connected with the arrests of these men, as described by him, are as

terrible as those accompanying the state arrests in Russia today, and one draws

back from his vivid descriptions with doubt lest perhaps Mr. Marshall's

experiences caused him to exaggerate the conditions. 



But we are not dependent upon his statements for the facts. A few years ago the

United States Government published the records of these different fortresses

showing these arrests and the names of many of the prisoners, the time when

they were brought to the place of 1 Peck, Twenty Years of the Republic, p. 114. 





imprisonment, the records made by the keepers of the fortresses, and the

correspondence between the relatives and Secretary Seward.1 These records, by

the Government's own statement, show that hundreds of simple-minded men

living in country villages in different parts of the United States had unwittingly

spoken a word now and then which political adversaries had construed as

evidence of treasonable intent. Information was given to the War Department or

to the Department of State, and the matter was laid before some United States

marshal or police officer, for all police officers of any state or town or district

were authorized to arrest and imprison. These published prison records have a

most suspicious appearance. Descriptions are given of many of the men, but not

their names. Even their residence in many cases is not disclosed. Nothing is said

of the nature of their offenses. There, far away from their homes, they were

imprisoned by the government for months, until the influence of their

Congressman or of other powerful friends secured their release. The practices of

Russia to-day of casting men into solitary dungeons and keeping them for

months without trial, and of finally trying them at night by drumhead

court-martials and condemning them without any of the safeguards of English

law, is merely a repetition in almost every feature of the action of our National

Government toward its citizens in the Civil War. 



Such a storm of indignation arose from the people in every part of the North at

these arrests that on 1 War of Rebellion House Documents, vol. lxvii. 





March 3, 1863, Congress authorized the President during the Rebellion to

suspend the privileges of the writ of habeas corpus in any case throughout the

United States or any part thereof. This authorization provided for the discharge

of any person held in duress, upon the failure of the Federal Jury sitting in the

district where the imprisonment occurred to indict at its next session after the

arrest. To secure action on the part of the grand juries and give them

opportunity to investigate the cases, it was provided that the officials having

charge of the prisoners should present lists to the court in each judicial district

of the United States. In case of failure to indict them it was provided that they be

released. But few indictments were ever obtained, the arrests proving

unwarrantable in nearly all of the cases. 



In connection with the act of March 3, 1863, an act of indemnity making the prior

illegal acts of the President legal, and relieving him from all liability, was passed

by Congress. It also provided that for every arrest caused by him in the future

he should be free from legal liability. The military commissions with authority to

try the people arrested were continued. The same act provided that in case an

action was brought in any state court against an officer acting under an order of

the President or his secretaries, to recover damages for an arrest or false

imprisonment, the officer thus sued should have the right to apply to the United

States Circuit Court in the same district in which the action was brought, and

said court, by an order or writ, could remove the case to the United States Circuit

Court to be tried there as if origi- 





nally commenced therein. The United States Supreme Court, however, declared

this law unconstitutional.1 



On September 15, 1863, Mr. Lincoln proclaimed a general suspension of the writ

of habeas corpus, limiting it to persons held as prisoners of war, spies, or aiders

or abettors of the enemy. The words "aiders or abettors " were defined by him as

follows: "He is to be an enemy who seeks to exalt the motives, character, and

capacity of armed traitors; to magnify their resources, etc. He who overrates the

success of our adversaries or underrates our own, and he who seeks false

causes of complaint against our government, or inflames party spirit among

ourselves and gives to the enemy that moral support which is more valuable to

them than regiments of soldiers or millions of dollars." United States deputy

marshals and police officers continued to determine on their own judgment

whether the citizens overrated the successes of the South or underrated the

successes of the North. They continued to determine the "false causes of

complaint" against the officers of our government, and hundreds more men were

hurried to prison. 



Finally, after the war had ended, and thousands of people had been arrested

who lived far removed from the seat of war, the following case reached the

United States Supreme Court, which determined that the Government had no

right to arrest men in the North without warrant and to try them before military

commissions. On August 13, 1864, Lambdin P. Milligan, a lawyer 1 The Justices

v. Murray, 76 U. S., 274. 





residing at Huntington, Indiana, delivered a political speech at a large meeting at

Fort Wayne, Indiana. The speech criticised the National Government, and

particularly Governor Morton of Indiana, who at that time was a candidate for

reflection. On October 5, 1864, Milligan was arrested and taken to Indianapolis

before Brevet Major General Hovey, military commandant of the district of

Indiana. On the 21st of that month he was placed on trial before a military

commission, being charged with conspiracy against the Government of the

United States, offering aid and comfort to rebels, and of disloyal practices. He

was found guilty and sentenced to death. He contended that the military

commission had no authority to try him or condemn him, and thereafter

petitioned a United States Court judge for a writ of habeas corpus. Upon denial,

an appeal was taken to the Circuit Court, which, being divided upon the

question of his right to the writ, certified the matter to the United States Supreme

Court. 



In December, 1866, the highest court of the nation, for the first time, had an

opportunity of determining the right of the United States Government to make

these arrests and try the persons arrested under military commissions in

portions of the United States removed from the seat of war. Justice David Davis

wrote the opinion on behalf of the court, holding that the military commission

had no jurisdiction to convict Milligan, and said: 



"It follows from what has been said on this subject that there are occasions

when martial rule can be properly applied. If, in foreign invasion or civil war, the

courts are actually closed, and it is impossible to administer criminal 





justice according to law, then, on the theater of active military operations, where

war really prevails, it is necessary to furnish a substitute for the civil authority

thus overthrown, to preserve the safety of the army and society; and as no

power is left but the military, it is allowed to govern by martial rule until the laws

again have their free course. As necessity creates the rule, so it limits its

duration; for, if this government is continued after the courts are reinstated, it is

a great usurpation of power. Martial rule can never exist where the courts we

open, and in the proper and unobstructed exercise of their jurisdiction, it is

also confined to the locality of actual war." 1 



There was talk among the radical men of impeaching the judges, and John A.

Bingham, a member of the House of Representatives, and a bitter partisan, said: 



"Let us sweep away at once every appellate jurisdiction in all cases, if the court

by virtue of its original jurisdiction usurps the power to decide political cases

and defy a free people's will." Thaddeus Stevens, referring to the same case, said

in the House of Representatives, "That decision, although in terms and

purposes not as infamous as the Dred Scott decision, is yet far more dangerous

in its operation upon the lives and liberties of the loyal men of this country." 



There is a story, one of the many attributed to Mr. Lincoln, in which he is

reported to have said to his Secretary of the Treasury: "The South has violated

the Constitution to break up the Union; I am ready to violate it to preserve the

Union; and between you and me, 1 Ex parte Milligan, 4 Wallace, 2. 





Chase, before we get through this Constitution is going to have a tough time."1

It is certain at least that he wrote to Mr. Hodges on April 8, 1864, "I felt that

measures, otherwise unconstitutional, might become lawful by becoming

indispensable to the preservation of the Constitution through the preservation

of the Union. Right or wrong, I assumed this ground and now avow it."2 There

is no evidence that Lincoln himself ever personally ordered any of these arrests.

The lovable character of Mr. Lincoln, his reconstruction of some of the Southern

States upon liberal and humane terms, his last words of mercy toward the South,

his sweet and gentle life and noble purposes, will endear him forever to the

American people, and we review these acts of his administration only for the

purpose of showing the danger of such usurpations of power. 



In August, 1861, Congress passed an act known as the Confiscation Act. This

act directed the President to cause the seizure of all the property of whatever

kind belonging to specified classes of persons, namely: officers of the rebel army

and navy, officers of the civil administration of the Southern Confederacy and of

its so-called Federal State judges, and persons owning property in a loyal state

who should give aid and comfort to the Rebellion. The property so seized was to

be proceeded against by action in rem in the United States courts, and the

proceeds were to be used for the support of the army of the United States. Of

this act. Professor 



1 Bradford, The Lessons of Popular Government, vol. II, p. 390, note. 



2 Bryce, The American Commonwealth, vol. i, p. 388, note. 





Dunning says:1 "This act assumed the power in Congress to deprive several

millions of persons of all their property, and this by simple legislative act. By the

theory of our Constitution, such power must be granted by the organic law, or

be inferable from some clearly granted power. There was no claim of an express

grant. By implication, the power was held to be deducible from the clauses

authorizing Congress 'to declare war,' 'to make rules concerning captures on land

and water,' 'to provide for calling forth the militia to ... suppress insurrections,'

and finally, 'to make all laws which shall be necessary and proper for carrying

into execution the foregoing powers.' On the other hand, the Constitution

contains the following prohibitions: 'No bill of attainder shall be passed'; 'no

person shall be ... deprived of . . . property, without due process of law; nor shall

private property be taken for public use without just compensation '; and finally,

'no attainder of treason shall work . . . forfeiture except during the life of the

person attainted.' The exercise of authority under the grants enumerated

involved of necessity the violation of these prohibitions. Respect for both at the

same time was inconceivable." 



Everyone acquainted with the Civil War who has carefully watched events since

that time must have seen a gradually accelerated movement of the centralization

of government commencing at that time. This was brought about by the

government's issue of legal-tender notes, by the creation of our national banking

system, 



1 Dunning, Essays on the Civil War and Reconstruction, pp. 30, 31. 





and especially by the protective tariff then instituted and since continued.

Hamilton, in his masterly statement on the currency, said that bills of credit and

paper emissions were expressly forbidden to the states by our present

Constitution, and that the spirit of that prohibition extended to the National

Government. Notwithstanding that it was the intent of the framers of the

Constitution to prohibit the National Government, as well as the states, from

making paper money legal tender, Congress, in 1862, declared such paper lawful

money and a legal tender in payment of public and private debts, and authorized

the issue of $150,000,000 in notes, our present greenbacks. Never before had a

statute of the United States made anything but gold and silver coin a legal

tender in payment of debts. The United States Supreme Court, at a later date, in a

suit where these notes had been tendered and rejected in payment of a debt

existing before the war, held that the act making them legal tender was

unconstitutional; but afterwards, when the court was differently constituted,

reversed its own decision. Without discussing further at the present time the

constitutionality of this issue, all will acknowledge that the exercise of the power

has made the government all powerful in banking and commercial affairs. When

a government issues the money of the country and has the tempting power to

increase the amount for use in aiding private bankers, such power makes the

government almost omnipotent. 



On February 5, 1791, the first national bank was established. At that time there

were only three banks in the United States, and it was contended that it would 





secure the collection, transportation, and circulation of the national revenue

from one part of the country to another. This was thought to be a sufficient

justification for its creation. It was proposed in the Constitutional Convention to

insert a provision for the creation of such a corporation, but this was opposed

by James Madison and many of the other members, and was defeated.1 When

the question of the renewal of the bank charter came up in 1810, Henry Clay

declared it as his opinion that the Constitution conferred no power upon

Congress to charter a bank or to renew its charter. Clay well said, "Is it to be

imagined that a power so vast would have been left by the wisdom of the

Constitution to doubtful inference? ... If, then, you could establish a bank to

collect and distribute revenue, it ought to be expressly restricted to the purposes

of such collection and distribution."2 



Now the original bank was permitted for the restricted purposes of the collection

and distribution of the moneys of the United States Government, which at that

time were collected at different points throughout the whole country. Because of

the small number of banks, it was regarded as a necessary means of carrying on

the fiscal powers of the government. When the national banking system was

established during the war there were ample banking facilities throughout the

country. The National Government, however, by passing an act imposing a tax

of ten per cent upon the circulation of these state banks, actually destroyed

them and sub- 



1 4 Elliot's, Deb , pp 413, 474, 611; 5 Elliot's Deb , p. 440. 2 4 Elliot's Deb , p. 458. 





stituted its vast banking system, now counting upward of fifteen thousand

banks scattered in every city and village of the land.1 It is true that the United

States Supreme Court, in the case of McCulloch v. Maryland, sustained the

constitutionality of the act renewing in 1816 the charter of the bank of the United

States. But the charter of this bank was renewed as the fiscal agent of the

government at a time when there were comparatively few banks. The national

banking system, however, was created, as we have said, to supplant the State

banks, and did supplant them by taxing their circulation out of existence. The

result of the national banking act was the creation of thousands of banks, not a

single bank. 



Senator Beveridge, of Indiana, in The Reader of March, 1907, says: "State rights

denied the existence of this power, 'the power of the general government to

create a national bank,' and it seemed that state rights had the best of the

argument, contending that the national government has only the enumerated

powers, and has no power except such as is expressly delegated to it by the

Constitution." However this may be, the creation of thousands of banks

scattered all over the land more than any other one cause has centralized power

in the National Government. Once admit the authority to create corporations by

the government, and the other authority to interfere with the internal affairs of

the states through the power to regulate commerce, and it would seem to follow

that Congress may enact a general law for the creation of as many corporations

as promoters desire, may control railways and all means of 1 Veazie Bank v.

Fenno, 8 Wallace, 533. 





intercommunication and reduce the states to insignificance. 



Under the cover of levying customs duties at seaports, Congress, by the war

tariffs, took control of the whole manufacturing industry of the country. About

every manufacturer in the whole land is now looking to Congress for the

creation of prosperity by obstructing foreign commerce through high protective

tariffs. Under the power to regulate commerce the government destroys foreign

imports or cripples them to such an extent as will benefit the few thousands who

manufacture the same kind of goods in our own country. This is done at the

expense of tens of millions who buy them at enhanced prices, and it is the

exercise of the most despotic power conceivable on the part of government. In

this way the United States Government has come into close touch with these

manufacturing interests all over the land, and is actually fixing the price of the

necessaries of life for eighty millions of people. It exercises the power of

determining the price of every shred of clothing which a man wears, of every

piece of furniture in his home, of every piece of lumber, every nail, every piece of

glass that enters into the construction of his house. Nobody would doubt that a

law attempting to fix the prices at which the domestic manufacturer could sell his

product would be unconstitutional, yet the Government indirectly, by means of

its taxing power, and its regulation of foreign commerce, passes a law which

enhances the price of the necessaries of life to everyone. This despotic power in

government, more than anything else, has brought about corruption. It has

turned the 





eyes of fifty thousand manufacturers to Washington for governmental privilege.

It is simply a usurpation of power on the part of the government exercised for

the benefit of the few at the expense of the remainder of its citizens. 



President Lincoln stated that, in his opinion, it was impossible for a state to

secede from the Union. He reaffirmed his statement in his first message to

Congress, and in his Non-Intercourse Proclamation of August 16, 1861, declared,

"Not the states but the inhabitants of the states were in insurrection against the

United States." The theory which he maintained throughout the war and down

until his death was that the state was indestructible either through its own act or

through the act of the United States Government. During his lifetime he

established a state government in Louisiana and one or two other of the

Southern States, and he maintained until the day of his death that the states

were in the Union and had never been out of the Union. In the last speech which

he ever made, April n, 1865, four days before his death by assassination, he said:

"I am much censured from some supposed agency in setting up and seeking to

sustain the new state government of Louisiana. In this, I have done just so much

as, and no more than, the public knows." 



Never once in diplomatic correspondence or in proclamations or in any act of

Congress during the war, did the Federal Government directly admit the

existence of a state of war in the South. The carrying of mails and the

performance of all governmental functions in the South continued during the

war so far as 





the Government was able to carry them on. At the close of the war the United

States courts commenced to sit in the circuits of the South and the United States

Supreme Court commenced to hear appeals from the Southern States. Lincoln's

view of the indissoluble character of the Union was sustained by the United

States Supreme Court. Chief Justice Chase, speaking for the Court, said of the

ordinances of secession: "They were utterly without operation in law. The

obligations of the state, as a member of the Union and as a citizen of the United

States, remained perfect and unimpaired. It certainly follows that the state did

not cease to be a state, nor her citizens to be citizens of the Union."1 



President Johnson adopted the attitude of Lincoln toward the Southern States

and tried to carry out the dead President's ideas. He established a state

government in each of the Southern States. The thirteenth amendment to the

Constitution was submitted to many of these states and was approved by them,

so that it would seem that their legality was recognized by Congress. The

temporary organization of the Southern States under the proclamations of

Presidents Lincoln and Johnson were permitted to remain in force until the

spring of 1867. The Republican Party in the House of Representatives, led by

Thaddeus Stevens, openly admitted that they desired to reconstruct the

Southern States so as to destroy the Democratic majorities which had existed

there before the war. In the language of Mr. Stevens, they maintained that the

Southern States were only "dead carcasses lying within the Union. . . . 1 Texas v.

White, 74 U. S., 726 of opinion. 





They have torn their constitutional states to atoms and built on their

foundations fabrics of a totally different character. Dead men cannot raise

themselves. Dead states cannot restore their own existence 'as it was.' Whose

especial duty is it to do it? In whom does the Constitution place the power? "1

And he concluded that that power was in the Congress and that the Southern

States might be treated as subject provinces and new states created therein. 



Accordingly, Mr. Stevens, as leader of the House, with a rancor of hatred never

exceeded, devised a law for the reconstruction of the Southern States as odious

for tyranny and cruel injustice as was ever conceived by the perverse

intelligence of man. On March 2, 1867, Congress passed, over the President's

veto, a bill entitled "An Act to Provide for the More Efficient Government of the

Rebel States." It was, however, an act for the more thorough military subjection

of the Southern States and is known as The Reconstruction Act. This act recited

that no legal state government or adequate protection of life and property

existed in the states of Virginia, North Carolina, South Carolina, Georgia,

Mississippi, Alabama, Louisiana, Florida, Texas, and Arkansas, and it provided

that these states should be divided into five military districts under the

command of officers of the army, assigned thereto by the President. Each of

these commanders was to have under his control troops enough to enforce his

authority. They were endowed with unlimited power over all the people of each

district, the will of the military commander tak-1 Cox, Three Decades of Federal

Legislation, p. 367. 





ing the place of the law. He could declare anything a crime which he chose to

call so, and condemn and punish whomsoever he pleased. He was empowered to

arrest the people of his department without warrant, accusation, or proof of

probable cause. He could have them tried before local magistrates or before

himself. He was empowered to remove all local magistrates if he desired. If,

without his permission, a state court presumed to exercise legal jurisdiction over

the trial of a person arrested he could break up the trial and punish the judge and

the jurors. 



In vetoing the bill, President Johnson said: "Such a power has not been wielded

by any monarch in more than five hundred years. In all that time no people who

speak the English language have borne such servitude." The States of

Mississippi and Georgia hastened to commence actions in the United States

Supreme Court, asking the court to enjoin the President from the enforcement of

this unconstitutional law which they declared would absolutely destroy the

existence of their states, but the court held that it had no jurisdiction to enjoin

the action of the President.1 



The supplementary act of reconstruction of July 19, 1867, provided that the

commanders of any district might remove any state, municipal, or other official

and fill his place subject only to the disapproval of the general of the army; and

it was made a duty of the commander "to remove from office all persons who are

disloyal to the government of the United States or who 



1 Mississippi v. Johnson, 4 Wallace, 475, Georgian. Stanton, 6 Wallace, 50. 





use their influence in any manner to hinder, delay, prevent, or obstruct the due

and proper administration of this act and the acts to which it is supplementary."

The act provided that no commander should be bound by any opinion of any

civil officer of the United States. General Schofield was assigned to the first

district, which included Virginia; General Sickles to the second district of North

and South Carolina; General Pope to the third district of Georgia, Alabama, and

Florida; General Ord to the fourth district of Mississippi and Arkansas, and

General Sheridan to the fifth district of Louisiana and Texas. 



Now observe how some of these generals ruled their departments. General

Sickles prohibited the manufacture of whisky in North Carolina, saying that the

grain was needed for food, and he prohibited the hotel keepers from selling

intoxicating liquor; he created a trustee of Newbern Academy, enacted stay laws

in North and South Carolina, and abolished imprisonment for debt; suspended

the sale of property upon execution for liabilities contracted before December 19,

1860, and suspended the foreclosure of mortgages for one year. In his

mightiness he decreed that the wages of agricultural labor were liens upon the

crops; created homestead exemptions for those having families dependent upon

their labor; abolished distress for rent; 



ordered that the currency of the United States be recognized as legal tender;

decreed that absent debtors be exempted from attachment, and forbade bail in

suits brought to recover ordinary contract debts. He prohibited discrimination in

public conveyances between 





citizens because of color, and decreed that anyone injured by such

discrimination had a right of action for damages. He acted as a reviewing court

and set aside a decree of the South Carolina Court of Chancery providing that

the portion of a fund raised to remount a Confederate cavalry force in 1865

remaining unused was to be returned to the contributors, and he judicially

determined that the money belonged to the United States. 



General Pope removed the mayor, the chief of police, and other municipal

officers of Mobile, and filled their places with "efficient Union men"; decreed

that the printing patronage in his department should be given only to the

newspapers that did not oppose reconstruction; allowed Republican candidates

for office in his department to act as election officials, charged with the

supervision of the voting in which they had an interest, and authorized them to

receive the votes of persons who were not registered in the precinct in which

they offered their votes. 



General Sheridan, at New Orleans, removed Governor Wells, of Louisiana, and

appointed another man as governor in his place; decreed that colored men

should be accepted as jurors; abolished the Louisiana Levee Board and

assigned its duties to commissioners of his own appointing. He also abrogated

an act of the Texas Legislature arranging the judicial districts in that state, upon

the ground that the act, as he believed, had been passed for the purpose of

legislating two Union judges out of office. 



General Ord suspended proceedings looking to the 





sale of an estate on account of a deed of trust for money due for the purchase of

negroes; commanded that illicit stills and their products be sold for the benefit of

the poor on the ground that "poverty increased where whisky abounds";

suspended until the end of the year 1867 the judgment sale of lands under

cultivation, crops, or agricultural implements, in actions arising before January 1,

1866; and caused the arrest and conviction by court-martial of W. H. McCardle,

the editor of a Vicksburg newspaper, on the charge that he had published

articles in his paper to incite the people to a breach of the peace and to impede

reconstruction.1 



McCardle procured a writ of habeas corpus from Judge Hill of the United States

District Court. Upon the return thereof General Ord set forth that he held the

prisoner by authority of the acts of Congress known as the Reconstruction

Acts, and the court dismissed the writ. McCardle appealed from the decision to

the Circuit and then to the Supreme Court of the United States, which denied a

motion to dismiss his appeal and heard the case argued. The case, inasmuch as

it involved the constitutionality of the Reconstruction Acts, was argued very

fully before the United States Supreme Court between the second and ninth

days of March, 1868. Mr. Rhodes says:2 "The constitutionality of the

Reconstruction Acts was involved, and as five out of the nine Supreme Court

judges believed them unconstitutional (so an apparently well-founded report

ran) the 



1 Dunning, Essays on the Civil War and Reconstruction, pp. 162 — 72. 



2 Rhodes, History of the United States, vol. vi, pp. 96, 97. 





Republicans in Congress were much alarmed. The House passed a bill requiring-

two thirds of the judges to concur before any law should be deemed invalid, but

this was never brought to the Senate from its Judiciary Committee. Later,

however, the two Houses agreed on an act passing the same over the

President's veto (March 27, 1868) which, though general in its terms, took away

from the Supreme Court its jurisdiction in the McCardle case and the appeal was

therefore dismissed."1 



This method of heading off appeals was a common one in Reconstruction days.

About every important act passed in that period when it once reached the

United States Supreme Court was declared unconstitutional. The Tenure of

Office Act was another illustration of such methods, practically taking away

from President Johnson his right of removal from office. He removed Stanton,

Secretary of the War Department, putting General Thomas in his place. An

altercation and arrest followed, and an effort was made by the attorney-general

to raise the question of the constitutionality of this act by appeal, but the

complaint of Secretary Stanton was withdrawn and the effort to test its

constitutionality thus destroyed. 



In 1789 the leading members of the House of Representatives discussed at great

length the power of the President of the United States to remove a Secretary of

the Department of Foreign Affairs from office without the consent of the Senate,

and it was determined, by a vote of thirty-four to twenty, that the President had

full 1 Ex parte McCardle, 6 Wallace, 634, 7 Wallace, 512. 





power to remove without the concurrence of the Senate.1 The determination

then made was followed until the administration of President Johnson, and then

the Tenure of Office Act was passed for the purpose of depriving him of the

right of removal. Since that time the right has been acknowledged and to-day is

unquestioned. 



The Reconstruction Act provided for the election of a constitutional

convention, and the formation of a constitutional government in each of the

Southern States, excluding the greater part of the white voters of those states

from taking part in the formation of their government. Then Congress made their

adoption of the fourteenth amendment to the Constitution a condition of its

receiving as members the representatives of the states which had framed

constitutions. 



Congress, in April, 1866, passed what was known as the Civil Rights Act. On

March 31, 1870, it passed what was known as the Enforcement Act; again on

February 28, 1871, a third act amending the Enforcement Act; and on April 20,

1871, a fourth act amending the Enforcement Act. All of these laws were

unconstitutional. The last amendment provided as follows: "If two or more

persons in any state or territory conspire or go in disguise upon the highway or

upon the premises of another for the purpose of depriving, either directly or

indirectly, any persons or class of persons of the equal protection of the laws or

of equal privileges and immunities under the laws, or for the purpose of

preventing or hindering the constituted authorities of any state or territory from 



1 Elliot's Deb., pp. 350-404. 





giving or securing to all persons within such state or territory the equal

protection of the laws; he or they are guilty of a misdemeanor and, upon

conviction, liable to a fine of not less than $500 or greater than $5,000, and

imprisonment for not less than six months nor more than six years, or both said

fine and imprisonment." 



This law was known as the Ku Klux Law, and it sought to give to the National

Government the power to execute the criminal laws in each of the states,

especially in each of the Southern States where it was alleged that the Ku Klux

were committing depredations upon the property and taking the lives of colored

people. For eleven years this continued to be enforced. Finally, a case deciding

their constitutionality reached the United States Supreme Court, and that court

held that the law was not directed to the act of a state, but only against the acts

of individuals gathering for the commission of crime, and that the fourteenth

amendment to the Constitution did not apply to such a condition; that the law

was directed merely against ordinary crime in the state, of which the state courts

had exclusive jurisdiction, and that the law was unconstitutional and void.1 



On March 1, 1875, General Grant approved a bill known as the Civil Rights Bill,

the first bill mentioned above being unconstitutional. Its object was to secure to

negroes equal rights in inns, public conveyances, and places of public

amusement, and to prevent them from being deprived of the right of sitting on

juries. Eight 



1 United States v Harris, 106 U. S., 629, United States v. Cruikshank, 92 U. S., 542.





years later the United States Supreme Court declared the first and second

sections of the act null and void, holding that so long as a state did not pass a

law depriving the negro of these rights the Supreme Court could not interfere,

since the prohibition of the fourteenth amendment was directed against a state

which discriminated against a citizen for any reason, and deprived him of the

civil rights which other citizens enjoyed; and that, under the fourteenth

amendment, Congress had no authority to attempt to regulate the rights of the

citizens of the states, thus leaving the whole question of the social rights of a

citizen where it had ever belonged — to the state governments.1 



The constitutions in many of the states, reorganized by carpetbag politicians,

contained many provisions intended to prevent the Southern leaders, who had

had connection with the war, from even earning their livelihood. In the

Constitution of Missouri there was a provision to the effect that every person

who had aided and sympathized with the South was incapable of holding any

office of honor or profit or trust in the state. No such person could be an officer,

trustee, or manager of any public or private corporation, he could not act as a

professor or teacher in any educational institution or in any common school, nor

could he hold any real estate or other property in trust for any church, religious

society, or congregation. An oath of loyalty was required as a condition

precedent to his exercising the calling of a bishop, priest, deacon, clergyman, or

lawyer, such oath being that he had never directly or indirectly done Civil Rights

Cases, 109 U. S., 1. 





any of the acts of disqualification against which the amendment was leveled. 



Sixty days after this Constitution took effect no person was to be allowed,

without first taking this oath, to practice as attorney at law, or to act as priest,

deacon, minister, clergyman, etc., of any religious persuasion. If he continued

without taking such oath after the sixty days he was liable, on conviction

thereof, to be punished by a fine of not less than $500, or imprisonment of not

less than six months in the county jail, or both, at the discretion of the court. The

Rev. Mr. Cummings, a priest of the Catholic Church and a citizen of Missouri,

was indicted and convicted in the Circuit Court of Pike County for continuing

his work as priest without taking such oath. He was sentenced to pay a fine of

$500 and to be committed to jail until the fine and the costs were paid. On appeal

from this decision to the United States Supreme Court, the question was

presented whether this act was not in fact a bill of attainder, and whether it was

not obnoxious to that clause of the Constitution of the United States which

prohibited a state from passing such bill of attainder or ex post facto law. That

court held the law ex post facto in its nature and reversed the decision of the

state court.1 



The Constitution provides that the times, places, and manner of holding the

elections for senators and representatives shall be prescribed in each state by

the legislature thereof, but that Congress at any time may 



1 Cmnmings v. State of Missouri, 4 Wallace, 277; ex parte Garland, 4 Wallace,

333. 





alter such regulations, except as to places of choosing the senators. No clause in

the Constitution created so much opposition before the conventions of the

adopting states. The conventions in North Carolina, South Carolina, Virginia,

Massachusetts, Rhode Island, New Hampshire, and New York strongly

remonstrated against it, but the people were assured that the National

Government would never avail itself of the provision. For many years, however,

after the Civil War and until well down in the eighties. Federal supervisors and

marshals were empowered by a statute of Congress to supervise elections in

every state where members of Congress